# United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-2309

___________ United States of America, * * Appellee, * * v. * * Reynaldo Quesada Morales, * * Appellant. *

___________ Appeals from the United States No. 96-2351 District Court for the

___________ Eastern District of Missouri. United States of America, * * Appellee, * * v. * * Juan Felix Toca, * * Appellant. *

___________ Submitted: January 16, 1997 Filed: May 6, 1997

___________ Before WOLLMAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

___________

### Th e Honorable Catherine D. Perry, United States Distric t 1 

### Judge for the Eastern District of Missouri.
In his opening brief, Quesada Morales argued that th e 2 

### district court erred in not granting his motion to dismiss b ased on double jeopardy. Appellant concedes in his reply brief that this cla imis foreclosed by the Supreme Court’s decision in Unite d States v. Ursery , 116 S. Ct. 2135 (1996).
Toca has alleged on appeal that his right to a speedy tria l was vio lated. Toca waived this claim by failing to move fo r dismissal prior to trial. See United States v. Kime , 99 F.3d 870, 881 (8th Cir.), cert. denied , 117 S. Ct. 1015 (1997). -2- WOLLMAN, Circuit Judge.

Reyna ldo Quesada Morales and Juan Felix Toca appeal thei r convict ions and resulting sentences imposed by the district court. Th e 1 jury convicted both men of conspiracy to distrib ute marijuana in violation of 21 U.S.C. § 846. Toca was also convicted of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). Both argue that the evidence adduced at trial proved two conspiracies rather than a single overall conspiracy and that the district court erred in computing the amount of marijuana to establish their base offense levels. W e 2 affirm.

I.

On Januar y 11, 1995, the United States Postal Inspection Service in Chicago, Illinois, intercepted a package sent fr om a fictitious address in San Diego, California. The package was addresse d to Felix Toca at Ricardo Atanay’s address. A federal search warrant was obtained and the package was found to contain 2232.10 grams of marijuana contained in freezer bags wrapped in plastic and contact-type paper. A co ntrolled delivery was made to Atanay, who signed for the package with the name “Felix Toca.”

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Upontheir departure from Atanay’s residence, Toca and Atanay were taken into custody, and Toca was later released.

In addition to the transaction in Ch icago, evidence was presented to show that a package of marijuana was sent through the mail to Eliseo Duena s inSt. Louis, Missouri, sometime in early May of 1995. Duenas testified that he met Quesada Morales in February or March of 1995 and that in April
or May of that year Quesada Morales asked Duenas if he was interested in making some money by accepting delivery of a package. Duenas testifie d that they later discussed whether Duenas would also be interested i n selling marijuana. Duenas accepted delivery of the package and gave it to Quesada M orales that same day. This package was never recovered by th e authorities.

Duenas testified that Quesada Morales asked him to accept deliver y of a second package that would be sent by Quesada Morales’ cousin “Pipi” (later identified as Toca). Duenas agreed, and on May 10, 1995, an expres s mail package was sent from a fictitious address in San Diego to Duenas in St. Louis. The package was intercepted by posta l inspectors in St. Louis. Aft er obtaining a search warrant, the inspectors found that the packag e contained 6162.57 grams of marijuana. A beeper was placed in the package, and on May 11, 1995, a controlled delivery was made to the address on the package. Duenas signed for the package and carr ied it into the residence. Abou t a half an hour later, Quesada Morales, Toca, and Keisha Donab y arrived at Duenas’s residence, and within minutes of their arrival th e beeper i ndicated that the package had been opened. Pursuant to a previously obtained search warrant, St. Louis po lice entered the residence and found the just-delivered package, along with two balls of black ta r heroin, scales, and some additional marijuana.

### -4- Quesada Morales, Toca, and Duenas were arrested and subsequentl y indicted by a grand jury for conspiracy to distribute marijuana. A superseding indictment charged Toca and Duenas with possession of heroin with intent to distri bute. Duenas pled guilty to both charges. At their joint tria l, Quesada Morales and Toca were convicted of engaging in a single overall conspiracy based upon the above-described marijuan a deliveries.

The di strict court calculated Quesada Morales’ and Toca’s bas e offens e levels and resultant sentences based on all three dru g transactions, which the court concluded amounted to a total of 12,531.50 grams of marijuana -- 6162.57 grams from the St. Louis seizure, 2232.1 0 grams from the Chicago seizure, and 4136.83 grams from the unrecovere d package. The court determined from the two seized packages of marijuana that the weight of the marijuana comprised fifty-seven percent of the tota l weight of each of the packages. Using this figure, the court the n est imated that the weight of the marijuana contained in the unrecovere d package would be approximately 4136.83 grams. B ased upon Quesada Morales’ offense level of eighteen and criminal history category of six, th e dis trict court sentenced him to sixty months’ imprisonment. Based upo n Toca’s offense level of twenty-four and a criminal history category o f four, the district court sentenced him to ninety -six months’ imprisonment.

II.
Quesada Morales and Toca both appeal their convictions on a singl e overal l conspiracy, contending that the evidence at trial proved th e existe nce of two separate conspiracies. Whether the government’s proo f established a single conspiracy or multiple conspiracies is a question of fact for the jury. See United States

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v. Jenkins , 78 F.3d 1 283, 1288 (8th Cir. 1996). “‘A single conspiracy is compos ed of individuals sharing common purposes or objectives under on e general agreement.’” United States v. Maza , 93 F.3d 1390, 1398 (8th Cir. ) (quot ing United States v. Davis , 882 F.2d 1334, 1342 (8th Cir. 1989)) , cert. den ied , 117 S. Ct. 1008 (1997). If the jury finds “one overal l agreeme nt to commit an illegal act, the evidence establishes a singl e conspiracy.” United States v. Regan , 940 F.2d 1 134, 1135 (8th Cir. 1991). An overall agreement can be inferred when “the participants shared a commo n aim or purpose and mutual dependence and assistance existed.” Id.

Avarianc e results where a single conspiracy is charged but th e evidence at trial shows multiple conspiracies. See United States v. Jones , 880 F.2d 55, 66 (8th Cir. 1989) (citing Kotteakos v. United States , 32 8 U.S. 750, 755-56 (1946)). In determining whether a variance exists, w e con sider the totality of the circumstances, including the nature of th e acti vities, the location and time frame in which the activities wer e performed, and the pa rticipants involved. See United States v. McCarthy , 97 F.3d 1562, 1571 (8th Cir.), cert. denied , 117 S. Ct. 1011, and cert
. denied , 117 S.Ct. 1284 (1997). Even af ter viewing the evidence in the light most favorable to th e verdict, we conclude that the jury could not have reasonably found a singl e conspir acy. Rather, based upon the totality of the circumstances, w e conclude that two sep arate conspiracies existed. Although the activities inboth Chicago and in St. Louis involved the distribution of marijuana, the operations took place in two wholly separate locations, were separated by more than four months, and had but one common participant, Toca.

The evide nce shows that there was an agreement between Toca an d Atanay to distribute marijuana in the Chicago area and an

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agreement among Toca, Quesada Morales, and Duenas to distribute marijuana in the St. Louis area . What the evidence did not show was that these two agreements were connected in any way. No evidence was presented to show that Quesada Morales or Duenas joined, assisted, or even knew of th e Chicago agreement, or that Atanay joined, assisted, or knew of th e operation in St. Louis.

Th e government attempts to associate the two agreements b y maintaining that both transactions had a common participant, Toca, and tha t they both involved the distribution of marijuana . However, “an overlap in pers onnel [does] not prove one overall agreement.” United States v
. Rosnow , 977 F.2d. 399, 406 (8th Cir. 1992) (cita tions omitted). Moreover, the fact that both transactions involved agreeme nts to mail and distribute marijuana, that both operations were apparently headed by Toca, and that some of the participa nts of each operation knew each other, is not enough to prove a single conspiracy. See id. (similar acts by similar people , assistanc e by some of the same people, and knowledge of some of th e participants not enough to show a common purpose or objective). We find that the record is de void of any evidence that “the participants shared a
common aim or purpose and mutual dependence and assistance existed,” and
we therefore conclude that a variance existed between the indictment and the proof offered at trial.
The existence of a variance does not, however, mandate reversal
. Id. Rath er, we must reverse only when a “spillover” of evidence from on e conspiracy to another has prejudiced a defendant’s substantial rights. Se e United States v. Jones , 880 F.2d at 66. Quesada Morales argues tha t evidence introduced a t trial prejudiced him in that there was substantial inflamm atorytestimony unrelated to him which the jury imputed to hi m through

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the instructions on co-conspirator’s acts and statements. We do not agree
.
The go vernment presented no evidence that purported to connec t Quesada Morales to th e Chicago transaction. Indeed, the government never brought up Quesada Morales’ name during its presentation of the evidence relating to the Chicago transaction. In addition, both defendants elicite d testim onythat Quesada Morales’ name appeared nowhere on the mailin g receipts, that there was no indication that the packages were sent at his direction, and that he was not present during the controlled delivery in Chicago. Furthermore, this was not a complex case, nor were the event s lead ing up to the indictments complicated or confusing, for the cas e involved only four participants, two defendants, and three dru g transac tions. See Jones , 880 F.2d at 66 (“this case did not involve s o many coconspirators a nd conspiracies that a jury could not be expected to give s eparate and individual consideration to the evidence against eac h defend ant”). Compare Rosnow , 977 F.2d at 408 (“due to the number o f defendants, the complexity of the issues, the fa ilure of the court to give
a limiting instruction, and the lack of overwhelming evidence of guilt,” the variance substantially prejudiced the defendants).

More over, at different points during the presentation of th e govern ment’s case defense counsel requested and received limitin g instructions directing the jury to consider cert ain testimony only against Toca. The court also gave the following instruction to the jury:
You should understand that merely being present at the scene of an event, or merely acti ng in the same way as others or merely ass ociating with others, does not prove that a person ha s joined in an agreement or understanding. A person who has no knowledge of a

### -8- conspiracy but who happe ns to act in a way which advances some purpose of one, does not thereby become a member.

The co urt further instructed that “[p]roof of separate or independen t
co nspiracies is not sufficient.” These instructions lend additiona l support to our conclusion that the variance did not prejudice Quesad a Morales. See United States v. Rosnow , 977 F.2d at 407 (in determinin g whether there was prejudicial spillover, the ade quacy of the trial court’s instructions are an important factor) (citations omitted).

Toca makes a similar argument, asserting that “the introduction o f the numerous, unrelat ed transactions was so confusing that the jury could not separate them fro m the charged transactions.” We cannot see how Toca could have been prejudiced by the variance, for he admits not only th e existence of both of the conspiracies, but also his participation in both. Because the evidence shows, and Toca admits, that he was a member of both conspiracies, “‘the danger of prejudice from [spillover] is minimal, if no t non-existent.’” Jones , 880 F.2d at 66 (there was no prejudicial spillover because “whether the facts show one or two conspiracies is here immaterial , for even if there were two conspiracies the evidence clearly shows tha t [the defendant] participated in both”)(quoting United States v. Scott , 511 F.2d 15, 20 (8th Cir. 1975)).

III.
Both Ques ada Morales and Toca challenge the district court’s method for ca lculating the amount of marijuana contained in the unrecovere d package. As previously explained, the district court used the figures fro m the two seized packages of marijuana to estimate the amount contained in the unrecovered package. The

### Because Quesada Morales’ offense level would have been th e 3 

### same had the district court no t included the marijuana seized from the Chicago transaction in calculating the drug quantity, any error in including that marijuana in the quantity determination wa s harmless. -9- court determined that the net weight of marijuana contained in the seized packages was fifty-seven percent of the packages ’ total weight. The court used the same percentage to determine the net weight of the unrecovere d package. We review this method and the determin ation of drug quantity for clear error. See, e.g. , United States v. Pugh , 25 F.3d 669, 677 (8th Cir. 1994); United States v. Brown , 19 F.3d 1246, 1248 (8th Cir. 1994) (pe r curiam).

The Sentencing Guidelines provide that unrecovered drug quantitie s canbe estimated from similar known transactions. See U.S.S.G. § 2D1.1,
comme nt. (n. 12) (“When there is no drug seizure . . ., the court shal l approxi mate the quantity of the controlled substance. In making thi s determination, the court may consider . . . similar transactions i n controlled substances by the defendant . . . .”); see United States v
. Byler , 98 F.3d 391, 395 (8th Cir. 1996); United States v. Pugh , 25 F.3d at 677. We conclude that the district court’s methodology was a reasonable way to estimate the d rug quantity of the unrecovered package and that its finding was not clearly erroneous. 3
The judgments are affirmed. A true copy.

Attest:

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