                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0465n.06
                             Filed: August 4, 2008

                                                07-3584

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                            )
                                                     )
        Plaintiff-Appellee,                          )
                                                     )
v.                                                   )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
JASON WILLIAM KING,                                  )    SOUTHERN DISTRICT OF OHIO
                                                     )
        Defendant-Appellant.                         )




        Before: DAUGHTREY and McKEAGUE, Circuit Judges; VAN TATENHOVE,*

District Judge.


        PER CURIAM. The defendant, Jason William King, alleges that the evidence

adduced at his jury trial was insufficient to support his conviction on two counts of

distributing more than five grams of crack cocaine and, consequently, that the district judge

erred in denying his motions for judgment of acquittal pursuant to Rule 29 of the Federal

Rules of Criminal Procedure. We find no merit to this contention and affirm the judgment

entered by the district court.




        *
          The Hon. Gregory Van Tatenhove, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
07-3584
United States v. King

       In analyzing any challenge to the sufficiency of the evidence, we must determine

whether, viewing the trial testimony and exhibits in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In doing

so, however, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or

substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620

(6th Cir. 1993). Moreover, the evidence need not exclude every reasonable hypothesis

except that of guilt. United States v. Adamo, 742 F.2d 927, 932 (6th Cir. 1984).


       In an effort to satisfy its evidentiary burden at trial in this matter, the government

offered the testimony of informant Martavious Arnold and of four officers of the Columbus

(Ohio) Police Department. In his testimony, Arnold first conceded that he had agreed with

federal prosecutors to testify against King in exchange for a reduction in his own sentence

in an unconnected drug-trafficking case from at least 20 years in prison to a mere three

years’ incarceration.


       The informant also asserted that he had known Jason King for more than ten years,

and that he agreed with the police to attempt to purchase drugs from King. In furtherance

of that subterfuge, Arnold telephoned the defendant on June 1, 2005, and expressed a

desire to meet King at a specified location to buy an ounce of crack cocaine. After making

those arrangements, Arnold contacted Detective John Whitacre of the Columbus Police

Department to relate to him the plan for the drug purchase. When Whitacre arrived at the


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07-3584
United States v. King

scene, the detective searched Arnold to ensure that the informant was not already in

possession of other drugs or money, gave Arnold $760 to purchase the crack, and set up

a surveillance position in an unmarked van to view the transaction. Additional police

officers also assumed positions around the perimeter of the area so as to be able to follow

the defendant when he departed the location of the drug buy.


       Arnold and Whitacre each testified that defendant King eventually drove to the

predetermined spot in an older model “orange-ish, brownish” sedan. Arnold entered that

vehicle, paid the defendant $760, and received in exchange ten dollars change and a bag

containing 30.8 grams of crack cocaine. After the seller drove away from the area, Arnold,

who had remained in Whitacre’s sight throughout the transaction, returned to the van and

gave the detective the drugs and the change he had received from King. Whitacre alerted

his fellow officers when the “orange-ish, brownish” car left the area and those other officers

took turns following the car, maintaining visual contact with it until stopping it and asking

for the driver’s identification. The officer who made the traffic stop identified King in court

as the driver and sole occupant of the vehicle, stated that King offered him a driver’s

license issued to “Jason King,” and further testified that a check on the vehicle’s temporary

tags indicated that the owner of the vehicle was the defendant, Jason King. After obtaining

that information, the officer permitted King to proceed on his way without issuing a ticket

or other citation.




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07-3584
United States v. King

       On July 19, 2005, Arnold again contacted King by phone and agreed to meet him

once more at the location of the prior drug transaction in order to purchase another ounce

of crack cocaine, this time for $700. The informant then contacted Detective Whitacre

before the defendant’s arrival, underwent another search of his clothes and person by

Whitacre, and again was directed to remain in sight of the van parked across the street,

from which the detective would be observing the proceedings. For this second transaction,

backup police officers parked in a different vehicle approximately 200 feet away from the

van and operated a hidden video camera in an effort to record any illegal activities.


       When the defendant arrived to meet with Arnold, King was seated in the front

passenger seat of a teal-colored Honda driven by an unidentified woman.            Arnold

nevertheless stepped into the back seat of the car, gave the defendant the money provided

by Whitacre, “and got another ounce” of crack cocaine from “Jason” in exchange.

Although the videotape filmed from the hidden location admittedly never showed the

informant’s hands and never showed the defendant reaching into the backseat to hand

illegal drugs to Arnold, Detective Whitacre, who observed the exchange from a different,

much closer vantage point, testified unequivocally, “I saw Mr. Arnold hand money through

the front, through the middle of the front seats. And then I saw Mr. King pass what looked

to be a bag or small object to the back seat.”


       At the conclusion of the transaction, Arnold exited the Honda and returned to

Whitacre’s van to transfer the purchased drugs to the detective. Stipulated testimony at


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07-3584
United States v. King

trial indicated that the crack cocaine obtained in this second transaction between Arnold

and King weighed 27.2 grams. Nevertheless, neither Whitacre nor any of the backup

officers in the area at the time followed the Honda or attempted to stop the defendant and

the driver. According to Whitacre, he did not request any such action “[b]ecause I knew

who Mr. King was. I expected to see Mr. King in the future in the same manner . . . .”


       Based upon this testimony, the jury concluded that King was guilty of distributing at

least five grams of crack cocaine both on June 1, 2005, and on July 19, 2005. The district

court denied the defendant’s motion for judgment of acquittal that it had held under

consideration pending the jury’s verdict and sentenced King to concurrent prison terms of

120 months.


       The defendant’s appellate challenge to the sufficiency of the convicting evidence

focuses in large part upon his contention that Martavious Arnold’s testimony was not

worthy of belief because of the witness’s incentive to assist the prosecution in exchange

for leniency in sentencing in another criminal matter. As we noted in Adamo, however:


       [A]ttacks on witness credibility are simply challenges to the quality of the
       government’s evidence and not to the sufficiency of the evidence. Such
       attacks make for effective closing arguments on behalf of a defendant, but
       are irrelevant with regard to the Rule 29 insufficiency standard. Evidence
       may be held insufficient, therefore warranting taking the case from the jury,
       only if the government’s case lacks evidence in support of one or more
       elements of the offense charged.


Id. at 935.


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07-3584
United States v. King

       Furthermore, the defendant’s assertion that Arnold’s testimony was not sufficiently

corroborated cannot afford him the relief he seeks.          First, as we have consistently

recognized, “[t]he uncorroborated testimony of an accomplice alone may support a

conviction” under federal law. United States v. Clark, 18 F.3d 1337, 1343 (6th Cir. 1994).

In this case, the jury obviously credited the informant’s testimony that he was a long-time

acquaintance of the defendant and that he consummated two transactions with King, each

involving an amount of crack cocaine in excess of five grams.


       Second, even if we were to require corroboration of accomplice testimony in order

to sustain a jury verdict, such supporting evidence is present in this record. Although King

argues that no testimony, other than Arnold’s, necessarily ties him to the June 1, 2005,

drug transaction, Columbus police officers stated under oath that they took turns following

the vehicle involved in the drug deal, that they never lost sight of the vehicle, that no one

exited or entered the vehicle after it left from the site of the sale, and that when the vehicle

was finally stopped, the defendant was found to be the sole occupant of the automobile.

Furthermore, the driver of the car produced a driver’s license identifying him as Jason King,

and a computer check of the temporary tag affixed to the vehicle indicated that the car had

been registered to the defendant. From this evidence, and all reasonable inferences that

might be drawn from it, a rational trier of fact could have concluded beyond a reasonable

doubt that Jason King was indeed the individual who sold crack cocaine to Martavious

Arnold on June 1, 2005.



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07-3584
United States v. King

       Likewise, even though the police chose not to follow and apprehend the occupants

of the car in which the July 19, 2005, drug transaction took place, sufficient evidence --

other than Arnold’s own testimony -- tied the defendant to that second crack cocaine sale.

Indeed, although King focuses on the fact that the video of the drug deal apparently fails

to record the defendant himself either accepting money from Arnold or passing the crack

cocaine to the informant, he ignores the testimony of Detective Whitacre that the officer,

from a vantage point better than that of the camera operator, clearly observed not only

Arnold handing money to King, but also King passing “what looked to be a bag or small

object to the back seat.” In light of that testimony, a rational trier of fact could find beyond

a reasonable doubt that the defendant was guilty of the July 19, 2005, crime charged in

count two of the federal indictment against King.


       The sole issue raised on appeal by Jason King is thus without factual and legal

merit. We therefore AFFIRM the judgment of the district court in this matter.




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