United States v. Jobita Avery

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, MYRON H. BRIGHT and STEVEN M. COLLOTON (UNPUBLISHED) [3748246] [10-2035]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-2035
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United States of America,

*
*
Plaintiff-Appellee,
*
* Appeal from the United States
v.
* District Court for the
* District of Nebraska.
Jobita Willetta Avery,
*
*
[UNPUBLISHED]
Defendant-Appellant.
*
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Submitted: December 17, 2010
Filed: January 25, 2011
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Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
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PER CURIAM.
A jury convicted Jobita Willetta Avery of conspiracy to distribute and possess
with intent to distribute 50 grams or more of cocaine base and less than 500 grams of
cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 841(b)(1)(A)(iii). The
district court1 sentenced Avery to 135 months’ (11 years, 3 months) imprisonment.
Avery appeals, challenging the evidence to support her conviction. We affirm.

1

The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

Appellate Case: 10-2035

Page: 1

Date Filed: 01/25/2011 Entry ID: 3748246

We review Avery’s insufficiency-of-the-evidence challenge de novo, viewing
the evidence in the light most favorable to the jury’s verdict. United States v.
Johnson, 519 F.3d 816, 821 (8th Cir. 2008). We accept all reasonable inferences that
support the verdict and will reverse only if no reasonable jury could have found Avery
guilty beyond a reasonable doubt. Id.
To convict Avery of conspiracy to distribute drugs, the government needed to
prove: (1) there was a conspiracy with an illegal purpose; (2) the defendant knew of
the conspiracy; and (3) the defendant intentionally became a part of the conspiracy.
United States v. Bowie, 618 F.3d 802, 812 (8th Cir. 2010). Direct evidence of a
conspiracy is not required. United States v. Parker, 587 F.3d 871, 880 (8th Cir. 2009).

Several witnesses testified that Avery and her co-defendant Jaktine Moore sold
them cocaine and crack cocaine and that Avery would go to Moore when she needed
more drugs to sell. Avery attacks the credibility of these witnesses, arguing that the
testimony was inconsistent and that the witnesses testified as a result of plea
agreements with the government.
But credibility determinations are virtually unassailable on appeal. See United
States v. Coleman, 525 F.3d 665, 666 (8th Cir. 2008) (“We have repeatedly upheld
jury verdicts based solely on the testimony of co-conspirators and cooperating
witnesses, noting that it is within the province of the jury to make credibility
assessments and resolve conflicting testimony.”). While there may be discrepancies
in the witnesses’ testimony, these issues were presented to, and rejected by, the jury.
Viewing the evidence in the light most favorable to the verdict, sufficient evidence
established that Avery conspired to distribute cocaine and crack cocaine.
Accordingly, we affirm Avery’s conviction.
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Appellate Case: 10-2035

Page: 2

Date Filed: 01/25/2011 Entry ID: 3748246