## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-2735NE

_____________ United States of America, * * Appellee, * Appeal from the United States

* District Court for the District v. * of Nebraska. * Clyde M. Shinall, * [UNPUBLISHED] * Appellant. *

_____________ Submitted: December 17, 1998

Filed: December 23, 1998

_____________ Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

_____________ PER CURIAM.
Clyde M. Shinall appeals his conviction and sentence for conspirac y to distribute cocaine base. We affirm.
Shinall first contends the evidence was insufficient to convict him. We wil l
rev erse on this ground only if, viewing the evidence in the light most favorable to the verdict and giving the Government the benefit of all reasonable inferences, w e con clude a rational jury must have had a reasonable doubt that the elements o f conspiracy were established. See United States v. Santana , 150 F.3d 860 , 864 (8th Cir. 1998). For the-2-

jury to find Sh inall conspired to distribute cocaine base, the Government had to show ther e was an agreement to distribute, Shinall knew of the agreement, and Shinal l intentionally joined the agreement. See United States v. Romero , 150 F.3d 821, 824 (8th Cir. 1998). The Government was not required to prove an express agreement, but only a tacit understanding, which could be established by circumstantial evidence o f Shinall’s actions. See Unite d States v. Cabrera , 116 F.3d 1243, 1245 (8th Cir. 1997).
At Shinall’s tria

l, one of Shinall’s customers, Tony Rutherford, testified he and Shinal l had an understanding that Rutherford could buy distributable amounts o f cocaine base from Shinall. Rutherford testi fied that, given his quarter-ounce purchase, Shinall would know Rutherford planned to resell at leas t some of the cocaine base, and Shinal l implicitly agreed to make future sales of that distributable amount t o Rut herford for him to resell. Although a mere sales agreement between a buyer an d seller of illegal drugs does not constitute a conspiracy, Ru therford’s testimony supports
a reas onable inference of an understanding beyond the sales agreement, which i s enough to support Shinall’s conspiracy conviction. See United States v. Jensen , 141 F.3d 830, 833 (8th Cir. 1998); Cabrera , 116 F.3d at 1244-45. In addition, Shinall’s girlfriend, Stacy Horn, testified she provided Shinall with transportation and provided him with a place to cook, package, and sell cocaine base. Unlike the situation i n Jensen , where the defendant’s girlfriend had no active role in helping her boyfrien d further his drug business from their home, Horn helped Shinall obtain and market his drugs. See 141 F.3d at 834. A reasonable jury could find a degree of knowin g involv ement

and cooperation, even if Horn did not benefit financially. See Cabrera , 116 F.3d at 1244.
Shinall asserts the testimony of Rutherford and Horn is incredible because they benefi ted from agreements to cooperate with the Government. During cross

exam ination, however, Shinall had the opportunity to expose the witnesses’ potential bias and self-interest, and it was the jury’s job to decide whether the witnesses ’ testimony was credible. See United States v. Maggard , 156 F.3d 843, 847 (8th Cir.-3-

1998); Santana , 150 F. 3d at 864. We conclude the evidence was sufficient to convict Shinall of conspiracy to distribute cocaine base.
Shinall n ext contends the district court committed error in denying his motio n for a new trial based on newly discovered evidence. The district court did not abuse its discretion in denyin g the motion. To obtain a new trial based on newly discovered evide nce, the evidence must, among other things, be newly discovered and be likel y to produce an acquittal on retrial. See United States v. Warr en , 140 F.3d 742, 744 (8th Cir. 1998). Neither of these criteria are satisfied here. After Horn was sentenced to
a term longer than she believed the Government had promised, she wrote a lette r stating the amount of cocaine she had seen Shinall possess was smaller than she had te stified about at trial. Information that Shinall possessed less cocaine in Horn’ s presen ce is not newly discovered evidence because this information was withi n Shinall’s kno wledge at the time of trial. See id. at 745. Further, given the othe r testimony by Rutherford and Horn about Shinall’s drug-related activities, a change in Horn’s testimony mer

ely decreasing the amount of drugs that she saw Shinall possess
wou ld not likely cause an acquittal on retrial. Indeed, the district court found Horn’s recantation was incredible, so a jury would probably not believe it. See United States v. Grey Bear , 116 F.3d 349, 350-51 (8th Cir. 1997).
Last, Shinall conte nds the district court committed clear error in calculating the
amo unt of cocaine base attributable to him for sentencing purposes. Because th e amount of cocaine base seized fro m Shinall did not reflect the scale of the offense, the district co urt estimated the amount of cocaine base for which Shinall was responsible based on the court’s assessment of the evidence. See U.S. Sentencing Guideline s Manual § 2D1.1 n.12 (1998); United States v. Ayers , 138 F.3d 360, 363 (8th Cir.) , cert. denied , 119 S. Ct. 219 (1998). Shinall asserts the estimation is wrong becaus e there was no evidence abo ut the manufacturing of cocaine base from cocaine powder. Information about manufacturing was unnecessary because the evidence showe d Shinall possessed certain amounts of cocaine base, rather than cocaine powder from-4-

which cocaine base is made, and the district court added those amou nts of cocaine base to es timate the total amount of cocaine base for which Shinall was responsible. Se e Ayers , 138 F.3d at 363. Shinall also contends Horn’s testimony about drug amounts should be disregarded because she has recanted her testimony. The district cour t found, however, that even if the amounts testified about by Horn are not considered, Shinall’s base offense level wo uld not change given the remaining amount attributable to Shinall by other evidence. We conclude the dis trict court did not commit clear error in calculating the total amount of cocaine base attributable to Shinall.

We th us affirm Shinall’s conviction and sentence for conspiracy to distribut e cocaine base.

. A true copy.

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