United States v. Fuller
United States v. Fuller
Opinion of the Court
SUMMARY ORDER
These causes came on to be heard on the record from the United States District Court for the Eastern District of New York, and were argued by counsel for appellant Fuller and appellee, and submitted by counsel for appellant Austin.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgments of said District Court be and they hereby are affirmed.
Defendants Carl Fuller and William Austin appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before I. Leo Glasser, Judge, convicting them of conspiring to transport stolen vehicles, in violation of 18 U.S.C. § 371, and sentencing them principally to prison terms of 51 and 37 months, respectively, with each prison term to be followed by a three-year period of supervised release. On appeal, Fuller and Austin contend principally that the evidence was insufficient to support their convictions, that the trial court’s instructions to the jury impermissibly amended the indictment, that the court made various errors in calculating their respective sentences under the Sentencing Guidelines (“Guidelines”), and that they were entitled to have the jury determine the value of the vehicles used to calculate their sentences. Finding no merit in their contentions, we affirm.
Defendants challenge the sufficiency of the evidence to support their convictions, arguing that the government’s only proof of their roles in the conspiracy was testimony from cooperating witnesses who at times offered contradictory or conclusory statements, and that there was no other evidence to corroborate that testimony. We reject this challenge. Lack of corroboration goes to the weight of the evidence, not to its sufficiency, see, e.g., United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989), and “the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal,” United States v. Giralda, 80 F.3d 667, 673 (2d Cir.), cert. denied, 519 U.S. 847, 117 S.Ct. 135, 136 L.Ed.2d 83 (1996); see, e.g., United States v. Roman, 870 F.2d at 71. In assessing the weight of the evidence, the jury is free to credit all or part of the testimony of a given witness, see, e.g., United States v. Gleason, 616 F.2d 2, 15 (2d Cir. 1979), cert. denied, 444 U.S. 1082, 100 S.Ct. 1037, 62 L.Ed.2d 767 (1980); and in reviewing the defendant’s sufficiency challenge, we must view the evidence in the light most favorable to the government, see, e.g., United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir. 1986), and “defer to the jury’s determination of the weight of the evidence and the credibility of the witnesses, and to the jury’s choice of the competing inferences that can be drawn from the evidence,” United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998). In the present case, the testimony of three cooperating witnesses and one confidential informant, which the jury was entitled to credit, was ample to show that Fuller and Austin discussed stealing cars and regularly brought stolen cars to another coconspirator for, inter alia, alteration of their VINs and security features. Accordingly, their sufficiency challenge has no merit.
Fuller and Austin make several challenges to their sentences. First, they contend that, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), they were entitled to have the value of the vehicles used to calculate their sentences determined beyond a reasonable doubt by a jury. Since the sentences imposed on these defendants were below the statutory maximum, and the value of the stolen vehicles did not trigger a mandatory minimum, their value was a question properly decided by the sentencing judge, without need for a jury determination. See United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001). Apprendi is inapplicable.
In addition, defendants contend that the district court erred in calculating their sentences based on the total value of all the cars dealt in by the conspiracy, rather than just the cars each of them stole. We disagree. The Guidelines require that, in the case of conspiratorial activity, a defendant’s offense level be calculated on the basis of both his own acts and “all reasonably foreseeable acts” of others in furtherance of the conspiracy. Guidelines §§ lB1.3(a)(l)(A) & (B); see, e.g., United States v. Studley, 47 F.3d 569, 574-75 (2d Cir. 1995). The district court properly applied this provision to Fuller and Austin. Athough the court did not make findings of fact with respect to Austin and Fuller separately, the two were convicted of playing identical roles in the conspiracy, and we cannot conclude that either was prejudiced by the lack of discrete findings.
Finally, there is no merit in Fuller’s contention that he was entitled to a
We have considered all of defendants’ contentions on these appeals and have found them to be without merit. The judgments of conviction are affirmed.
Reference
- Full Case Name
- United States v. Carl FULLER and Willie Austin, also known as Shocky
- Cited By
- 1 case
- Status
- Published