* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 5 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-8108

v. (D.C. No. 97-CR-132-05-J) BRETT CHRISTIANSEN, (D. Wyo.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and HENRY , Circuit Judges.

Defendant-Appellant Brett Christiansen was convicte d on one count of conspiracy to distribute methamphetamine in violati on of 21 U.S.C. §§ 841 and 846. He was sentenced to sixty-three months’ impri sonment, four years’ supervised release, a $3,500 fine, and a $100 speci al assessment. Defendant appeals, alleging that the evidence was insufficient to support the conviction. He also challenges his sentence, arguing that the district court improperly denied a downward adjustment under the safety valve provisio ns of the sentencing statute,-2-

18 U.S.C. § 3553(f), and the United States Sentenci ng Guidelines § 5C1.2. We first address Defendant’s argument regarding the sufficiency of the evidence. “[I]n reviewing the sufficiency of the e vidence to support a jury verdict, this court must review the record de novo and ask only whether taking the evidence–both direct and circumstantial, together w ith the reasonable inferences to be drawn therefrom–in the light most favorable t o the government, a reasonable jury could find the defendant guilty beyond a reaso nable doubt.” United States v. Hanzlicek , 187 F.3d 1228, 1239 (10th Cir. 1999) (quotation m arks and citation omitted). The essential elements of a conspiracy to distribut e drugs are detailed in United States v. Evans , 970 F.2d 663, 668-71 (10th Cir. 1992).

To prove conspiracy, the government must show [1] that two or more persons agreed to violate the law, [2] thatthe defendant knew at least the essential elements of the conspir acy, . . . [3] that the defendant knowingly and voluntarily became a part of it, and [4] that the alleged coconspirators were interdependent

. Id. at 668 (quotation marks and citation omitted). Defendant asserts that he did not participate in th e conspiracy. Although he admits that he “distributed some of his methamphetamine on a casual basis,” he argues that there was no evidence that he “obtained , dealt or shared methamphetamine for profit.” Appellant’s Br. at 13 -14. He further claims that he did not knowingly and voluntarily participate in th e scheme when he loaned his-3-

drug supplier $4,000. The government presented evidence that Defendant so ld or otherwise distributed at least a small part of the drugs he p urchased. Becky Henderson testified that she observed Defendant distributing methamphetamine to at least four persons. One of those persons testified that he bought “teeners” (onesixteenth-ounce quantities) from Defendant. A Wyom ing Division of Criminal Investigation [DCI] agent testified that Defendant admitted sharing methamphetamine with another of those persons becau se he helped around Defendant’s house and with Ms. Henderson because sh e helped him with his books. Another witness testified that Defendant g ave him methamphetamine for his use and money to purchase methamphetamine for D efendant’s use. Whether the evidence of Defendant’s distributions w as sufficient to show participation is a close question. On the one hand , we have never held that evidence of a profit or a profit motive is essentia l to prove conspiracy. We agree with the Fifth Circuit’s reasoning on this issue: “The fact that [a defendant] did not have a stake in the conspiracy . . . is not det erminative. The fact that an accused has a stake in an alleged conspiracy is mer ely relevant to establishing participation in the scheme. But it is not a requi rement.” United States v. Keller , 784 F.2d 1296, 1299 (5th Cir. 1986); cf. Direct Sales Co. v. United States , 319 U.S. 703, 713 (1943) (observing that “a ‘stake in the venture’ . . ., even if it may-4-

not be essential, is not irrelevant to the questionof conspiracy”). On the other hand, we have held that evidence of a single drug p urchase and the loan of scales to aid in weighing cocaine was not sufficient to es tablish that a defendant “shared in the common distribution objective of the conspir acy.” Evans , 970 F.2d at 673. We have also held that there was no evidence of a c ommon purpose or goal when a defendant purchased cocaine and merely shared it with others. See United States v. McIntyre , 836 F.2d 467, 471 (10th Cir. 1987). We need not decide whether Defendant’s casual distr ibutions were sufficient to show participation in the conspiracy because the government presented more significant evidence of Defendant’s participation. Three witnesses testified that Defendant played a pivotal role in the survival of the enterprise when, on or near October 17, 1996, he lo aned his supplier $4,000. David Reese, the government’s principal witness, te stified that he received the $4,000 loan from Defendant for use in the drug oper ation. He told Defendant that he had obtained a pound of methamphetamine on credi t and then had “been ripped off,” sustaining a loss of $10,000 in drugs and cas h proceeds. R., Vol. 5 at 20. He told Defendant that he needed a loan to pay his drug source. He asked for “any amount” Defendant could provide him to pay dow n his debt for the methamphetamine he had already received so that his source would “front” him more drugs. Id. at 19-20. He testified that Defendant lent him $4 ,000 and that-5-

they wrote up a loan agreement indicating that the $4,000 loan was for the purchase of a mobile home. See id. at 20-22. At trial Ms. Henderson stated that she knew why Mr. Reese needed the loan when she introduced him to Defendant. She testifie d that, following his meeting with Mr. Reese, Defendant told her that he had made the loan, that it should be kept secret, and that “he had made it all legal.” Id. , Vol. 8 at 79. He told her that he had made Mr. Reese “make up a paper saying it wa s for the trailer.” Id. In addition, the DCI agent testified that Defendant ha d told him that “he knew that the [loan proceeds were] being used for Mr. Reese t o pay off a drug debt.” Id. at 136. Defendant, who did not testify at trial, argues that he did not know the purpose for the loan. He also asserts that, even i f he knew the purpose, he made no profit on the loan. The jury obviously found th e testimony of the government witnesses credible and concluded that Defendant kne w the purpose for the loan. “We do not . . . second-guess the jury’s credibility determinations.” United States v. Yoakam , 116 F.3d 1346, 1349 (10th Cir. 1997). Furthermor e, as we have explained in the foregoing analysis, evidence of a profit or a profit-making motive is not necessary to prove participation in a conspi racy. What is essential is proof that the conspirators acted to further “‘a common, illicit goal.’” McIntyre , 836 F.2d at 471 (citation omitted). Evidence in the re cord supports a jury finding that1 Evidence in the record could also support a jury fi nding that Defendant

had a profit-making motive and realized a profit onhis loan. Government’s Exhibit 400, the agreement signed when Defendant ma de the $4,000 loan, includes the provision: “To be repaid in one payment of $4,500 in 30 days, November 13, 1996.” R., Vol. 4 at 31. This repres ents a significant anticipated profit. Mr. Reese testified that he repaid $1,500 of the loan in cash and the rest in methamphetamine. He delivered the methamphetamine in “eight balls” (oneeighth-ounce quantities), calculating a $150 payoff for each eight ball. Mr. Reese testified that the going rate for eight balls was $ 250 but that he discounted the price because Defendant had “helped [him] out.” Id

. , Vol. 5 at 29. Repayment at the discounted rate represented a significant actua l profit to Defendant. -6- Defendant shared with other conspirators the illici t goal of maintaining a flow of drugs and that he loaned Mr. Reese $4,000 to furthe r that goal. 1 Reviewing the record in a light most favorable to the government, we therefore conclude that there was sufficient evidence from which a reasonab le jury could find Defendant guilty beyond a reasonable doubt on the charged con spiracy. We turn now to Defendant’s argument that he was ent itled to the benefit of the safety valve provisions of the sentencing statute and the Sentencing Guidelines. These provisions require the district court to impose a sentence pursuant to the Guidelines, without regard to the s tatutory minimum, if the defendant meets five criteria, including that, “notlater than the time of the sentencing hearing, the defendant has truthfully pr ovided to the Government all information and evidence the defendant has concerni ng the offense” of conviction and all relevant conduct. 18 U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(5). The defendant bears the burden of proving that he h as met the § 3553(f) criteria.-7-

See United States v. Myers , 106 F.3d 936, 941 (10th Cir. 1997). “We review the district court’s determination of a particular defe ndant’s eligibility for relief under § 3553(f) for clear error. To the extent that the district court interpreted the ‘scope and meaning’ of 3553(f)(5), we review its le gal determination de novo.” United States v. Gonzalez-Montoya , 161 F.3d 643, 651 (10th Cir. 1998) (citations omitted), cert. denied , 526 U.S. 1033 (1999). Our cases hold that § 3553(f)(5) “is very broad, re quiring disclosure of everything the defendant knows about his own action s and those who participated in the crime with him.” Myers , 106 F.3d at 941; see also United States v. AcostaOlivas , 71 F.3d 375, 378 (10th Cir. 1995). Defendant den ied that he had any knowledge of the one-pound drug transaction that le d to his $4,000 loan to Mr. Reese. Although Defendant did not testify at trial , he submitted an affidavit at sentencing denying knowledge of the drug transactio n and testified at the sentencing proceedings that he did not recall Mr. R eese ever “telling [him] anything about owing a debt” or “mention[ing] anyth ing to [him] about a one pound or 16 ounces or meth being even ripped off fr om his car.” R., Vol. 11 at 29-30. Defendant’s testimony contradicted the tria l testimony of Mr. Reese, Ms. Henderson, and the DCI agent. The district court found the trial testimony credib le; it did not believe Defendant’s affidavit and testimony at the sentenci ng hearing. Therefore, the-8-

court concluded that Defendant had not truthfully p rovided all relevant information to the government. At the conclusion o f the sentencing proceedings the court stated:

Accepting for the moment the jury’s finding in this matter apparently that this loan transaction, which I do think is a key one, was one that was negotiated with knowledge, it seem s to me to strain my belief system substantially for the defendant to come here at this point and attempt to deny any knowledge of Mr. Rees e’s involvement in drugs in October, by October of 1996. I think i t is highly likely he was knowledgeable at that time. Id. at 90. The court then ruled, “As to the safety va lve, the weight of the affidavit really doesn’t convince me and I’m going to reject the safety valve in this case.” Id. at 94. After carefully reviewing the record in th is case, we conclude that the district court did not clearly err when it found th at Defendant was not eligible for a safety valve adjustment under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The judgment of the district court is AFFIRMED. Entered for the Court

Monroe G. McKay Circuit Judge