United States v. Anthony Conway

Filing

OPINION FILED - THE COURT: Kermit E. Bye, Myron H. Bright and Lavenski R. Smith AUTHORING JUDGE:Lavenski R. Smith (PUBLISHED), CONCUR AND DISSENT BY: MYRON H. BRIGHT [4163006] [12-3809, 12-3974, 13-1129]--[Edited 06/10/2014 by SRD]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3809
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anthony Conway, also known as Tone Tone
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 12-3974
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kendall Robinson, also known as K-Rob, also known as Dice
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 13-1129
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee

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v.
Excell James Randolph, also known as Ism
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Davenport
____________
Submitted: December 17, 2013
Filed: June 10, 2014
____________
Before BYE, BRIGHT, and SMITH, Circuit Judges.
____________
SMITH, Circuit Judge.
The government indicted 12 individuals connected to a crack-cocaine
distribution network in Clinton, Iowa. The indictment alleged various drug and
weapons charges. Three of those individuals proceeded to trial and were convicted.
Those three individuals now appeal.
A grand jury indicted Anthony Conway, Kendall Robinson, and Excell James
Randolph each with conspiracy to manufacture, distribute, and possess with intent to
distribute 280 grams or more of crack and cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A), and 841(b)(1)(C). After a six-day trial, a jury found each
defendant guilty. Each defendant now challenges the sufficiency of the evidence used
to support his conviction. Robinson also challenges the sufficiency of the evidence
that supported the jury's guilty verdict as to his various weapons charges. Robinson

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and Randolph also challenge the district court's1 denial of their request to provide a
"buyer-seller" instruction. Finally, Randolph contends that the district court erred by
denying his request to provide a preliminary instruction concerning multiple
conspiracies. We affirm.
I. Background
When reviewing a jury's verdict, "[t]his court views the entire record in the
light most favorable to the government, resolves all evidentiary conflicts accordingly,
and accepts all reasonable inferences supporting the jury's verdict." United States v.
Boesen, 491 F.3d 852, 856 (8th Cir. 2007) (citations omitted).
From 2008–2011, several individuals formed a loose-knit crack-cocaine
distribution network in Clinton, Iowa. The lead distributor was a group calling itself
the "Co-op." The Co-op consisted of four individuals—John Lewis, Tavares Jones,
Thomas Kitt, and Jonathan Spates. Spates was a drug supplier from Rockford,
Illinois. Lewis and Jones began traveling to Rockford in early 2010 to purchase
substantial quantities of crack and powder cocaine from Spates. Lewis and Jones then
returned to Clinton for distribution. Kitt later joined Lewis and Jones in pooling their
money to purchase crack from Spates for distribution in Clinton. Lewis testified that
"[t]he Co-op [was] just like a group of guys that everybody else is coming to buy
drugs from." Spates later began traveling to Clinton to distribute crack with Lewis,
Jones, and Kitt.
A second important group within the conspiracy consisted of individuals who
relocated to Clinton from Chicago, Illinois, to sell crack. Randolph left Chicago and
began distributing crack in Sioux City, Iowa. One of Randolph's childhood
acquaintances from Chicago, Carley Campbell, recruited Randolph to Clinton by

1

The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
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emphasizing the potential for increased profits and decreased violence. Randolph
agreed to relocate to Clinton. Because Randolph was unfamiliar with many of
Clinton's residents, he distributed crack to other dealers, including Campbell.
Randolph recruited other Chicago and Sioux City acquaintances to Clinton for the
purposes of crack distribution.
Finally, the network included a third group consisting of low-level crack users
who bought from distributors. Many of these users allowed distributors to use their
residences as distribution points in exchange for money or crack. Conway, Robinson,
and Randolph each distributed crack out of these residences on occasion.
Conway, Randolph, and Robinson knew each other through this network. Upon
traveling to Clinton, Spates met Conway and began distributing crack and powder
cocaine directly to him. Lewis also testified that he sold crack to Conway. Kitt sold
crack to Randolph "on numerous occasions." Meanwhile, Conway and Randolph
befriended each other soon after Randolph moved to Clinton. They developed an
arrangement where, if either party had little or no crack to distribute and needed
money, the other party would provide crack to him. Conway also referred his
customers to Randolph when Conway had no crack to distribute. Finally, they often
sold crack from the same location and converted powder cocaine to crack cocaine
together.
Lewis also supplied Robinson with crack and powder cocaine. Lewis testified
that Robinson "purchased drugs from me on numerous occasions." Robinson
accompanied Lewis, Jones, and Kitt to Rockford at least once to purchase crack.
Robinson formed a distribution relationship with Thomas Brown, a Clinton dealer.
Robinson "fronted"2 crack to Brown, who then distributed the crack to users.

2

Brown defined "fronting" as the following: "[Robinson] would give [crack]
to me and I owed some money back on whatever I make on it." We have explained
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Robinson also sold crack to Campbell as well as many of Conway's and Randolph's
customers.
On March 1, 2010, police recorded phone calls between Randolph and an
informant in which they planned a crack deal. The informant then met Randolph and
made a controlled purchase of crack. On December 7, 2010, authorities stopped a car
in which Robinson was a passenger. The officers who performed the stop knew
Robinson and knew that he was the subject of an active arrest warrant. After arresting
Robinson, police discovered two packages of cocaine in his possession.
II. Discussion
On appeal, all three defendants challenge the sufficiency of the evidence
underlying their convictions for conspiracy to manufacture, distribute, and possess
with intent to distribute 280 grams or more of crack and cocaine. Robinson also
challenges the sufficiency of the evidence underlying his three weapons convictions.
Randolph and Robinson appeal the district court's denial of their request to provide
a "buyer-seller" instruction, and Randolph separately challenges the district court's
denial of his request to provide a preliminary "multiple conspiracies" instruction.
A. Sufficiency of the Evidence
"We review the sufficiency of the evidence de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government's favor,
and accepting all reasonable inferences that support the verdict." United States v.
Polk, 715 F.3d 238, 245 (8th Cir. 2013) (quotation and citation omitted). "We will
reverse 'only if no reasonable jury could have found the defendant guilty beyond a

that "'[f]ronting' denotes a transaction in which the buyer receives drugs on credit and
repays the seller from the resale proceeds." United States v. Slagg, 651 F.3d 832, 841
n.3 (8th Cir. 2011).
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reasonable doubt.'" Slagg, 651 F.3d at 839 (quoting United States v. Donnell, 596
F.3d 913, 924 (8th Cir. 2010)).
"To establish that a defendant conspired to distribute drugs under 21 U.S.C.
§ 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement
to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy." Slagg, 651 F.3d at 840 (quotation and
citation omitted). "An agreement to join a conspiracy need not be explicit but may be
inferred from the facts and circumstances of the case." Id. (quotation and citations
omitted). "Proof of a common plan or tacit understanding is sufficient." United States
v. Hoelscher, 914 F.2d 1527, 1534 (8th Cir. 1990) (citations omitted). The
government need not prove a "discrete, identifiable organizational structure." Slagg,
651 F.3d at 840 (quotation and citations omitted). In fact, the structure may be "a
loosely knit, non-hierarchical collection of persons who engaged in a series of
transactions involving distribution-quantities of [crack] in and around" a particular
city over a course of time. Id. at 837.
"[A] defendant may be convicted for even a minor role in a conspiracy, so long
as the government proves beyond a reasonable doubt that he or she was a member of
the conspiracy." United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (en
banc) (citations omitted). The government may prove a defendant's involvement in
a conspiracy with direct or circumstantial evidence so long as the evidence is
"sufficient to prove the elements of the crime beyond a reasonable doubt." Id.
(citations omitted). Thus, evidence at trial that consists primarily of testimony from
other members of the conspiracy may suffice to establish defendant's guilt. See
Rodriguez-Mendez, 336 F.3d at 694. Juries are "capable of evaluating the credibility
of testimony given in light of the agreements each witness received from the
government." Id. at 696. "The appellate court is not required to re-weigh the evidence
or judge credibility of witnesses." Id. (citation omitted).

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"[A] defendant's mere presence, coupled with the knowledge that someone else
who is present intends to sell drugs, is insufficient to establish membership in a
conspiracy." United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir. 2007)
(quotation and citation omitted). However, "[a]lthough not sufficient by itself,
association or acquaintance among the defendants supports an inference of
conspiracy." United States v. Jackson, 345 F.3d 638, 648 (8th Cir. 2003) (quotation
and citation omitted). For example, the defendants' presence in the same car while on
a journey to further the conspiracy indicates their cooperation and agreement. United
States v. Sparks, 949 F.2d 1023, 1027 (8th Cir. 1991). Furthermore, the defendants
need not know each other in order to be coconspirators. Rodriguez-Mendez, 336 F.3d
at 695.
Finally, evidence is sufficient to show a conspiracy where drugs are purchased
for resale. Donnell, 596 F.3d at 925. "'[E]vidence of multiple sales of resale quantities
of drugs is sufficient in and of itself to make a submissible case of a conspiracy to
distribute.'" Slagg, 651 F.3d at 842 (quoting United States v. Garcia-Hernandez, 530
F.3d 657, 661 (8th Cir. 2008)). When evidence exists that large amounts of drugs
were distributed over an extended period of time, including fronting transactions,
there is ample evidence to support a conspiracy. Slagg, 651 F.3d at 841 (citing United
States v. Pizano, 421 F.3d 707, 720 (8th Cir. 2005)).
1. Anthony Conway
Conway contends on appeal that the government presented insufficient
evidence for the jury to find him guilty of conspiracy to manufacture, distribute, and
possess with intent to distribute crack. He emphasizes that he "was never the subject
of any controlled buy, was never the subject of a search warrant, was never at any
place when a search warrant was executed, and was never found in possession of any
controlled substance." Conway also contends that the only evidence against him was
the self-serving, speculative testimony of other coconspirators.

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Conway's arguments fail. First, a defendant need not be caught "red-handed"
with drugs to be convicted of this crime. We have previously recognized that
convictions attained on the basis of testifying coconspirators is sufficient. See
Rodriguez-Mendez, 336 F.3d at 694. We entrust juries to consider the credibility of
testifying coconspirators. See id. at 696. On this record, we will not reconsider the
jury's credibility determinations. Id.
Second, the evidence demonstrated that Conway associated with other
members of the conspiracy, which supports an inference of his participation. See
Jackson, 345 F.3d at 648. Several witnesses explained that Conway and Randolph
associated soon after Randolph moved to Clinton. They developed a mutual
arrangement to recommend customers and re-supply when drug quantities
diminished. They distributed crack from several of the same residential distribution
points. They converted powder cocaine to crack cocaine together. Relatedly, Conway
purchased his drug supply from the same group—the Co-op—as the other members
of the conspiracy. Co-op members like Lewis and Spates testified that they supplied
Conway with drugs on numerous occasions. These repeated purchases provide
enough evidence to submit the question of conspiracy to the jury. See Slagg, 651 F.3d
at 842 ("[E]vidence of multiple sales of resale quantities of drugs is sufficient in and
of itself to make a submissible case of a conspiracy to distribute." (quotation and
citation omitted)).
Although the evidence does not reflect an explicit agreement among all
coconspirators to distribute crack and cocaine throughout Clinton, the law does not
require such evidence. The evidence here amply demonstrates "proof of a common
plan or tacit understanding" among all of those indicted to distribute these drugs
throughout Clinton. See Hoelscher, 914 F.2d at 1534. The government proved the
existence of "a loosely knit, non-hierarchical collection of persons who engaged in
a series of transactions involving distribution-quantities of [crack] in and around"

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Clinton from 2008–2011. Slagg, 651 F.3d at 837. Consequently, we reject Conway's
sufficiency-of-the-evidence arguments.
2. Excell James Randolph
Like Conway, Randolph contends that insufficient evidence supported his
conviction for conspiracy to manufacture, distribute, and possess with intent to
distribute crack. Specifically, he contends that "[t]he evidence at trial did not show
even a tacit agreement between himself and the majority of those individuals
indicted."
Randolph's argument fails for many of the same reasons fatal to Conway's.
Randolph associated with many coconspirators, including Campbell, Cameron
Williams, and Conway. See Jackson, 345 F.3d at 648. As previously discussed,
Randolph maintained extensive drug ties with Conway. See supra Parts I & II.A.1.
Randolph also obtained supplies from the Co-op. For example, Kitt testified that he
supplied Randolph with crack on numerous occasions. Despite Randolph's lack of
familiarity with some coconspirators, his close ties to at least four other
coconspirators is sufficient to bring him within the purview of this overarching
conspiracy. See Rodriguez-Mendez, 336 F.3d at 695. Finally, police caught Randolph
distributing crack to an informant.
Randolph's ties to other coconspirators involving drug distribution, his
relationship with a common supplier, his numerous purchases of resale quantities of
drugs, and his distribution of crack to a government informant support the jury's
conclusion that Randolph agreed to participate in the conspiracy to distribute crack
and cocaine throughout Clinton.

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3. Kendall Robinson
a. Drug Charge
Robinson similarly argues that sufficient evidence did not support his
conviction for conspiracy to manufacture, distribute, and possess with intent to
distribute crack. He contends that "[t]he evidence presented at . . . trial relating to
[his] participation, association, and communication with others alleged to have been
involved and contributing to the purposes of the charged conspiracy was so lacking
and insufficient[ ] that a reasonable jury could not have reached" a guilty verdict.
We reject Robinson's contention. The government proved beyond a reasonable
doubt that Robinson played at least a minor role in the conspiracy. See Lopez, 443
F.3d at 1030. First, officers discovered significant quantities of cocaine on Robinson's
person during the stop of a vehicle in which he was a passenger. Second, Robinson
associated with other members of the conspiracy and bought crack from the same
supplier. See Jackson, 345 F.3d at 648. As part of the Co-op, Lewis knew Robinson
and sold crack to him several times. On at least one occasion, Robinson traveled with
Lewis and other members of the Co-op to Rockford to purchase distribution
quantities of crack and powder cocaine. We have recognized that one's mere presence
in a vehicle with other members of a conspiracy while it engages in activities in
furtherance of the conspiracy indicates cooperation and agreement. See Sparks, 949
F.2d at 1027. The fact that Robinson did not know other members of the conspiracy
is not dispositive. See Rodriguez-Mendez, 336 F.3d at 695. Finally, Robinson
frequently fronted the drugs that he bought from Lewis to Brown for resale. See
United States v. Pizano, 421 F.3d 707, 720 (8th Cir. 2005) (recognizing that evidence
of distribution quantities of drugs, including fronting transactions, over an extended
period of time was "ample evidence to support" a jury's finding of participation in a
conspiracy).

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As a result, we reject Robinson's argument that sufficient evidence did not
support his conviction for conspiracy to manufacture, distribute, and possess with
intent to distribute crack.
b. Weapons Charges
The grand jury also indicted Robinson with one count possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and two
counts of being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Robinson contends that sufficient evidence did not
support his conviction on any of these weapons charges.
i. Possession in Furtherance
In connection with the possession-in-furtherance crime, Robinson emphasizes
that "[t]he gun or weapon referenced by witnesses was never discussed as being
brandished in any fashion; nor discussed as ever being fired upon another or in the
direction of another" or "seen during any alleged drug transaction." Furthermore, he
highlights that authorities never found a weapon in his possession.
Federal law criminalizes the activities of those who "in furtherance of any
[drug trafficking crime], possesses a firearm." 18 U.S.C. § 924(c). "To satisfy the 'in
furtherance of' element of § 924(c), the government must present evidence from
which a reasonable trier of fact could find a 'nexus' between the defendant's
possession of the charged firearm and the drug crime, such that this possession had
the effect of furthering, advancing or helping forward the drug crime." United States
v. Robinson, 617 F.3d 984, 988 (8th Cir. 2010) (quotations and citations omitted).
Possession may be actual or constructive; it need not be exclusive. United States v.
Fetters, 698 F.3d 653, 658 (8th Cir. 2012), cert. denied, 133 S. Ct. 2841 (2013).
Here, a reasonable juror could determine that a sufficient nexus existed
between Robinson's firearm possession and his drug distribution. See Robinson, 617
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F.3d at 988. Lewis testified that Robinson carried a semiautomatic pistol for
protection during Robinson's trip to Rockford. Lewis assured Robinson that the gun
was not needed, yet Robinson continued to carry the gun in close proximity. Thus,
Robinson carried the firearm for protection while engaging in a drug transaction. See
United States v. Neve, 496 F. Appx. 699, 701 (8th Cir. 2013). Furthermore, some of
Robinson's customers stated that Robinson showed them a firearm while conducting
transactions. Finally, in an attempt to create and preserve a drug-distribution territory,
Robinson intimidated the owner of a bar where Robinson transacted drugs by telling
the owner that he had a gun. A reasonable juror could therefore determine that
Robinson possessed a firearm in furtherance of a drug crime.
ii. Felon in Possession
To obtain a conviction for possession of a firearm by a convicted felon, the
government must prove "(1) previous conviction of a crime punishable by a term of
imprisonment exceeding one year, (2) knowing possession of a firearm, and (3) the
firearm was in or affecting interstate commerce." United States v. Montgomery, 701
F.3d 1218, 1221 (8th Cir. 2012) (citing 18 U.S.C. § 922(g)(1)). Robinson challenges
the second element only.
The government's felon-in-possession charges stem from two incidents that
occurred in November and December 2010. Robinson's friend, Mykeah Jefferson,
testified that Robinson had become angry with his wife in November 2010. Robinson
asked Jefferson to follow him to a park while Robinson drove his wife's car. At the
park, Robinson exited the car and shot it five or six times with a handgun. Robinson
then retrieved the shell casings, got in Jefferson's car, and left. Robinson later told
Brown about the incident and directed Brown to discard the shell casings.
Jefferson also recalled riding with Robinson to Brown's apartment in December
2010. Once there, Robinson asked Brown "to bring his stuff down." Brown brought
Robinson a coat, a watch, and a revolver. Apparently, Robinson returned the revolver
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to Brown at some point because, after police arrested Robinson in a different matter,
he told them that Brown had a revolver in his apartment. Police later found the
revolver there. Brown told police and later testified that the revolver actually
belonged to Robinson.
Jefferson's testimony alone supports the jury's determination of guilt as to the
felon-in-possession charges. She testified to seeing Robinson possess a firearm on
two occasions. Additionally, as for the November 2010 incident, forensic evidence
established that the bullets in Robinson's wife's car matched those of the weapon that
Robinson was alleged to have carried. As for the December 2010 incident, Brown
also testified that Robinson owned the revolver in question. Although Brown, a
convicted felon, had the motive to disclaim ownership of the gun, "[w]e will not
weigh the evidence or assess the credibility of witnesses" when criminal defendants
launch sufficiency-of-the-evidence challenges. United States v. Willis, 89 F.3d 1371,
1376 (8th Cir. 1996). This is especially true where Robinson had the same motivation
to disclaim the weapon, and Jefferson corroborated Brown's testimony.
Consequently, we reject Robinson's contention that sufficient evidence did not
support his weapons convictions.
B. Jury Instructions
Randolph and Robinson both contend that the district court erred in refusing
to provide a "buyer-seller" closing instruction to the jury. Randolph also challenges
the district court's denial of his request to provide a "multiple conspiracies"
preliminary instruction.
"Defendants are entitled to an instruction explaining their theory of the case if
the request is timely made and if the proffered instruction is supported by the
evidence and correctly states the law." Slagg, 651 F.3d at 848 (citing United States
v. Adams, 401 F.3d 886, 898 (8th Cir. 2005)). Thus, a defendant is entitled to the
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instruction only "if the evidence supported his theory." United States v. Jones, 160
F.3d 473, 481 (8th Cir. 1998). "We review a district court's jury instructions for abuse
of discretion." Slagg, 651 F.3d at 848 (citation omitted). Furthermore, "we will
reverse a jury verdict when the errors misled the jury or had a probable effect on the
jury's verdict." Id. (quotation, alteration, and citations omitted).
1. Buyer-Seller Instruction
The point at which buyers and sellers of narcotics become coconspirators in
drug distribution evades precise definition. "[A] single drug sale does not
automatically make buyer and seller co-conspirators." United States v. Moran, 984
F.2d 1299, 1302 (1st Cir. 1993) (citation omitted). In other words, "proof of a buyerseller relationship, without more, is inadequate to tie the buyer to a larger conspiracy
such as is charged here." United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir.
1981) (quotation and citation omitted). The mere buyer-seller relationship exists
where the defendant made only one purchase and did not know any of the other
coconspirators except for the seller. Id. However, "[a] reasonable jury can find that
a defendant has more than a mere buyer-seller relationship if the evidence supports
a finding that they shared a conspiratorial purpose to advance other transfers." Slagg,
651 F.3d at 842 (quotation and citations omitted). The Moran court stated:
At some point the relationships converge. A pattern of sales for
resale between the same persons, together with details supplying a
context for the relationship, might well support a finding of conspiracy.
Even a single sale for resale, embroidered with evidence suggesting a
joint undertaking between buyer and seller, could suffice. Common
knowledge, interdependence, shared purpose and the other ingredients
of a conspiracy are matters of degree. Almost everything in such a case
depends upon the context and the details. The evaluation of the facts is
entrusted largely to the jury.
Moran, 984 F.2d at 1303 (citations omitted).

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The buyer-seller instruction is inappropriate where "there is evidence of
multiple drug transactions, as opposed to a single, isolated sale." United States v.
Hester, 140 F.3d 753, 757 (8th Cir. 1998) (quotation and citations omitted). This
instruction is appropriate when the facts indicate "a single transaction case involving
small quantities of drugs consistent with personal use." United States v. Cordova, 157
F.3d 587, 597 (8th Cir. 1998) (citations omitted). Where the conspiracy involves large
quantities of drugs and significant interaction between dealers and users over an
extended period of time, the instruction is inappropriate. Id. We have upheld district
court decisions not to provide a buyer-seller instruction when the evidence does not
support the instruction. See, e.g., Slagg, 651 F.3d at 848; Jones, 160 F.3d at 481;
Cordova, 157 F.3d at 597; Hester, 140 F.3d at 757.
The district court declined the defendants' request for a buyer-seller instruction.
In rejecting the instruction, the district court explained:
I didn't give the buyer-seller instruction. That instruction usually
says something to the effect of the mere fact of a buyer-seller
relationship alone is insufficient to establish a conspiracy. Case law
from the Eighth Circuit Court of Appeals states that it's appropriate
where the government alleges a conspiracy relationship arising out of a
single transaction and it's not appropriate where there's multiple. And
here is why I think that's true. If, for example, you had behavior that was
buyer-seller behavior that was repeated a hundred times in a similar
fashion, the fact of a buyer-seller relationship might establish a
conspiracy under those circumstances, and it could be confusing because
there's—the mere fact of repetitive similar activity can easily be
indicative of an agreement or understanding. So that's why I didn't give
them.
This case does not involve the one-time buyer who purchased a small amount
of crack for personal use; rather, this case involves the interactions of members of a
drug-distribution network over approximately three years. See Cordova, 157 F.3d at
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597; Hester, 140 F.3d at 757. Randolph and Robinson purchased resale quantities of
cocaine and crack numerous times. They each redistributed crack on a number of
occasions to various customers throughout Clinton over a long period of time. The
district court did not abuse its discretion in determining that the evidence failed to
support the giving of a buyer-seller instruction.3
2. Multiple Conspiracies Instruction
Randolph argues that the district court erred by failing to provide a "multiple
conspiracies" preliminary instruction. Although the district court provided such an
instruction in its final jury instructions, Randolph contends that the district court
should have provided it as a preliminary instruction. The district court declined,
stating, "I purposefully excluded an instruction on multiple conspiracies. Like any
other defense, I want to hear the opening statement and hear whether the evidence is
sufficient to support that kind of defense, and that's why I did not give that."
"A single conspiracy may exist even if the participants and their activities
change over time, and even if many participants are unaware of, or uninvolved in,
some of the transactions." United States v. Roach, 164 F.3d 403, 412 (8th Cir. 1998)
(citations omitted). Competing dealers may nonetheless be involved in the same
conspiracy. Id. Where the participants in a conspiracy know that the drugs they
distribute come from a larger distribution framework already in place, know other
members of the conspiracy, and distribute drugs received from a common source, they
are likely engaged in a single conspiracy. Id. "Whether the Government's proof at trial
established only a single conspiracy or multiple conspiracies 'is determined by the
totality of the circumstances, and because it is a question of fact, we draw all
reasonable inferences in favor of the verdict.'" Slagg, 651 F.3d at 841 (quoting United

3

Because we conclude that Robinson fails to identify any district court error,
we also reject Robinson's derivative contention that the district court abused its
discretion in denying his motion for new trial.
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States v. Radtke, 415 F.3d 826, 838 (8th Cir. 2005)). Some factors to consider to
determine whether a single conspiracy is present are the nature of the activities, the
location of where events of the conspiracy occurred, the identity of the conspirators,
and the conspiracy's time frame. Slagg, 651 F.3d at 841–42. The fact that there are
multiple sources of the drugs does not create multiple conspiracies. Id. at 842.
"Likewise, one conspiracy may exist despite the involvement of multiple groups and
the performance of separate acts." Id. (quotation, alteration, and citations omitted).
Although defendants are entitled to receive a theory-of-defense instruction if
the instruction is a correct statement of law and the evidence supports it, Slagg, 651
F.3d at 848, there is no requirement that a district court provide a theory-of-defense
preliminary instruction. Logically, the district court desired to hear opening
statements and testimony before deciding whether the evidence supported the giving
of such an instruction. Randolph points to no authority that requires the district court
to provide a theory-of-defense instruction at that stage of the trial. Consequently, we
hold that the district court did not abuse its discretion in refusing to give this
preliminary instruction.
III. Conclusion
We affirm the judgments of the district court.
BRIGHT, Circuit Judge, concurring in part and dissenting in part.
I respectfully concur in part and dissent in part. I concur with the majority that
sufficient evidence supports each conspiracy conviction. However, I disagree with
the majority opinion as to Section II.B.1. regarding a “buyer-seller” jury instruction.
I conclude that the district court abused its discretion by not giving the “buyer-seller”
jury instruction requested by Kendall Robinson and Excell Randolph because
evidence in the record supported its submission. See United States v. Jones, 160 F.3d

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473, 481 (8th Cir. 1998) (stating that a defendant is entitled to a “buyer-seller”
instruction if the evidence supports his or her theory).
In drug conspiracy cases such as this, defendants face vast difficulty to
undercut these claims with only the general credibility evaluation jury instruction.
Moreover, most conspiracy convictions call for very harsh, lengthy prison sentences
under federal sentencing guidelines. Too often the conspiracy convictions rest on
little more than guilt by association. The jury should be given a clear choice by
appropriate instructions in such cases. Here, an additional instruction as to a buyerseller relationship was warranted and would have aided the jury in properly
evaluating the facts and deciding whether a true conspiracy existed.
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Date Filed: 06/10/2014 Entry ID: 4163006