IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-40839 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD MARIO HUGHES,

Defendant- Appellant.

------------------------------------------------------- Appeals from the United States District Court for the Eastern District of Texas USDC No. 2:01-CR-2-2 -------------------------------------------------------- January 24, 2003

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Gerald Mario Hughes appeals his conviction for conspiracy to distribute cocaine base

and distribution of cocaine base. Citing Apprendi v. New Jersey,

(2000) and Stirone

v. United States,

(1960), he argues that the district court erred in allowing the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Government to amend the conspiracy count of the indictment, after the close of the evidence, to

reduce the amount of crack alleged from 202.25 grams to “more than 50 grams.”

The general rule is that after an indictment has been returned, its charges may not be

broadened through amendment except by resubmission to a grand jury. United States v. Nunez,

(5th Cir. 1999)(quoting Stirone,

); United States v. Prior,

(5th Cir. 1977). A “constructive amendment” to the indictment occurs when an essential

element of the indictment is modified such that it allows the defendant to be convicted of an offense

not charged in the indictment. Nunez,

. It is not, however, an amendment to an

indictment to withdraw a portion of it from the jury’s consideration, usually because of the

Government’s inability to prove that part, provided that nothing is thereby added to the indictment,

the remaining allegations still charge the same offense as the original indictment, and the defendant

cannot show that the inclusion of the deleted language in the original indictment somehow prejudiced

him in the preparation of his defense. See Salinger v. United States,

(1926); Ford

v. United States,

(1927); Prior,

.

By reducing the amount of cocaine that could be attributed to Hughes, the Government did

not broaden the charges against him, rather it narrowed those charges. See Nunez,

-

31. The district court did not err by granting the Government’s motion to amend the indictment. See

Prior, 546 F.3d at 1257.

Hughes also argues that the evidence was insufficient to support either count of conviction.

With respect to the conspiracy count, Hughes’s argument is based solely on his contention that the

Government should not have been permitted to amend the indictment to reduce the amount of

cocaine attributed to him and thus it should have been required to meet its burden of proof of 202.25

-2- grams. As discussed above, Hughes’s argument regarding the amendment to the indictment is

without merit. Accordingly, Hughes’s argument that the evidence was insufficient because it failed

to prove the original amount alleged also is without merit.

With respect to the distribution count, Hughes argues that “[t]he only two witnesses who

purport to place the Appellant at the scene at the time of the transfer were codefendants testifying

pursuant to a plea agreement. Their testimony suffered from major contradictions on very basic

points.” He argues that the testimony of the two women suffered from “inexplicable contradictions”

in that they contradicted each other with respect to the role played by Vickie Rhymes during the

October 25th transaction.

Although he moved for a judgment of acquittal at the close of the Government’s case in chief,

Hughes failed to renew his motion at the close of evidence. Accordingly, Hughes has waived any

objection to the denial of his motion for a judgment of acquittal and this court’s review is limited to

determining “whether there was a manifest miscarriage of justice.” See United States v. McIntosh,

(5th Cir. 2002).

A jury is the final arbiter of the credibility of witnesses. United States v. Restrepo,

(5th Cir. 1993). Even if it is assumed that Hughes’s conviction was based solely on the

testimony of Rodgers and Evans, “a guilty verdict may be sustained if supported only by the

uncorroborated testimony of a coconspirator, even if the witness is interested due to a plea bargain

or promise of leniency, unless the testimony is incredible or insubstantial on its face.” United States

v. Bermea,

(5th Cir. 1994). “To be considered incredible as a matter of law, a

witness’ testimony must assert facts that the witness physically could not have observed or events that

could not have occurred under the laws of nature.” United States v. Gadison,

(5th

-3- Cir. 1993) (internal quotation marks, brackets, and citation omitted). The “inexplicable

contradictions” alluded to by Hughes are insufficient to support a finding that the challenged

testimony was incredible as a matter of law. See Gadison,

. Hughes’s conviction did

not result in a manifest miscarriage of justice. See McIntosh,

. AFFIRMED.

-4-