Appeal from the United States District Court for the District of Arizona. DC No. CR-91-00084-08-PG. Paul G. Rosenblatt, District Judge, Presiding
Before: Boochever, Noonan, and O'scannlain, Circuit Judges.
Devon Kent Williamson appeals his conviction for conspiracy to possess with the intent to distribute marijuana in violation of 21 U.S.C. § 846. Williamson argues that the evidence against him was insufficient because (a) the testimony of one of the government's chief witnesses, James Dunn, was incredible as a matter of law and (b) no evidence was presented that Williamson entered into an agreement with the alleged co-conspirators. We find that a rational jury could have believed Dunn to be credible and that sufficient evidence of an agreement between Williamson and the alleged co-conspirators was presented. Accordingly, we affirm Williamson's conviction.
"In reviewing the sufficiency of the evidence, we determine whether any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. The test is whether the evidence and all reasonable inferences which may be drawn from it, when viewed in the light most favorable to the government, sustain the verdict." United States v. Soto, 779 F.2d 558, 560 (9th Cir.), modified, 793 F.2d 217 (9th Cir. 1986), cert. denied, 484 U.S. 833 (1987) (citations omitted).
II. Credibility of James Dunn.
Williamson asserts that the testimony of James Dunn should have been disregarded because (1) Dunn's story that he returned to the hotel after initially leaving with the marijuana in his car conflicted with FBI Agent Sanderson's claim that he saw no car in front of the hotel at that time; (2) Dunn's claim that he returned to his hotel room twice to retrieve his wallet and some cash conflicted with FBI Agents Sanderson and Edmond's testimony that they did not see Dunn return to the room; (3) Dunn claimed that four phone calls had been made from the hotel room when hotel records showed that only one call had been made; and (4) a series of Dunn's statements appear internally inconsistent.
On issues of witness credibility, we typically defer to the jury's assessment when reviewing for sufficiency of the evidence. United States v. Martinez, 967 F.2d 1343, 1346 (9th Cir. 1992). However, we need not sustain a conviction where uncorroborated testimony is "incredible or unsubstantial on its face." United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987). See also Galloway v. United States, 130 F.2d 467, 471 (9th Cir. 1942), aff'd, 319 U.S. 372 (1943) ("In the civil context, if the evidence presented by a party is positively contradicted by the physical facts, neither the court nor the jury is permitted to give it credence.").*fn1
We believe that a rational jury could have found Dunn credible. Dunn's testimony was corroborated on many material points (see Discussion in Section II, supra), and where uncorroborated, it did not necessarily conflict with the other evidence offered. First, Dunn's story that he returned to the front of the hotel and Agent Sanderson's claim that he did not see Dunn are not necessarily contradictory. The events testified to occurred at night. Agent Sanderson testified that he "looked down" the front parking lot as he approached Broadway and that he did not see any brake lights, taillights, or car. Dunn, however, stated that he turned off his lights when he parked in the front lot. Moreover, Agent Sanderson's pursuit of Dunn was delayed and hurried. It is conceivable that Agent Sanderson simply may have missed Dunn's car given the timing, the nature of his search, and the darkness.
Second, the fact that Agent Edmond did not testify that he saw Dunn return to the hotel room to retrieve his wallet and cash does not necessarily undermine Dunn's testimony. Neither Agent Sanderson nor Agent Edmond may have been positioned to see Dunn's hotel room when Dunn returned. Apparently, Agent Edmond waited outside to meet Agent Sanderson after Sanderson lost contact with Dunn's vehicle. Dunn could have returned to his room undetected at that time.
Finally, Dunn's testimony as to the number of phone calls from the hotel room and the various inconsistencies that Williamson cites do not render Dunn unbelievable. To the extent that there were internal inconsistencies in the testimony or contradictions between Dunn's testimony and other evidence offered, a rational jury could still have believed the other portions of Dunn's testimony. We find the resolution of the credibility issue in this case similar to that in Lopez:
[Dunn's] testimony was not incredible on its face; the jury could and did find it believable. [Appellees] presented extensive evidence impeaching [Dunn]. The jury was aware of the challenges to [Dunn's] credibility; nevertheless, it believed him. That was its proper prerogative.
Accordingly, we hold that Dunn's testimony was not incredible ...