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00-4184, 00-4214 U.S. v. Smith

By: dmc-admin//October 21, 2002//

00-4184, 00-4214 U.S. v. Smith

By: dmc-admin//October 21, 2002//

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“[E]vidence of an unexplained, lavish lifestyle is probative of the existence of income derived from a drug conspiracy. See United States v. Penny, 60 F.3d 1257, 1263 (7th Cir. 1995) (ruling that ‘evidence of unexplained wealth is probative and therefore admissible if it creates a reasonable inference of the defendant’s involvement in the drug conspiracy or trafficking’) (internal quotations omitted); Hogan, 886 F.2d at 1507 (ruling that jury decides whether a defendant’s wealth came from a legitimate income or criminal activity and that tax count can be joined with the criminal conduct count involving the source of the wealth). Even if the evidence might also suggest to a jury something adverse about Lowe’s character, this evidence is admissible; it is circumstantially admissible to support an inference that Lowe had income from drug trafficking. The disputed tax evidence here was ‘mutually admissible,’ or overlapping, in that the government could have presented evidence of Lowe’s extravagant lifestyle to support the drug conspiracy charges. Therefore, the denial of severance was not unfairly prejudicial nor an abuse of discretion.

“Smith asserts that the government put on evidence suggesting that he conspired to distribute several hundred kilograms of marijuana, yet the jury convicted him of an amount less than 50 kilograms. Smith maintains that this disparity between the amount alleged by the government and the amount found by the jury was inescapably a product of the jury having significantly discounting the credibility of Rivas, Petrow and Swick, who testified against Smith at trial. Since the district court’s finding of 100 kilograms of marijuana rejected the collective wisdom of the jury and its implied credibility findings, Smith concludes that the district court committed clear error.

“However, as noted earlier, the district court’s relevant conduct findings for sentencing purposes, including drug quantities, are governed by a less demanding evidentiary standard than are determinations by the jury. This is a fact of federal criminal procedure that Smith (unlike Lowe) does not contest. Nonetheless, he contends that even under this more lenient standard, the testimony of the government’s three witnesses simply cannot support a drug quantity finding larger than 50 kilograms because this is what the jury found. But credibility determinations by the district court using the preponderance standard cannot be challenged on appeal unless the court credited testimony that was essentially unbelievable as a matter of law. See United States v. Ray, 238 F.3d 828, 834 (7th Cir. 2001). We give exceptional deference to district courts on issues of credibility in sentencing. See Amadeo v. Zant, 486 U.S. 214, 227 (1988); accord United States v. Johnson, 227 F.3d 807, 813 (7th Cir. 2000). Smith fails to identify any factor in the record that would render the testimony of the government witnesses essentially unbelievable.”

Affirmed.

Appeals from the United States District Court for the Northern District of Illinois, Reinhard, J., Cudahy, J.

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