United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 04-1207/04-1385

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United States of America, *

*

Appellee/Cross-Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Elijah Hayes, *

*

Appellant/Cross-Appellee. *

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Submitted: October 19, 2004

Filed: December 14, 2004

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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.

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BOWMAN, Circuit Judge.

On September 3, 2003, a jury convicted Appellant Elijah Hayes on two counts:

conspiracy to distribute and possess with intent to distribute crack cocaine, and

possession with intent to distribute crack cocaine. Hayes appeals his conviction on

both counts. The government cross-appeals, claiming the District Court erred by

granting Hayes a sentencing reduction for being a minor participant in the charged

offenses. After carefully reviewing the record, we affirm the conviction on both

counts. In addition, we vacate the District Court's sentencing order and remand for

resentencing.
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I.

We begin with a summary of the testimony and evidence adduced at Elijah

Hayes's trial. At some time prior to 1993, Hayes moved from Chicago, Illinois to

Clinton, Iowa and began "hanging around" with Fred Dodd, whom Hayes had known

in Chicago. Trial Tr. at 114. Shortly thereafter, Hayes was observed receiving crack

cocaine from Dodd and selling crack cocaine at an apartment in Clinton. During this

period, several other people received drugs from Dodd and sold them at the Clinton

apartment and elsewhere. Further, Dodd's girlfriend Meko Davis testified that Dodd

would convert powder cocaine to crack cocaine at the Clinton apartment, while

Hayes, Davis, and a large group of other people would "bag it up in little amounts . . .

to be sold." Id. at 313. This activity was going on "[a]ll of the time . . . [t]hree to

four" days per week. Id. at 314.

Hayes's involvement in the drug activity was abruptly suspended in August

1993, after he was arrested and convicted on an unrelated charge. Hayes was

subsequently incarcerated from December 1993 until his release in February 2002.

Immediately thereafter, Hayes moved to Rock Island, Illinois, where Dodd had

relocated. Between February 2002 and January 2003, Dodd and Hayes were together

almost constantly. In August 2002, Dodd's girlfriend Heidi Jungwirth observed Dodd

cooking powder cocaine into crack cocaine at her house while Hayes was present.

Jungwirth further observed Dodd, Hayes, and several others cutting the crack cocaine

and "bagging it all up together in the same room." Id. at 360, 388. On that occasion,

the group manufactured enough crack cocaine to fill half of a ten-inch-square plastic

Ziploc bag.

The group led by Dodd ran a drug-selling operation at the Trinity Apartments

in Davenport, Iowa, which along with Rock Island forms part of the Quad Cities area

on the Mississippi River. Dodd also conducted drug-related activities at an additional

residence he rented in Davenport. In January 2003, the police obtained a warrant to
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search the Davenport residence and three of Dodd's vehicles. While the residence

was under surveillance, the police observed Dodd and Hayes enter with a female, stay

for about an hour, and then leave together in Dodd's car. The car was one of the

vehicles for which the police had a search warrant.

Thereafter, the police stopped Dodd's car in an area known for drug trafficking

and ordered Dodd and Hayes to exit the car. Before Dodd exited, a police officer saw

clear plastic in Dodd's right hand. Afterwards, the police found crack cocaine in

seven plastic baggies, weighing a total of 2.5 grams, on the floorboard near where

Hayes had been sitting. The police officer testified that the baggies found on the

floorboard were those he had seen in Dodd's hand. The police found no other

contraband in the car. Hayes was not carrying any drugs or currency, but Dodd was

carrying $720.00. The police arrested both Hayes and Dodd.

After the arrest, the police searched the residence using Dodd's keys to gain

entry. In one bedroom the police found fifteen baggies, each containing

approximately one eighth of an ounce of crack cocaine. The police also found in the

bedroom a plastic bag containing over sixty grams of powder cocaine, a pistol, a

digital scale, more plastic baggies, razor blades, scissors, and substances used to

dilute cocaine. Finally, the police recovered from the trash in the same bedroom a

liquor bottle bearing Hayes's fingerprint.

Hayes and Dodd were tried before a single jury along with another defendant.

The jury convicted both Hayes and Dodd of conspiracy to distribute and possess with

intent to distribute crack cocaine, and also convicted each of possession with intent

to distribute crack cocaine. On both counts, the amount of crack cocaine for which

each was convicted was over fifty grams. Hayes, having been sentenced, brings this

appeal.
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II.

Hayes appeals the judgment of conviction entered against him, asking this

Court to vacate his conviction on both counts because of the alleged insufficiency of

the evidence. The government cross-appeals, challenging a "minor participant"

sentencing reduction granted by the District Court. We address each appeal

separately.

A.

Where a party challenges the evidence underlying his conviction, the standard

of review is very strict, and the jury's verdict is not to be lightly overturned. United

States v. Surratt, 172 F.3d 559, 564 (8th Cir. 1999), cert. denied, 528 U.S. 910 (1999)

and 537 U.S. 850 (2002). We view the evidence in the light most favorable to the

government, and we resolve any evidentiary conflicts in the government's favor. Id.

at 563. We accept all reasonable inferences drawn from the evidence that support the

jury's verdict, and we will uphold that verdict as long as a reasonable-minded jury

could have found the defendant guilty beyond a reasonable doubt. Id. The jury is the

final arbiter of the witnesses' credibility, and we will not disturb that assessment.

United States v. Espino, 317 F.3d 788, 794 (8th Cir. 2003).

Hayes first attacks his conviction for knowingly and intentionally conspiring

to distribute and possess with intent to distribute fifty grams or more of cocaine base.

See 21 U.S.C. §§ 841(a)(1), 846 (2000). Hayes claims the evidence was insufficient

to find a conspiracy existed, and that if such a conspiracy did exist, the evidence was

insufficient to find he knowingly agreed to join it.

To convict a defendant on a conspiracy charge, the jury is required to find that

1) an agreement existed among two or more people to accomplish an illegal purpose,

2) the defendant knew of the conspiracy, and 3) the defendant knowingly joined and
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participated in the conspiracy. See United States v. Munoz, 324 F.3d 987, 990 (8th

Cir. 2003); United States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002). Once a

conspiracy is established, only slight evidence is required to connect a defendant to

the conspiracy. United States v. Navarrete-Barron, 192 F.3d 786, 793 (8th Cir. 1999).

The defendant need not have expressly agreed to join the conspiracy. United States

v. Kamerud, 326 F.3d 1008, 1012 (8th Cir.), cert. denied, 124 S.Ct. 969 (2003).

Instead, the government need only show a tacit agreement by the defendant. Id.;

Crossland, 301 F.3d at 913.

We hold the evidence was sufficient for a reasonable jury to conclude that a

conspiracy existed and that Hayes knowingly joined the conspiracy. As to the

existence of a conspiracy, numerous people testified that they purchased or witnessed

others purchasing crack cocaine from Fred Dodd during a period from before 1992

until January 2003. Willie Harris and Anthony Dodd testified they were instructed

at times by Fred Dodd to buy crack cocaine from others, and that sometimes when

they arranged to buy crack cocaine from Fred Dodd, the drugs would be delivered by

others. Anthony Dodd also testified about a drug selling operation at the Trinity

Apartments that included Fred Dodd and Aikins Frimpong. Melvin Yancy, Deandre

Williams, and Ashia Brown each testified they sold crack cocaine under an agreement

whereby they would receive drugs from Fred Dodd at no up-front charge, sell them

on his behalf, and then receive a percentage of the profits. Meko Davis and Heidi

Jungwirth both testified they had witnessed Dodd and others dividing and bagging

large amounts of crack cocaine that Dodd had manufactured. Finally, Dodd

possessed large amounts of powder and crack cocaine, as well as other indicia of drug

distribution, when he was arrested.

Moreover, Hayes's knowing participation in the conspiracy was firmly

established. Melvin Yancy and Deandre Williams both testified that Hayes received

and sold crack cocaine for Dodd. Meko Davis testified that Hayes sold crack cocaine

for Dodd many times, and that Hayes often helped Dodd divide and bag large
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amounts of crack cocaine at the Clinton apartment. Heidi Jungwirth testified that

Hayes was present when Dodd manufactured crack cocaine at Jungwirth's house in

Rock Island, and that Hayes helped Dodd divide and bag it. Finally, Hayes was

present and arrested with Dodd after leaving the Davenport residence where evidence

of drug distribution was found.

In all, there was a wealth of evidence upon which the jury could reasonably

have found Hayes guilty of joining the conspiracy to distribute crack cocaine. The

evidence of Hayes's participation in the distribution activities was sufficient to find

that he tacitly agreed to further the purpose of the conspiracy. Though Hayes attacks

the credibility of the government's witnesses, noting a lack of specific dates and

details of his participation, the jury assessed the witnesses and apparently found them

credible. We affirm the conspiracy conviction.

Hayes next challenges his conviction for possession with intent to distribute

fifty grams or more of crack cocaine under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

Hayes argues there was insufficient evidence to show he had either actual or

constructive possession of the 53.1 grams of crack cocaine found in the Davenport

residence. The government appears to concede this argument, having abandoned it

in its brief, and instead argues the evidence was sufficient to convict Hayes for aiding

and abetting Dodd's possession. On appeal, however, we need not decide the merit

of either argument, because our decision in United States v. Navarrete-Barron is

dispositive of Hayes's claim. 192 F.3d 786 (8th Cir. 1999).

Navarrete-Barron concerned circumstances similar to those here, in which the

defendant was convicted of both conspiracy to distribute crack cocaine and

possession with intent to distribute crack cocaine. Id. at 789. On appeal, the

defendant challenged the evidence supporting his conviction on the possession with

intent to distribute charge. Id. We upheld the conviction under the theory of coconspirator liability announced in Pinkerton v. United States, 328 U.S. 640 (1946).
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See Navarrete-Barron, 192 F.3d at 792–93. Under Pinkerton and our subsequent

cases, "each member of a conspiracy may be held criminally liable for any substantive

crime committed by a co-conspirator in the course and furtherance of the conspiracy,

even though those members did not participate in or agree to the specific criminal

act." Id. at 792 (quoting United States v. Golter, 880 F.2d 91, 93 (8th Cir. 1989))

(emphasis added); Pinkerton, 328 U.S. at 647.

Curiously, the government did not argue a Pinkerton liability theory in its brief,

arguing only that "when viewed in light of the evidence establishing Hayes'

involvement in the conspiracy, the evidence establishing Hayes' guilt on the aiding

and abetting count was sufficient to sustain the conviction." Brief of Appellee/CrossAppellant at 14. However, the jury was properly instructed on co-conspirator liability

in accordance with Pinkerton. Specifically, the jury was instructed that they

may consider acts knowingly done . . . by a defendant's co-conspirators

during the existence of the conspiracy and in furtherance of it as

evidence pertaining to a defendant even though they were done or made

in the absence of and without the knowledge of a defendant. . . . [A]

person who knowingly, voluntarily and intentionally joins an existing

conspiracy is responsible for all of the conduct of the co-conspirators

from the beginning of the conspiracy.

Jury Instructions, Instruction No. 15 (emphasis added).

In light of the conspiracy charge against Hayes, the District Court was

warranted in giving this instruction, even though co-conspirator liability was not

charged in the indictment. See United States v. Thirion, 813 F.2d 146, 152 (8th Cir.

1987) (citing United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975), cert. denied,

426 U.S. 923 (1976)); United States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990),

cert. denied, 499 U.S. 977 (1991). Therefore, our task on appeal is to decide whether
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a reasonable-minded jury could have convicted Hayes beyond a reasonable doubt

based on co-conspirator liability.

In order to convict Hayes based on co-conspirator liability, the jury had to be

convinced that 1) Dodd knowingly or intentionally possessed fifty or more grams of

crack cocaine, 2) Hayes and Dodd were members of a conspiracy at the time of the

possession, 3) Dodd's possession was in furtherance of the conspiracy, and 4) Dodd's

possession was reasonably foreseeable by Hayes as a natural outgrowth of the

conspiracy. See Navarrete-Barron, 192 F.3d at 792–93.

We have little trouble concluding the jury might reasonably have found Hayes

liable for the acts of his co-conspirator, Fred Dodd. First, the same jury convicted

Dodd of possession with intent to sell fifty grams or more of crack cocaine. Dodd's

conviction has not been challenged here, so we need not review the evidence

supporting it, but given the evidence of Dodd's control over the residence and car in

which the crack cocaine was seized, we believe the conviction would withstand

appeal. Second, the jury convicted Hayes of conspiring to distribute and possess

crack cocaine with Dodd—a conviction we have herein upheld. As charged, the

conspiracy was in existence when Hayes and Dodd were arrested on January 4, 2003.

As for the third and fourth elements required, the jury specifically found

beyond a reasonable doubt that the crack cocaine was "involved in [i.e. in furtherance

of] the conspiracy and reasonably foreseeable to . . . Hayes." Verdict Forms, Count

One, Form No. 2, Interrogatory No.1 (emphasis added). Indeed, the large amount of

crack cocaine Dodd possessed played an essential part of the conspiracy to distribute

crack cocaine, as it was the main product to be distributed. It was reasonable for the

jury to so infer and to attribute foresight of this obvious fact to Hayes. Thus, along

with the other evidence of Hayes's involvement, and in light of the instruction given

them, it was reasonable for the jury to impute Dodd's possession of the crack cocaine

to Hayes as a co-conspirator. We therefore hold that a reasonable-minded jury could
1

Although the government states its claim under a single heading, it in effect

makes two arguments. Because we agree with the first argument, we need not

address the second.

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have found Hayes guilty on this theory beyond a reasonable doubt. Hayes's

conviction for possession of crack cocaine with intent to distribute is therefore

affirmed.

B.

The government cross-appeals Hayes's sentence, arguing that the District Court

erred by granting Hayes a two-level sentencing reduction for being a minor

participant in the offense.1

 See U.S. Sentencing Guidelines Manual § 3B1.2(b)

(2003). The government claims the District Court erred by placing the burden on the

government to show Hayes was not entitled to a minor participant reduction, rather

than placing the burden on Hayes to show he was so entitled. It is well-settled that

a defendant bears the burden of showing facts entitling him to receive a sentencing

reduction, including a reduction for being a minor participant. United States v.

Chatman, 119 F.3d 1335, 1341 (8th Cir.) (citing United States v. Dinges, 917 F.2d

1133, 1135 (8th Cir. 1990)), cert. denied, 522 U.S. 976 (1997).

Here, the record is unclear as to the party to which the District Court allocated

the burden. At the sentencing hearing, the District Court stated that the government

had "the burden with respect to drug quantity and the other issues." Sentencing Tr.

at 5 (emphasis added). Because the District Court did not revisit the burden at any

point thereafter, it appears the District Court may have included the minor-participant

reduction as one of the "other issues" on which the government had the burden. Id.

On the present state of the record, we simply cannot be sure. We therefore remand

the case to the District Court for factual findings on Hayes's entitlement to the minorparticipant reduction, with the burden of proof on this sentencing-reduction issue
2

We note in passing that we do not believe that Hayes's intervening prison term

for another offense, resulting in a lengthy, enforced absence from the conspiracy

charged in this case, necessarily establishes his entitlement to a minor-participant

sentencing reduction. Instead, his entitlement to this reduction depends, at least in

part, on a comparison of his degree of participation in the conspiracy with the degree

of participation therein by other defendants not receiving such a reduction, and a

showing by Hayes that he is significantly less culpable than those other defendants.

See United States v. Johnson, 358 F.3d 1016, 1018 (8th Cir. 2004) (following United

States v. Snoddy, 139 F.3d 1224, 1231 (8th Cir. 1998)).

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properly and clearly allocated to Hayes. Accordingly, we need not review the

findings already made.2

III.

As described above, we affirm the judgment entered against Hayes on both

counts. We vacate the District Court's sentencing order and remand for resentencing

consistent with this opinion.

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