1 The HONORABLE LYLE E. STROM, United States District Judge for the District of Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-4092

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Maurice Buckley, Jr., *
* Defendant - Appellant. *

___________ Submitted: December 11, 2007 Filed: May 12, 2008

___________ Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

___________ LOKEN, Chief Judge. A jury convicted Maurice Buckley, Jr., of conspiring to distribute fifty grams or more of a substance containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. Buckley appeals, argui ng the evidence was insufficient, he was prejudiced by a variance between the single c onspiracy charged in the indictment and the multiple conspiracies proved at trial, and the district court 1 abused its discretion in admitting evidence of a prior drug distribution offense. We affirm.-2- I. Sufficiency of the Evidence

At trial, Omaha Police Officer Paul Milone testified that Byron Jackson identified Buckley as a drug supplier when Jackson was arrested for possessing crack cocaine on December 29, 2003. Several days later, the police taped a phone conversation between Jackson and Buckley arranging a controlled buy. Hours later, officers watched from a distance as Jacks on purchased 6.5 grams of crack cocaine from one of four individuals in a black Buick, using $250 provided by the police. Jackson testified that Buckley was the se ller and that he (Jackson) had purchased crack from Buckley in the past. The govern ment introduced a recording of Jackson’s phone conversation with Buck ley and telephone company records showing that the cell phone used to arrange the sale be longed to Buckley’s longtime girlfriend. However, the jury acquitted Buckley of a se parate charge based on this transaction.

Victor Henderson was arrested in January 2004 for distributing crack cocaine and told police officers about local distributors, including Buckley. Henderson testified that he bought quart er-ounce quantities of crack fro m Buckley for resale six or seven times between late 2001 and the end of 2002; in December 2003, Buckley sold Henderson 3.5 ounces. He nderson resold the crack in smaller quantities, making profits up to 200 percent. Buckley “fr onted” the drugs, meaning that Henderson bought on credit and repaid Buckley from the resale proceeds.

Anthony Long was arrested for theft inJanuary 2004 and told a police officer that he purchased crack co caine from Buckley in September and October 2003. Long testified that he traded two stolen NFL jerseys for $50 and one-e ighth of an ounce of crack, purchased a quarter-ounce for $200 shortly thereafter, and purchased 1.7 gramsof crack from Buckley for $70 on another occasion. While purchasing the quarterounce, Long saw Buckley carrying a freezer ba g containing at least two kilograms of crack. Buckley often told Long to deal withBuckley’s brother, a dealer named “Sin,” for small purchases.-3- Based on the cooperation of Byron Jack son and Long, Buckley was indicted and an arrest warrant issued in July 2004. He remained a fugitive until August 2005, when Kevin Spellman was arrested for se lling crack cocaine. Spellman identified Buckley’s photo, said Buckley was one of his suppliers and was “on the run,” and took officers to the apartment of Buckley’s girlfriend. The police had Spellman call Buckley to arrange a drug deal at a nearby restaurant to confirm Buckley was staying in the area. A recording of this conversation was played attrial. Buckley was arrested near the girlfriend’s residence, after fleeing as officers approached and resisting arrest in a muddy fistfight. Spellman testified th at he purchased a to tal of ten ounces of crack from Buckley in July and early August 2005.

Victor Jackson (unrelated to Byron Jack son) told the police about dealings with Buckley after Jackson’s arrest for crack possession in April 2006. Jackson testified that he started buying crack from Buckley inlate 2003 or early 2004, stored crack for Buckley at least fifteen times, and occasi onally delivered crack on Buckley’s behalf. The largest sale Jackson made for Buckley was a half-ounce. Buckley paid Jackson with small amounts of crack, some of which Jackson resold. Some time in 2005, Buckley told Jackson that he was a fug itive and referred Jackson to another drug dealer named “Earl.”

Finally, Officer Mark Noonan testified th at, in taped phone calls from jail after his August 2005 arrest, Buckley told his girl friend that he suspected being turned in by “Coop” (Spellman’s street name) and th at he planned to “beat up” and rob Spellman. He also told her that if he did sell drugs, it was “no big time drugs,” but “something small to make a living.” The tape was played at trial.

Buckley argues that this evidence was in sufficient to convict him of conspiring to distribute crack cocaine. He acknowledge s our strict standard of review -- we review the evidence in the light most favorable to the ve rdict and uphold the conviction unless no reasonable jury could c onvict him of the crime charged. United-4- States v. Marquez , 462 F.3d 826, 828 (8th Cir. 2006). But he urges us to conclude that his conviction was an injustice b ecause the government relied on a “parade of cooperating witnesses” seeking to curry favor with the prosecutor, and presented almost no corroborating evidence such as drugs (other than Byron Jackson’s controlled buy), drug proceeds, scales, packaging materials, or photographs.

We are not persuaded. We have repeatedly upheld ju ry verdicts based solely on the testimony of conspirators and cooperati ng witnesses, noting that it is within the province of the jury to make credibility assessments and resolve conflicting testimony. See United States v. Velazquez , 410 F.3d 1011, 1015-16 (8th Cir.), cert. denied , 546 U.S. 971 (2005); United States v. Underwood , 364 F.3d 956, 965 (8th Cir.), cert. denied , 543 U.S. 937 (2004). Here, numerous w itnesses testified to Buckley’s ongoing sales of distribution quantities of crack cocaine, testimony supported by tapes of Buckley arranging drug deals, telling hi s girlfriend that he only dealt drugs to “make a living,” and plotting retribution against a dealer who turned him in. The evidence was clearly sufficient to convict Bu ckley of conspiring to distribute fifty grams or more of crack cocaine. As in United States v. Harris , 493 F.3d 928, 931 (8th Cir. 2007), cert. denied , 128 S. Ct. 1263 (2008), and United States v. Montano-Gudino , 309 F.3d 501, 505-06 (8th Cir. 2002), the government proved far more than a single, isolated drug sale thatfalls short of establishing a conspiracy to distribute.

II. Single or Multiple Conspiracies

For the first time on appeal, Buckley argue s that, even if otherwise sufficient, the evidence proved that he engaged in mu ltiple drug conspiracies, rather than the single conspiracy charged in the indictme nt. Noting the scant evidence that his reseller-customers did busine ss together, or continuously participated over the life of the alleged conspiracy, or even knew each other, Buckley invokes the “rimless wheel” principle of Kotteakos v. United States , 328 U.S. 750, 754-55 (1946) -- “where the-5- ‘spokes’ of a conspiracy have no knowledge of or connecti on with any other, dealing independently with the hub cons pirator, there is not a singl e conspiracy, but rather as many conspiracies as there are s pokes.” United States v. Chandler , 388 F.3d 796, 807 (11th Cir. 2004). In a drug conspiracy case, proof of multiple conspiracies when a single conspiracy was charged results in a variance between indictment and proof. Reversal is warranted only if the varian ce prejudiced the defendant’s substantial rights. United States v. Barth , 424 F.3d 752, 759 (8th Cir. 2005). Applying this standard, we conclude this contention is without merit for two independent reasons.

1. “Whether the government’s proof at trial established only a single conspiracy or multiple conspiracies is a question of fact , which we review for clear error.” United States v. Smith , 450 F.3d 856, 860 (8th Cir. 2006) ( quotation omitted). As Buckley did not raise this issue in the district court, we review only for plain error. See Fed. R. Crim. P. 52(b). No doubt recognizing that a jury finding can rarely if ever be plain error, Buckley argues that the district c ourt committed plain error by “not limiting the trial to a single conspiracy.” But the court’ s instructions did so limit the trial, and the jury found the single conspiracy charged in the indictment. Buckley further asserts that the district court failed to instruct th e jury “that, as finders of fact, it was their responsibility to determine whether there was a single conspiracy or whether the prosecution had established multiple conspir acies.” Again, the premise is simply wrong. Without objection, the court gave the essential aspects of the multiple conspiracies instruction found in Eighth Circuit Model Instruction 5.06G:

If you find that the government has failed to prov e the existence of the conspiracy charged in the indictment, you must find the defendant not guilty, even if you are convincedthat the defendant was a member of one or more separate or different conspiracies not charged in the indictment. But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the2 Though the issue is not of importance in this case, we agree with the Seventh Circuit that the first part of this instru ction was wrong as a matte r of law. Failure to prove the single drug conspiracy charged in an indictment results only in a variance, rather than an acquittal, b ecause proof of multiple separate drug conspiracies between a “hub” distributor and his various “spoke” dealers establishes each element of the offense charged in the indictment, and “a prosecutor may elect to proceed on a subset of the allegations in the indictment, proving a conspiracy smaller than the one alleged.” United States v. Duff, 76 F.3d 122, 126 (7th Cir. 1996), citing United States v. Miller , 471 U.S. 130, 135-38 (1985). If the elemen ts of an unlawful conspiracy are proved, relief because of variance requi res an additional showing of prejudice.
-6- government also proved that he was a member of the conspiracy charged in the indictment. 2

Thus, there was no plain error of any ki nd. Indeed, based upon Victor Henderson’s testimony that Buckley “fronted” drugs, and Victor Jackson’s testimony that he would store crack for Buckley and deliver crack to Buckley’s other dealer customers, the evidence permitted a reasonable jury to fi nd the single conspiracy charged in the indictment against Buckley, the only conspirator charged.

2. Buckley cannot show the prejudice re quired to obtain relief from an alleged variance, particularly on plain error revi ew. The indictment charged that, between May 2002 and July 2005, Buckley wa s part of a single conspiracy to distribute at least fifty grams of cocaine base. Buckley ar gues that he was prejudiced because “the prosecution was permitted to substantially improve the unlikely credibility of each of the cooperating witnesses, increase the wei ght of controlled substances involved and to substantially increase the durati on of the alleged conspiracy.”

A defendant may be prejudiced by a “spillover” of evidence from one conspiracy to another -- the “transference of guilt from one to another across the line separating conspiracies.” Kotteakos , 328 U.S. at 774; see United States v. Morales , 113 F.3d 116, 119 (8th Cir. 1997). But in this case, if there were multiple-7- conspiracies, Buckley was a key player in a ll of them. “[T]he ch ance of a ‘prejudicial spillover effect’ from one conspiracy to another if the defendant is a member of both conspiracies is minimal, if not none xistent.” United States v. Ghant , 339 F.3d 660, 664 (8th Cir. 2003) (citation omitted), cert. denied sub nom. Nichols v. United States , 540 U.S. 1167 (2004); accordUnited States v. Benford , 360 F.3d 913, 914-15 (8th Cir. 2004). Moreover, if Buckley had been tried separately for each conspiracy, evidence of his participation in the othe r conspiracies “would have been admitted under Federal Rule of Evidence 404(b) anyway.” Ghant , 339 F.3d at 664. Thus, Buckley cannot claim prejudice from the “pili ng” of co-conspirator testimony against him. Nor was Buckley prejudiced by the a ggregation of drug quantities in the single conspiracy -- Victor Henderson, Victor J ackson, and Kevin Spellman testified that each of them, individually , conspired with Buckley to distribute more than fifty grams of crack cocaine. For thes e reasons, no prejudice can be shown. As we observed in United States v. Lopez-Arce , 267 F.3d 775, 781 (8th Cir. 2001) , “it is difficult to see how the defendant was prejudiced given thathe was the sole defendant on trial and was arguably implicated in any other cons piracy the evidence could prove.”

III. Evidence of Buckley’s Prior Drug Crime

Over Buckley’s timely objections, the district court admitted (i) Officer Noonan’s testimony that powder and crack cocaine were found during a warrant search of Buckley’s residence in June 2001, and (ii) a certified copy of Buckley’s resulting state court conviction for possessi on with intent to deliver a controlled substance. Buckley argues that the court abused its discretion in admitting this evidence because his prior crime was not pr obative of the drug offenses being tried and was highly prejudicial. This contention is without merit.

Rule 404(b) of the Federal Rule of Evidence permits admission of evidence of “other crimes, wrongs, or acts” to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mist ake or accident,” but not to prove “the-8- character of a person in order to show ac tion in conformity therewith.” Rule 404(b) is a rule of inclusion, and we have held in numerous cases that “it was well within the district court’s discretion to rule that thes e very similar prior [d rug] convictions were not overly remote.” United States v. Love , 419 F.3d 825, 828 (8th Cir. 2005). “[E]vidence of prior possession of drugs, even in an amount consistent only with personal use, is admissible to show such things as knowledge and intent of a defendant charged with a crime in which in tent to distribute drugs is an element.” United States v. Thomas , 398 F.3d 1058, 1062 (8th Cir. 2005) (quotation omitted).

Buckley also argues that, even if it wa s appropriate to admit a certified copy of his conviction stemming from the 2001 crime, the court should not have admitted Noonan’s testimony describing the search of Buckley’s residence. District courts have substantial discretion to admit only some of the pr offered 404(b) evidence or to limit inquiry into details of prior bad act s that might cause unfair prejudice. See United States v. Cook , 454 F.3d 938, 942 (8th Cir. 2006) . Here, Buckley’s certified conviction did not reveal the drug types and quantities found, or the place where the drugs were discovered, information that wa s probative of issues relating to the drug offenses being tried, such as his knowledge and intent. The court did not abuse its discretion in admitting Noonan’s testimony as well as the certified conviction and giving a cautionary instruction to guard against the risk of unfair prejudice.

Finally, Buckley argues that the court’ s cautionary instruction lacked “focus and specificity” because it simply liste d all the purposes permitted by Rule 404(b) without telling the jury how to use the Rule 404(b) evidence in th is case. Buckley neither proposed a specific cautionary instruc tion nor objected to the instruction given. Accordingly, this issue was not preserved for appeal. SeeUnited States v. Bamberg , 478 F.3d 934, 939 (8th Cir. 2007), cert. denied , --- S. Ct. ----, 2008 WL 695667 (Mar. 17, 2008).-9- IV. Sentencing Issues

In a pro se supplemental brief, Buckle y challenges the constitutionality of the Sentencing Guidelines. However, becauseof a prior felony drug conviction, his twenty-year prison sentence was the mandatory statutory minimum the district court could impose. See 21 U.S.C. § 841(b)(1)(A). A sent ence to the mandatory statutory minimum is constitutional. United States v. Williams , 474 F.3d 1130, 1132 (8th Cir. 2007). Accordingly, we need not addre ss Buckley’s challenges to the advisory guidelines (which we have rej ected in other cases). SeeUnited States v. Crawford , 487 F.3d 1101, 1108 (8th Cir.), cert. denied , 128 S. Ct. 709 (2007).

The judgment of the district court is affirmed.

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