United States v. Trevor Scott Ray , 690 F. App'x 438 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3714
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Trevor Scott Ray
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: March 10, 2017
Filed: May 22, 2017
[Unpublished]
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Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Trevor Scott Ray was convicted by a jury of three drug-related felonies:
conspiracy to distribute 500 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846
(Count I); distribution of 50 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count II); and
possession with intent to distribute and aiding and abetting possession with intent to
distribute 500 grams or more of mixture or substance containing methamphetamine,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (Count III). The
district court1 denied Ray’s motion for judgment of acquittal and imposed concurrent
sentences of 180 months’ imprisonment on each count. Ray appeals, arguing that the
evidence was insufficient to support the jury’s guilty verdicts. We affirm.
We review de novo the sufficiency of the evidence to support a conviction,
considering the evidence in the light most favorable to the jury’s verdict and accepting
all reasonable inferences that may be drawn therefrom in its favor. United States v.
Kirk, 528 F.3d 1102, 1111 (8th Cir. 2008). Our review of the evidence presented at
trial is “highly deferential,” and we will reverse a conviction only if no reasonable jury
could have found the defendant guilty. Id. (citation omitted). “If evidence consistent
with guilt exists, we will not reverse simply because the facts and the circumstances
may also be consistent with some innocent explanation.” United States v. Griffith,
786 F.3d 1098, 1102 (8th Cir. 2015) (“Even where the evidence ‘rationally supports
two conflicting hypotheses, [we] will not disturb the conviction.’” (citation omitted)),
cert. denied, 137 S. Ct. 70 (2016). We recount the evidence presented at Ray’s trial
in light of these standards.
In November 2014, Michaela Hofland was caught shoplifting at a discount store
while in possession of approximately $2,500 and methamphetamine that she had
obtained from Christopher Gabbard. Hofland was admitted to a drug-treatment
facility in January 2015, where Ray later appeared for a visit and to provide Hofland
with his current contact information. Hofland left the facility in February 2015 with
her boyfriend, Nathan Woods. Hofland called Ray, and she and Woods met Ray,
Gabbard, and Bill Rensch at a bar in Rapid City to discuss Hofland’s outstanding debt
1
The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.
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to Ray for “fronted” methamphetamine. Later that day, Hofland met Ray at his
workplace, City Wide Auto, and then at his residence, where she paid Ray $900 for
her outstanding debt and obtained an ounce of methamphetamine that she thereafter
gave to Woods and Chris Daniels. Hofland returned to City Wide the next day, paid
Ray for the drugs received the day before, and was fronted another two ounces of
methamphetamine for which she agreed to later pay Ray $2,200. Hofland met Ray
at a casino two days later; paid him the outstanding $2,200; and was fronted another
two ounces of methamphetamine, which she gave to Daniels to sell. Hofland later met
Ray at a truck stop, paid him $2,200 for the previously received methamphetamine,
and was fronted an additional two ounces. The next day, Hofland again met Ray at
City Wide, paid him for the previously received methamphetamine, and was fronted
two more ounces, which she again gave to Daniels to sell. Hofland was not using
drugs during this period but was engaging in these transactions to make “extra cash.”
All told, Hofland purchased a total of nine ounces, or 255 grams, of methamphetamine
from Ray. When Hofland was arrested on February 11, 2015, she still owed Ray
$2,000 for fronted methamphetamine.
Woods had been receiving methamphetamine from Hofland but began dealing
directly with Ray after Hofland was arrested. Woods and Ray met at a convenience
store in Rapid City, where Woods paid Hofland’s outstanding $2,000 debt, and Ray
agreed to supply Woods with methamphetamine. Also in February 2015, Woods
agreed to work as a confidential informant (CI), after officers searching his home in
January 2015 recovered methamphetamine, a firearm, a scale, and small baggies that
Woods had used to package drugs for distribution. In violation of his CI agreement,
however, Woods met Ray at a department-store parking lot and paid $2,000 for two
ounces of methamphetamine. When Ray retrieved the drugs from the center console
of his vehicle during the transaction, Woods observed a large freezer bag that was half
full of additional methamphetamine. Ray and Woods met again the next day in a
casino parking lot, where Woods gave Ray $2,000 for another two ounces of
methamphetamine.
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Several days later, Woods informed Special Agent Robert Palmer of the South
Dakota Division of Criminal Investigation that Ray would sell him two ounces of
methamphetamine and would also “front” an additional two ounces. Agent Palmer
recorded the telephone call Woods placed to Ray to arrange a meeting at City Wide
to conduct the transaction. Agent Palmer provided Woods with $2,000 in pre-
recorded cash and fitted Woods with a device to transmit and record the transaction
with Ray. Agents searched Woods’s person and vehicle before the transaction and
surveilled Woods as he drove to meet Ray. Ray took Woods to a back room at City
Wide and handed him a packet of methamphetamine. The audio recording captured
Woods stating to Ray, “I have two for you,” and one man thanking the other before
the conversation turned to a vehicle on the City Wide lot. Woods delivered the packet
to agents, and later testing determined that it held 112.5 grams of a substance
containing methamphetamine.
Woods met Ray again a few days later without informing Agent Palmer, paid
$2,000 for two ounces of methamphetamine and was fronted another two ounces. The
two met again within days, and Woods paid Ray $2,000 for the previously fronted two
ounces, and this time was fronted an additional four ounces of methamphetamine.2
Woods later failed a drug test administered as part of his CI agreement and was
arrested. Upon his release from custody, Woods went to City Wide and was fronted
eight ounces of methamphetamine by Ray. All told, Woods purchased a total of
twenty-two ounces, or 624 grams, of methamphetamine from Ray, most of which he
distributed to others.
Rensch, the owner of City Wide, hired Ray to work for him in February 2015.
Rensch had previously been to Ray’s home and had seen Ray smoke a substance that
Rensch believed was methamphetamine and that Rensch had seen Ray retrieve from
2
Woods admitted to the additional methamphetamine transactions that occurred
without Agent Palmer’s knowledge only after Woods was charged with federal drug
offenses on March 16.
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a baggie holding three or four inches of the substance. Ray loaned Rensch $20,000
in cash to help with Rensch’s business, and only weeks later, Ray gave Rensch
another $12,000 cash without any discussion regarding repayment. Ray received two
paychecks from City Wide, neither of which was ever cashed. Rensch approached
Mark Bradsky, the owner of Outback Storage in Rapid City, and asked to rent a
storage unit in a name other than his own. Bradsky completed the rental paperwork
in the name of Rensch’s brother, and Rensch paid Bradsky $300 for a one-year lease
for storage unit 51. Storage-unit renters could enter the gated Outback storage facility
by entering an access code unique to each storage unit. Bradsky maintained a log of
the access codes entered into the facility’s entry keypad. Bradsky could see the
facility entry gate from his office and once observed an individual matching Ray’s
description and driving a car identical to Ray’s gray Corvette arrive at the storage
facility and enter the access code for storage unit 51.
On March 25, agents conducting surveillance on Ray observed him leave City
Wide and drive to Outback Storage in a gray Corvette, but they were unable to see
where Ray went once he entered the facility. On March 31, agents again saw Ray
drive from City Wide to Outback Storage in the Corvette, but on this occasion, they
were able to observe Ray enter unit 51. A surveillance camera was installed to
monitor unit 51, and video footage showed Ray entering the unit on April 3, 5, and 6.
Specifically, on April 6, the footage showed Ray arriving at unit 51 in a gray Corvette,
opening the unit, removing an item from the unit, and placing it in his vehicle. In
addition, video footage from the morning of April 9 showed an individual resembling
Gabbard arrive in a silver truck identical to one owned by Ray and regularly driven
by Gabbard. The driver of the silver truck traveled slowly through the storage facility
as if lost and eventually left without stopping at or opening a storage unit. The silver
truck returned about an hour later, and the driver paused at several storage units in the
vicinity of unit 51 before finally opening and entering that unit. The truck left the
storage facility shortly thereafter.
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Agents obtained warrants to arrest Ray and to search his residence and storage
unit 51. Ray was arrested at City Wide on April 9. During the search incident to
arrest, agents seized a methamphetamine pipe from the center console of Ray’s
Corvette, $7,900 in cash from the trunk, and $1,255 from Ray’s person. Agents also
recovered a set of keys from Ray’s vehicle, one of which was stamped “Fortress.” At
Ray’s residence, agents recovered a money-counting machine and a cell phone whose
number corresponded to the number that Woods had called to arrange the February
18 controlled buy. When they searched unit 51, agents used the Fortress key seized
from Ray’s Corvette to open the padlock that secured the door to the unit. The storage
unit was empty except for two boxes and a backpack, from which agents recovered
small plastic bags, digital scales, and a plastic bag containing a substance that was
later confirmed to be 445 grams of a substance containing methamphetamine.
Gabbard, who was subject to an outstanding warrant, was also arrested on
April 9, while driving the silver truck that was registered to Ray. During the search
incident to arrest, agents seized from Gabbard a small plastic bag containing a white,
crystal substance and from the truck several more small plastic bags containing what
would later be identified as 411.2 grams of a substance containing methamphetamine.
Agents also seized a backpack holding a digital scale from the back seat of the truck,
as well as a key stamped “Fortress” from the key ring in the truck’s ignition. Agents
later confirmed that that Fortress key opened the padlock that secured unit 51.
Ray first argues that the evidence was insufficient to support his conviction for
conspiracy as charged in Count I. To establish that a defendant was involved in a
conspiracy to distribute a controlled substance, the government must prove that there
was an agreement to distribute the drug, that the defendant knew of the agreement, and
that he intentionally joined in the agreement. United States v. Garcia-Hernandez, 682
F.3d 767, 773 (8th Cir. 2012). The requisite agreement may be inferred from the facts
and circumstances, see id., and a defendant’s participation therein may be “proven by
evidence tending to show that [he] shared a common purpose or design with his
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alleged coconspirators” or that his actions “facilitated the endeavors of other alleged
coconspirators or facilitated the venture as a whole,” United States v. McCoy, 86 F.3d
139, 141 (8th Cir. 1996) (citation omitted). “A defendant challenging the sufficiency
of the evidence in a conspiracy case has a heavy burden.” United States v. Nolen, 536
F.3d 834, 842 (8th Cir. 2008) (citation omitted).
As set forth above, the jury heard ample evidence that Ray was involved in an
extensive methamphetamine-distribution conspiracy with Hofland, Woods, and
Gabbard. Ray contends that this evidence proves only that he had a buyer-seller
relationship with Hofland and Woods and thus cannot form the basis for his
conspiracy conviction. Although a conspiracy conviction must be supported by proof
of more than just a buyer-seller relationship, “we have limited buyer-seller
relationship cases to those involving ‘only evidence of a single transient sales
agreement and small amounts of drugs consistent with personal use.’” United States
v. Trotter, 837 F.3d 864, 867-68 (8th Cir. 2016) (citation omitted), cert. denied, 137
S. Ct. 1125 (2017). Ray provided Woods and Hofland distribution quantities of
methamphetamine on no fewer than eleven occasions over the course of only a few
weeks. These interactions were sufficient to establish that Ray had more than a mere
buyer-seller relationship with Hofland and Woods. Moreover, Ray was arrested while
in possession of a methamphetamine pipe, more than $9,000 in cash, and a key to a
storage unit holding 445 additional grams of methamphetamine and other items
indicative of drug distribution. See United States v. Urkevich, 408 F.3d 1031, 1037
(8th Cir. 2005) (concluding that evidence of possession of illegal drugs; drug
paraphernalia; and “tools of the drug trafficking trade, including digital scales [and]
large amounts of cash,” supported defendant’s methamphetamine-conspiracy
conviction). Applying our highly deferential standard of review, we conclude that the
evidence was sufficient for a reasonable jury to find Ray guilty beyond a reasonable
doubt of conspiring to distribute more than 500 grams of methamphetamine.
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Ray next argues that the evidence was insufficient to support his conviction for
distribution of 50 grams or more of methamphetamine to Woods in the controlled buy,
as charged in Count II. To sustain a conviction for this offense, the government was
required to prove that Ray knowingly and intentionally distributed a controlled
substance, knowing at the time that it was a controlled substance. United States v.
Jones, 600 F.3d 985, 990 (8th Cir. 2010). Ray argues that Woods’s testimony that
Ray sold him four ounces, or approximately 112 grams, of methamphetamine was
unreliable as a matter of law because Woods conceded that he was not trustworthy.
“Assessing witness credibility is the job of the jury and absent extraordinary
circumstances . . . , we will not review that assessment.” Id. (citation omitted); see
also United States v. Johnson, 519 F.3d 816, 822 (8th Cir. 2008) (noting that a jury’s
credibility determinations are “virtually unreviewable on appeal” (citation omitted)).
Such extraordinary circumstances do not exist here. The jury was in the best position
to judge Woods’s testimony in light of his admissions of untrustworthiness.
Moreover, Woods’s testimony regarding the controlled buy was corroborated by the
agent who provided Woods with the money for the buy, monitored the transaction,
and recovered the drugs from Woods immediately thereafter. This evidence was more
than sufficient to sustain Ray’s conviction for distribution of 50 grams or more of
methamphetamine.
Finally, with respect to Count III, Ray challenges only the sufficiency of the
evidence to establish that he possessed the 500 grams or more of methamphetamine
found by the jury. He contends that the government failed to prove that he knowingly
possessed the 445 grams of methamphetamine recovered from storage unit 51 and
thus failed to prove that he possessed the requisite 500 grams or more of
methamphetamine. We disagree. To convict Ray on Count III, the government had
to prove knowing possession and intent to distribute 500 grams or more of
methamphetamine. See, e.g., United States v. Blakey, 449 F.3d 866, 869 (8th Cir.
2006) (noting that government must prove knowing possession and intent to
distribute). Possession for these purposes may be either actual or constructive, and it
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need not be exclusive. Id. To prove constructive possession of the methamphetamine
in the storage unit, the government was required to show that Ray exercised
“ownership, dominion, or control over” the drugs themselves or over the premises in
which they were concealed. Id. “We have said that a ‘holder of [a] key, be it to the
dwelling, vehicle[,] or motel room . . . has constructive possession of the contents
therein.’” Id. (citation omitted). As for intent to distribute, we have held that “[a]
large quantity of drugs, standing alone, is sufficient evidence” to establish the
requisite intent. United States v. Serrano-Lopez, 366 F.3d 628, 635 (8th Cir. 2004).
The evidence is more than adequate to establish Ray’s constructive possession of and
intent to distribute the 445 grams of methamphetamine recovered from the storage
unit. When arrested, Ray had in his possession a key to the storage unit, as well as
drug paraphernalia and more than $9,000 in cash. See Jones, 600 F.3d at 990 (noting
that intent to distributed a controlled substance may be established by circumstantial
evidence such as a large quantity of drugs, “cash, packaging material, or other
distribution paraphernalia” (citation omitted)). Agent surveillance and videotape
footage established that Ray had accessed the unit on several occasions. The other
key to the storage unit was recovered from a ring holding the ignition key to a truck
registered to Ray and driven by Gabbard, who had left the storage facility shortly
before he was arrested while in possession of 411 grams of methamphetamine
packaged for distribution and a digital scale. Although Ray’s dominion and control
over the storage unit was not exclusive, given Gabbard’s access to the padlock key,
there was evidence that the two cooperated in the possession and distribution of
methamphetamine. See Blakey, 449 F.3d at 869. The evidence thus amply supported
the jury’s finding that Ray possessed with intent to distribute 500 grams or more of
methamphetamine.
The judgment is affirmed.
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