United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2735NE

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District

v. * of Nebraska.

*

Clyde M. Shinall, * [UNPUBLISHED]

*

Appellant. *

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 Submitted: December 17, 1998

Filed: December 23, 1998

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Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

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PER CURIAM.

Clyde M. Shinall appeals his conviction and sentence for conspiracy to distribute

cocaine base. We affirm.

Shinall first contends the evidence was insufficient to convict him. We will

reverse 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, we

conclude a rational jury must have had a reasonable doubt that the elements of

conspiracy were established. See United States v. Santana, 150 F.3d 860, 864 (8th Cir.

1998). For the
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jury to find Shinall conspired to distribute cocaine base, the Government had to show

there was an agreement to distribute, Shinall knew of the agreement, and Shinall

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 of

Shinall’s actions. See United States v. Cabrera, 116 F.3d 1243, 1245 (8th Cir. 1997).

At Shinall’s trial, one of Shinall’s customers, Tony Rutherford, testified he and

Shinall had an understanding that Rutherford could buy distributable amounts of

cocaine base from Shinall. Rutherford testified that, given his quarter-ounce purchase,

Shinall would know Rutherford planned to resell at least some of the cocaine base, and

Shinall implicitly agreed to make future sales of that distributable amount to

Rutherford for him to resell. Although a mere sales agreement between a buyer and

seller of illegal drugs does not constitute a conspiracy, Rutherford’s testimony supports

a reasonable inference of an understanding beyond the sales agreement, which is

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 in

Jensen, where the defendant’s girlfriend had no active role in helping her boyfriend

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 knowing

involvement 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

benefited from agreements to cooperate with the Government. During crossexamination, 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.
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1998); Santana, 150 F.3d at 864. We conclude the evidence was sufficient to convict

Shinall of conspiracy to distribute cocaine base.

Shinall next contends the district court committed error in denying his motion

for a new trial based on newly discovered evidence. The district court did not abuse

its discretion in denying the motion. To obtain a new trial based on newly discovered

evidence, the evidence must, among other things, be newly discovered and be likely

to produce an acquittal on retrial. See United States v. Warren, 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 letter

stating the amount of cocaine she had seen Shinall possess was smaller than she had

testified about at trial. Information that Shinall possessed less cocaine in Horn’s

presence is not newly discovered evidence because this information was within

Shinall’s knowledge at the time of trial. See id. at 745. Further, given the other

testimony by Rutherford and Horn about Shinall’s drug-related activities, a change in

Horn’s testimony merely decreasing the amount of drugs that she saw Shinall possess

would 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 contends the district court committed clear error in calculating the

amount of cocaine base attributable to him for sentencing purposes. Because the

amount of cocaine base seized from Shinall did not reflect the scale of the offense, the

district court estimated the amount of cocaine base for which Shinall was responsible

based on the court’s assessment of the evidence. See U.S. Sentencing Guidelines

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 because

there was no evidence about the manufacturing of cocaine base from cocaine powder.

Information about manufacturing was unnecessary because the evidence showed

Shinall possessed certain amounts of cocaine base, rather than cocaine powder from
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which cocaine base is made, and the district court added those amounts of cocaine base

to estimate the total amount of cocaine base for which Shinall was responsible. See

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 court

found, however, that even if the amounts testified about by Horn are not considered,

Shinall’s base offense level would not change given the remaining amount attributable

to Shinall by other evidence. We conclude the district court did not commit clear error

in calculating the total amount of cocaine base attributable to Shinall. 

We thus affirm Shinall’s conviction and sentence for conspiracy to distribute

cocaine base.

. 

A true copy.

Attest:

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