1

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

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-4092

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Maurice Buckley, Jr., *

*

Defendant - Appellant. *

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Submitted: December 11, 2007

Filed: May 12, 2008

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

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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, arguing the evidence was insufficient, he was

prejudiced by a variance between the single conspiracy charged in the indictment and

the multiple conspiracies proved at trial, and the district court1

 abused its discretion

in admitting evidence of a prior drug distribution offense. We affirm. 
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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 Jackson 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 seller and that he (Jackson) had purchased

crack from Buckley in the past. The government introduced a recording of Jackson’s

phone conversation with Buckley and telephone company records showing that the

cell phone used to arrange the sale belonged to Buckley’s longtime girlfriend.

However, the jury acquitted Buckley of a separate 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 quarter-ounce quantities of crack from Buckley for resale six

or seven times between late 2001 and the end of 2002; in December 2003, Buckley

sold Henderson 3.5 ounces. Henderson resold the crack in smaller quantities, making

profits up to 200 percent. Buckley “fronted” the drugs, meaning that Henderson

bought on credit and repaid Buckley from the resale proceeds.

Anthony Long was arrested for theft in January 2004 and told a police officer

that he purchased crack cocaine from Buckley in September and October 2003. Long

testified that he traded two stolen NFL jerseys for $50 and one-eighth of an ounce of

crack, purchased a quarter-ounce for $200 shortly thereafter, and purchased 1.7 grams

of crack from Buckley for $70 on another occasion. While purchasing the quarterounce, Long saw Buckley carrying a freezer bag containing at least two kilograms of

crack. Buckley often told Long to deal with Buckley’s brother, a dealer named “Sin,”

for small purchases. 
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Based on the cooperation of Byron Jackson 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 selling 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 at trial. Buckley was arrested

near the girlfriend’s residence, after fleeing as officers approached and resisting arrest

in a muddy fistfight. Spellman testified that he purchased a total of ten ounces of

crack from Buckley in July and early August 2005. 

Victor Jackson (unrelated to Byron Jackson) 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 in late 2003 or early 2004, stored crack for

Buckley at least fifteen times, and occasionally 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 fugitive and referred Jackson to another drug

dealer named “Earl.” 

Finally, Officer Mark Noonan testified that, in taped phone calls from jail after

his August 2005 arrest, Buckley told his girlfriend that he suspected being turned in

by “Coop” (Spellman’s street name) and that 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 insufficient to convict him of conspiring

to distribute crack cocaine. He acknowledges our strict standard of review -- we

review the evidence in the light most favorable to the verdict and uphold the

conviction unless no reasonable jury could convict him of the crime charged. United
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States v. Marquez, 462 F.3d 826, 828 (8th Cir. 2006). But he urges us to conclude

that his conviction was an injustice because 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 jury verdicts based solely

on the testimony of conspirators and cooperating 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 witnesses testified to Buckley’s ongoing sales of distribution quantities of crack cocaine, testimony supported by tapes

of Buckley arranging drug deals, telling his 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 Buckley 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 that falls short of establishing a conspiracy to

distribute. 

II. Single or Multiple Conspiracies

For the first time on appeal, Buckley argues that, even if otherwise sufficient,

the evidence proved that he engaged in multiple drug conspiracies, rather than the

single conspiracy charged in the indictment. Noting the scant evidence that his

reseller-customers did business 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
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‘spokes’ of a conspiracy have no knowledge of or connection with any other, dealing

independently with the hub conspirator, there is not a single conspiracy, but rather as

many conspiracies as there are spokes.” 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 variance 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 court 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 the 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 conspiracies.” 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 prove the existence

of the conspiracy charged in the indictment, you must find the defendant

not guilty, even if you are convinced that 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 the
2

Though the issue is not of importance in this case, we agree with the Seventh

Circuit that the first part of this instruction was wrong as a matter of law. Failure to

prove the single drug conspiracy charged in an indictment results only in a variance,

rather than an acquittal, because 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 elements of an unlawful conspiracy are

proved, relief because of variance requires an additional showing of prejudice.

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government also proved that he was a member of the conspiracy charged

in the indictment.2

Thus, there was no plain error of any kind. 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 find the single conspiracy charged in the

indictment against Buckley, the only conspirator charged. 

2. Buckley cannot show the prejudice required to obtain relief from an alleged

variance, particularly on plain error review. The indictment charged that, between

May 2002 and July 2005, Buckley was part of a single conspiracy to distribute at least

fifty grams of cocaine base. Buckley argues that he was prejudiced because “the

prosecution was permitted to substantially improve the unlikely credibility of each of

the cooperating witnesses, increase the weight of controlled substances involved and

to substantially increase the duration 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
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conspiracies, Buckley was a key player in all of them. “[T]he chance of a ‘prejudicial

spillover effect’ from one conspiracy to another if the defendant is a member of both

conspiracies is minimal, if not nonexistent.” 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); accord United 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 other 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 “piling” of co-conspirator testimony against

him. Nor was Buckley prejudiced by the aggregation of drug quantities in the single

conspiracy -- Victor Henderson, Victor Jackson, and Kevin Spellman testified that

each of them, individually, conspired with Buckley to distribute more than fifty grams

of crack cocaine. For these 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 that he was the sole defendant on trial and

was arguably implicated in any other conspiracy 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 possession 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 probative 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 mistake or accident,” but not to prove “the
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character of a person in order to show action 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 these very similar prior [drug] 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 intent 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 was 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 proffered 404(b) evidence or to

limit inquiry into details of prior bad acts 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 was 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 listed all the purposes permitted by Rule 404(b)

without telling the jury how to use the Rule 404(b) evidence in this case. Buckley

neither proposed a specific cautionary instruction nor objected to the instruction given.

Accordingly, this issue was not preserved for appeal. See United States v. Bamberg,

478 F.3d 934, 939 (8th Cir. 2007), cert. denied, --- S. Ct. ----, 2008 WL 695667 (Mar.

17, 2008). 
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IV. Sentencing Issues

In a pro se supplemental brief, Buckley challenges the constitutionality of the

Sentencing Guidelines. However, because of 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 sentence to the mandatory statutory

minimum is constitutional. United States v. Williams, 474 F.3d 1130, 1132 (8th Cir.

2007). Accordingly, we need not address Buckley’s challenges to the advisory

guidelines (which we have rejected in other cases). See United 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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