10-4637-cr
United States v. Smith

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1 .
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 12th day of April, two thousand twelve,

Present:    JOHN M. WALKER, JR.,
            CHESTER J. STRAUB,
            ROSEMARY S. POOLER,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                               Appellee,

                         -v-                                               10-4637-cr

SHAWN D. TAYLOR,

                               Defendant,

KITSON J. SMITH,

                               Defendant-Appellant.


Appearing for Appellee:        Benjamin Allee, Justin S. Weddle, Assistant United States
                               Attorneys (of counsel) for Preet Bharara, United States Attorney
                               for the Southern District of New York, New York, N.Y.

Appearing for Appellant:       Lawrence Sheehan, Bronx, N.Y.

       Appeal from the United States District Court for the Southern District of New York
(Karas, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Kitson Smith was convicted after jury trial of one count of conspiracy to
distribute at least 100 kilograms of marijuana, in violation of 21 U.S.C. § 846. He was sentenced
principally to 84 months’ imprisonment. Petitioner now appeals from his September 22, 2010,
judgment of conviction. On appeal, appellant asserts that the evidence was insufficient to
support the jury’s verdict. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

         Defendants raising sufficiency of the evidence challenges face a “heavy burden.” United
States v. Friedman, 300 F.3d 111, 123 (2d Cir. 2005) (internal quotation marks omitted). “In
evaluating such claims, we view the evidence in the light most favorable to the Government,
drawing all permissible inferences in the government’s favor.” Id. “[T]he relevant question is
whether, after viewing the evidence 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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). “To prove conspiracy, the government must show
that the defendant agreed with another to commit the offense; that he knowingly engaged in the
conspiracy with the specific intent to commit the offenses that were the objects of the
conspiracy; and that an overt act in furtherance of the conspiracy was committed.” United States
v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (internal quotation marks omitted).

        Smith basically makes only one argument: that the testimony of his co-conspirator,
Shawn Taylor, was incredible, and that accordingly, Smith’s conviction cannot be sustained.
This argument is meritless. All of the facts Smith points us to as to Taylor’s unreliability were
before the jury, which was entitled to credit his testimony or not. Such a credibility
determination is the exclusive province of the fact-finder. Moreover, even if Taylor’s testimony
was uncorroborated, we could not undo the verdict for that fact alone.

       The fact that a conviction may be supported only by the uncorroborated testimony of a
       single accomplice is not a basis for reversal if that testimony is not incredible on its face
       and is capable of establishing guilt beyond a reasonable doubt. Any lack of corroboration
       goes merely to the weight of the evidence, not to its sufficiency. Whether or not there is
       corroboration for an accomplice’s testimony, the weight of the evidence is a matter for
       argument to the jury, not a ground for reversal on appeal, and we must defer to the jury’s
       assessments of both the weight of the evidence and the credibility of the witnesses.

United States v. Parker, 903 F.2d 91, 97 (2d Cir. 1990) (internal citations omitted). Taylor’s
testimony was not incredible on its face. And, as the government notes, it was also corroborated.
The fact that Smith no longer worked at the warehouse but was witnessed unloading the
shipment with the forklift, that he was found in possession of the drill, that he signed for the
shipment—all of these facts corroborated Taylor’s version of events. Whether to credit Taylor in
light of these facts was a question for the jury alone. After reviewing the record, and considering
Smith’s arguments, we have no trouble concluding that a “rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.


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Accordingly, the judgment of the district court hereby is AFFIRMED.


                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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