United States v. Travis Peeler , 779 F.3d 773 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2080
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Travis Sentell Peeler
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: December 12, 2014
Filed: March 5, 2015
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Before LOKEN, BRIGHT, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
A jury convicted Travis Peeler of conspiracy to possess with intent to distribute
more than five kilograms of powder cocaine and 280 grams of crack cocaine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court1
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The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
granted a downward variance and sentenced Peeler to the mandatory minimum of 120
months in prison. Peeler appeals, arguing the evidence was insufficient to support the
conspiracy conviction. “We review the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the jury’s verdict, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Harris-Thompson, 751 F.3d 590, 598 (8th Cir.), cert. denied, 135 S.
Ct. 415 (2014). Applying this deferential standard, we affirm.
At trial, FBI Special Agent James Somerville testified that, in early January
2012, law enforcement officers investigating widespread cocaine trafficking in
Minneapolis began intercepting the phone calls of suspected drug dealer Rossco
Ross. The calls revealed that Ross was distributing cocaine and crack cocaine
supplied by Musaaleh Muhammad to multiple lower-level dealers. On January 8,
Ross complained to Muhammad about the quality of his latest supply. The two
arranged a meeting on January 9, and the poor cocaine was “swapped out” for a fresh
supply. Ross then began calling his buyers to let them know he had cocaine and “was
ready to sell.”
On January 12, Ross called Peeler -- who was not previously known to the
investigators -- at a Wisconsin phone number. Ross told Peeler he had “some new
thunder whenever you ready.” Peeler responded “[a]lright,” and said he had been
“slow rolling” because “you said you was gonna be gone for that little week.” Peeler
said, “soon as I’m right, I’ll give your ass a call.” Somerville explained to the jury
that “new thunder” meant new cocaine, “slow rolling” meant Peeler had been selling
his current supply of cocaine slowly, and “soon as I’m right” meant when Peeler has
money to buy more cocaine.
On January 19, Ross called Peeler to ask why he had not heard from him.
Peeler responded he was “just waiting on this little bread” and was at “twenty [or]
twenty-two.” Somerville explained that bread meant money; Peeler was saying he
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had about two-thousand or twenty-two hundred dollars. The next day, Peeler and
Ross arranged to meet between Green Bay, Wisconsin, where Peeler lived, and the
Twin Cities, where Ross lived. After calling Muhammad, Ross phoned Peeler, who
was already on the road, and told him he would leave for their meeting point after
“ridin’ over to dude house,” and would call again “as soon he done his thing.”
Somerville explained that “doing his thing” referred to converting powder cocaine to
crack cocaine. Later that evening, Ross and Peeler met in a McDonald’s parking lot
off Interstate 94 in Menomonie, Wisconsin, where Minneapolis Police Sergeant Troy
Schoenberger testified that he observed what appeared to be a narcotics sale.
Minneapolis police followed Peeler when he left the rendezvous, and he was stopped
by Wisconsin State Trooper Jason Bakken. Bakken testified that a consensual search
of Peeler’s car uncovered 81 grams of crack cocaine hidden in a door panel.
Muhammad pleaded guilty to conspiracy to distribute cocaine and testified for
the government at Peeler’s trial. Muhammad testified that he had been distributing
powder cocaine to Ross for eight or nine years and knew Ross cooked powder
cocaine to crack cocaine “on occasion.” During the conspiracy period charged in the
indictment, March 2009 to March 2012, Muhammad acquired from one to seven
kilograms of cocaine from his supplier each month. Muhammad would cut (dilute)
the powder cocaine and distribute it to Ross and other customers. Muhammad
testified that he sold more than five kilograms of powder cocaine to Ross over this
three-year period. Muhammad knew from their conversations that Ross resold the
cocaine to multiple customers, including a buyer named “Travis” from Green Bay.
At the close of the evidence, Peeler timely moved for judgment of acquittal,
arguing that a reasonable jury could not find beyond a reasonable doubt that he joined
the alleged conspiracy because the government had no evidence, only “impermissible
speculation,” of anything more than a single 81-gram transaction between a buyer,
Peeler, and a seller, Ross. After hearing argument, the district court denied the
motion but then instructed the jury --
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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.
In closing argument, defense counsel vigorously argued that the evidence
established that Peeler was merely Ross’s customer, not a co-conspirator in the large
conspiracy involving Muhammad, Ross, and many others. The government argued
the evidence established that Ross and Peeler had an on-going relationship in which
Peeler purchased distribution quantities on at least two occasions,2 and that Ross’s
sales of more than five kilograms of cocaine to Peeler and Ross’s other customers
were reasonably foreseeable to Peeler, even if Peeler was unaware of the full scope
of the entire conspiracy.
On appeal, Peeler argues that the government proved only that he had a buyer-
seller relationship with Ross, which by itself was insufficient to support the
conspiracy conviction. He relies on United States v. Prieskorn, 658 F.2d 631, 636
(8th Cir. 1981), where we noted that “proof of a buyer-seller relationship, without
more, is inadequate to tie the buyer to a larger conspiracy such as is charged here.”
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.”
United States v. Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011) (quotation omitted),
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Agent Somerville testified that 81 grams was “not even close” to the amount
a cocaine user would buy, and instead would only be purchased for resale.
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cert. denied, 132 S. Ct. 1583 (2012); see United States v. Vinton, 429 F.3d 811, 815-
16 (8th Cir. 2005); Prieskorn, 658 F.2d at 634-35. “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.” United States v. Conway, 754 F.3d 580, 588 (8th Cir.)
(quotation omitted), cert. denied, 135 S. Ct. 770 (2014).
In Prieskorn, we held that the evidence was sufficient to convict defendant of
participating in the alleged conspiracy, but the district court erred in refusing to give
a requested buyer/seller theory-of-defense instruction because “there was evidence
indicating” defendant made only one purchase, knew only the seller, and had not
ordered the cocaine he bought. Here, the district court gave a theory-of-defense
instruction that accurately explained the buyer/seller defense as defined in our prior
cases. Counsel for Peeler then vigorously argued this defense in closing. The jury’s
guilty verdict reflects that it found, in the words of the district court’s instruction, that
Peeler “acquire[d 81 grams of crack cocaine] from [Ross] intending to distribute or
deliver the drugs to another person instead of using them for his own personal use,
or . . . purchased the drugs from [Ross] as part of the continuing buyer/seller
relationship.” In reaching its verdict, the jury listened to the taped phone calls, as
well as Agent Somerville’s testimony explaining what the code words and jargon
used in the conversations meant. Viewed in the light most favorable to the jury’s
verdict, this evidence together with Muhammad’s partial corroboration was sufficient
for a reasonable jury to find beyond a reasonable doubt that the 81-gram purchase
was part of Peeler’s on-going relationship with Ross (and whoever was supplying
Ross) to possess with intent to distribute powder and crack cocaine to other persons.
“A defendant may be convicted for even a minor role in a conspiracy, so long as the
government proves beyond a reasonable doubt that he or she was a member of the
conspiracy.” Conway, 754 F.3d at 587 (quotation omitted).
The judgment of the district court is affirmed.
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