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United States v. Shumaker

United States Court of Appeals, Eighth Circuit

August 9, 2017

United States of America Plaintiff- Appellee
v.
Leroy Shumaker Defendant-Appellant

          Submitted: May 12, 2017

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

          BEAM, Circuit Judge.

         Leroy Shumaker appeals his conviction and sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841, claiming that the district court[1] improperly denied his motion for a judgment of acquittal and motion for a new trial. For the reasons discussed below, we affirm.

         I. BACKGROUND

         On May 7, 2015, officers received information that a trailer located at Shumaker's residence contained a stolen rain-gutter machine. The officers also had information that Shumaker may have been involved in selling narcotics. Two officers arrived at Shumaker's residence around 3:00 p.m. and noticed a woman outside. The officers asked to speak with Shumaker inside his residence but he declined and stepped outside. He told the officers that he was storing the trailer for a friend and consented to a search of the trailer. The officers found the stolen rain-gutter machine inside the trailer. Shumaker agreed to go to the police station and answer questions. One officer remained at the house to tow the trailer. During the interview at the police station, Shumaker stated that he was holding the trailer for Troy Rickard.

         After the interview with Shumaker, an officer met with the owner of the stolen rain-gutter machine who informed the officer that additional items were stolen. Officers then obtained a search warrant for Shumaker's residence. During this time, two officers watched the entire perimeter of the residence to ensure no one left or entered the residence. Officers returned to Shumaker's residence later in the day and executed the search warrant. The officers assigned to secure the residence testified that no one had come or gone from the residence after Shumaker left. Because no one was in the residence and the front door was locked, officers entered through the porch window. The following items were found in the residence: three packages of methamphetamine in varying quantities, money totaling $1, 214, plastic baggies, two drug scales, three drug ledgers, large baggies with methamphetamine residue, a pair of tweezers, a Twigs Glass and Gift business card, a lighter, and a pipe. Sixty $20 bills, 28.84 grams of methamphetamine, a scale, and drug records were found in a kitchen cabinet. Officers located a bill addressed to Shumaker in the living room of the residence. There was no evidence that anyone other than Shumaker lived in the residence.

         On March 22, 2016, a federal grand jury returned a one-count indictment charging Shumaker with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841. He pled not guilty, and trial commenced on June 14, 2016. At trial, an officer testified that the baggies found in Shumaker's residence were "designer Ziplock baggies" that he had only seen used for transporting narcotics. The officer also stated that the large quantity of drugs, along with packaging materials, scales, ledgers, and currency, found in Shumaker's residence was clearly indicative of drug sales. At the close of the government's case, Shumaker moved for dismissal, claiming the government failed to meet its burden. The court denied the motion.

         Teresa Forbes, who knew Shumaker through her sign company and fruit stand, testified on Shumaker's behalf that she knew he used illegal substances but never saw him with large quantities. She also testified that she had seen "Bailey" at Shumaker's residence with large quantities of drugs. Shumaker testified that he has been using methamphetamine regularly for the past 35 years and that Briley Gonzalez, Troy Rickard, and Sonja Smithberg were his drug dealers. He further testified that when the police officers arrived at his house on May 7, 2015, Veronica Lopez was outside and Gonzalez, his current methamphetamine supplier, was doing laundry inside his residence. Shumaker speculated that the methamphetamine found in his kitchen was left by Gonzalez because he claimed it was not there when he left to go to the police station. On rebuttal Rickard testified that when his main methamphetamine supplier was not available, his girlfriend, Smithberg, introduced him to Shumaker. Rickard further testified that he went to Shumaker's house and purchased methamphetamine from Shumaker three times in late 2014 or in the winter of 2015. Rickard specifically noted that Shumaker kept the methamphetamine and scale in a cabinet in the kitchen. He described the residence and location of the methamphetamine before officers showed him any pictures or told him they found methamphetamine in the residence. Rickard pleaded guilty to possession with intent to distribute methamphetamine and agreed to cooperate with the government in hopes of receiving a reduced sentence.

         The case was submitted to the jury on the morning of June 16, 2016, and the jury returned a guilty verdict 6.5 hours later. The jury was polled at Shumaker's request, and each juror affirmed the verdict. With an offense level of 32 and a criminal history category III, Shumaker's United States Sentencing Guidelines range was 151 to 188 months' imprisonment. Shumaker objected to the quantity of methamphetamine for which he was held accountable, as well as the enhancement imposed for obstruction of justice. He also filed a motion to set aside the verdict and a motion for a new trial. Shumaker argued that he had recently been able to find utility bills showing that utilities were not placed in his name until February 2015. He also attached an affidavit from his landlord stating that Shumaker did not occupy the residence until late March or April of 2015, both facts Shumaker argued negated any inference that he dealt drugs during the time frame presented by the prosecution.

         The district court addressed these motions at the sentencing hearing, specifically noting that Rickard testified that he purchased methamphetamine from Shumaker in late 2014 and in the winter of 2015. The district court stated that late March in Nebraska could be considered winter. Moreover, the district court found it particularly instructive that Rickard "pinpointed the location of the methamphetamine, where the defendant was storing it at the time of a sale to Rickard, as the exact same place in the vertical column cabinetry outside the kitchen. And that corresponded with where law enforcement later found the drugs." The district court denied his motion for a new trial and advised Shumaker of the three-year statute of limitations for motions for new trials, suggesting that he may be able to file a motion later with more evidence. The district court denied the motion objecting to the drug quantity but sustained his objection to the obstruction of justice enhancement. Based on the new Guidelines range of 121 to 151 months' imprisonment, Shumaker was sentenced to 121 months' imprisonment to be followed by a three-year term of supervised release. Shumaker now appeals arguing that the district court erred in (1) denying his motion for a judgment of acquittal, and (2) denying his motion for a new trial based on newly discovered evidence.

         II. DISCUSSION

         A.Motion for Judgment of ...


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