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United States v. Mercado

July 17, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
ISAIAH MERCADO, DARRYL WINFREE, DEFENDANTS,
DAMION TOWNSEND, DEFENDANT-APPELLANT.*FN1



SYLLABUS BY THE COURT

Defendant Damion Townsend appeals from his conviction entered by the United States District Court for the Southern District of New York (Keenan, J.). The judgment of the District Court is affirmed.

AMANDA KRAMER, Assistant United States Attorney (Michael A. Levy, on the brief), for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.

The opinion of the court was delivered by: Calabresi, Circuit Judge

Argued: March 17, 2009

Before: CALABRESI and WESLEY, Circuit Judges, and DRONEY, District Judge.*fn2

Defendant Damion Townsend ("Defendant") appeals from his conviction for conspiracy to distribute, and possess with intent to distribute, fifty grams or more of cocaine base ("crack"), and an unspecified amount of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(C), and 846, entered by the United States District Court for the Southern District of New York (Keenan, J.). We assume the parties' familiarity with the facts, procedural history, and scope of the issues presented on appeal.

I. Sufficiency of the Evidence

Defendant argues that there was insufficient evidence to support his conviction. Specifically, Defendant contends that the Government's key witness was not credible, that there is no evidence that Defendant planned the drug transaction, and that there is insufficient evidence that Defendant was a knowing participant in any illegal conduct and rather that he was just an innocent man driving his friends around.

A. Standard of Review

A defendant challenging the sufficiency of the evidence underlying a criminal conviction bears a "heavy burden," because this Court "must review the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor." United States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004). "Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt." Id. at 459-60. "In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (internal quotation marks omitted) (omission in original).

B. Discussion

In light of this highly deferential standard of review and the evidence proffered against Defendant, this ground of appeal is meritless. The record includes evidence that Defendant had a relationship with an alleged co-conspirator, Ismaiyl Jones, discussed a drug sale with co-conspirators, drove his co-conspirators around as they planned a drug sale and picked up drugs, went with Jones to pick up cocaine, and helped to turn the cocaine into crack.

Defendant argues that the case against him all depends on Jones being a credible witness and contends that Jones was not credible. To be sure, a great deal of the Government's case relies upon Jones' testimony, and because Jones was a paid informant and cooperator, one might reasonably question his credibility. But that does not warrant an acquittal on appeal. For one thing, much of Jones's testimony was corroborated by eyewitness accounts from law enforcement officers, transmissions heard by a DEA agent, physical evidence, and recordings. Moreover, it is not for us to evaluate the credibility of a witness, a task better left to the jury. See United States v. Thompson, 528 F.3d 110, 119 (2d Cir. 2008) (per curiam). The jury that saw Jones testify voted unanimously to convict, and we must accordingly draw all inferences, including inferences as to credibility, in favor of conviction.

Defendant also makes two slightly more specific and related points, that there is no evidence that Defendant planned the drug transaction, and that there is insufficient evidence that Defendant was a knowing participant in any illegal conduct and rather was just an innocent man driving around his friends. Neither of these arguments, however, have any merit. It is necessary that there be evidence that Defendant "knew of the existence of the scheme alleged . . . and knowingly joined and participated in it." United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004) (internal quotation marks omitted). It is, however, in no way necessary that Defendant have planned the encounter. And there is ample evidence that Defendant's non-planning role was a knowing role. Defendant discussed drug prices, details of a drug transaction, and helped convert cocaine to crack. Defendant contends that this is not enough to support a finding of ...


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