United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 96-2309

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United States of America, *

*

Appellee, *

*

v. *

*

Reynaldo Quesada Morales, *

*

Appellant. *

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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. *

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 Submitted: January 16, 1997

 Filed: May 6, 1997

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

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The Honorable Catherine D. Perry, United States District

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Judge for the Eastern District of Missouri.

In his opening brief, Quesada Morales argued that the

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district court erred in not granting his motion to dismiss based on

double jeopardy. Appellant concedes in his reply brief that this

claim is foreclosed by the Supreme Court’s decision in United

States v. Ursery, 116 S. Ct. 2135 (1996).

Toca has alleged on appeal that his right to a speedy trial

was violated. Toca waived this claim by failing to move for

dismissal prior to trial. See United States v. Kime, 99 F.3d 870,

881 (8th Cir.), cert. denied, 117 S. Ct. 1015 (1997).

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WOLLMAN, Circuit Judge.

Reynaldo Quesada Morales and Juan Felix Toca appeal their

convictions and resulting sentences imposed by the district court. The

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jury convicted both men of conspiracy to distribute 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. We

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affirm.

I.

On January 11, 1995, the United States Postal Inspection Service in

Chicago, Illinois, intercepted a package sent from a fictitious address in

San Diego, California. The package was addressed 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 controlled delivery was made

to Atanay, who signed for the package with the name “Felix Toca.” 
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Upon their departure from Atanay’s residence, Toca and Atanay were taken

into custody, and Toca was later released. 

In addition to the transaction in Chicago, evidence was presented to

show that a package of marijuana was sent through the mail to Eliseo Duenas

in St. 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 testified

that they later discussed whether Duenas would also be interested in

selling marijuana. Duenas accepted delivery of the package and gave it to

Quesada Morales that same day. This package was never recovered by the

authorities.

Duenas testified that Quesada Morales asked him to accept delivery

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 express

mail package was sent from a fictitious address in San Diego to Duenas in

St. Louis. The package was intercepted by postal inspectors in St. Louis.

After obtaining a search warrant, the inspectors found that the package

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 carried it into the residence.

About a half an hour later, Quesada Morales, Toca, and Keisha Donaby

arrived at Duenas’s residence, and within minutes of their arrival the

beeper indicated that the package had been opened. Pursuant to a

previously obtained search warrant, St. Louis police entered the residence

and found the just-delivered package, along with two balls of black tar

heroin, scales, and some additional marijuana. 
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Quesada Morales, Toca, and Duenas were arrested and subsequently

indicted by a grand jury for conspiracy to distribute marijuana. A

superseding indictment charged Toca and Duenas with possession of heroin

with intent to distribute. Duenas pled guilty to both charges. At their

joint trial, Quesada Morales and Toca were convicted of engaging in a

single overall conspiracy based upon the above-described marijuana

deliveries. 

The district court calculated Quesada Morales’ and Toca’s base

offense levels and resultant sentences based on all three drug

transactions, which the court concluded amounted to a total of 12,531.50

grams of marijuana -- 6162.57 grams from the St. Louis seizure, 2232.10

grams from the Chicago seizure, and 4136.83 grams from the unrecovered

package. The court determined from the two seized packages of marijuana

that the weight of the marijuana comprised fifty-seven percent of the total

weight of each of the packages. Using this figure, the court then

estimated that the weight of the marijuana contained in the unrecovered

package would be approximately 4136.83 grams. Based upon Quesada Morales’

offense level of eighteen and criminal history category of six, the

district court sentenced him to sixty months’ imprisonment. Based upon

Toca’s offense level of twenty-four and a criminal history category of

four, the district court sentenced him to ninety-six months’ imprisonment.

II.

Quesada Morales and Toca both appeal their convictions on a single

overall conspiracy, contending that the evidence at trial proved the

existence of two separate conspiracies. Whether the government’s proof

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 1283, 1288 (8th Cir. 1996). “‘A single conspiracy is

composed of individuals sharing common purposes or objectives under one

general agreement.’” United States v. Maza, 93 F.3d 1390, 1398 (8th Cir.)

(quoting United States v. Davis, 882 F.2d 1334, 1342 (8th Cir. 1989)),

cert. denied, 117 S. Ct. 1008 (1997). If the jury finds “one overall

agreement to commit an illegal act, the evidence establishes a single

conspiracy.” United States v. Regan, 940 F.2d 1134, 1135 (8th Cir. 1991).

An overall agreement can be inferred when “the participants shared a common

aim or purpose and mutual dependence and assistance existed.” Id.

A variance results where a single conspiracy is charged but the

evidence at trial shows multiple conspiracies. See United States v. Jones,

880 F.2d 55, 66 (8th Cir. 1989) (citing Kotteakos v. United States, 328

U.S. 750, 755-56 (1946)). In determining whether a variance exists, we

consider the totality of the circumstances, including the nature of the

activities, the location and time frame in which the activities were

performed, and the participants 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 after viewing the evidence in the light most favorable to the

verdict, we conclude that the jury could not have reasonably found a single

conspiracy. Rather, based upon the totality of the circumstances, we

conclude that two separate conspiracies existed. Although the activities

in both 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 evidence shows that there was an agreement between Toca and

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 the

Chicago agreement, or that Atanay joined, assisted, or knew of the

operation in St. Louis. 

The government attempts to associate the two agreements by

maintaining that both transactions had a common participant, Toca, and that

they both involved the distribution of marijuana. However, “an overlap in

personnel [does] not prove one overall agreement.” United States v.

Rosnow, 977 F.2d. 399, 406 (8th Cir. 1992) (citations omitted). Moreover,

the fact that both transactions involved agreements to mail and distribute

marijuana, that both operations were apparently headed by Toca, and that

some of the participants of each operation knew each other, is not enough

to prove a single conspiracy. See id. (similar acts by similar people,

assistance by some of the same people, and knowledge of some of the

participants not enough to show a common purpose or objective). We find

that the record is devoid 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.

Rather, we must reverse only when a “spillover” of evidence from one

conspiracy to another has prejudiced a defendant’s substantial rights. See

United States v. Jones, 880 F.2d at 66. Quesada Morales argues that

evidence introduced at trial prejudiced him in that there was substantial

inflammatory testimony unrelated to him which the jury imputed to him

through 
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the instructions on co-conspirator’s acts and statements. We do not agree.

The government presented no evidence that purported to connect

Quesada Morales to the 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 elicited

testimony that Quesada Morales’ name appeared nowhere on the mailing

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 events

leading up to the indictments complicated or confusing, for the case

involved only four participants, two defendants, and three drug

transactions. See Jones, 880 F.2d at 66 (“this case did not involve so

many coconspirators and conspiracies that a jury could not be expected to

give separate and individual consideration to the evidence against each

defendant”). Compare Rosnow, 977 F.2d at 408 (“due to the number of

defendants, the complexity of the issues, the failure of the court to give

a limiting instruction, and the lack of overwhelming evidence of guilt,”

the variance substantially prejudiced the defendants). 

Moreover, at different points during the presentation of the

government’s case defense counsel requested and received limiting

instructions directing the jury to consider certain 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 acting in the same way as others or merely

associating with others, does not prove that a person has

joined in an agreement or understanding. A person who has no

knowledge of a 
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conspiracy but who happens to act in a way which advances some

purpose of one, does not thereby become a member.

The court further instructed that “[p]roof of separate or independent

conspiracies is not sufficient.” These instructions lend additional

support to our conclusion that the variance did not prejudice Quesada

Morales. See United States v. Rosnow, 977 F.2d at 407 (in determining

whether there was prejudicial spillover, the adequacy of the trial court’s

instructions are an important factor) (citations omitted). 

Toca makes a similar argument, asserting that “the introduction of

the numerous, unrelated transactions was so confusing that the jury could

not separate them from the charged transactions.” We cannot see how Toca

could have been prejudiced by the variance, for he admits not only the

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 not

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 that

[the defendant] participated in both”)(quoting United States v. Scott, 511

F.2d 15, 20 (8th Cir. 1975)). 

III.

Both Quesada Morales and Toca challenge the district court’s method

for calculating the amount of marijuana contained in the unrecovered

package. As previously explained, the district court used the figures from

the two seized packages of marijuana to estimate the amount contained in

the unrecovered package. The 
Because Quesada Morales’ offense level would have been the

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same had the district court not included the marijuana seized from

the Chicago transaction in calculating the drug quantity, any error

in including that marijuana in the quantity determination was

harmless.

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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 unrecovered

package. We review this method and the determination 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) (per

curiam).

The Sentencing Guidelines provide that unrecovered drug quantities

can be estimated from similar known transactions. See U.S.S.G. § 2D1.1,

comment. (n. 12) (“When there is no drug seizure . . ., the court shall

approximate the quantity of the controlled substance. In making this

determination, the court may consider . . . similar transactions in

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 drug 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.