Uncorroborated Co‑Conspirator Trial Testimony Can Sustain a § 846 Conviction; Suppression Arguments Waived Absent Pretrial Motion Are Reviewed Only for Plain Error

Case: United States v. Demarcus Hill (11th Cir. Dec. 29, 2025) (per curiam, not for publication)

1. Introduction

In United States v. Demarcus Hill, the Eleventh Circuit affirmed Demarcus Leon Hill’s conviction for conspiracy to possess with intent to distribute fentanyl under 21 U.S.C. § 846. The case arose from an August 2021 interstate traffic stop near the Alabama–Georgia border conducted by Officer Josh Powers, an Oxford, Alabama police officer assigned to a DEA task force. During the stop, a canine alerted, and officers recovered a gallon-size bag of blue and yellow pills later determined to contain over 300 grams of fentanyl.

The appeal presented two central issues:

• Sufficiency of the evidence: whether the jury could convict Hill largely on the in-court testimony of alleged co-conspirator J.T. Toombs—testimony Hill characterized as “uncorroborated.”
• Fourth Amendment / suppression: whether the district court plainly erred by admitting evidence derived from the traffic stop allegedly initiated without reasonable suspicion, despite Hill’s failure to file a pretrial motion to suppress.

The court’s disposition reinforces two procedural-substantive junctions that routinely shape federal criminal litigation: (i) the breadth of admissible and sufficient cooperator testimony at trial, and (ii) the strict consequences of failing to litigate suppression issues before trial under Federal Rule of Criminal Procedure 12(b).

2. Summary of the Opinion

The Eleventh Circuit affirmed on both grounds:

• Evidence sufficiency: The court held the evidence was sufficient to sustain Hill’s § 846 conspiracy conviction. It rejected the argument that Toombs’s testimony should have been excluded under Federal Rule of Evidence 801(d)(2)(E), explaining that the rule concerns out-of-court co-conspirator statements, while Toombs testified in court from personal knowledge and also related Hill’s own statements admissible under Rule 801(d)(2)(A).
• Suppression / Fourth Amendment: Because Hill did not file a pretrial suppression motion as required by Rule 12(b)(3)(C) and showed no good cause, appellate review was limited to plain error. The court concluded Hill failed to identify controlling Supreme Court or Eleventh Circuit precedent making it “plain” that the stop lacked reasonable suspicion, given the totality of circumstances including unusual lane changes and a DEA license-plate database indicating a suspiciously quick Atlanta round trip.

3. Analysis

3.1. Precedents Cited

A. Sufficiency review framework

• United States v. Beach, 80 F.4th 1245 (11th Cir. 2023): The court relied on Beach for the standard of review (de novo) and the core proposition that denial of a Rule 29 motion is upheld if a reasonable factfinder could find guilt beyond a reasonable doubt, viewing evidence and inferences in the light most favorable to the government.
• United States v. Williams, 865 F.3d 1328 (11th Cir. 2017): Cited for the “only if no reasonable trier of fact could have found” standard—emphasizing that reversal for insufficiency is rare and reserved for extreme evidentiary failure.
• United States v. Nerey, 877 F.3d 956 (11th Cir. 2017): The court invoked Nerey for a recurring and consequential rule: “testimony of a co-conspirator, even if uncorroborated, is sufficient to support a conviction.”
• United States v. Holt, 777 F.3d 1234 (11th Cir. 2015): Used to reinforce deference to the jury’s credibility determinations unless testimony is “contrary to the laws of nature” or so internally inconsistent or improbable that no reasonable factfinder could accept it.

B. Elements and knowledge requirements under §§ 846 and 841(a)(1)

• United States v. Colston, 4 F.4th 1179 (11th Cir. 2021): Provided the governing elements of a § 846 conspiracy and the principle that a defendant need only know he is dealing with “illegal drugs of some sort,” not the specific controlled substance.
• United States v. Gomez, 905 F.2d 1513 (11th Cir. 1990): Reinforced the same concept in the § 841(a)(1) context—knowledge of the particular drug is unnecessary so long as the defendant knew he was dealing with a controlled substance.

C. Evidence rules and conspiracy proof for co-conspirator statements

• United States v. Magluta, 418 F.3d 1166 (11th Cir. 2005): Cited for the proposition that co-conspirator out-of-court statements under Rule 801(d)(2)(E) require the government to show the conspiracy’s existence by a preponderance of the evidence. The panel distinguished Magluta as inapplicable because the challenged evidence was not admitted under 801(d)(2)(E).
• United States v. Broadwell, 870 F.2d 594 (11th Cir. 1989): Cited to reiterate that co-conspirator testimony—even if uncorroborated—can support a conviction, paralleling the principle drawn from Nerey.

D. Waiver of suppression arguments and plain error

• United States v. Curbelo, 726 F.3d 1260 (11th Cir. 2013): Established that suppression claims not raised in a timely pretrial motion generally cannot be raised for the first time on appeal; relief from waiver requires good cause.
• United States v. Andres, 960 F.3d 1310 (11th Cir. 2020): Applied Curbelo to Rule 12(b)(3)(C) post-amendment and authorized, absent good cause, review only for plain error.
• United States v. Ramirez-Flores, 743 F.3d 816 (11th Cir. 2014): Supplied the four-part plain-error test and the key limiting principle: an error is “plain” only if controlling Supreme Court or Eleventh Circuit precedent establishes it.

E. Reasonable suspicion and traffic stops

• United States v. Campbell, 26 F.4th 860 (11th Cir. 2022): The court cited Campbell for the baseline Fourth Amendment rule: a traffic stop is unreasonable unless supported by reasonable suspicion of a traffic violation or criminal activity.
• United States v. Arvizu, 534 U.S. 266 (2002): Provided the “totality of the circumstances” framework and the concept of a “particularized and objective basis” for suspicion; it also supports reliance on officer experience to interpret otherwise ambiguous facts.

3.2. Legal Reasoning

A. Why Toombs’s testimony was admissible (and why Rule 801(d)(2)(E) was a red herring)

Hill attempted to reframe the evidentiary dispute as if the government had introduced out-of-court co-conspirator statements under Rule 801(d)(2)(E), which would trigger a predicate requirement: the government must show by a preponderance that a conspiracy existed (as discussed in United States v. Magluta).

The panel rejected this framing on a straightforward but practically important distinction:

• Rule 801(d)(2)(E) governs out-of-court statements “made by the party’s coconspirator during and in furtherance of the conspiracy.”
• Toombs testified in court about events he personally experienced and observed. That testimony is governed principally by Federal Rule of Evidence 602 (personal knowledge), not 801(d)(2)(E).
• When Toombs repeated Hill’s own statements (e.g., Hill’s comments during the trip), those are admissions of a party opponent under Rule 801(d)(2)(A), again requiring no independent showing that a conspiracy existed as a condition of admissibility.

This is more than technical evidence doctrine. It prevents defendants from imposing conspiracy-foundation requirements designed for one evidentiary route (801(d)(2)(E)) onto ordinary trial testimony and party admissions (Rules 602 and 801(d)(2)(A)). The court’s reasoning thereby preserves the conventional structure of proof in conspiracy cases, where a cooperating witness often supplies a narrative of the agreement plus the defendant’s own statements.

B. Why Toombs’s testimony was sufficient to support the verdict

On sufficiency, the panel applied the deferential posture mandated by United States v. Beach and United States v. Williams: viewing evidence in the government’s favor and reversing only if no reasonable juror could convict.

The court also relied on the Eleventh Circuit’s settled principle—articulated in United States v. Nerey and United States v. Broadwell—that a co-conspirator’s testimony can be sufficient even if uncorroborated. The jury, not the appellate court, resolves whether the witness is credible, and United States v. Holt cabins appellate second-guessing of credibility to extreme circumstances (impossibility or facial implausibility).

Applying the § 846 elements stated in United States v. Colston, Toombs’s testimony addressed each:

• Agreement: Toombs testified to an arrangement to obtain pills in Atlanta and to sell a portion (about 1,000 pills for $7,500) to Hill.
• Knowledge: Toombs testified he told Hill the trip was for his “medicine,” and the jury could infer this meant illicit drugs, consistent with Colston and United States v. Gomez (knowledge of “some controlled substance” suffices).
• Voluntary participation: The alleged bargain for pills and Hill’s stated desire to “make more money” supported the inference that Hill joined the plan rather than merely chauffeuring.

The court also noted that Hill and Toombs were caught transporting the very drugs they were charged with conspiring to distribute. Even if Hill framed this as “mere presence,” the jury could combine it with Toombs’s account of the agreement to find voluntary participation beyond a reasonable doubt.

C. The suppression issue: procedural default drives the appellate posture

Hill’s Fourth Amendment argument ran into a procedural barrier before reaching the merits. Under Federal Rule of Criminal Procedure 12(b)(3)(C), suppression motions must be made before trial. Citing United States v. Curbelo and United States v. Andres, the panel held:

• Hill’s failure to file a pretrial motion to suppress resulted in waiver/forfeiture of the claim on appeal.
• He showed no “good cause” to excuse the failure (a concept Curbelo construes narrowly when the defendant had the information necessary to file on time).
• Therefore, review was limited to plain error under Andres and United States v. Ramirez-Flores.

This shift matters because plain-error review is not a re-litigation of Fourth Amendment reasonableness. It is a constrained inquiry asking whether the alleged error is clear under binding precedent and, if so, whether it affected substantial rights and the fairness of proceedings.

D. Why the court found no “plain” Fourth Amendment error

The Fourth Amendment standard, as the panel stated with United States v. Campbell, is that a traffic stop must be supported by reasonable suspicion of a traffic violation or criminal activity. Under United States v. Arvizu, the court evaluates the totality of the circumstances for a particularized and objective basis for suspicion, allowing officers to draw on experience.

Officer Powers identified two principal bases for suspicion at the moment of the stop:

• Unusual lane changes as the sedan approached and passed the patrol car (interpreted as an attempt to distance from law enforcement).
• DEA license-plate database information indicating the car had been heading toward Atlanta earlier that day, suggesting a quick “turnaround” trip consistent (in the officer’s experience) with drug trafficking patterns.

Critically, the panel did not definitively hold that these facts necessarily establish reasonable suspicion as a matter of ordinary (de novo) Fourth Amendment review. Instead, it held that Hill could not satisfy the plainness requirement because he failed to identify controlling precedent rendering these circumstances insufficient as a matter of law. Under United States v. Ramirez-Flores, without such precedent, the alleged error cannot be “plain,” and the claim fails at prong two of the plain-error analysis (or, at least, cannot succeed overall).

3.3. Impact

A. Trial practice in conspiracy cases: evidentiary route matters

The opinion underscores a practical litigation point: defendants cannot treat an in-court cooperator as if he were a mere conduit for out-of-court “co-conspirator statements.” Where the cooperating witness testifies from personal knowledge (Rule 602) and recounts the defendant’s own statements (Rule 801(d)(2)(A)), Rule 801(d)(2)(E)’s conspiracy-foundation requirement is beside the point.

The likely consequence is to discourage a common appellate strategy—recharacterizing trial testimony as inadmissible “co-conspirator hearsay”—when the testimony is, in fact, direct evidence and party admissions.

B. Sufficiency challenges face entrenched doctrine on cooperator testimony

The court reaffirmed, with United States v. Nerey and United States v. Broadwell, that uncorroborated co-conspirator testimony can sustain a conviction. This places weight on cross-examination, impeachment, and jury instructions at trial, because appellate review will ordinarily defer to the jury’s decision to credit the cooperator absent the extreme implausibility threshold of United States v. Holt.

C. Suppression litigation: Rule 12 default can be outcome-determinative

The decision also illustrates how failure to timely file a suppression motion can effectively preclude meaningful appellate review. Under the Curbelo / Andres framework, the merits of the Fourth Amendment question may never be reached under ordinary review standards; instead, the appellant must clear the high bar of plain error and identify binding precedent squarely resolving the issue.

For defense counsel, the case reinforces that suppression issues must be developed pretrial—factually and legally—because the appellate posture after default is exceptionally unfavorable.

4. Complex Concepts Simplified

• “Uncorroborated co-conspirator testimony”: Testimony from an alleged partner in crime that is not independently confirmed by other witnesses or physical evidence. In the Eleventh Circuit, such testimony can still be enough to convict if the jury finds it credible.
• Rule 801(d)(2)(E) vs. Rule 801(d)(2)(A):
  • 801(d)(2)(E) covers out-of-court statements by a co-conspirator “during and in furtherance” of the conspiracy; it requires a foundation showing a conspiracy existed.
  • 801(d)(2)(A) covers the defendant’s own statements, offered against him (party admissions); it does not require proving a conspiracy as a prerequisite.
• Rule 602 (personal knowledge): A witness may testify only about matters he perceived or experienced. A cooperator describing the trip he took and conversations he heard is typically giving direct testimony under Rule 602.
• Rule 29 motion for judgment of acquittal: A request for the judge to set aside the case because the evidence is legally insufficient for any reasonable jury to convict.
• “Reasonable suspicion”: A lower standard than probable cause. It requires specific, articulable facts that—considered in context—create an objective basis to suspect wrongdoing.
• “Plain error” review: A highly deferential appellate standard used when an issue was not properly preserved. The appellant must show a clear (not debatable) legal error under controlling precedent, plus prejudice and a serious effect on the fairness of the proceedings.

5. Conclusion

United States v. Demarcus Hill is a concise but instructive Eleventh Circuit decision that consolidates two recurring principles in federal criminal adjudication. First, a conspiracy conviction may rest on a cooperating co-conspirator’s in-court testimony—even if uncorroborated—so long as the jury could reasonably credit it, consistent with United States v. Nerey and United States v. Broadwell. Second, suppression arguments not raised in a timely pretrial motion are ordinarily lost, leaving only the narrow escape hatch of plain-error review under United States v. Andres and United States v. Ramirez-Flores.

The broader significance is practical: evidentiary objections must be matched to the correct doctrinal vehicle (here, distinguishing trial testimony and party admissions from co-conspirator hearsay), and Fourth Amendment challenges must be litigated on time, or the appellate courts will rarely provide relief.