1

 21 U.S.C. § 846 (conspiracy to distribute methamphetamine) and 21 U.S.C.

§841 (a)(1) and (b)(1) (possession with intent to deliver methamphetamine of 500

grams or more).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1966

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the District

* of Nebraska.

Jose Espino, * 

*

Defendant-Appellant. *

___________

Submitted: October 8, 2002

Filed: January 9, 2003 

___________

Before JOHN R. GIBSON, MURPHY, and SMITH, Circuit Judges.

___________

SMITH, Circuit Judge.

Jose Espino appeals his conviction of conspiracy to distribute and possess with

intent to distribute more than 500 grams of methamphetamine.1

 Espino challenges the

sufficiency of the evidence used to convict him. He also contends that the District
2

 The Honorable Richard G. Kopf, United States District Court Judge for the

District of Nebraska. 

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Court2

 erred in allowing his wife to testify against him in violation of the spousal

privilege and in allowing lay witnesses to testify about the weight and amount of the

drugs distributed by Espino. We affirm. 

I.

Espino’s April 27, 2001, arrest stemmed from his alleged participation in the

sale and distribution of methamphetamine for approximately four years beginning in

July 1997. The government built its case against Espino upon the testimony of six

witnesses, including Espino’s wife, Brandy Goatley, who testified in exchange for the

possibility of reduced sentences in their own drug prosecutions. These witnesses

testified that they either bought from or were delivered methamphetamine by Espino

or Goatley during the four years of their distribution operation. Following trial, a jury

convicted Espino of the charge and found that the amount of methamphetamine

involved was 500 grams or more. The District Court sentenced Espino to 235 months’

imprisonment on March 15, 2002. 

II.

Sufficiency of the Evidence

First, we address whether sufficient evidence exists to support the jury’s

verdict. “The standard of review of an appeal concerning sufficiency of the evidence

is very strict, and the verdict of the jury should not be overturned lightly." United

States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002) (quoting United States v.

Burks, 934 F.2d 148, 151 (8th Cir.1991)). In reviewing the sufficiency of the

evidence on appeal, the court views the evidence in the light most favorable to the

government, resolving evidentiary conflicts in favor of the government, and accepting

all reasonable inferences drawn from the evidence that support the jury's verdict.

United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992). We will reverse only if
3

 In his second argument here, Espino asserts that Goatley’s testimony was

inadmissible under Nebraska’s and the Federal Rules of Evidence’s spousal privilege.

This issue is addressed below.

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no reasonable jury could have found the accused guilty beyond a reasonable doubt.

United States v. Harmon, 194 F.3d 890, 892 (8th Cir.1999).

Espino concedes that the evidence proves that he independently sold and

distributed methamphetamine. However, he argues that none of the admissible

testimony3

 proves that he conspired with anyone to commit this crime. Furthermore,

he argues that these witnesses were biased in that they each received a substantial

benefit from the government to testify that there was a conspiracy.

To establish that a defendant conspired to distribute drugs under 21 U.S.C. §

846, the government must prove: (1) that there was a conspiracy, i.e., an agreement

to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the

defendant intentionally joined the conspiracy. United States v. Jones, 101 F.3d 1263,

1267 (8th Cir. 1996); United States v. Westbrook, 896 F.2d 330, 338 (8th Cir. 1998).

Tacit understanding – as opposed to mere presence at and knowledge of an intended

drug sale – will suffice; a formal agreement is unnecessary. Id. (citing United States

v. Shoffner, 71 F.3d 1429, 1433-34 (8th Cir. 1995)). The existence of a conspiracy

may be proved by either direct or circumstantial evidence. United States v. Jenkins,

78 F.3d 1283, 1287 (8th Cir. 1996). Evidence of association or acquaintance, though

relevant, is not enough by itself to establish a conspiracy. United States v. Ivey, 915

F.2d 380, 384 (8th Cir. 1990). 

The evidence in this case supports the jury’s finding of Espino’s involvement

in a conspiracy to distribute methamphetamine. With the exception of Goatley, the

government’s witnesses testified that they either bought or were distributed

methamphetamine from Goatley or Espino from the couple’s home during the years
4

 Espino and Goatley met in 1997, began living together in 1998, and married

in either April or May of 1999.

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of the couple’s drug operation.4

 Melanie Berlie testified that she had been purchasing

methamphetamine from Goatley since 1996, and that she first met Espino at Goatley’s

home in 1998. Berlie testified that Goatley told her that it would be possible to buy

drugs from Espino, and that “[i]t was just one or the other, whoever was there or

whichever one was doing it.” Berlie purchased methamphetamine three or four times

a week from the couple at their residence. She purchased the drugs half the time from

Goatley and half the time from Espino. Berlie further stated that if Goatley or Espino

did not have the drugs when she wanted them, “[o]ne of them would pick it up and

one of them would bring it to me.”

Penelope Woodward testified that she met Espino at a bar in Grand Island,

Nebraska. In the year thereafter, she bought methamphetamine from Espino at the bar,

her home, or Espino’s and Goatley’s home. She testified that Espino would come by

her home as often as every other day to sell or distribute methamphetamine to her. 

Joe Olivo, a twenty-year methamphetamine user, testified that he first bought

drugs from Espino in the winter of 1998. Olivo said he bought methamphetamine

from Espino four or five times, and that he resold some of it.

Cassandra Brunick (“Cassandra”) testified that she first bought drugs from

Goatley in late 1997 and met Espino through Goatley in 1998. Cassandra began

buying methamphetamine from Espino in April 1998, and continued through

February 1999. She purchased methamphetamine from Espino through Goatley once

or twice a week. Cassandra testified that she would go alone or with her husband,

Steve Brunick (“Steve”), to purchase the drug from Espino at a trailer where Espino

and Goatley lived, and later at a house on Charles Street where Espino, Goatley, and
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others were living. Although she initially purchased methamphetamine mostly from

Goatley, she later purchased up to half from Espino.

Steven Brunick testified that he and his wife first met Espino through Goatley

during the summer of 1998. Steve made his first purchase from the couple in

November 1998 at Espino’s and Goatley’s trailer, and continued to buy

methamphetamine one or two times a week from Espino and Goatley until the end of

January 1999. Steve testified that he would resell the narcotic. Steve derived his

entire financial support from this enterprise during the period from February 1998 to

January 1999.

Lastly, Goatley testified that she and Espino first lived together in a trailer on

Sylvan Street, then at a trailer at Mobile Manor. Later, they lived in a house on

Charles Street with Michelle and Joe Olivo. Goatley testified that she had been selling

and using methamphetamine for nine years, and that she sold methamphetamine from

the residence at Mobile Manor. While living at Mobile Manor, Goatley saw a person

named “Chappo” give Espino methamphetamine on two occasions. During one of

these exchanges, Goatley overheard Chappo and Espino arguing over

methamphetamine “because Chappo had an ounce in the house and had said that Jose

had stole it or something.”

Goatley also testified that while living at the Charles Street residence, she knew

Espino was obtaining methamphetamine from a person named “Genaro.” Genaro

would take methamphetamine to the couple’s house in one-quarter-pound amounts

once a week during a one- to two-month period between Christmas of 1998 and

March or April of 1999. Goatley testified that she and Espino sold the drugs to Berlie

and the Brunicks, and that she was aware that Espino’s customers would page him to

order drugs and he would leave their residence at Mobile Manor to acquire the drugs.

Finally, Goatley testified about a drug deal that occurred in mid-1999. She bought a
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quarter-pound of methamphetamine from Jaime Torres in June and gave it to Espino.

On June 3, 1999, Goatley was arrested during a police drug operation.

Even if Goatley should be excluded as a witness, as Espino contends, the

remaining witnesses’ testimony provide more than substantial evidence in support of

the jury’s verdict. Each one testified that Espino and Goatley cooperatively operated

their drug enterprise out of their home, and that they could be contacted for the

purchase and delivery of methamphetamine separately or together. A purchase from

either Espino or Goatley could result in a delivery from the other. These facts indicate

an agreement between the two to maintain an ongoing enterprise. Furthermore, Steve

Brunick and Olivo testified that they resold much of the methamphetamine bought

from Espino, thus extending the conspiracy to distribute and possess with intent to

distribute methamphetamine.

With Goatley’s testimony, the conspiracy evidence becomes overwhelming.

Her testimony provides additional direct proof that she and Espino jointly bought and

sold methamphetamine from their household. Goatley testified that she introduced

Espino to several of the customers who had previously bought only from Goatley.

The jury could reasonably conclude, based upon her testimony, that Espino conspired

with Goatley, other witnesses, and the drug suppliers to sell methamphetamine.

The evidence is similarly cogent with respect to the drug quantities involved

in the transactions. Based upon the proof submitted, Espino’s drug sales supplied

amounts far in excess of the charged 500 grams, including over 1,200 grams to Berlie,

616 grams to Woodward, 1,232 grams to Cassandra Brunick, and 896 grams to Steve

Brunick. Several witnesses testified that they not only bought methamphetamine from

Espino but also resold it. We hold that sufficient evidence supports the jury’s verdict.

We also note that Espino challenges the credibility of the witnesses. He argues

that the veracity of these witnesses should be questioned because they potentially
5

 Neb. Rev. Stat. § 27-505(2) provides: “During the existence of a marriage, a

husband and wife can in no criminal case be a witness against the other. This

privilege may be waived only with the consent of both spouses.”

6

 Federal Rule of Evidence 501provides: 

Except as otherwise required by the Constitution of the United

States or provided by Act of Congress or in rules prescribed by the

Supreme Court pursuant to statutory authority, the privilege of a

witness, person, government, State, or political subdivision thereof shall

be governed by the principles of the common law as they may be

-7-

received the substantial benefit of a reduced sentence in exchange for testifying as to

the existence of a conspiracy. This allegation is without merit. In reaching its verdict,

the jury exercised its prerogative to credit the testimony of the government's

witnesses or discount it. That one or more of these witnesses were members of the

scheme does not undermine the verdict. United States v. Slaughter, 128 F.3d 623, 628

(8th Cir. 1997); United States v. Witschner, 624 F.2d 840, 843 (8th Cir. 1980); see

also United States v. Cunningham, 83 F.3d 218, 222 (8th Cir.1996). Certainly,

whether a witness has a plea agreement with the government, and whether a witness

will receive a sentence reduction in exchange for his testimony, is relevant in

assessing the witness's credibility. United States v. Roan Eagle, 867 F.2d 436, 443-44

(8th Cir.1989). The jury, however, is always the ultimate arbiter of a witness's

credibility, and this Court will not disturb the jury's findings in this regard. Witschner,

624 F.2d at 843.

III.

Spousal Privilege

Espino next argues that the District Court erred in allowing Goatley to testify

because Espino did not consent to her testimony. Specifically, Espino cites

Nebraska’s spousal-privilege statute, Neb. Rev. Stat. § 27-505(2)5

, and Federal Rule

of Evidence 5016

. He argues that this statute, which precludes testimony by a spouse
interpreted by the courts of the United States in the light of reason and

experience. However, in civil actions and proceedings, with respect to

an element of a claim or defense as to which State law supplies the rule

of decision, the privilege of a witness, person, government, State, or

political subdivision thereof shall be determined in accordance with

State law. 

7

 In Serra, the Sixth Circuit Court of Appeals discussed, in part, whether the

habeas petitioner’s Sixth Amendment right to assistance of counsel was violated

where the petitioner’s prior counsel initially represented the petitioner and his wife

prior to the criminal trial. In the discussion, the court of appeals noted that the district

court referenced the Michigan statute placing the right to prevent a spouse’s

testimony in the hands of the defendant. The defendant in Serra was tried in

Michigan state court which followed state law, and it was only the habeas corpus

petition that was addressed in federal court. The federal district court and court of

appeals did not adopt the approach asserted by Espino here; rather, those courts

merely recognized, without commenting further, that the Michigan statute in Serra

would have required the defendant in his state-court criminal trial to give his consent

before his spouse testified.

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when the privilege is claimed by the defendant, when read in concert with Rule 501,

should exclude Goatley’s testimony. We review admission of testimony under an

abuse of discretion standard. United States v. Bad Wound, 203 F.3d 1072, 1076 (8th

Cir. 2000). 

Espino claims that federal courts must look to the forum state’s law on

privilege to decide when a spouse may testify. For authority, Espino cites Serra v.

Michigan Department of Corrections, 4 F.3d 1348 (6th Cir. 1993). Espino’s reliance

on Serra to support his claim is misplaced.7

 The court in Serra merely applied state

law in the context of a habeas corpus review of a state court criminal conviction. 

Neither does Rule 501 mandate the approach Espino suggests. The plain

language of the rule states that issues of privilege “shall be governed by the principles

of the common law as they may be interpreted by the courts of the United States in
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the light and reason of experience.” Furthermore, the rule specifically provides that

“in civil actions and proceedings, with respect to an element of a claim or defense,”

the privilege issue “shall be determined in accordance with State law.” Put simply,

federal courts follow the federal common law regarding privileges in federal criminal

proceedings. The Supreme Court in Trammel v. United States, 445 U.S. 40, 47

(1980), noted that Congress, in rejecting a specific set of rules for various privileges

and enacting Rule 501, “manifested an affirmative intention not to freeze the law of

privilege.” The Court further noted that Congress’s purpose was to allow the federal

courts to develop rules on a case-by-case basis and “to leave the door open to

change.” Id. Therefore, federal courts are not bound by a mechanistic approach for

applying the privilege in criminal cases. 

Espino’s privilege claim has no merit under federal common law. Federal

courts recognize two distinct marital privileges: the marital confidential

communications privilege and the adverse spousal testimony privilege. Bad Wound,

203 F.3d at 1075. Neither form of the privilege can be properly invoked in this case.

Under the marital confidential communications privilege, it is well settled that the

communications to which the privilege applies have been limited to utterances or

expressions intended by one spouse to convey a message to another. United States v.

Smith, 533 F.2d 1077, 1079 (8th Cir. 1976). Though this privilege has been expanded

to encompass more than mere conversations and writings, invocation of the privilege

requires the presence of at least a gesture that is communicative or intended by one

spouse to convey a message to the other. Id. Espino cites no such facts.

The District Court’s order on Espino’s motion in limine precluded the

government from introducing evidence of any conversations between Espino and

Goatley during the course of the marriage except for conversations that took place in

the presence of third parties. The District Court denied the remainder of the motion

in limine, ruling that the government could introduce evidence through Goatley’s

testimony adverse to Espino if it involved Espino’s conduct rather than his
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communications. Clearly, the District Court properly preserved the marital

confidential communications privilege by prohibiting Goatley from testifying about

personal conversations and communications between the couple outside the presence

of third parties, and by ruling that Goatley could testify as to Espino’s conduct so

long as it did not involve a communicative gesture. Here, Espino points to no

evidence regarding a communicative gesture about which Goatley testified; rather,

Goatley’s testimony focused on her observations of Espino’s conduct and actions

involving his drug trade before and during the course of their marriage. As such, the

District Court did not err in admitting Goatley’s testimony under the marital

confidential communications privilege. 

Under the adverse spousal testimony privilege, an individual “may be neither

compelled to testify nor foreclosed from testifying” against the person to whom he

or she is married at the time of trial. Bad Wound, 203 F.3d at 1075 (citing Trammel,

445 U.S. at 53). The privilege, therefore, rests with the testifying spouse who may

waive the privilege without consent of the defendant spouse. Id. In Trammel, the

Court traced the history of this spousal privilege. The Court concluded that the rule

as it previously existed (allowing only the defendant spouse to give consent for the

witness spouse to testify) would be modified to allow the witness-spouse alone to

have the privilege to refuse to testify adversely against his or her spouse. The Court

concluded that this modification promoted the public’s interest in marital harmony

without unduly burdening legitimate law-enforcement needs. Trammel, 445 U.S. at

53. Furthermore, the Court noted that a witness-spouse’s agreement to testify after a

grant of immunity and assurances of lenient treatment does not render his or her

testimony involuntary. Id. Therefore, Goatley’s testimony viewed through the lens of

this privilege was not improper pursuant to the Court’s decision in Trammel, and the

District Court did not abuse its discretion in admitting the testimony.
8

 We note that Espino challenges only the weight of the methamphetamine, not

its identification.

9

 Federal Rule of Evidence 602 “Lack of Personal Knowledge” provides in

pertinent part:

A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal

knowledge of the matter. Evidence to prove personal knowledge may,

but need not, consist of the witness’ own testimony. 

10 Federal Rule of Evidence 701 provides:

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IV.

Drug Weight

Finally, Espino argues that the District Court erred in admitting testimony of

lay witnesses concerning the weights and quantities of methamphetamine sold by

Espino because the witnesses’ testimony lacked adequate foundation.8

 Espino

contends that while some of the drugs were actually weighed, the witnesses also

testified to amounts and weights of drugs that the witnesses only observed but did not

weigh themselves. As such, we must determine whether a lay witness having

extensive experience in the drug trade with this particular drug possesses the requisite

knowledge to testify accurately about the weight of the drugs without having actually

weighed each purchase. Admission of testimony is reviewed under an abuse of

discretion standard. Bad Wound, 203 F.3d at 1076.

Federal Rule of Evidence 602 requires that a witness have personal knowledge

of the matters about which he or she testifies, except in the case of expert opinions.9

Federal Rule of Evidence 701 allows lay opinion that "is limited to those opinions or

inferences which are (a) rationally based on the perception of the witness and (b)

helpful to a clear understanding of the witness' testimony or the determination of a

fact in issue."10 Rule 701 permits such testimony if it is based on "relevant historical
If the witness is not testifying as an expert, the witness’ testimony

in the form of opinions or inferences is limited to those opinions or

inferences which are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’ testimony

or the determination of a fact in issue, and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule 702.

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or narrative facts that the witness has perceived," Teen-Ed, Inc. v. Kimball Intern.,

Inc., 620 F.2d 399, 403 (3rd Cir.1980), and if it "would help the factfinder determine

a matter in issue," Hurst v. United States, 882 F.2d 306, 312 (8th Cir.1989). "While

the ordinary rule confines the testimony of a lay witness to concrete facts within his

knowledge or observation, the [c]ourt may rightly exercise a certain amount of

latitude in permitting a witness to state his conclusions based upon common

knowledge or experience." United States v. Oliver, 908 F.2d 260, 264 (8th Cir. 1990)

(citing Batsell v. United States, 217 F.2d 257, 262 (8th Cir.1954)). Lay opinion

testimony is admissible only to help the jury or the court to understand the facts about

which the witness is testifying and not to provide specialized explanations or

interpretations that an untrained layman could not make if perceiving the same acts

or events. See United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001); United

States v. Cortez, 935 F.2d 135, 139-40 (8th Cir.1991); United States v. FigueroaLopez, 125 F.3d 1241, 1244-45 (9th Cir.1997).

The general application of Rule 701 indicates that a lay witness may testify

about facts within his or her range of generalized knowledge, experience, and

perception. Here, these witnesses, particularly Goatley, testified that they either

actually weighed the quantities of methamphetamine purchased from Espino, or

through their experience knew that the volume sold generally constituted a certain

weight of the drug. These lay witnesses testified based upon their experience. They

were not attempting to explain any technical or specialized information, and several

of them had actually used a scale to weigh the methamphetamine. 
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The record contains ample evidence of the lay witnesses’s experience in the

drug trade and with assessing quantities of drugs. For example, Berlie testified that

she usually bought drugs in quantities of an ounce at a time and that the drugs she

received from Espino were weighed on a scale. Woodward said she first bought

“eight balls,” or an eighth of an ounce of the drug from Espino, but then later bought

amounts from a quarter of an ounce to one ounce. Woodward, who used and sold

drugs for three to four years, testified that she used a scale to weigh the amounts that

she bought and resold. During cross examination, Woodward described the scale as

a digital scale similar to that used by Espino for weighing drugs. Olivo, a twenty-year

methamphetamine user, testified that each of his purchases from Espino was for one

ounce, and the amounts were weighed on a scale by Olivo’s wife. Cassandra Brunick

testified that Espino weighed the methamphetamine that she bought from him, and

each purchase was one to two ounces. Steven Brunick testified that the first time he

purchased from Espino, Espino weighed and sold him one-half of an ounce of

methamphetamine. Steven bought methamphetamine from Espino at other times in

amounts from four to six ounces for resale. Goatley, who used and sold

methamphetamine for nine years, testified that she would normally weigh the

methamphetamine, but from experience also was able to determine approximate

weight by visual examination. While living at Mobile Manor, Goatley saw Espino

receive methamphetamine from a person named “Chappo” on two occasions. On each

of these occasions, Goatley saw Chappo provide Espino with two ounces. Finally, the

government noted that over the course of his dealings, Espino supplied far in excess

of 500 grams to the various witnesses who testified, including over 1,200 grams to

Berlie, 616 grams to Woodward, 1,232 grams to Cassandra Brunick, and 896 grams

to Steven Brunick. 

Espino cites United States v. Mehaffey, 53 F.3d 128 (6th Cir. 1995), for the

proposition that the government failed to establish beyond a reasonable doubt through

any credible evidence the amount of methamphetamine sold by Espino. However,

Mehaffey’s facts are easily distinguished. In Mehaffey, the District Court attributed
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900 grams of drugs to the defendant; however, in reaching this conclusion, the

District Court relied on conversion calculations detailed in a different case rather than

evidence presented in Mehaffey’s case to determine the volume and weight of the

distilled illegal substance. The Sixth Circuit Court of Appeals determined that

reliance on these calculations from prior case law was improper and, thus, the

prosecution failed to meet its burden of proof as to the amount of the illegal drug

distilled from the precursor drug. Clearly, Mehaffey does not apply. In this case, the

jury heard specific testimony from witnesses, who all had substantial experience in

the use and trade of illegal drugs, regarding the weight of the methamphetamine

Espino sold. Therefore, the District Court did not abuse its discretion in admitting this

testimony.

V.

Judicial Notice Motion

As a final matter, separate from his appellate brief, Espino has filed a pro se

“Motion to Take Judicial Notice,” outlining twenty-six “judicially noticeable facts,”

requesting that this court appoint different appellate counsel and suspend the appeal

until new counsel can prepare additional appeal materials. Espino asserts that his

appellate counsel, who was also Espino’s second appointed trial counsel, was

ineffective at trial in a number of ways. For example, Espino claims that trial counsel

failed to properly assess and present various defenses at trial, failed to properly advise

Espino about the possible sentencing range if convicted, erred in notifying the

prosecution of a problem with the original indictment resulting in the filing of an

amended indictment that increased the punishment range, and failed to update Espino

about trial strategy and various filings prior to trial. Espino claims that had his trial

attorney provided correct advice prior to trial, he would have pleaded guilty to the

original indictment and would have received a “less severe” sentence. Espino now

requests that this court take judicial notice of these “judicially noticeable facts” and

suspend the appeal process until a new appellate attorney can be appointed to raise

these issues of claimed ineffective assistance of counsel in the direct appeal.
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A criminal defendant does not have the absolute right to counsel of his own

choosing. Carey v. State of Minnesota, 767 F.2d 440, 441 8th Cir. 1985); Williams

v. Nix, 751 F.2d 956, 959 (8th Cir.1985). Furthermore, an indigent defendant has no

right to demand of a court that a particular attorney, or particular attorneys, be

appointed to represent him. Id. Instead, "[s]ubstitution of counsel is a matter

committed to the sound discretion of the trial court." Meyer v. Sargent, 854 F.2d

1110, 1114-1114 (8th Cir. 1988) (quoting Nerison v. Solem, 715 F.2d 415, 418 (8th

Cir.1983), cert. denied, 464 U.S. 1072 (1984) and 465 U.S. 1026 (1984)).

After the District Court entered judgment, Espino filed a pro se notice of

appeal. He then requested that the District Court appoint appellate counsel to handle

this appeal. The District Court directed the request to this court, and on April 17,

2002, we appointed Attorney Loenard P. Vyhnalek, Espino’s trial counsel, to

continue Espino’s case on appeal. Given this history, we deny Espino’s request to

stay the proceedings and appoint new appellate counsel. The proper method to

challenge the effectiveness of counsel at trial and on appeal is in a petition for writ

of habeas corpus. 

Affirmed.

A true copy.

Attest:

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