1 The Honorable James M. Rosenbaum, Chief Judge, United States D istrict

Court for the District of Minnesota.



## United S tates Cou rt of Appe als
FOR THE EIGH TH C IRC UIT

___________ No. 07-26 97

___________ United States of Americ a, *
* Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota. Peng Tha o, *
* [UNPUBLISHED] Defenda nt - Appel lant. *

___________ Submi tted: Apr

il 17, 2008 Filed: June

16, 2008

___________ Before G RUEND ER, BR

IGHT , and BE

NTON , Circui t Judges.

___________ PER CURIAM.

A jury convicted Peng Tha o (“Thao”) of: (1) c onspiracy to distribut e and possess wit

h intent to di stribute over 50 gram s of m etham phetam ine in viola

tion of 21 U.S .C. §§ 84 1(a)(1) , 846; and ( 2) possessin g with inte nt to distrib ute mo re tha n 50 grams of methamphetamine in vi olation of §§ 841 (a)(1), (b)(1)(A) . Th e district court 1 sentence d Thao to 13 2 months ’ im prisonm ent on both co unts and five year s’ supervised rel ease. O n a ppeal, T hao argues the distric t court er red by denyin g his-2-

motion for judgment of acquittal because the Governm ent’s eviden ce was in sufficie nt to su pp ort th e ju ry’s gu il ty v erd ict on eit her cou nt . We a ffi rm.

We review the district

court’ s denial of

a motion for

judgm ent of acq

uittal de

novo
. See United St ates v. H arris , 352 F.3 d 362, 365 (8 th Cir. 20 03) (citin g United States v. Earles , 113 F.3 d 796, 802 (8th Cir. 1997)). We will af firm the denial of a motion for judg ment of acquittal so long as substantial evidence exists, when viewed in the light

most f avorable to the gover

nment , that sup ports an i nference of g uilt. Id. at365 (8th Cir . 2003) (c iting United St ates v. H enson , 939 F.2d 584, 585 (8th Cir. 1991)).

“In reviewing the suffi ci ency o f the evidence on appe al, [w e] view [] the evidence in the light m ost favora

ble to the go vernm ent, r esolving evidentiary conflicts in favor

of the gove rnme nt, and accepti ng all reas onable in ferences drawn from the evidence that support the jury’s verdict.” United States v. Baker , 98 F.3d 330, 338 (8 th Cir. 19 96); United States v. Sanchez

2 252 F.3d 968, 972 (8th Cir. 2001). This “ standard of

review . . . is very strict, and the ver dict of the jury [will] not be overturned lightly.” United States v. David son , 195 F.3 d 402, 406 (8 th Cir. 19 99) (citing United St ates v. B urks , 934 F.2 d 148, 151 (8th Cir. 1991)). We will upho ld the “‘jury’s verdict . . . if ther e is an inte rpretati on of the ev idence tha t would allow

a reasonable-minded jury to conclude

guilt bey ond a

reasonable doubt.’” Baker , 98 F.3d at 338 (quoting United States v. Erd man , 95 3 F.2d 387 , 389 (8th Cir.), cert. denied , 505 U.S. 1211 (1992)) . And w e will re verse a jury ’s verd ict only where “ no reasonabl e jury

could have found the [ accused] guilty b eyon d a reasonabl e doubt.” UnitedStates v. Harmon , 194 F.3 d 890, 892 (8th Cir . 1999). The gover nment is not required to excludeevery

reasonab le hypothesis except gu ilt, e.g., Henson , 939 F.2 d at585, and “ [a] co nviction may be based on cir cumst anti al as we ll as direct evidenc e.” Baker , 98 F.3d at 338. And when evidence may equally support either guilt or innocenc e, a cour

t should not dis turb the j ury’s verdict. See id. “If the2 The original f ederal in dictm ent against

Thao nam

ed Vang as a co-conspir

ator and co-defendant. O n June 7, 200 6, Vang p led guilty to conspira cy to di stribute a nd possess with inten

t to dis trib ute over 50 gram s of a m ixture cont aining metham phetamine. The Governme nt sub sequently obtained a supercedi ng in di ctme nt namin g only T

hao.
-3- evidence rationall

y suppor ts two conf

licting hy potheses, the revie wing court will not disturb the conviction.” Id. (quoting Burks , 934 F.2d at 151).

To estab lish that Thao conspired to distri bute and poss ess with in tent t o distributemetha

mphet a mine, the Gover nment had to prove : (1) ther e was a
con spi racy, such as an a

greem ent to distribut e or possess with intent to distributethe metham phetamine; (2) Tha o knew of t he conspiracy; a

nd ( 3) Thao intentional ly joined the consp iracy. Se e United S tates v. Espino , 317 F.3d 788, 792 (8th Cir. 2003). The Governme nt may establish t

he existence of a conspiracy through either director circumstantia l evidenc e. See United St ates v. Mickelson , 378 F.3 d 810, 821 (8thCir. 2004 ) (citing United St ates v. S parks , 949 F.2 d1023, 1027 (8th Cir. 1991)); UnitedStates v. McCracken, II , 1 10 F.3d 535, 540 (8th Cir . 1997). A defen dant challengin g the sufficiency of the evidence in a conspirac y case

has a heav

y burden. See Mickelson , 378 F.3 d at 821 (ci ting United St ates v. Jiminez-Perez , 238 F.3 d 970, 973 (8th Cir. 2001)).

Thao argues tha

t the Gove rnme nt’s evi dence wa s in su fficient to link him

to Teng Vang’s (“ Vang”) 2 metha mphet amine

activitie s. We

disagree . At tr

ial, the Governm ent presente d the following evidenc e to prove t he existence

of a conspiracy betweenThao and V ang: (1) Van g name d the brother-in-law whom he lived with as

a co-conspirator during a contro ll ed metha mphetamin e buy; (2 ) Thao was Van g’s only brother-i n-law that li ved in the sa me hom e as Vang ; (3) $280 of

the $300 of “buy money ” Vang re ceived dur

in g tha t con trol led b uy was fo und i n Thao ’s bedroo m; ( 4) the sam

e type of clear plastic Z iploc baggie s used for p ackaging metha mphet amine

were found in both Thao’s and Vang’s bedroom s; (5) d igital scales-4-

com monly used for wei ghin g out narco tics were fo und i n bot h Thao ’s and V ang’s bedroom s; (6) the ke y for Vang’ s safe – c ontaining dr ug notes and c ash – was f ound in Tha o’s bed roo m; and(7) the dr ug notes re covered f

rom V ang’s be droom

cor res po nd ed t o t he a mou nt s o f mon ey fo un d i n Th ao’ s b edr oo m.

The Governm

ent also prese nted testim ony fr om a c onfidential informant (“CI”), who participated in a controlled met hamphe tamine buy w ith Vang. The CI testifiedthat during

the buy Vang told him that the brother-in-law he lived with was his drug partn er. Thao cont ends this te stimon y does n ot exclude the possibili ty that Vang’s other brot

her-in-l aw could b e the possible co-conspirator. The problem with this theory

is the CI specifically

identifie d Vang’ s met

hamphe tamin e partner as the brother-in-law with whom he lived. And the onl

y broth er-in-la

w living with Van g
was Thao. We are therefore satisfied that the CI’s te stimon

y, c oupled with

the physical evidencefound in Thao’s bedroom , constitu tes substant

ial eviden ce, albe it circum stantial, from wh ich the jury could infe r that Th ao conspire d with Va ng to distribute and to possess with intent to distribute methamphetamine.

To establish

that Thao possessed with intent to distribute methamphetam ine, the Gov er nment

had to prove

beyond a reasona

ble doubt tha

t Thao know ingly possessed and intende d to distribute the methamphetam ine found in his home. See UnitedStates v. Sanchez , 252 F.3d 968, 972 (8th Cir . 2001); UnitedStat es v . Boyd , 180 F.3d 967, 979 (8th Cir . 1999). The Governme nt can esta blishpossessio n by director circumstantial eviden ce. See, e.g., United St ates v. E vans , 431 F.3 d 342, 345 (8th Cir. 2005); United States v. Bridges , 419 F.2 d 963, 968 (8th Cir. 1969). And itcan estab l ish kn owing possession by demonstrating that an individual had constructive possession of the controlled substan ce. See United St ates v. P erkins , 94 F.3d 429, 436 (8th Cir . 1996) (c iting UnitedStates v. Townley , 942 F.2 d 1324, 1325 (8thCir. 1991 )). A person cons tructivel y posse sses a cont

rolled subst ance if

she has “own ership, domini on or control over the contraba nd itself, or dom inion over t he premises in which the contraband is concealed.” United St ates v. O jeda , 23 F.3d3 As cir cums tantia l evidence that Thao received drug proceeds or possessed

drugs for sale, th e Govern

ment c ompar

ed the am ount of cash (nea rly $11 ,000) foun d in Thao’s bedroom w ith his reported earnings of approximately $5,800 (in the seven months preceding the search).
-5- 1473, 1475 (8th Cir. 1994). Finally, the Government can demonstrate an individual had the intent t

o distribute

with evidence that a

large quantity

of narcot ics was f ound in their possess ion. See United St ates v. C ampos , 306 F.3 d 577, 580 (8 th Cir. 20 02) (“[W]e have prev iously held that posses sion of appr oxima tely 50 gram s of metha mphet amine

is consistent

with an int ent to distr

ibute.”) (citing United St ates v. Schubel , 912 F.2d 952, 956 (8th Cir. 1990)).

Attrial, t he Gover nment pres ented the following evidence found in a safe seizedfrom

Thao’ s bedroom

to establi sh his possessio n with inte nt to distrib ute metham phetamine: (1) 19 2 g rams of me thamp hetamine mi xture in a b lue Ziploc bag that has an uncon

teste d street value of betw een $6,000 and $10,000; (2) $1,50 0 in cash; (3) car titl e docu ments b earin g Thao ’s name; (4 ) check book s bear ing Th ao’s and h is wife’ s name s; and (5) n umer ous plastic baggies use d for packaging metham phetamine. The Government also presented evidence that the following was found in Thao’ s bedroom : (1) an operationa l digital sc ale com

monly used by drug dealers; (2) $9,00 0 in cash in a w hite stocking cap that included $280 of the premarked “buy money ” used in the

CI’s c ontrolled m

etham phetam ine buy wi th Vang; and (3) $600 in cash

and a key that opened Vang’s safe that contained m ore money and drug notes. 3 In add itio n, the Gover nment’s drug exper t, John Boulger, provided a valuatio n of the metham phetam ine seized from Thao’ s and Vang’ s bedroom s and explained that th e it ems found in the ir bedroom s were c onsistent w ith the distr ibution of metham phetamine. W e are satisfie d that this evidence (along with that discussed above esta

blishing Tha o conspired

with Va ng) mo re than co nstitutes sub stantial-6-

evidence from

which the

jury could infe r Thao pos sessed wi th intent to d istribute metham phetamine.

For the f oregoing re asons, w e affir m Th ao’s co nvictions.

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