United States v. Trey Boykin

Filing

OPINION FILED - THE COURT: Kermit E. Bye, Lavenski R. Smith and Patrick J. Schiltz AUTHORING JUDGE:Lavenski R. Smith (PUBLISHED), DISSENT BY: Kermit E. Bye [4298719] [14-2307]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2307
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Trey Michael Boykin
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Sioux City
____________
Submitted: April 17, 2015
Filed: July 24, 2015
____________
Before BYE and SMITH, Circuit Judges, and SCHILTZ,1 District Judge.
____________
SMITH, Circuit Judge.
Trey Michael Boykin was convicted of one count of kidnapping, in violation
of 18 U.S.C. § 1201, and one count of conspiracy to distribute marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846. On appeal, Boykin argues that the
1

The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, sitting by designation.

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superseding indictment was missing an essential element on the kidnapping charge,
rendering the indictment fatally flawed and entitling him to a judgment of acquittal.
As to the conspiracy conviction, Boykin asserts that there was insufficient evidence
of a conspiracy to distribute marijuana and that the district court erred in failing to
give his requested buyer-seller instruction. Having reviewed the record, we affirm
Boykin's kidnapping conviction but reverse his conspiracy conviction for insufficient
evidence. We remand for further proceedings consistent with this opinion.
I. Background
"We recount the evidence in the light most favorable to the jury's verdict."
United States v. Battle, 774 F.3d 504, 508 (8th Cir. 2014) (citation omitted). R.W.,
a football player and student at Briar Cliff University ("Briar Cliff") in Sioux City,
Iowa, occasionally smoked marijuana. In the summer of 2012, R.W. learned of
Boykin after receiving his phone number from another individual from whom R.W.
was purchasing marijuana. The individual informed R.W. that Boykin would deliver
the marijuana to R.W. on campus because R.W. did not have a vehicle at the time.
R.W. first purchased marijuana from Boykin after he texted Boykin and asked
if he had any marijuana. After Boykin texted a response back to R.W., Boykin drove
to the Briar Cliff campus where he met R.W. in the parking lot. R.W. got inside of
Boykin's vehicle and paid him $15 for one gram of marijuana, which R.W. smoked.
According to R.W., when he smoked marijuana, he typically smoked "one or two"
grams at a time and smoked "occasionally" or on "weekends."
During Briar Cliff's Thanksgiving or Christmas break in 2012, Boykin called
R.W. to tell R.W. that Boykin had marijuana. R.W. took little notice of the phone call
because he was in St. Louis, Missouri, for the break. R.W. told Boykin that R.W.
would call Boykin when R.W. got back into town.

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A few days prior to February 25, 2013, Boykin "bumped into" Gerry Patterson
in Sioux City. Boykin and Patterson knew of each other through acquaintances.
Boykin asked Patterson if Patterson had any marijuana. Patterson replied that he did
not have any at the time. The two men then exchanged phone numbers in the event
that Patterson obtained some marijuana later.
On February 24, 2013, after football practice, R.W. texted people—including
Boykin—looking for marijuana. R.W. wanted to get "[a]n ounce" of marijuana.
According to R.W., who was a "gram user" of marijuana, an "[o]unce is a lot of
marijuana." He was going to pay $170 for the ounce of marijuana. R.W. was going
to "[s]hare [the marijuana] with friends on campus, share it with other teammates."
R.W. testified that he "would smoke marijuana with other teammates and on the
reassurance that they would either pay me back or smoke back with me." When asked
whether he was "going to sell it," R.W. replied, "I was going to share it I would say,
yes." When asked whether "[p]eople were going to give [R.W.] money" for the
marijuana, R.W. replied, "Yes." R.W. did not testify that he disclosed to Boykin that
R.W. was planning on sharing the marijuana with others or receiving money for the
marijuana that he wanted to purchase from Boykin.
Boykin texted Patterson and asked him if he had a "[h]alf ounce" of marijuana.
Boykin then asked for a "full ounce" of marijuana. Patterson informed Boykin that
he did not have any marijuana. Boykin and Patterson then started discussing a plan
to rob R.W., whom Patterson did not know. They planned to rob R.W. at a bar but
changed their plan after Boykin discovered police officers there. Instead, they decided
to meet at the intersection of West Third and George in Sioux City.
Boykin texted R.W. and told him that he had the marijuana. R.W. told Boykin
the amount of money that R.W. had to spend on the marijuana. Through the exchange
of text messages, R.W. agreed to buy one ounce of marijuana from Boykin for $170.
R.W. indicated to Boykin that he had more money and could buy more marijuana if
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the deal worked out. Boykin first suggested taking R.W. to an off-campus location
to obtain the marijuana, but R.W. responded that he did not want to leave campus
because it was late. Boykin replied that he would meet R.W. on campus.
Patterson met Boykin at West Third and George and got into Boykin's vehicle.
Patterson was carrying a handgun in his waistband, which he placed on his lap once
he got into the car. Boykin then drove to Briar Cliff so that he and Patterson could rob
R.W. When Patterson expressed his concern that R.W. would call the police, Boykin
replied that R.W. would not call the police "[b]ecause it was a drug deal." Once
Boykin and Patterson arrived on the Briar Cliff campus, Boykin parked and texted
R.W. to let R.W. know that Boykin had arrived.
Early in the morning of February 25, 2013, R.W. saw Boykin on campus and
entered Boykin's car at his direction. Upon entering the back seat of the car behind
the driver's seat, R.W. noticed a stranger in front seat. R.W. entered the car thinking
that he was going to purchase marijuana from Boykin.
According to R.W., Boykin then drove the car in reverse even though R.W. had
told Boykin that he did not want to leave campus. As Boykin drove the car in reverse,
the front-seat passenger—which was Patterson—pulled a gun on R.W. R.W. testified
that the first comments that Boykin and Patterson made to him were that they had just
talked with the Briar Cliff security guards, as those security guards had approached
them while they were parked on campus and asked them to park the vehicle within
the lines or be ticketed. Patterson held the gun to R.W. and giggled, "basically saying
that he had just talked to [R.W.'s] security guards." Boykin also giggled. R.W. did not
exit the vehicle because Patterson was holding him at gunpoint. R.W. was scared and
did not know where they were going. Patterson told R.W. that he had to "give up
everything that [he] had." In response, R.W. "started emptying [his] pockets and

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giving up everything that [he] had." R.W. had an iPhone, a wallet, a "gar card,"2 his
dorm room key, and $310 in cash. Patterson took the $310 and everything else but the
iPhone and dorm key.
After they traveled a short distance from campus, Patterson told Boykin to stop
the car and release R.W. Once Boykin stopped the car, Patterson pointed the gun at
R.W. and told R.W. not to "try anything stupid" or he would "get shot." Boykin
opened the back car door—because there was a child safety lock on that door—and
let R.W. out. R.W. exited the car and started walking. As soon as R.W. saw Boykin's
vehicle drive away, he called Briar Cliff security and reported that he had just been
robbed at gunpoint. R.W. spoke very quickly and was very excited, which made him
difficult to understand. After calling security, R.W. walked back to campus. He then
called security again because Patterson had taken his gar card. A security guard met
R.W. at the entrance of Noonan Hall and let him in. According to the security guard,
R.W. "was very nervous, and he was very shaky, and he wanted to call his mom"
because he had just been robbed.
After releasing R.W., Boykin drove to a gas station where Patterson gave
Boykin $155 of the $310 taken from R.W. They divided the money evenly because
the robbery was both of their ideas and they had both participated. Boykin then drove
Patterson to a convenience store where they made purchases. Boykin then drove
Patterson to another location where Patterson bought marijuana from "a home girl."
Then, Boykin drove to the intersection of Eighth and Court for Patterson to "pay a
marijuana debt." Patterson then asked Boykin to take him on another errand. While
on that errand, an officer stopped Boykin and Patterson. Officers seized a handgun
from Boykin's car and discovered R.W.'s gar card in the backseat. At the time of their
arrest, Boykin had $145, and Patterson had $40 and a .22 caliber round in his pocket.

2

A "gar card" is a card that Briar Cliff security issues to every Briar Cliff
student, and the students use it to gain access to their dorm buildings.
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A grand jury returned a six-count superseding indictment against Boykin and
Patterson. Count 1 charged Boykin with conspiring to distribute marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 846. Count 2 charged Boykin
with willfully and unlawfully seizing, confining, inveigling, decoying, kidnapping,
abducting, and carrying away and holding R.W. by a means, facility, and
instrumentality of interstate commerce, in violation of 18 U.S.C. § 1201. Count 3
charged Boykin with possessing and brandishing and aiding and abetting the
possession and brandishing of a firearm in furtherance of the kidnapping, in violation
of 18 U.S.C. §§ 2 and 924(c)(1)(A). Count 6 charged Boykin with knowingly
possessing or aiding and abetting the possession of a firearm while being an unlawful
user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).
A jury trial commenced as to Boykin on Counts 1, 2, 3 and 6 of the superseding
indictment. At the close of the government's evidence and at the close of all evidence,
Boykin moved for a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29. The district court denied his motion as to Count 1, struck the aiding
and abetting language from Count 6, and reserved ruling as to Counts 2 and 3. The
jury returned guilty verdicts as to Counts 1 and 2 and not guilty verdicts as to Counts
3 and 6.
Thereafter, Boykin filed a motion for judgment of acquittal or in the alternative
a new trial requesting that the court grant a judgment of acquittal or new trial on
Counts 1 and 2. As to Count 2, Boykin argued that he was entitled to a judgment of
acquittal because the superseding indictment failed to allege all the necessary
elements constituting the offense of kidnapping; specifically, it failed to include the
language "for ransom or reward or otherwise." The court rejected this argument,
concluding that "an indictment sufficiently charges the crime of kidnapping without
any reference to the 'for ransom or reward or otherwise' language." (Citing Hayes v.
United States, 296 F.2d 657, 666 (8th Cir. 1961).) The court also found "unavailing"

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Boykin's allegation that the verdicts were contrary to the weight of the evidence and
that Counts 1 and 2 were unsupported by substantial evidence.
II. Discussion
On appeal, Boykin argues that the superseding indictment was missing an
essential element on the kidnapping charge, rendering the indictment fatally flawed
and entitling him to a judgment of acquittal. As to the conspiracy conviction, Boykin
asserts that there was insufficient evidence of a conspiracy to distribute marijuana and
that the district court erred by failing to give his requested buyer-seller instruction.
A. Sufficiency of the Indictment—Kidnapping
Boykin argues that the district court erred in denying his motion for judgment
of acquittal on the kidnapping charge because the indictment failed to contain the
element of kidnapping requiring that the purpose of holding the victim was "for
ransom, reward or otherwise." Boykin contends that "for ransom, reward or
otherwise" was an essential element of the offense and that the indictment's failure
to include such language violated his Fifth Amendment right to be tried on charges
found by the grand jury.
We generally review de novo a challenge to the sufficiency of an indictment,
"but Federal Rule of Criminal Procedure 12(b)(2) requires such challenges to be
raised prior to trial, and a failure to do so constitutes a waiver." United States v.
Villarreal, 707 F.3d 942, 957 (8th Cir. 2013) (quotation and citation omitted).
Nevertheless, a defendant may raise at any time a claim that the indictment fails to
state an offense. Id. (citation omitted). Here, Boykin admittedly did not raise his
sufficiency challenge to the indictment prior to trial; therefore, "we apply a more
deferential standard of review, because [w]hen an indictment is challenged after
jeopardy attaches, it is upheld unless it is so defective that by no reasonable
construction can it be said to charge the offense." Id. (alteration in original)
(quotations and citations omitted).
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An indictment need not use the specific words of the statute as "long as by fair
implication it alleges an offense recognized by law." Id. (quotations and citations
omitted). Only when an essential element "of substance" rather than "of form" is
omitted is an indictment fatally insufficient. Id. (quotation and citation omitted). "To
determine whether an essential element has been omitted, a court may not insist that
a particular word or phrase appear in the indictment when the element is alleged in
a form which substantially states the element." Id. (quotations and citation omitted).
An indictment's citation to the applicable statute "'[is] not in itself sufficient to supply
an element of a charged offense omitted by the grand jury'"; however, "when such a
citation is 'considered in combination with the other allegations in the indictment as
a whole, [it may be] adequate under the circumstances to have charged the defendant
with the offense for which he was convicted.'" Id. at 957–58 (alteration in original)
(quoting United States v. Diaz-Diaz, 135 F.3d 572, 576 (8th Cir. 1998)).
Boykin was charged with violating 18 U.S.C. § 1201(a)(1), which provides:
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or otherwise
any person, except in the case of a minor by the parent thereof, when—
(1) the person is willfully transported in interstate or
foreign commerce, regardless of whether the person was
alive when transported across a State boundary, or the
offender travels in interstate or foreign commerce or uses
the mail or any means, facility, or instrumentality of
interstate or foreign commerce in committing or in
furtherance of the commission of the offense . . .
***
shall be punished by imprisonment for any term of years or for life and,
if the death of any person results, shall be punished by death or life
imprisonment.
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(Emphasis added.)
Here, Count 2 of the superseding indictment omitted "for ransom or reward or
otherwise" as provided in § 1201(a)(1), stating:
On or about February 25, 2013, in the Northern District of Iowa,
defendants, GERRY ALAN PATTERSON and TREY MICHAEL
BOYKIN, did willfully and unlawfully, seize, confine, inveigle, decoy,
kidnap, abduct, and carry away and hold, R.W., and did use a means,
facility, and instrumentality of interstate commerce (i.e., telephones
(including cell phones), multimedia messaging service (MMS), Short
Message Service (SMS), iMessage, and an automobile) in furtherance
of the commission of the offense.
This was in violation of Title 18, United States Code, Section 1201.
(Emphasis added).
The question is whether the superseding indictment's omission of "for ransom
or reward or otherwise" rendered it fatally insufficient as to Count 2.
We addressed this precise question in Hayes v. United States, 296 F.2d 657
(8th Cir. 1961), when reviewing a prior version of § 1201 that contained the "for
ransom or reward or otherwise" language.3 The indictment had charged the defendant
3

In Hayes, the version of § 1201 under review provided:

"Whoever knowingly transports in interstate or foreign commerce, any
person who has been unlawfully seized, confined, inveigled, decoyed,
kidnaped, abducted, or carried away and held for ransom or reward or
otherwise, except, in the case of a minor, by a parent thereof, shall be
punished (1) by death if the kidnaped person has not been liberated
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with knowingly transporting via automobile in interstate commerce "a person who
had been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted,
carried away and by defendants held" but omitted "for ransom or reward or
otherwise." Id. at 658; see also id. at 665 ("The indictment charged the interstate
transportation by [the defendant] of persons he had kidnaped, in violation of 18
U.S.C. § 1201," but "[i]t did not charge that he had held them for any specific
reason.").
On appeal, the defendant argued "that the indictment was fatally defective
because there can be no violation of [§ 1201] unless the kidnaped individual is 'held
for ransom or reward or otherwise.'" Id. at 665. Thus, the defendant "asserted that an
indictment charging a violation of the Act must allege that the kidnaped person was
held for some reason which comes within the meaning of 'ransom or reward or
otherwise.'" Id. at 665–66. We found the indictment sufficient, relying on the Fifth
Circuit's reasoning in Clinton v. United States, 260 F.2d 824 (5th Cir. 1958); in that
case, the Fifth Circuit
considered the sufficiency of an indictment charging a violation of the
Federal Kidnaping Act, similar to the indictment in [Hayes], and had
this to say (p. 825):
"Appellant complains that, although he was charged
with unlawfully kidnapping and holding the victim, he was
not charged with holding him 'for ransom or reward.' The
statute does not make this an ingredient of the crime. It
requires only that the person charged with transportation be
shown to have 'unlawfully * * * kidnaped * * * or carried
unharmed, and if the verdict of the jury shall so recommend, or (2) by
imprisonment for any term of years or for life, if the death penalty is not
imposed."
Id. at 658 n.1 (emphasis added).
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away and held for ransom or reward or otherwise' the
victim. An allegation that appellant unlawfully and
knowingly transported in interstate commerce the victim
who had theretofore been unlawfully kidnapped and
carried away by the said defendants and held is entirely
adequate to withstand this motion. It is difficult to see how
the addition of the words 'for ransom or reward or
otherwise' would have added anything to the indictment
because obviously 'otherwise' comprehends any purpose at
all. If appellant desired to know more of the purpose the
government intended to prove for his unlawful holding, he
could have made a proper motion before trial to that end.
His failure to do so waived his right to raise the point after
conviction. Knight v. Hudgpeth, 10 Cir., 112 F.2d 137;
Knight v. United States, 8 Cir., 137 F.2d 940."
Id. at 666 (emphasis added) (quoting Clinton, 260 F.2d at 825).
We also noted that the Supreme Court had previously "laid no stress on the
statutory words 'held for ransom or reward or otherwise'" in setting forth the essential
elements of § 1201. Id. at 667 (citing Smith v. United States, 360 U.S. 1, 9 (1959)).
Furthermore, the Supreme Court had stated that "'[c]onvictions are no longer reversed
because of minor and technical deficiencies which did not prejudice the accused.'" Id.
(quoting Smith, 360 U.S. at 9). Likewise, this court had previously observed that an
indictment's sufficiency
"should be judged by practical, and not by technical, considerations. It
is nothing but the formal charge upon which an accused is brought to
trial. An indictment which fairly informs the accused of the charge
which he is required to meet and which is sufficiently specific to avoid
the danger of his again being prosecuted for the same offense should be
held good."
Id. (quoting Hewitt v. United States, 110 F.2d 1, 6 (8th Cir. 1940)).
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In light of the foregoing, we held that the defendant
was sufficiently informed by the indictment . . . of the charges he was
required to meet; that the defect or imperfection of which complaint is
made was minor and formal; and that the indictment was sufficiently
specific to avoid any possibility of his being prosecuted a second time
for the same offenses. There cannot be the slightest doubt that [the
defendant] knew exactly with what offenses he was charged.
Id.
Consistent with Hayes, "[t]he Supreme Court has interpreted the word
'otherwise' as encompassing any purpose at all." United States v. Noble, Criminal
Action No. 05-369, Civil Action No. 09-594, 2010 WL 653539, at *3 (E.D. Pa. Feb.
23, 2010 (citing Gooch v. United States, 297 U.S. 124, 127–28 (1936); United States
v. Healy, 376 U.S. 75, 81–83 (1964)). "Because of this expansive construction, the
kidnapping statute can be violated regardless of the defenda[n]t's motivation, and thus
the 'purpose' language does not form an essential element [of] kidnapping under 18
U.S.C. § 1201." Id. (rejecting defendant's argument that "his grand jury indictment
was defective so as to deny him, inter alia, "his Fifth Amendment right to be charged
by grand jury indictment") (citing Gawne v. United States, 409 F.3d 1399, 1403 (9th
Cir. 1969); United States v. Martell, 355 F.2d 764, 766 (4th Cir. 1964); Hayes, 296
F.2d at 665–67; Clinton, 260 F.2d at 825).
Post-Hayes, other circuits have agreed with this court that an indictment for
kidnapping under § 1201 is sufficient even though the words "for ransom or reward
or otherwise" do not appear. See, e.g., United States v. Webster, 162 F.3d 308,
328–29 (5th Cir. 1998) ("If 'otherwise' can include any purpose, adding it to the
indictment—irrespective of whether it specifies the 'otherwise' benefit—adds nothing.
This view consists with that of our sister circuits."); United States v. Adams, 83 F.3d
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1371, 1373–75 (11th Cir. 1996) (following Clinton and holding an indictment
sufficient that alleged only that victim was "held"); United States v. Atchison, 524
F.2d 367, 370–71 (7th Cir. 1975) ("[I]t now appears to be well settled that purpose
is not an element of the offense of kidnaping and need not be charged or proved to
support a conviction under the kidnaping statute, a defect in the indictment's
allegation of purpose is collateral in nature."); United States v. Lutz, 420 F.2d 414,
416 (3th Cir. 1970) (holding that indictment could be regarded as charging in effect
that kidnapping was for purpose of raping victim and was therefore within federal
kidnapping statute despite contention that indictment failed to charge that victim was
"held for ransom or reward or otherwise"); Gawne, 409 F.2d at 1403–04 (holding (1)
kidnapper's motivation is not an element of offense under Federal Kidnapping Act
which covers interstate transportation of the kidnapped persons held for ransom or
reward or otherwise; (2) under Federal Kidnapping Act the involuntariness of seizure
and detention is very essence of crime, and the true elements of offense are unlawful
seizure and holding followed by interstate transportation; and (3) because purpose of
defendants in illegally seizing and holding victim was not an element of offense
under charge of violating Federal Kidnapping Act, allegation of indictment regarding
the purpose of defendants in kidnapping and transporting victim was surplusage and
need not have been proved); Martell, 335 F.2d at 766 ("Nor would the inclusion of
the words 'held for ransom or reward or otherwise' have added anything to the
sufficiency of the indictment. While it did not use the word 'held,' it charged that
Martell seized and confined the victim and 'did fail to release' him. The Supreme
Court has recently declared that the statute is violated regardless of the ultimate
purpose of the kidnapper. This being so, use of the statutory language, 'ransom or
reward or otherwise,' was not necessary." (internal citations omitted)).4

4

Both the current and prior versions of § 1201 have in common the language
"for ransom or reward or otherwise," and our sister circuits have consistently held,
regardless of the particular version of § 1201 under review, that the omission of such
language does not render the indictment insufficient.
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"It is a cardinal rule in [this] circuit that one panel is bound by the decision of
a prior panel." Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002) (per curiam)
(citation omitted). Seeing no discernable difference between the present case and
Hayes, we are compelled to follow our prior holding that an indictment charging
kidnapping under § 1201 is sufficient, even though it does not charge that the person
kidnapped was held "for ransom or reward or otherwise."
B. Sufficiency of the Evidence—Conspiracy to Distribute Marijuana
Boykin next argues that insufficient evidence exists to support his marijuanaconspiracy conviction because the government presented evidence of only one
transaction between Boykin and R.W. for one gram of marijuana and one other
contact between Boykin and R.W. eighth months later where no actual sale occurred.
According to Boykin, this evidence showed only two distinct buyer-seller type
transactions, not a conspiracy to distribute marijuana.
"We review the sufficiency of the evidence de novo, reversing only if no
reasonable jury could have found [Boykin] guilty." United States v. Ruiz-Zarate, 678
F.3d 683, 689 (8th Cir. 2012) (citation omitted). To sustain Boykin's marijuanaconspiracy conviction, "the government had to prove that (1) a conspiracy to
distribute marijuana existed; (2) [Boykin] knew of the conspiracy; and (3) [Boykin]
intentionally became a part of the conspiracy." Id. (citation omitted). The government
often has to establish "the agreement and members' participation in the conspiracy
. . . by way of inference" considering that "the nature of conspiracy entails secrecy."
Id. (quotation and citation omitted). In the absence of direct evidence of a conspiracy,
"the jury is free to consider all the evidence—direct and indirect—presented of the
defendant's statements and actions[,] and [it] may draw reasonable inferences from
the evidence presented about what the defendant's state of mind was when he did or
said the things presented in the evidence." Id. at 689–90 (first alteration in original)
(quotation and citation omitted).

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Boykin "argues that the government proved only that he had a buyer-seller
relationship with [R.W.], which by itself was insufficient to support the conspiracy
conviction." United States v. Peeler, 779 F.3d 773, 776 (8th Cir. 2015). Boykin "is
correct that proof of a buyer-seller relationship without more is not sufficient to prove
a conspiracy." United States v. Finch, 16 F.3d 228, 231 (8th Cir. 1994) (citing United
States v. Prieskorn, 658 F.2d 631, 633 (8th Cir. 1981)). "'Because the crime of
conspiracy requires a concert of action among two or more persons for a common
purpose, the mere agreement of one person to buy what another agrees to sell,
standing alone, does not support a conspiracy conviction.'" United States v. Huggans,
650 F.3d 1210, 1222 (8th Cir. 2011) (quoting Prieskorn, 658 F.2d at 634). "The
principle is well-established, at least in this circuit, but it is limited to a narrow
category of cases. '[B]uyer-seller relationship cases involve only evidence of a single
transient sales agreement and small amounts of drugs consistent with personal use.'"
Peeler, 779 F.3d at 776 (alteration in original) (emphases added) (quoting Huggans,
650 F.3d at 1222). "[T]o reach such a conclusion there must be 'no independent
evidence tending to prove that the defendant had some knowledge of the broader
conspiracy.'" United States v. Vinton, 429 F.3d 811, 815 (8th Cir. 2005) (emphasis
added) (quoting Prieskorn, 658 F.2d at 635).
By contrast, "evidence is sufficient to show a conspiracy where drugs are
purchased for resale." United States v. Conway, 754 F.3d 580, 588 (8th Cir. 2014)
(emphasis added) (citation omitted). "'Evidence of multiple sales of resale quantities
of drugs is sufficient in and of itself to make a submissible case of a conspiracy to
distribute.'" Peeler, 779 F.3d at 776 (emphases added) (quoting Conway, 754 F.3d at
588). "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." Conway, 754 F.3d at 588 (emphases added) (citing United
States v. Slagg, 651 F.3d 832, 841 (8th Cir. 2011)). "[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."
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Slagg, 651 F.3d at 842 (alteration in original) (emphasis added) (quotations and
citations omitted).
We have previously approved of the following description of "the buyer/seller
defense as defined in our prior cases":
that transient sales where a buyer is purchasing drugs for his own
personal use and not for the purpose of distributing or delivering the
purchased drugs to another does not, in and of itself, make the buyer a
co-conspirator with the seller in the seller's drug distribution conspiracy.
If, however, the buyer acquires the drugs from the seller intending to
distribute or deliver the drugs to another person instead of using them
for his own personal use, or if he purchased the drugs from the seller as
part of the continuing buyer/seller relationship, he may be, depending
on what the evidence shows, a co-conspirator with the seller in a drug
distribution conspiracy.
Peeler, 779 F.3d at 775, 776 (emphases added).
This is not a case in which the government offered evidence of multiple drug
transactions between Boykin and R.W. Instead, the government's evidence
established no more than a "transient sales agreement" between Boykin and R.W. for
R.W. to purchase a "small amount of drugs consistent with personal use." See Peeler,
779 F.3d at 776 (quotation and citations omitted). First, the government does not
dispute that the first transaction in which R.W. purchased one gram of marijuana for
$15 was for R.W.'s personal use and amounted to nothing more than a buyer-seller
relationship. Second, R.W. did not purchase any marijuana from Boykin when Boykin
approached him during the end of 2012. Finally, the government offered no evidence
that R.W.'s attempted purchase of one ounce of marijuana in 2013 from Boykin
constituted a resale quantity of marijuana as opposed to a personal-use amount. Cf.
United States v. Gay, No. 2:10–CR–54, 2010 WL 3781555, at *2 (E.D. Tenn. Sept.
21, 2010) ("The real issue concerns the 14.6 grams of marijuana, which equates to
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approximately one-half ounce. The case agent, who attended the hearing, candidly
advised the court that one-half ounce of marijuana could be either for personal use
or for distribution, that 'it could go either way.'"). Indeed, a review of case law reveals
that one ounce of marijuana could be considered a personal-use amount of marijuana.5
R.W.'s subjective intention that he was going to "share" the marijuana with his
teammates and that "they would either pay [R.W.] back or smoke back with [him]"
is not proof that one ounce of marijuana is a resale quantity of marijuana. First, R.W.
never testified that one ounce of marijuana is a resale quantity of marijuana; instead,

5

Compare United States v. Chauncey, 420 F.3d 864, 869 (8th Cir. 2005) ("Fast
Horse purchased approximately two ounces of marijuana for $240, apparently
intending to keep one ounce for personal use and to sell the other ounce later that day
in Winner, South Dakota, where Chauncey knew of a potential customer."), and
United States v. Emery, 34 F.3d 911, 913 (9th Cir. 1994) ("Until recently, it was legal
under Alaska law for persons over age eighteen to possess up to four ounces of
marijuana for personal use."), and United States v. Anderson, 981 F.2d 1560, 1564
(10th Cir. 1992) ("No informant, undercover agent, or coconspirator testified
regarding Mr. Anderson's involvement in the conspiracy. Mr. Anderson may well
have been convicted of conspiracy because of his misfortune to conduct a one-time
transaction at the Grogan residence on this particular day. The evidence only
established Mr. Anderson's single delivery of six ounces of marijuana to Joe Cordova
for personal use. This transaction does not show that Mr. Anderson knew of the
essential objectives or the scope of the conspiracy, or that he knowingly and
voluntarily became a part of it." (citation omitted)), with United States v. McCollum,
64 F. App'x 402, 402 (4th Cir. 2003) (per curiam) ("The bag contained approximately
eleven ounces of marijuana, an amount typically kept not for personal use, but for
redistribution."); United States v. Duong, Criminal No. 3:10–cr–9 (VLB), 2011 WL
24113521, at *4 (D. Conn. June 10, 2011) ("Duong was selling drugs out of the
residence he shared with Elizabeth, and Elizabeth was present in 2002 when Duong
was arrested with more than 9 ounces of marijuana in his vehicle, an amount
exceeding that customarily possessed for personal use and which Duong admitted he
intended to sell.").
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he merely testified that, in his subjective opinion, it was "a lot of marijuana." Second,
his testimony indicates that he was going to smoke some of the marijuana; therefore,
some of it was for his personal use. Third, and most importantly, R.W. never
disclosed his intention to Boykin to share the marijuana with others or receive money
from others for the marijuana that he purchased from Boykin. See Vinton, 429 F.3d
at 815; Slagg, 651 F.3d at 841.
Given the government's failure to offer any proof that Boykin sold R.W. a
resale quantity of marijuana or that Boykin had knowledge of what R.W. planned to
do with the marijuana, we hold that the government proved only that Boykin had a
buyer-seller relationship with R.W., which is insufficient to support the conspiracy
conviction.
But the government also contends that Boykin was in a conspiracy to distribute
marijuana with "others," such as Patterson and Boykin's "source of supply." As to
Patterson, the record is devoid of any evidence that Patterson and Boykin conspired
to distribute marijuana. While Boykin inquired of Patterson on at least two occasions
whether Patterson had any marijuana, Patterson did not have any marijuana on the
occasions when Boykin asked. The government offered no evidence that Patterson
was Boykin's "source of supply" or that Boykin ever purchased any drugs from
Patterson.
As to Boykin's unknown "source of supply," we have recognized that "'[t]he
fact that the identity of some or all other members of the conspiracy remains unknown
will not preclude a conspiracy conviction.'" United States v. Mann, 701 F.3d 274, 296
(8th Cir. 2012) (quoting United States v. Agofsky, 20 F.3d 866, 870 (8th Cir. 1994)).
But in the present case the government offered no evidence of Boykin acquiring
marijuana from any source; instead, it simply points to the fact that Boykin was able
to fill R.W.'s $15 order for marijuana.

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Given the record evidence, we hold that the government failed to prove that
Boykin was in a conspiracy to distribute marijuana with R.W., Patterson, or an
unknown source of supply. Accordingly, we reverse his conviction on Count 1.6
III. Conclusion
Accordingly, we affirm Boykin's kidnapping conviction but reverse his
conviction on the conspiracy count. We remand for further proceedings consistent
with this opinion.
BYE, Circuit Judge, dissenting in part.
The superseding indictment was missing an essential element of the kidnapping
charge and Boykin's kidnapping conviction should be vacated. Therefore, I
respectfully dissent from Part II.A. of the Court's opinion.
The Court relies on Hayes v. United States, 296 F.2d 657 (8th Cir. 1961), to
hold the Fifth Amendment does not require an indictment to list a motive in
kidnapping cases. In Hayes, the § 1201 indictment did not charge the defendant held
victims for any specific reason and the Eighth Circuit determined the indictment was
sufficient. The discussion of the motive element, however, was dicta. Before
discussing the sufficiency of the indictment, the court found Hayes had waived the
issue. Id. at 666.7 Because the court determined the issue was waived before
discussing the merits, any discussion was dicta. "[W]e need not follow dicta. Dicta
6

Because we reverse Boykin's conviction on Count 1, we need not address
whether the district court erred in declining to give the requested buyer-seller
instruction.
7

I note Hayes' conclusion regarding the waiver is no longer good law. In
United States v. Camp, 541 F.2d 737, 741 (8th Cir. 1976), the Eighth Circuit held a
challenge to the sufficiency of the indictment, where it is alleged the indictment is
missing an essential element of the offense, is permissible for the first time on appeal.
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is a judicial comment made while delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential." Shephard v.
United States, 735 F.3d 797, 798 (8th Cir. 2013). The dicta from Hayes has not been
followed by the Eighth Circuit,8 and I would not follow it now.
Even assuming Hayes created precedent, any such precedent is no longer valid
because intervening Supreme Court cases have changed the law on kidnapping. See
McCullough v. AEGON USA Inc., 585 F.3d 1082, 1085 (8th Cir. 2009) ("A limited
exception to the prior panel rule permits us to revisit an opinion of a prior panel if an
intervening Supreme Court decision is inconsistent with the prior opinion."). In
Hayes, the Eighth Circuit found important that the Supreme Court had previously
"laid no stress on the statutory words 'held for ransom or reward or otherwise'" in
setting forth the essential elements of § 1201. Hayes, 296 F.2d at 667 (citing Smith
v. United States, 360 U.S. 1, 9 (1959)). After Hayes was decided in 1961, the
Supreme Court made clear motive is an essential element of kidnapping. United
States v. Healy, 376 U.S. 75, 81 (1964) (holding motive for kidnapping conviction
can be pecuniary or non-pecuniary). The Eighth Circuit has since repeatedly held
motive is an essential element of kidnapping. United States v. Brown, 330 F.3d 1073,
1078 (8th Cir. 2003) (discussing whether government had adequately proven motive
at trial); United States v. Bordeaux, 84 F.3d 1544, 1548 (8th Cir. 1996) (same);
United States v. McCabe, 812 F.2d 1060, 1061 (8th Cir. 1987) (same). Motive is an
essential element of a kidnapping conviction: if the government fails to prove motive
a conviction cannot stand. "If an essential element is omitted from the indictment,
then the defendant's Fifth Amendment right to be tried on charges found by a grand

8

The discussion in Hayes about the sufficiency of the indictment has only been
cited once by the Eighth Circuit. See Davidson v. United States, 312 F.2d 163, 165
(8th Cir. 1963). In Davidson, the indictment included the language "and held for
ransom, reward and otherwise," id. at 163 n.2, and is thus inapplicable to the present
case.
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jury has been violated." United States v. O'Hagan, 139 F.3d 641, 651 (8th Cir. 1998).
Boykin's Fifth Amendment right to indictment by a grand jury was violated.
I agree Boykin was sufficiently informed by the indictment of the charges
against him to protect him from double jeopardy. However, the Fifth Amendment
right to be tried upon charges found by a grand jury is separate from the requirement
that an indictment provide notice of the offense and bar the defendant from double
jeopardy. United States v. Camp, 541 F.2d 737, 739-40 (8th Cir. 1976) (citing Ex
Parte Bain, 121 U.S. 1 (1887)). I cannot agree the indictment complied with Boykin's
Fifth Amendment right to indictment by a grand jury because the grand jury did not
"consider[] and f[i]nd all essential elements of the offense charged." O'Hagan, 139
F.3d at 651.
Accordingly, I would vacate Boykin's kidnapping conviction.
______________________________

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