United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3197

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United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the District

Jerry D. Jensen, * of Nebraska.

*

Appellant. *

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Submitted: January 13, 1998

Filed: April 2, 1998

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Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit

Judges.

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BRIGHT, Circuit Judge.

Jerry Jensen appeals the judgment of conviction on one count of conspiracy to

distribute amphetamine and his sentence of 150 months. Jensen contends that

insufficient evidence exists to support his conspiracy conviction. Jensen also argues

that because the government failed to specifically prove the existence of a conspiracy

between Jensen and Todd Milbourn, the district court erred in admitting into evidence

tape-recorded conversations of Milbourn planning a drug sale to an undercover police

informant. With respect to his 150-month sentence, Jensen asserts that the district
In light of our ruling that sufficient evidence does not support Jensen’s

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conviction, we need not reach other issues raised by Jensen in this appeal.

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court erred in imposing a two-point enhancement for possession of a firearm, and by

denying his request for a downward departure because of his deteriorating health.

Because sufficient evidence in the record does not support Jensen’s conviction for

conspiracy to distribute amphetamine, we reverse.1

I. BACKGROUND

On August 6, 1996, the Lincoln Police Department arrested Todd Milbourn

when Milbourn attempted to sell three grams of amphetamine (“crank”) to James

Monlyn, an undercover police informant. Milbourn identified appellant Jensen as his

source for crank. Following the arrest of Milbourn, officers of the Lincoln/Lancaster

County Narcotics Unit arrested Jensen. Subsequent searches of Jensen’s residence and

vehicles produced substantial amounts of amphetamine and money, drug paraphernalia,

an address book, a pager, and a .22 caliber revolver with a holster and ammunition.

At Jensen’s trial, the government relied upon the testimony of several of Jensen’s

alleged co-conspirators to establish the existence of a conspiracy. The alleged coconspirators, including Milbourn, James Phipps, Michael Ernst, Melayne Danekas, and

Paula Waldren, all testified on behalf of the government pursuant to plea agreements.

Milbourn met Jensen about three years before the trial of this case through a mutual

friend, Chris Muggy. Milbourn testified that he obtained crank from Jensen about three

times per week, a half-gram to two grams at a time. Milbourn stated that Muggy had

a similar pattern of purchasing crank. According to Milbourn, he and Muggy often

used crank together and shared drugs with each other. Milbourn admitted that he had

a “pretty bad” drug habit during the three years prior to his August 6th arrest.
Testimony at trial established that Fruit Fresh, a brand name for a food

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preservative, serves as a substance for diluting some types of drugs, including crank.

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Milbourn only identified one person, Monlyn (the police informant), as someone

to whom Milbourn sold drugs that were originally obtained from Jensen. Otherwise,

Milbourn’s testimony only indicates that he and Muggy personally used the drugs

purchased from Jensen. The record shows that Milbourn sold Monlyn crank on three

separate occasions in July and August of 1996, totaling approximately four grams.

Milbourn testified that on the day of his arrest, Monlyn drove Milbourn to Jensen's

home, where Monlyn waited outside and down the street while Milbourn went into

Jensen’s home to purchase the crank. Milbourn testified that after he made his

purchase, he went into Jensen’s bathroom and closed the door. Milbourn then took

some of the crank out and replaced it with Fruit Fresh so that he could keep some

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crank for himself without Monlyn’s knowledge. On this occasion, and on previous

occasions, Milbourn witnessed other individuals purchasing crank from Jensen. On

previous occasions, Milbourn also witnessed Jensen in possession of a large amount

of money and drugs, and a handgun. 

At trial, the government introduced several tapes of phone conversations and inperson conversations between Monlyn and Milbourn in which the two men planned

Milbourn’s three sales of crank to Monlyn. The district court allowed these tapes to

go to the jury over Jensen’s hearsay objections because the district court determined

that the taped conversations constituted admissions of Jensen’s co-conspirator,

Milbourn.

James Phipps met Jensen through a mutual acquaintance, Larry Wilson. Phipps

testified that he advanced, or fronted, one-half gram ($50.00 sale price) of crank to

Jensen. Phipps asserted that mere users of drugs usually did not purchase drugs in this

manner. Phipps also testified that Jensen had been present on several occasions when

Phipps fronted crank to Larry Wilson and on occasions when Phipps collected money
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from Wilson. Although Phipps did not have any personal knowledge of Wilson’s

relationship with Jensen, Phipps “believed” that Jensen helped Wilson distribute drugs.

However, Phipps acknowledged that Wilson never actually told him that Wilson had

any persons selling drugs for him.

Michael Ernst met Jensen through Ernst’s girlfriend, Julie Burt. Ernst testified

that he received approximately one-fourth to one-half gram of crank from Jensen. Ernst

further testified that he sold approximately one and one-half ounces of crank to Jensen.

With respect to Burt, Ernst’s girlfriend, Ernst stated that although he did not see any

transactions between Burt and Jensen, Ernst believed that Burt sold drugs to Jensen.

Ernst, however, did not provide any details of Burt’s alleged sales to Jensen, including

the amount of drugs involved.

Melayne Danekas met Jensen through her friend, Shelly Fetty. Danekas testified

that she sporadically used and sold crank for about ten years. Danekas estimated that

she purchased crank from Jensen on approximately five occasions. On one occasion,

Danekas stated that she overheard a discussion between Fetty and Jensen relating to

a trip Fetty and Jensen took to Grand Island in order to obtain drugs. Danekas stated

that Fetty appeared angry at Jensen because Jensen had left Fetty in Grand Island.

According to Danekas, Jensen left Fetty in Grand Island because the two had not

obtained any drugs and Jensen wanted Fetty to remain in Grand Island to continue

looking for drugs. Danekas also testified that she witnessed numerous other people

buying crank from Jensen.

Paula Waldren, Jensen’s girlfriend, testified that she witnessed many people in

their home buying drugs. Waldren testified that she made Jensen keep his drugs in a

locked box because of their small child. Waldren also stated that the gun that police

found in their search belonged to Jensen’s father and that Jensen kept it as collateral

for a loan of money that Jensen made to his father.
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The jury returned a guilty verdict on one count of conspiracy to distribute

amphetamine. At the sentencing hearing, Jensen moved the district court for a

downward departure under § 5K2.0 and § 5H1.4 of the Sentencing Guidelines based

upon the diagnosis that Jensen has a serious health condition. The district court denied

Jensen’s motion for downward departure, stating that “[t]he evidence is insufficient

. . . to conclude that a downward departure is justified.” The district court determined

that Jensen had a criminal history category of VI and an offense level of 26, which

included a two-point enhancement under § 2D1.1(b)(1) of the Sentencing Guidelines

based upon discovery of a .22 caliber handgun at Jensen’s home. The district court

sentenced Jensen to 150 months imprisonment.

II. DISCUSSION

Jensen argues that insufficient evidence exists in the record to support his

conviction for conspiracy to distribute amphetamine. In reviewing a challenge to the

sufficiency of the evidence, we may reverse a jury’s verdict only where a reasonable

fact-finder must have harbored reasonable doubt relating to the government’s proof on

at least one of the essential elements of the offense. United States v. McCracken, 110

F.3d 535, 540 (8th Cir. 1997). In applying this standard, we allow the jury’s verdict

the benefit of all reasonable inferences from the record. Id. 

In a conspiracy prosecution, the government must prove beyond a reasonable

doubt: (1) the existence of an agreement to achieve some illegal purpose; (2) “that the

defendant knew of the agreement[;]” and (3) “the defendant knowingly became a part

of the conspiracy.” United States v. Ivey, 915 F.2d 380, 383-84 (8th Cir. 1990)

(citation omitted). In the present case, we conclude that while the government’s case

may establish a series of small quantity, buyer/seller transactions, the record does not

establish that Jensen participated in any conspiracy to distribute amphetamine.
Milbourn testified that he purchased between one-half and two grams of crank 3

about three time a week, depending on how much money Milbourn had at the time. We

do not consider this quantity alone as necessitating a conclusion that Milbourn resold

the drugs in light of Milbourn’s acknowledgment that he had a serious drug problem

during this time period. Furthermore, nothing in Milbourn’s testimony indicates that

Jensen would have known about or assented to Milbourn’s reselling of the drugs.

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This court has previously ruled that “a mere sales agreement [between a buyer

and seller] with respect to contraband does not constitute a conspiracy . . . .” United

States v. West, 15 F.3d 119, 121 (8th Cir. 1994) (citing United States v. Prieskorn, 658

F.2d 631, 633 (8th Cir. 1981)). As stated, several of Jensen’s alleged co-conspirators,

including Milbourn, Phipps, Ernst, Danekas, and Waldren, testified on behalf of the

government pursuant to plea agreements. The government asserts that Milbourn’s

testimony established a drug distribution conspiracy between Milbourn and Jensen.

However, the record reflects that Milbourn testified primarily about his purchases of

crank from Jensen for Milbourn’s personal use. Milbourn’s testimony does not indicate

that Milbourn resold the amphetamine as a distribution scheme. Milbourn’s testimony 3

reflects that his only resale of crank obtained from Jensen consisted of his sale to

Monlyn, the government informant, as part of a setup. However, the record lacks any

evidence that Jensen knew of or agreed with Milbourn’s plan to resell the crank to

Monlyn. Moreover, Milbourn’s testimony indicates that on August 6, Milbourn kept

secret his intentions to resell the crank by making Monlyn wait outside and down the

street from Jensen’s home. In addition, Milbourn went into Jensen’s bathroom and

closed the door to conceal his exchange of Fruit Fresh for some of the crank so that he

could personally use some of the crank before selling it to Monlyn. Without any

suggestion from Milbourn that Jensen knew of and agreed with Milbourn’s plan to

resell the crank obtained from Jensen, Milbourn’s testimony does not support a

conclusion that Jensen and Milbourn participated together in a conspiracy to distribute

amphetamine. See West, 15 F.3d at 121.
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Next, the government asserts that Phipps’ testimony established a conspiracy

between Phipps and Jensen to distribute amphetamine. The record reflects that Phipps

fronted one-half gram of crank to Jensen on only one occasion. Phipps testified that

he “believed” that Jensen would resell the one-half gram of crank, because mere buyers

did not usually purchase crank on a front basis. However, Phipps stated that he had no

actual knowledge of whether Jensen resold or personally used the one-half ounce of

crank. In addition, Phipps testified that he believed Jensen assisted Wilson in

distributing drugs because Phipps occasionally saw Jensen with Wilson when Phipps

collected money from Wilson. Phipps admitted, however, that he had no personal

knowledge to support this belief. In fact, Phipps testified that Wilson never informed

him that anyone assisted him in his drug distribution. Accordingly, we conclude that

Phipps’ testimony does not establish that Jensen participated in a conspiracy to

distribute amphetamine. See Ivey, 915 F.2d at 384 (“Evidence of association or

acquaintance, though relevant, is not enough by itself to establish a conspiracy.”)

(citations omitted); United States v. Hernandez, 986 F.2d 234, 236 (8th Cir. 1993)

(“Mere presence at the location of the crime alone, even when coupled with knowledge

of that crime, is not sufficient to establish guilt on a conspiracy charge.”) (citation

omitted).

With respect to Melayne Danekas, we note that Danekas testified that she

overheard Jensen and Shelly Fetty discussing a trip to Grand Island to purchase drugs.

Danekas, however, did not testify that Jensen and Fetty actually obtained drugs. In

fact, according to Fetty, Jensen left Fetty at Grand Island because they could not

purchase drugs. The remaining portion of Danekas’ testimony related to Jensen selling

crank to various individuals. We conclude that this testimony amounts to nothing more

than evidence of mere buyer/seller exchanges, which does not establish the existence

of a conspiracy. See West, 15 F.3d at 121.

Finally, after reviewing Paula Waldren’s testimony, we conclude that Waldren’s

testimony does not indicate that Jensen participated in any conspiracy to distribute
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drugs. Waldren obviously knew Jensen sold drugs to others because Jensen carried on

most of his sales in their home. However, at no point during Waldren’s testimony does

she describe any situation that would suggest that Jensen conspired with anyone else

to distribute amphetamine.

III. CONCLUSION

In any conspiracy charge, the government possesses the burden of proving

beyond a reasonable doubt that the defendant knowingly agreed to become part of a

conspiracy to achieve an illegal purpose. While the evidence establishes that Jensen

sold significant amounts of drugs to numerous individuals, the government did not

charge him with any substantive offense. The government only charged Jensen with

conspiracy to distribute amphetamine, which the government did not prove in this case.

Accordingly, we reverse the district court’s judgment of conviction.

RICHARD S. ARNOLD, Chief Judge, dissenting.

I agree with much of what the Court says. Most of the government's evidence

at this trial showed only buyer-seller relationships. The testimony of Melayne

Danekas, however, seems to me to support a reasonable inference that Jensen was a

party to a conspiracy to distribute methamphetamine. This testimony is summarized

in the Court's opinion, ante at 4. I believe the jury could reasonably infer from this

evidence that Jensen and Fetty agreed to go to Grand Island to buy drugs for resale.

This would be sufficient evidence to support a conviction.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.