### The Honorable Donald E. O'Brien, United S tates District Judge 1 

### for the Northern District of Iowa. No. 95-2697

United States of America, * * Appellee, * Appeal from the United States
* District Court for the v. * Northern District of Iowa.
* William E. Eneff, * * Appellant. *

Submitted: November 15, 1995 Filed: March 25, 1996

Before BEAM, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

WilliamE. Eneff appeals from his conviction for conspiring t o distri bute and to possess with intent to distribute methamphetamine i n violation of 21 U.S.C. § 846, arguing that the evidence against him wa s legally insufficient. We affirm the judgment of the district court. 1

I. Charles Bramble testified at trial that he had several sources fo r drugs and that Eneff was one of them. He further said that he had bought methamphetamine from Eneff three times, two ounces on one occasion an d three ounces on the other two, for a total of ten

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ounces. Eneff's methamphetamine, in Bramble's v iew, was of a sufficiently high purity that Bramble used a cutting agent to double its quantity befor e he distributed it. S pecial Agent Herbert Drake of the Bureau of Alcohol, Tobacco, and Firearms testified that ten ounces of methamphetamine would suffice to produce more than 1,000 doses for an ordinary user.

There was also testimony from codefendant David Pinney, to who m Bramble testified he resold some of Eneff's amphetamine, that he knew Enef f and that he had business dealings with him, both in person and on th e tele phone; but Pinney adamantly denied that he and Eneff had had an y communication with respect to drugs. Finally, the government introduced telephone records tha t tended to show that Bramble called Pinney numerous times during the period of the alleged conspirac y. This was the sum total of the evidence of conspiracy on the part of Eneff.

II. We offer first some brief observations about what the United States must show in a case of this sort. The conspiracy charged require s necessarily some agreement beyond the executed s ales agreements alleged to have occu rred between Bramble and Eneff. There must have been som e undertaking on their part to do something more with the drugs in which the y dealt, that is, to ma ke some further distribution of them. We have held, it is true, that even numerous sales of small amounts of drugs for persona l

use are insufficient to support a conviction for some larger conspiracy. See , e.g. , United Sta tes v. West , 15 F.3d 119, 121 (8th Cir. 1994), cert. denied , 115 S. Ct. 17 7 (1994). But we have cases that hold that evidence of multip le sales of resale quantities of drugs is sufficient in and o f itself to make a submissible case of a conspiracy to distribute. See , e.g. , Uni ted States v. Escobar , 50 F.3d 1414, 1420 (8th Cir. 1995), an d United States v. Prieskorn , 658 F.2d 631, 634-35 (8th Cir. 1981).

### -3- This is a view that can be criticize d, and indeed it has been. See , e.g. , United States v. Lechuga , 994 F.2d 346, 347-48 (7th Cir. 1993) ( en banc ), cert. denied , 114 S. Ct. 482 (1993). As an original proposition, one might think that this evidence was merely consistent with a knowledge on the part of the pa rticipants in the sales that there was going to be a resale to a third par ty. Such evidence arguably must leave a jury with a

rea sonable doubt about whether the participants in the sales had agree d that redistribution was desirable and about whet her the redistribution was

a part of a common purpose to which they were consciously devoting their joint efforts. But w e believe that these arguments are foreclosed by the cases that we have cited, and, not being free as a panel to overrule them, we are obliged to affirm the conviction.

A true copy.

Attest:

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