Submitted: October 19, 2017
from United States District Court for the Southern District
of Iowa - Council Bluffs
LOKEN, BEAM, and COLLOTON, Circuit Judges.
six-day trial, a jury convicted Manuel Espinoza and Jose Luis
Tizoc of conspiracy to distribute methamphetamine,
see 21 U.S.C. §§ 841, 846, and Espinoza of
being a prohibited person in possession of a firearm,
see 18 U.S.C. §§ 922(g)(2)-(3), 924(a)(2).
The district court sentenced Espinoza to 240 months in prison
and Tizoc to 300 months. Each timely appealed, challenging
his conviction and sentence. We consolidated the appeals and
Sufficiency of the Evidence (Espinoza)
argues the district court erred in denying his motion for
judgment of acquittal because the trial evidence was
insufficient to convict him of conspiracy to distribute
methamphetamine and being a prohibited person in possession
of a firearm. Rule 29(a) of the Federal Rules of Criminal
Procedure provides that the court "must enter a judgment
of acquittal of any offense for which the evidence is
insufficient to sustain a conviction." This standard
applies whether a timely motion is made before or after the
jury verdict. See Rule 29(c). In reviewing the
denial of a Rule 29 motion, "[w]e apply the same
standard of review to the district court's ruling . . .
as we do to a sufficiency of the evidence challenge."
United States v. Cook, 603 F.3d 434, 437 (8th Cir.
2010). The verdict must be upheld "if there is any
interpretation of the evidence that could lead a
reasonable-minded jury to find the defendant guilty beyond a
reasonable doubt." United States v. Taylor, 813
F.3d 1139, 1146 (8th Cir.) (quotation omitted), cert.
denied, 136 S.Ct. 2424 (2016).
The Conspiracy Charge.
trial, FBI Special Agent and case agent Michele Neily
testified that, in 2014 and 2015, state and federal task
forces investigating methamphetamine distribution in Omaha,
Nebraska and Council Bluffs, Iowa identified Richard Hull,
Jr. as a key distributor. Using wiretaps, physical
surveillance, source information, and controlled purchases,
investigators identified Espinoza and Tizoc as two of
Hull's suppliers. On September 23, 2015, warrant searches
at Tizoc's and Hull's residence and at a garage on Z
Street in Omaha yielded distribution quantities of
methamphetamine, firearms, ammunition, financial records, and
other evidence of drug trafficking such as a digital scale,
packaging materials, and razor blades.
Hull pleaded guilty to drug conspiracy and firearm charges
and testified for the government at trial. In 2014, Hull
began buying methamphetamine from Espinoza and his
girlfriend, Claudia; they delivered two-pound quantities to
Hull's residence. After Claudia moved to Mexico in 2015,
Hull purchased from Espinoza directly, acquiring a pound of
methamphetamine that summer. Special Agent Neily testified
that three wiretapped conversations between Hull and Espinoza
concerned Hull's methamphetamine requirements and his
ability to pay.
Moreno, Hull's live-in girlfriend, also pleaded guilty to
a drug conspiracy charge and corroborated Hull's
testimony. Moreno testified that, in a wiretapped call with a
person she identified as Espinoza, she asked him to supply
Hull a half-pound of methamphetamine. In another
conversation, Espinoza instructed Moreno to have Hull meet
him at a convenience store and pay what he owed Espinoza for
methamphetamine. Moreno accompanied Hull to this meeting, and
physical surveillance yielded a photo of Espinoza entering
his car. Brandi Lopez, who pleaded guilty to drug conspiracy
and firearm charges, testified that Espinoza supplied her a
pound of methamphetamine every two to three days and once
requested that she collect money Hull owed Espinoza for
methamphetamine. Lopez sold to over 250 customers from the
end of 2014 until her arrest in August 2015.
prove a conspiracy to distribute methamphetamine, the
government must prove an agreement to distribute
methamphetamine that the defendant knew of and intentionally
joined. See Taylor, 813 F.3d at 1146-47.
"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. Morris, 791 F.3d 910, 913 (8th Cir. 2015) (quotation
omitted). Espinoza argues Hull, Moreno, and Lopez's
testimony was "tainted" by their desire to reduce
their sentences and thus insufficient to support a
conviction. But "[w]e have repeatedly upheld jury
verdicts based solely on the testimony of co-conspirators and
cooperating witnesses, noting that it is within the province
of the jury to make credibility assessments and resolve
conflicting testimony." United States v.
Harris-Thompson, 751 F.3d 590, 600 (8th Cir.) (quotation
omitted), cert. denied, 135 S.Ct. 415 (2014).
Espinoza argues the government's lack of direct evidence,
such as controlled purchases from him or a wiretap on his
phone, makes the evidence of his participation insufficient.
But the government may prove a conspiracy to distribute a
controlled substance through circumstantial evidence.
See, e.g., United States v. Jackson, 204
F.3d 812, 814 (8th Cir. 2000). Here, a jury could reasonably
infer from the cooperating conspirators' testimony, the
wiretapped phone calls, and the physical surveillance that
Espinoza was guilty of conspiring to distribute
The Firearm Charge.
August 24, 2015, while on traffic patrol, Council Bluffs
Police Officer Ty Boldra stopped a black Mercedes traveling
without a front license plate. A search of the driver, Manuel
Espinoza, uncovered a pipe and 0.8 grams of methamphetamine
in Espinoza's pockets, and Officer Boldra arrested
Espinoza for possession of drug paraphernalia. An inventory
search of Espinoza's car then discovered a firearm
between the driver's seat and center console. Count 10 of
the indictment charged Espinoza with violating 18 U.S.C.
§§ 922(g)(2) and (3), which provide: "It shall
be unlawful for any person . . . who is a fugitive from
justice [or] . . . who is an unlawful user of or addicted to
any controlled substance . . . to . . . possess in or
affecting commerce, any firearm or ammunition."
jury found Espinoza guilty of that charge. Espinoza argues
the district court erred in denying his motion for judgment
of acquittal because the government's evidence was
insufficient to show he was a fugitive from justice
or an unlawful drug user when he possessed the
firearm. If the evidence was sufficient to establish one of
these alternative elements, we need not consider the other.
"[W]hen a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive . . . the verdict
stands if the evidence is sufficient with respect to ...