## The Honorable Frank J. Magill was an active judge at the time this case was 1 

## submitted, and assumed senior status on April 1, 1997, before this opinion was filed. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3972

___________ United States of America, *

Plaintiff-Appellee, * Appeal from the United States
v. * District of Nebraska. Jose Cabrera, aka * Jose Cabarra, *

Defendant-Appellant. * *
* District Court for the
*

*

___________ Submitted: March 11, 1997 Filed: July 7, 1997

___________ Before MAGILL, JOHN R. GIBSON, and MURPHY, Circuit Judges. 1

___________ JOHN R. GIBSON, Circuit Judge.
In March 1996, Jose Cabrera was charged with conspiracy to distribute and possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) (1994) and 846 (1988). Cabrera entered a plea of not guilty, and the case

## The Honorable Lyle E. Strom, United States Senior District Judge for th e 2 

## District of Nebraska. -2- was tried to the district court after Cabrera waived his right to a jury trial. The court found Cabrera guilty as 2 charged, and he was sentenced to a term of 151 months in prison and five years of supervised release. In this appeal, Cabrera alleges that the government failed to produce sufficient evidence to support a finding of guil t beyon d a reasonable doubt. He challenges the credibility of the government's witnesses and argues that th e evidence falls short of proving a conspiracy. We affirm the district court's verdict.
The standard under which we consider whether a criminal conviction is supported by the evidence is wells e ttled. "In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the evidence in the light most favorable to the verdict and accept as e stablished all reasonable inferences supporting the verdict. We thenuphold the conviction only if it is supported by substantial evidence." United States v. Black Cloud , 101 F.3d 1258, 1263 (8th Cir. 1996); see also Glasser v. United States , 315 U.S. 60, 80 (1942). To obtain a conviction for conspiracy, "the governmen t must prove beyond a reasonable doubt that there was an agreement to achieve some illegal purpose, that the defendant knew of the agreement, and that th e defendant knowingly became a part of the conspiracy." United States v. Ivey , 915 F.2d 380, 383-84 (8th Cir. 1990); see also United States v. Maejia , 928 F.2d 810, 813 (8th Cir. 1991). Merely proving that the defendant knew o f the existence of the conspiracy is insufficient to support a conviction for conspiracy; "rather, '[th e government] must establish some degree of knowing

### -3-

involvement

and cooperation.'" United States v. Fregoso , 60 F.3d 1314, 1323 (8th Cir. 1995) (quoting United States v. Casas , 999 F.2d 1225, 1229 (8th Cir. 1993), ce rt. denied , 510 U.S. 1078 (1994)). Moreover, it is "well established that 'a mere

sales agreement with respect to contraband does not constitute a conspiracy; there must be some understanding 'beyond' that before the evidence can support a conviction for conspiracy.'" United States v. Issaghoolian , 42 F.3d 1175, 1178 (8th Cir. 1994) (qu oting United States v. West , 15 F.3d 119, 121 (8th Cir.), cert. denied , 513 U.S. 863 (1994)). The govern

ment is not required to prove that an express agreement existed. "[R]ather the government need only establish a tacit understanding between the parties, and this may be shown wholly through th e circumstantial evidence of [the defendant's] actions." Fregoso , 60 F.3d at 1325. "[B]ecause the nature o f c o nspiracy entails secrecy, the agreement and members' participation in it must often be established by way of inference from the surrounding circumstances." Ivey , 915 F.2d at 384. "Once a conspiracy is established, even slight evidence connecting a defendant to the conspiracy may be sufficient to prove the defendant's involvement." Id. At Cabrera's two-day trial, the government presente d the testimony of two law enforcement officers and five other witnesses. On appeal, Cabrera emphasizes that each of the five other witnesses was a drug user, four of them had prior felony convictions, two had plea agreements with the government and had been grante d red uctions in their sentences for cooperating, one witness expected a similar arrangement with the government when he was sentenced, and two witnesses had

## Mar

k Bassett, Delbert Harris, Roy Vieyra, and Cindy Olguin had prior felony 3 

## con victions. Bassett and Harris had plea agreements with the government and th e governmen

t's downward departure motions had been granted. Vieyra hoped to reach a similar agreement. Sharon Bassett and Olguin had reached non-prosecutio n agreements with the government. -4- r eceived non-prosecution agreements in exchange for testifying. These facts are, of course, highly relevant in 3 assessing the credibility of the witnesses. See United States v. Roan Eagl e , 867 F.2d 436, 443-44 (8th Cir.), cert. denied , 490 U.S. 1028 (1989). Both the prosecution and the defense presented this evidence to the district court, wh ich is charged with assessing the credibility of the witnesses. An appellate court is "not in the best position t o judge the credibility of witnesses. It is for [the fact-finder] to assess the credibility of witnesses and resolve conflicting testimo ny." United States v. Cunningham , 83 F.3d 218, 222 (8th Cir. 1996). Accordingly, we may rev erse the conviction below only if we review the evidence under the standard described above and conclud e "that a rea sonable fact-finder must have entertained a reasonable doubt about the government's proof of one of the offense's essential elements." Ivey , 915 F.2d at 383. The government identified the time frame of the conspiracy as January 1994 through September 1995. The Bassetts, Harris, Vieyra , and Olguin were associated with Cabrera during this time period and testified that he sold them methamphetamine which they use d or resold to others. Although Cabrera spoke little English, they man aged to communicate with limited English or Spanish, with a translation book or computer, or throug h Cabrera's wife. The

drug transactions were conducted in a Grand Island, Nebraska trailer court, where Cabrera resided, and later at an Alda, Nebraska trailer court after Cabrera moved there. The Grand Island trailer court served as a base

### -5-

of operations for several drug dealers. Mark Bassett testified that he purchased methamphetamine from v arious individuals identified as Nacho, Javier Para-Cardenas, and George at the Grand Islan d trailer court. Cabrera was present on at least one occasion when Bassett p urchased methamphetamine from Nacho. Bassett met Cabrera in the summer of 1994 at th e Grand Island t

railer court and began purchasing methamphetamine from him on a regular basis, approximately everyother day. Cabrera then moved to the Alda trailer court, and Bassett purchased methamphetamine from Cabrera at that location every other or every third day. Bassett purchased larger quantities of methamphetamine from Cabrera at the Alda location than i n Grand Island because by then Bassett was both using and selling more of i t. Bassett also saw Cabrera provide methamphetamine on two or three occasions to Bassett's acquaintance Delbert Harris, and on one occasion to a woman named Barb. Bassett testified that Cabrera occasionally d id not have methamphetamine on hand at his Alda residence to sell to Bassett . When this occurred, Bassett would drive Cabrera back to the Grand Island trailer court t o obtain methamphetamine from other suppliers. During one of these trips, Greg Goltz, a Nebraska State Patrol trooper, stopped Bassett and Cabrera because of a broken windshield. Goltz testified that he searched the car both by hand and with a drug detection dog. Although the dog alerted to the odor of a controlled substance in the area, no controlled

substance was found. Bassett testified, however, that he and Cabrera had purchased one half ounce of methamphetamine before being stopped by Goltz, and that Cabrera had hidden it under the car seat. Following the search, Goltz remained suspicious and therefore followed

### -6-

the car to the Alda trailer court. After Bassett and Cabrera returned to Cabrera's trailer, Bassett observed Goltz and his dog at a nearby trailer. Fearing a d rug raid, Bassett and Cabrera flushed the methamphetamine down the toilet at Cabrera's trailer. In all, Bassett estimated that he bought methamp hetamine from Cabrera at the Grand Island trailer court morethan twenty times and that his purchases from Cabrera at both trailer courts totaled approximately three pounds. Ba ssett stopped buying methamphetamine from Cabrera sometime after February 1995 when Cabrera moved from Alda to Kansas. Bassett's wife, Sharo n Bassett, and Delbert Harris sometimes accompanied Bassett when he purchased methamphetamine from Cabrera. Sharon Bassett testified that she was with her husband and Cabrera on a couple of occ asions when they drove from Alda to Grand Island so that Cabrera could obtain more methamphetamine at the Grand Island trailer court.
Delbert H arris testified that he met Cabrera sometime after May 1994 and accompanied Mark Bassett once or twice a week to the Grand Island trailer court where Bassett purchased methamphetamine. After Cabrera mo ved to Alda, Harris began buying methamphetamine from Cabrera, and purchased once or twice a week for both his own personal use and resa le. Sometimes Harris drove Cabrera back to the Grand Island trailer court so that he could obtain more methamphetamine. Harris saw Mark Bassett, Roy Vieyra, and a woman named Barbie with Cabrera on occasion at Cabrera's trailer in Alda.

## The written rep ort of Officer Hernandez states that Cabrera admitted only that 4 

## he had lived in Alda, Nebraska and that his wife had been involved in drug activities there, b ut does not state that Cabrera admitted such involvement. Hernandez wa s questioned by Cabrer a's counsel at trial about this issue, and resolution of this alleged discrepancy w as for the district court to resolve. We do not believe that the distric t court's reliance on Hernandez's testimony was erroneous. -7- Roy Vieyra t

estified that he went with his nephew, Tibrusio Martinez, to the Grand Island trailer court several times so that Martinez could purch ase methamphetamine for Vieyra. Around November 1994, Martinez introduced Cabrera to Viey ra so that Vieyra could deal directly with Cabrera. In December 1994, Vieyra began making his own purchases from Ca brera and bought either cocaine or methamphetamine from him on an almost daily basis until January 1995. Vieyra initially purchas ed methamphetamine from Cabrera for both personal use and resale, but bought only for his own personal use when Cabrera moved to Alda. Vieyra saw Mark and Sharon Bassett at the Alda trailer court and also observed Cabrera give methamphetamine to Delbert Harris. Cindy Olguin also testified tha t she had purchased methamphetamine from Cabrera at the Grand Island trailer co urt. She stated that she had purchased controlled substances at the trailer on forty to fifty differen t occasion s, although most of the purchases were not from Cabrera. Olguin testified that she was the one wh o initially introduced Mark Bassett to Cabrera.
Vincent He

rnandez, an investigator with the Nebraska State Patrol's drug division, arrested Cabrera at his resi dence in Wichita, Kansas on April 1, 1996. Hernandez testified that Cabrera stated that he was no t involved in drug activities in Wichita, but admitted tha t he and his wife had been involved in drug activities when they lived in Alda. 4

## Mark and Sharon Bassett were married. Sharon Basset t and Delbert Harris had 5 

## been ro mantically involved. Mark Bassett and Delbert Harris formerly had bee n friends. Mark Bassett and Cindy Olguin were acquainted, and she helped him obtain methamph etamine. Olguin said that Cabrera's wife Pamela was her "cousin throug h marriage." Roy Vieyra lived with Cabrera for a time and was a friend of Cabrera' s wife. -8- Cabr era argues that the evidence, at most, showed only that various witnesses purchase d methamphetamine from Cabrera, but do es not rise to the level of showing a conspiracy to distribute and possess with the intent to distribute methamphetamine. Cabrera relies up on United States v. West , 15 F.3d 119 (8th Cir.), cert. denied , 513 U.S. 863 (1994), in which this court reversed the defendant's conspiracy conviction. Id. at 121. In West , the evidence showed only that the def endant sold drugs to two people for their own use and that the two buyers did not know each other. Id.
The circumstanc es of this case are far different from those in West . The evidence reveals that Cabrera sold methamphetamine to multipl e people on numerous occasions for both personal use and resale. Most of the witnesses who purchased from Cabrera had relationships with or knew of each other. Cabrera maintaine d 5 contacts at th e Grand Island trailer court after he moved so that he had a steady supply of methamphetamine to sell. These

transactions were not a series of isolated sales but were part of an agreement between Cabrera and others, in which Cabrera was a voluntary and knowing participant, to buy and sell methamphetamine.

## Cabrera does not suggest that these witnesses collaborated on their testimony, 6 

## and the evidence would contradict such an assertion if it had been made. -9- Cabrera argue s that these cooperating witnesses had a motive to aid the government in obtaining a conviction. Their testimony, however, is substantially consistent and corroborated by other evidence. After 6 considering all the evidence in the light most favorable to the verdict, we conclude that it shows that there was an agr eement between Cabrera and others, including the five witnesses, to possess with intent to distribut e me thamphetamine and to distribute methamphetamine, that Cabrera knew of that agreement, and that Cabrera knowingly part icipated in the agreement. In sum, the evidence establishes beyond a reasonable doubt that Cabrera is guilty of conspiracy to distribute and possession with intent to distribute methamphetamine. Accordingly, we affirm the judgment of conviction by the district court. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.