United States v. Raphael Donnell ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2543
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United States of America, *
*
Appellee, *
*
v. *
*
Raphael L. Donnell, *
*
Appellant. *
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Appeals from the United States
No. 08-3102 District Court for the
___________ Western District of Missouri.
United States of America, *
*
Appellee, *
*
v. *
*
Dempsey Johnson, *
*
Appellant. *
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No. 08-3539
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United States of America, *
*
Appellee, *
*
v. *
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Boun Rattanavong, *
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Appellant. *
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No. 09-1580
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United States of America, *
*
Appellee, *
*
v. *
*
Dung A. Nguyen, also known as *
Johnny Tran, also known as *
Johnny Boy, also known as *
Johnny Playboy, *
*
Appellant. *
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___________
Submitted: November 17, 2009
Filed: March 4, 2010
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Before MELLOY, BEAM and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
This case arises out of an investigation into the distribution of
methylenedioxymethamphetamine (ecstasy) and other illegal drugs in Kansas City,
Missouri. A fourth superseding indictment charged twenty-eight defendants with
conspiracy to distribute and distribution of ecstasy and other drugs. Twenty-three of
the defendants pled guilty. Four defendants, Raphael Donnell, Dempsey Johnson,
Dung Nguyen and Boun Rattanavong, went to trial on the conspiracy to distribute
count, the sole charge against them.1 A jury found each guilty of conspiracy, and the
defendants now appeal. Each alleges different errors in the district court’s2 trial and
post-trial rulings. Their appeals were consolidated, and for the following reasons, we
affirm.
I. BACKGROUND
The investigation leading to this case began with a series of small, street-level
purchases of ecstasy and crack cocaine by an undercover Kansas City police detective,
Mark Corbin. Over the course of the investigation, law enforcement officers worked
their way up the supply chain, identifying new individuals in the distribution
1
The twenty-eighth defendant was a fugitive at the time of trial.
2
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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conspiracy. Eventually, all twenty-eight individuals identified in the indictment were
charged as members of a single conspiracy to distribute ecstasy, crack cocaine,
phencyclidine (PCP) and cocaine. The indictment also included distribution charges
against several defendants, along with a criminal forfeiture count against all
defendants.
Derrick Seals headed the Kansas City drug operation. Street-level dealers
obtained ecstasy and other drugs from Seals’s “inner circle” of co-conspirators.
Dempsey Johnson bought and sold ecstasy with members of Seals’s inner circle and
distributed it to street-level dealers. The Government identified Raphael Donnell as
a low-level ecstasy dealer for Seals and as an enforcer in Seals’s organization. Seals’s
supplier for the ecstasy he distributed in Kansas City was Vu Nguyen Huynh (“Vu”),
who pled guilty and testified for the Government at trial. Vu identified Dung Nguyen
and Boun Rattanavong, along with two others, as the suppliers of the ecstasy pills he
sold to Seals and others. Thus, the supply chain led from Nguyen and Rattanavong,
through Vu, to Seals, and then on to Seals’s inner circle and street-level dealers, such
as Johnson and Donnell, who eventually sold ecstasy to end users.
Over the course of the seven-day trial, the Government presented evidence
about the overall structure of the conspiracy and more specific evidence describing
each appellant’s role in it. We summarize the evidence with respect to each appellant
below.
Raphael Donnell: To link Donnell to the conspiracy, the Government offered
evidence that Donnell was a low-level dealer of ecstasy pills and an enforcer for Seals.
Jason Cross testified that he was part of Seals’s inner circle and that he distributed
ecstasy pills for Seals to lower-level dealers, including Donnell. Cross testified that
he sold ecstasy pills to Donnell on seven occasions, usually selling between twenty
and seventy pills on each occasion, but at times as many as 175 pills. Andre Brice,
another co-conspirator who had pled guilty, similarly testified that he sold Donnell
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pills on several occasions, usually selling between twenty-five and fifty pills each
time. The Government also introduced photographs of ecstasy pills recovered during
a traffic stop of Donnell. Vu testified that these pills were the same flavors3 as the
pills Vu sold to Seals.
Delesha Hughes, who also had pled guilty, corroborated Brice’s testimony
about his selling ecstasy to Donnell. Brice testified that Hughes was present during
some of his sales to Donnell. Hughes testified that she indeed witnessed multiple
occasions when Donnell bought ecstasy pills from Brice and that Donnell usually
bought between fifteen and fifty pills each time. Hughes also observed Donnell sell
ecstasy pills to others. Additionally, Hughes testified about a handwritten note she
received from Donnell after they had been arrested, which the Government introduced
into evidence. The note listed various conspirators and described their roles in the
operation. With respect to Donnell, the note reads:
Raphael Donnell: a friend of Dee’s [Derrick Seals], dee call him Big Bro
at times. supposed to be a killer from Kansas. . . . dee said he would kill
for dee cause dee would always help him on lawyers, bills. dee called
him a small time hustler cause he didn’t sell drugs[;] he stayed in . . . and
was into white collar crimes, but was always shooting somebody. dee
would take him to club and take him with hi[m] cause a lot of people
feared rags [Donnell] and dee felt more protected because of his rep.
The Government’s theory was that this section of the note was Donnell’s attempt to
coach Hughes on what to say in order to exonerate him; that is, if Hughes stated that
Donnell did not sell drugs, Donnell could escape the drug-distribution conspiracy
charge.
3
Ecstasy pills are produced with different colors and markings, termed
“flavors.”
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The jury also heard recordings of several wiretapped phone calls between
Donnell and Seals. Donnell and Seals discussed various firearms, and during one such
conversation Donnell remarked that “[i]t is too serious” for them to be “out here
naked.” The recordings also captured Seals describing a missing firearm and his
suspicion that his landlord had taken it. Seals said, “we going to put him to sleep” for
taking the firearm, though Donnell suggested that perhaps the “Feds” took it.
Finally, the Government introduced Donnell’s 2002 conviction for possession
of marijuana under Federal Rule of Evidence 404(b). This conviction resulted from
an incident where police found Donnell alone in a house where they also found crack
cocaine, PCP, marijuana, and several loaded firearms.
Dempsey Johnson: The Government’s evidence against Dempsey Johnson was
similar to the evidence against Donnell. Jeffrey Morgan, a low-level dealer who made
several crack cocaine and ecstasy sales to Detective Corbin and who had pled guilty,
testified that he received those drugs from Johnson. Nicole Wyatt, who had also pled
guilty, testified that she too bought crack cocaine from Johnson. Brice testified that
he sold ecstasy pills to Johnson on several occasions, usually selling between 50 and
150 pills at a time.
The Government also introduced evidence concerning two prior arrests of
Johnson. During an October 20, 1999 arrest, officers found what they described as
crack cocaine in Johnson’s possession. In 2000, Johnson was arrested for possession
of marijuana and cocaine. Officers testified that the 2000 arrest occurred after they
saw Johnson drop a package, the contents of which field-tested positive for cocaine.
However, Johnson was neither charged nor convicted as a result of either arrest.
Dung Nguyen: Unlike the evidence against Donnell and Johnson, which
focused on Derrick Seals’s inner circle that was operating in Kansas City, the
evidence against Nguyen focused on Vu’s description of his ecstasy supply sources
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in Dallas, Texas. Vu, who supplied ecstasy pills to Seals, identified four main sources
of these pills, including Nguyen. Vu testified that he met Nguyen on several
occasions and bought between 2,000 and 20,000 ecstasy pills each time. Amr
Elghussain, a friend of Vu’s, confirmed that he had introduced Nguyen and Vu and
that Nguyen was one of Vu’s suppliers.
Boun Rattanavong: Vu testified that Rattanavong was another one of his Texas
ecstasy suppliers. Vu said he initially purchased between 3,000 and 5,000 ecstasy
pills at a time from Rattanavong. However, these quantities grew over time, to the
point where Vu eventually was buying 30,000 pills at a time from Rattanavong. Vu
identified particular flavors of pills recovered from Kansas City as the same flavors
he bought from Rattanavong.
The Government also introduced evidence from a traffic stop of Rattanavong.
During the stop, an officer discovered $40,400 in bundled currency, disguised as a
wrapped gift. Rattanavong claimed he did not know where the money came from and
disclaimed ownership of it. However, the next day he called the officer who made the
stop to report that someone named “Kit” owned the money. Vu testified that “Kit”
was one of Vu’s smaller sources of ecstacy pills.
II. DISCUSSION
The appellants were charged with conspiracy to distribute ecstasy, cocaine,
crack cocaine and PCP in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B), and
(b)(1)(C). “To establish that a defendant conspired to distribute drugs . . . 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.” United States v. Ojeda-Estrada, 577
F.3d 871, 875 (8th Cir. 2009) (quoting United States v. Jiminez, 487 F.3d 1140, 1146
(8th Cir. 2007)), cert. denied, No. 09-7906, 2010 WL 58739 (Jan. 11, 2010).
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Although there is some overlap among the four appellants’ arguments on appeal, we
address each individually for the sake of clarity, if not brevity.
A. Raphael Donnell
Donnell argues that the district court improperly admitted into evidence (1) the
wiretap recordings of his conversations with Seals, (2) the handwritten note describing
his involvement in the conspiracy, and (3) his previous conviction for possession of
marijuana. “Evidentiary rulings are reviewed for abuse of discretion, and we afford
deference to the district judge who saw and heard the evidence.” United States v.
Espinosa, 585 F.3d 418, 430 (8th Cir. 2009) (quoting United States v. Davidson, 449
F.3d 849, 853 (8th Cir. 2006)). However, we will not reverse a conviction if an error
was harmless. Id. “The test for harmless error is whether the erroneous evidentiary
ruling ‘had a substantial influence on the jury’s verdict.’” United States v. Lupino,
301 F.3d 642, 645 (8th Cir. 2002) (internal quotation marks omitted) (quoting
Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995)).
With respect to the wiretap recordings of his conversations with Seals, Donnell
argues that they were of little probative value compared to the danger of unfair
prejudice and that the entire recordings therefore should have been excluded under
Federal Rule of Evidence 403. Donnell argues that the recorded conversations do not
include any mention of drugs and that the firearms discussed had nothing to do with
a drug distribution conspiracy, rendering the recordings minimally probative. The
Government argues that the discussions involving firearms supported the conspiracy
charge, since the firearms were being used to protect the drug business and were
therefore probative of Donnell’s involvement in the conspiracy. While drugs are not
discussed during the recordings, “[o]ur court recognizes the known correlation
between drug dealing and weapons.” United States v. White, 356 F.3d 865, 870 (8th
Cir. 2004). “We have frequently observed that a firearm is a ‘tool of the trade’ for
drug dealers.” United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997).
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Donnell argues that the recordings were unfairly prejudicial because they
include comments such as Seals’s statement about wanting to “put [his landlord] to
sleep,” encouraging the jury to convict him based on the allegedly violent nature of
his activities with Seals rather than on the evidence of his participation in the
conspiracy. To determine the admissibility of the recordings, the court must determine
whether their probative value is substantially outweighed by the danger of unfair
prejudice. Fed. R. Evid. 403. The conversations between Donnell and Seals bear out
the relationship between drugs and firearms and support the Government’s claim that
Donnell acted as an enforcer for Seals’s organization. Donnell said that it was
dangerous to be “out here naked” and that perhaps the “Feds” had taken Seals’s
missing firearm. These statements also were probative of Donnell’s awareness that
their activities would be of interest to federal law enforcement. On review, we cannot
say the district court abused its discretion in admitting the recordings, because the
danger of unfair prejudice did not substantially outweigh their probative value on the
issue of Donnell’s involvement in the conspiracy.
The Government also introduced a handwritten note, which Hughes testified
Donnell gave to her while they were awaiting trial. Donnell again argues that this
evidence was inadmissible under Rule 403 because its probative value was
substantially outweighed by the danger of unfair prejudice. He argues that the “killer
from Kansas” language and the statement that Donnell “would kill for” Seals
encouraged the jury to convict him based on his allegedly violent nature, rather than
on the basis of the evidence of his participation in the conspiracy. The Government
argues that the note’s detailed descriptions of the co-conspirators’ roles showed
Donnell’s knowledge of and involvement in the conspiracy. At trial, Donnell objected
to admitting the note on the ground that there was no evidence that Donnell authored
the note, an issue he does not raise on appeal. Donnell did not object based on Rule
403, and he concedes that we may only review the admissibility of the note for plain
error. “[B]efore an appellate court can correct an error not raised at trial, there must
be (1) error, (2) that is plain, and (3) that affects substantial rights [and] (4) . . .
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
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United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997)).
As with the wiretap recordings, the note was probative of Donnell’s
involvement in the conspiracy and his knowledge of its illegal purpose. The note
directly supports the Government’s argument that Donnell acted as an enforcer for the
conspiracy. In addition to its description of Donnell’s role, the note describes the
roles of several other co-conspirators in significant detail. The note thus refutes
Donnell’s argument that he was merely an innocent acquaintance of the active
members of the conspiracy. Given the probative value of the note, the district court
did not plainly err in finding that any danger of unfair prejudice was insufficient to
substantially outweigh the note’s probative value.
The Government also introduced evidence of Donnell’s 2002 conviction for
possession of marijuana. Under Federal Rule of Evidence 404(b), “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .” “Evidence is admissible under Rule
404(b) if: ‘(1) it is relevant to a material issue; (2) it is similar in kind and not overly
remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4)
its potential prejudice does not substantially outweigh its probative value.’” United
States v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002) (quoting United States v. Hardy,
224 F.3d 752, 757 (8th Cir. 2000)).
Donnell argues that his marijuana possession conviction is inadmissible under
the test set out in Frazier. His argument focuses on our decision in United States v.
Cook, 454 F.3d 938 (8th Cir. 2006), where we upheld the exclusion of a marijuana
possession conviction because it “was six years remote and it was functionally
dissimilar to the charged distribution offense,” id. at 941 (emphasis omitted). We
need not decide whether the district court erred in admitting Donnell’s previous
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conviction, if we find that any error was harmless. See United States v. Farish, 535
F.3d 815, 820 (8th Cir. 2008).
The other evidence against Donnell was sufficiently strong for us to conclude
that the conviction, even if improperly admitted, did not have “a substantial influence
on the jury’s verdict.” Lupino, 301 F.3d at 645. Multiple witnesses testified that
Donnell made multiple purchases of distributable quantities of ecstasy. Hughes
testified that she witnessed Donnell sell ecstasy to others. The wiretap recordings and
the handwritten note also showed Donnell’s role as an enforcer in Seals’ organization,
buttressing the conclusion that Donnell was an active participant in the conspiracy.
See United States v. Clay, 579 F.3d 919, 931 (8th Cir. 2009) (finding that acting as
enforcer supported a conspiracy charge). Moreover, the district court gave a limiting
instruction to the jury—“even if you find that a defendant may have committed similar
acts in the past, this is not evidence that he committed such an act in this case”—that
further reduced the potential harmful effect of any error. See United States v. Davis,
449 F.3d 842, 848 (8th Cir. 2006). Thus, we conclude that any error in admitting the
marijuana possession conviction was harmless.
B. Dempsey Johnson
In the Government’s case against Johnson, the district court admitted under
Rule 404(b) evidence of two previous arrests, one in 1999 involving crack cocaine and
one in 2000 involving cocaine. Johnson argues that this evidence was introduced to
“prove [his] character . . . in order to show action in conformity therewith,” rather than
for one of Rule 404(b)’s permissible purposes, “such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Fed. R. Evid. 404(b). Our analysis of Johnson’s challenge to the admissibility of the
details of his previous arrests proceeds in much the same fashion as our analysis of
Donnell’s previous conviction. We review for abuse of discretion, but will not reverse
if an error was harmless. Espinosa, 585 F.3d at 430.
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For the same reason we found the admission of Donnell’s marijuana possession
conviction harmless, we find harmless any error in admitting the circumstances of
Johnson’s prior arrests: the evidence against Johnson was strong and the district court
gave an appropriate limiting instruction, see Davis, 449 F.3d at 848. Jeffrey Morgan
testified that he obtained the crack cocaine and ecstasy he sold to Detective Corbin
from Johnson. When Morgan went to jail for a time, Nicole Wyatt took over
Morgan’s drug dealing business. Wyatt too testified that the crack cocaine she sold
to Detective Corbin came from Johnson. As a result, we find harmless any error in
introducing evidence concerning Johnson’s prior arrests because they did not have a
substantial influence on the jury’s verdict.4
C. Dung Nguyen
Dung Nguyen raises three issues in his appeal, each of which relates to his
claim that he was not a part of the overarching, twenty-eight member conspiracy
alleged in the indictment. First, he argues that because he was not a member of the
overall conspiracy, the indictment improperly joined the charges against the other
defendants with the charge against him. Similarly, he next argues that the district
court erred in denying his motion for a new trial on the ground that the evidence
showed multiple conspiracies rather than a single conspiracy and that this created a
variance from the indictment. See United States v. Stuckey, 220 F.3d 976, 981 (8th
Cir. 2000) (“[A] variance in the evidence affects the defendant’s right to adequate
notice, that is, the Sixth Amendment right to be informed of the nature and cause of
the accusation.” (internal citation and quotation marks omitted)). Finally, he argues
4
Johnson also objects to the admission of this evidence on the basis that he was
only arrested, not charged or convicted, as a result of each incident. However, Rule
404(b) is not limited to prior convictions, and the circumstances of a prior arrest may
be admissible under the rule as well. See United States v. Buckley, 525 F.3d 629, 635
(8th Cir. 2008). Because we find that any error was harmless, we need not decide
whether the arrests were admissible.
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that the district court erred in denying his motion for judgment of acquittal based on
the sufficiency of the evidence of his participation in the charged conspiracy.
“We review the claim of misjoinder de novo . . . .” United States v.
Jenkins-Watts, 574 F.3d 950, 967 (8th Cir. 2009). Although his brief is not clear on
this point, Nguyen appears to argue both that he was improperly joined with the
twenty-seven other defendants in a single indictment and that the separate distribution
charges against some defendants were improperly joined with the conspiracy charge
against him. With respect to the joinder of multiple defendants, under Federal Rule
of Criminal Procedure 8(b), a single indictment “may charge 2 or more defendants if
they are alleged to have participated in the same act or transaction, or in the same
series of acts or transactions, constituting an offense or offenses.” The indictment
charged all twenty-eight defendants with participating in a conspiracy to distribute
ecstasy and other drugs, beginning with Rattanavong and Nguyen, through Vu and
then Seals, and on to the lower-level dealers such as Donnell and Johnson. “In
general, persons charged in a conspiracy or jointly indicted on similar evidence from
the same or related events should be tried together.” United States v. Jones, 880 F.2d
55, 63 (8th Cir. 1989) (quoting United States v. Adkins, 842 F.2d 210, 211 (8th Cir.
1988)). Thus, the various defendants, all of whom were alleged to be members of the
same overarching conspiracy, were properly joined.
Likewise, while Nguyen was not charged in any of the separate distribution
counts, “[i]t is not necessary that all defendants be charged in each count.” United
States v. Liveoak, 377 F.3d 859, 864 (8th Cir. 2004). Rather, the separate charges
were for specific acts of distribution in the series of transactions leading from Seals
to the eventual end user of the drug; therefore, joinder was proper under Rule 8(b).
In any event, the joinder of other charges was irrelevant at the time of trial, since the
particular defendants charged in those counts had already pled guilty. When trial
began, all that remained was the conspiracy count. Thus, the joinder of the other
counts could not have prejudiced Nguyen at trial. See United States v. Jenkins-Watts,
574 F.3d 950, 967 (8th Cir. 2009) (“Reversal is required only if the appellant
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demonstrates that misjoinder resulted in actual prejudice, i.e., the misjoinder ha[d] ‘a
substantial and injurious effect or influence in determining the verdict.’” (quoting
Liveoak, 377 F.3d at 865)).
Nguyen next argues that the district court abused its discretion in denying his
motion for a new trial. Nguyen claims that while the Government may have proved
he was a member of a conspiracy to distribute ecstasy, it did not prove he was a
member of the overarching conspiracy charged in the indictment. That is, Nguyen
suggests that the Government at best proved that multiple conspiracies existed, but the
Government did not prove that he joined the particular conspiracy alleged in the
indictment. In support of this argument, Nguyen observes that Derrick Seals’s
operation was based in Kansas City, while Nguyen and Vu lived in Dallas, Texas.
Nguyen argues this entitles him to a new trial, since proof of a different conspiracy
would be an impermissible variance from the indictment.
“We review a district court’s denial of a motion for a new trial for an abuse of
discretion.” United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009), cert.
denied, No. 09-7814, 2010 WL 58709 (Jan. 11, 2010). “In reviewing claims of
variances between the indictment and proof at trial, we examine whether a reasonable
jury could have determined that the defendant participated in the single conspiracy
charged in the indictment.” United States v. Sdoulam, 398 F.3d 981, 991 (8th Cir.
2005). In doing so, “we view the evidence in the light most favorable to the verdict.”
Id.
In this case, the evidence was sufficient to allow a reasonable jury to find
Nguyen guilty of participating in the conspiracy alleged in the indictment.
A single conspiracy is composed of individuals sharing common
purposes or objectives under one general agreement. 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
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the transactions. Further, the agreement need not be explicit, but may be
tacit, based upon the actions of the defendant.
United States v. Ramon-Rodriguez, 492 F.3d 930, 941 (8th Cir. 2007) (quoting United
States v. Smith, 450 F.3d 856, 860 (8th Cir. 2006)). “[T]he government may prove the
agreement wholly by circumstantial evidence or by inference from the actions of the
parties.” United States v. Pizano, 421 F.3d 707, 726 (8th Cir. 2005). We have held
that “[t]he evidence is sufficient to support a conspiracy where the drugs were
purchased for resale.” United States v. Romero, 150 F.3d 821, 826 (8th Cir. 1998).
Vu’s testimony regarding Nguyen’s multiple sales to him of thousands of
ecstasy pills is sufficient evidence to support a jury’s finding that he knowingly
entered into a conspiracy to distribute ecstasy. And there was sufficient evidence to
allow a reasonable jury to find that this was the same conspiracy alleged in the
indictment. Indeed, the evidence in this case showed a typical “chain conspiracy.”
[I]n the typical drug distribution conspiracy you may find a manufacturer
who produces the product; a supplier who buys the contraband from the
producer; [and] distributors who buy from the supplier and sell to
smaller dealers or users . . . . Whatever the product, the purpose of the
conspiracy is to put the commodity into the hands of the ultimate
consumer. The success of the group as a whole is dependent upon the
ability of each member to fulfill his responsibilities. Thus, . . . the
defendants’ knowledge of the existence of remote links in the chain may
be inferred solely from the nature of the enterprise.
United States v. Rosnow, 977 F.2d 399, 406 (8th Cir. 1992). The Government’s
evidence traced the ecstasy pills step-by-step from Nguyen to their eventual sale in
Kansas City.
Nguyen also challenges the denial of his motion for a new trial because the
indictment alleged a conspiracy to distribute four different types of drugs, but Nguyen
was involved only with ecstasy distribution. However, “a conspiracy with multiple
objectives is not the same thing as multiple conspiracies.” United States v.
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Santisteban, 501 F.3d 873, 882 (8th Cir. 2007) (quoting United States v. Radtke, 415
F.3d 826, 839 (8th Cir. 2005)). There is no requirement that each co-conspirator be
involved in each act related to the conspiracy. See id. at 881 (“That the conspirators
entered the conspiracy at different times and played discrete roles does not compel a
finding of multiple conspiracies.”). Therefore, the district court did not abuse its
discretion in denying Nguyen’s motion for a new trial.
Finally, Nguyen argues that the district court erred in denying his motion for
judgment of acquittal. “We review the denial of a motion for acquittal de novo.”
United States v. Thropay, 394 F.3d 1004, 1005 (8th Cir. 2005).
We employ a strict standard of review regarding denials of motions for
acquittal, viewing the evidence in the light most favorable to the guilty
verdict, resolving all evidentiary conflicts in favor of the government,
and accepting all reasonable inferences supported by the evidence. A
jury verdict will not lightly be overturned and we will reverse only if no
reasonable jury could have found the defendant guilty beyond a
reasonable doubt.
United States v. Espinosa, 585 F.3d 418, 423 (8th Cir. 2009) (quoting United States
v. Thompson, 533 F.3d 964, 970 (8th Cir. 2008)). Nguyen argues that there was
insufficient evidence of a conspiratorial agreement among the alleged participants to
sustain the jury’s verdict against him. In doing so, Nguyen argues that “a mere sales
agreement between a buyer and seller with respect to contraband does not constitute
a conspiracy.” Romero, 150 F.3d at 826 (quoting United States v. Jensen, 141 F.3d
830, 833 (8th Cir. 1998)). “Mere proof of a buyer-seller agreement without any prior
or contemporaneous understanding does not support a conspiracy conviction because
there is no common illegal purpose: ‘In such circumstances, the buyer’s purpose is to
buy; the seller’s purpose is to sell.’” Pizano, 421 F.3d at 719 (quoting United States
v. Prieskorn, 658 F.2d 631, 634 (8th Cir. 1981)).
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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.” United States v. Parker, 554 F.3d
230, 235 (2d Cir.), cert. denied sub nom. Baker v. United States, 558 U.S. ---, 130 S.
Ct. 394 (2009). Thus, “[t]he evidence is sufficient to support a conspiracy where the
drugs were purchased for resale.” Romero, 150 F.3d at 826. Where the evidence
shows multiple transactions involving large amounts of drugs, we have held this is
sufficient to support a conclusion that the drugs were purchased for resale. See, e.g.,
United States v. Becker, 534 F.3d 952, 957-58 (8th Cir. 2008). Vu’s testimony
established just that. He testified that on multiple occasions Nguyen sold him between
2,000 and 20,000 ecstasy pills. As a result, the evidence was sufficient for a
reasonable jury to conclude that these pills were intended for resale, and that therefore
Nguyen had more than a buyer-seller relationship with Vu. The district court did not
err in denying Nguyen’s motion for judgment of acquittal.
D. Boun Rattanavong
Like Nguyen, Rattanavong appeals the district court’s denial of his motion for
judgment of acquittal. While his brief is not entirely clear, Rattanavong appears to
argue that there was insufficient evidence of his participation in an overarching
conspiracy, first because he had no knowledge of the lower-level dealers in Seals’s
operation in Kansas City or an intent to join a conspiracy with them, and second
because he had merely a buyer-seller relationship with Vu. As before, our review is
de novo, Thropay, 394 F.3d at 1005, viewing the evidence in the light most favorable
to the verdict, Espinosa, 585 F.3d at 423.
The mere fact that Rattanavong was unaware of the more distant members of
the chain-conspiracy does not defeat the conspiracy charge. See Rosnow, 977 F.2d at
406. Furthermore, the evidence of Rattanavong’s repeated sales of resale quantities
of ecstasy pills to Vu shows that Rattanavong also had more than a simple buyer-seller
relationship with Vu. Vu testified in detail about his numerous transactions with
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Rattanavong and how the sales grew in quantity, eventually reaching 30,000 pills per
transaction. From this evidence a reasonable jury could conclude that Rattanavong
repeatedly sold distributable quantities of ecstasy and, as a result, that he joined the
charged conspiracy. See Becker, 534 F.3d at 957-58. Therefore, we affirm the district
court’s denial of Rattanavong’s motion for acquittal.
E. Pro se briefs
Finally, Donnell and Nguyen filed pro se briefs raising issues not argued in the
briefs filed by their attorneys. Donnell’s pro se brief challenges the sufficiency of the
evidence and argues that his previous conviction for resisting arrest under Mo. Rev.
Stat. § 575.150, which the district court used to apply the career offender provision
of the advisory Sentencing Guidelines, is not a crime of violence under Begay v.
United States, 553 U.S. 137 (2008). Nguyen’s pro se brief argues that his counsel was
ineffective both at trial and sentencing, and that the district court erred under United
States v. Booker, 543 U.S. 220 (2005), in determining his base offense level under the
Guidelines, because the jury did not determine the quantity of ecstasy involved.
“[W]e generally do not accept pro se motions or briefs when an appellant is
represented by counsel.” United States v. Barker, 556 F.3d 682, 690 n.3 (8th Cir.
2009) (quoting United States v. McIntosh, 492 F.3d 956, 961 n.2 (8th Cir. 2007)). We
see no reason to depart from that general rule in this case. As a result, we decline to
address these additional arguments.5
5
Even if we were to consider the pro se briefs, we would still affirm. See supra
Section II.A (discussing the strong evidence against Donnell); United States v.
Hudson, 577 F.3d 883, 886 (8th Cir. 2009), cert. denied, No. 09-8183, 2010 WL
251493 (Jan. 25, 2010) (holding that resisting arrest under Mo. Rev. Stat. § 575.150
is a crime of violence); United States v. Jones, 586 F.3d 573, 576 (8th Cir. 2009)
(“[W]e do not address claims of ineffective assistance of counsel on direct appeal
because such claims usually involve facts outside of the existing record and are
therefore best addressed in postconviction proceedings under 28 U.S.C. § 2255.”);
United States v. Cruz-Zuniga, 571 F.3d 721, 726 (8th Cir. 2009) (“After [Booker],
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III. CONCLUSION
For the foregoing reasons, we affirm.
______________________________
‘judicial factfinding is permissible at sentencing so long as the district court
understands that the sentencing guidelines are advisory only.’” (quoting United States
v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006))).
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