United States Court of Appeals

For the Eighth Circuit 

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No. 22-2044

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United States of America

 Plaintiff - Appellee

v.

Samuel Sherman, also known as Big Hitt

 Defendant - Appellant

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No. 22-2063

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United States of America

 Plaintiff - Appellee

v.

Donald Bill Smith

 Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Central

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Submitted: June 14, 2023

Filed: August 30, 2023

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Before GRUENDER, KELLY, and GRASZ, Circuit Judges. 

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GRUENDER, Circuit Judge.

A jury found Samuel Sherman and Donald Smith guilty of conspiracy to 

commit witness tampering resulting in death. See 18 U.S.C. § 1512(a)(1)(A), (k). 

The jury also found Smith guilty of witness tampering resulting in death, see id. 

§ 1512(a)(1)(A), conspiracy to possess with intent to distribute methamphetamine, 

see 21 U.S.C. §§ 841(a)(1), 846, and aiding and abetting the use of a firearm in 

relation to a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A), (j). After denying

Sherman’s and Smith’s motions for judgment of acquittal on those counts, the 

district court1 sentenced both men to life imprisonment. They appeal their 

convictions, and we affirm.

I.

We begin by recounting the evidence presented at trial in the light most 

favorable to the jury’s verdict. See United States v. Shavers, 955 F.3d 685, 688 n.2 

(8th Cir. 2020). 

A.

Sherman and Smith are cousins who dealt drugs. While serving a term of 

supervised release in another federal case, Sherman sold methamphetamine five 

times to Susan Cooper, a confidential informant working with law enforcement. 

Based in part on these sales, the Government filed a petition to revoke Sherman’s 

supervised release and began considering new federal drug-distribution charges

against him. The Government and Sherman’s counsel discussed resolving the 

pending revocation proceeding and potential criminal charges with a guilty plea. 

1

The Honorable D. Price Marshall, Jr., Chief Judge, United States District 

Court for the Eastern District of Arkansas.
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The parties negotiated, but no agreement was reached. Cooper would have been the 

key witness had the revocation hearing gone forward as planned. She also would 

have been a witness in the potential federal charges arising from Sherman’s sale of 

drugs.

Sherman and Smith suspected that Cooper was working as a confidential 

informant. Sherman once confronted her with a pistol and asked if she was working 

for law enforcement. Another time, after Cooper had conducted a controlled buy of 

methamphetamine from Sherman and turned over the drugs to law enforcement, 

Sherman called her and asked for a photograph of the drugs he had just sold to her. 

Sherman and Smith also once tried to kidnap her. After several unsuccessful 

attempts to “get” Susan Cooper, Sherman and Smith enlisted the help of Racheal 

Cooper, Susan’s sister-in-law.

At Smith’s behest, Racheal made plans to meet with Susan to facilitate a drug 

deal a few days before the scheduled revocation hearing. Smith told Racheal to bring 

Susan to meet him at a vacant house. Racheal and Susan went to the house, sat on 

the tailgate of a truck, and waited for Smith. After a while, Racheal decided to leave 

and began walking toward the driver’s-side door when Smith appeared and shot 

Susan. Susan ran to the truck’s passenger seat and pleaded to Racheal, “[w]ill you 

please get me out of here?” Smith came to the passenger door, shot Susan several 

more times, and pulled her out of the truck as Racheal drove away. Susan died.

B. 

A grand jury indicted Sherman and Smith on five counts. The first count 

alleged that Sherman and Smith conspired to commit witness tampering resulting in 

death, see 18 U.S.C. § 1512(a)(1)(A), (k), and the second count alleged that Smith 

committed the witness tampering resulting in the death, see id. § 1512(a)(1)(A). The 

third count alleged that Sherman and Smith conspired together and with others to 

possess with intent to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. 

The fourth and fifth counts alleged that Sherman and Smith conspired together and 
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with others to use a firearm in relation to a drug-trafficking crime and that they aided 

and abetted one another in using a firearm in relation to a drug-trafficking crime. 

See 18 U.S.C. § 924(c)(1)(A), (j). Sherman and Smith pleaded not guilty. 

Sherman moved to sever his trial from Smith’s. The district court denied the 

motion. At trial, Sherman renewed his motion several times, but the district court 

repeatedly denied it. At the close of the Government’s case-in-chief, Sherman and 

Smith moved for judgment of acquittal. The district court denied Smith’s motion 

and most of Sherman’s, though the court did acquit Sherman of the drug and firearms 

offenses. The next day, the district court dismissed count four on the Government’s 

motion. After Sherman and Smith presented their defenses, the court denied their

renewed motions for judgment of acquittal on the remaining counts and submitted 

the case to the jury. Sherman and Smith were found guilty on count one and Smith 

was found guilty on counts two, three, and five. The district court sentenced 

Sherman and Smith to life imprisonment, and they now appeal their convictions.

II.

We first consider whether the district court erred in denying Sherman’s

repeated requests to be tried separately from Smith. Federal Rule of Criminal 

Procedure 14(a) permits severance when “the joinder of offenses or defendants in an 

indictment . . . appears to prejudice a defendant.” “[A] district court should grant a 

severance under Rule 14 only if there is a serious risk that a joint trial would 

compromise a specific trial right of one of the defendants, or prevent the jury from 

making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 

U.S. 534, 539 (1993). We review the denial of Sherman’s severance motions for an 

abuse of discretion, and we will not reverse unless Sherman shows prejudice that is 

both “clear[]” and “actual[].” United States v. Garcia, 785 F.2d 214, 220 (8th Cir. 

1986). 

The Government charged Sherman and Smith as co-conspirators. “The 

general rule is that persons charged in a conspiracy should be tried together.” United 
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States v. Lee, 743 F.2d 1240, 1248 (8th Cir. 1984). Indeed, “it will be the rare case, 

if ever, where a district court should sever the trial of alleged coconspirators.” 

United States v. Spotted Elk, 548 F.3d 641, 658 (8th Cir. 2008).

This is not such a case. Sherman argues that he was prejudiced by portions of

the testimony of three witnesses that were admissible only against Smith. At various 

points, these witnesses testified that Smith told them that Susan was killed “for 

snitching” on Smith and Sherman’s drug dealing. This testimony did not clearly and 

actually prejudice Sherman. To the contrary, it explains Smith’s motivation for 

killing Susan without implicating Sherman. Moreover, the district court went to 

great lengths to instruct the jury that the challenged testimony was to be considered 

only against Smith. We are convinced that the district court’s repeated limiting 

instructions sufficiently cured whatever risk of prejudice existed. See Zafiro, 506 

U.S. at 539 (“[L]imiting instructions[] often will suffice to cure any risk of 

prejudice.”); Spotted Elk, 548 F.3d at 658. And we likewise reject Sherman’s 

assertion that asking jurors to consider small portions of three witnesses’ testimony 

against Smith but not Sherman “asks too much of human nature,” given the 

presumption that jurors follow the court’s instructions. See Jones v. United States, 

527 U.S. 373, 400 n.14 (1999). The district court did not abuse its discretion in 

denying the motions to sever.2

III.

We next consider Sherman and Smith’s sufficiency-of-the-evidence 

arguments. “We review the sufficiency of the evidence de novo, viewing evidence 

2

We note, too, that the district court’s denial did not violate Sherman’s rights 

under the Confrontation Clause. See U.S. Const. amend. VI. The Confrontation 

Clause applies only to testimonial hearsay, like statements made in the course of a 

police interrogation. Davis v. Washington, 547 U.S. 813, 822-24 (2006); Crawford 

v. Washington, 541 U.S. 36, 53-54 (2004). Sherman does not claim that the 

challenged statements were testimonial, and his lawyer acknowledged at oral 

argument that they were “not Crawford stuff,” that is, not testimonial hearsay. We 

agree. 
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in the light most favorable to the government, resolving conflicts in the 

government’s favor, and accepting all reasonable inferences that support the 

verdict.” United States v. Conway, 754 F.3d 580, 587 (8th Cir. 2014). We will 

reverse only if no reasonable jury could have found all the elements of the offense 

proved beyond a reasonable doubt. United States v. Bailey, 54 F.4th 1037, 1039 (8th 

Cir. 2022).

A.

Sherman and Smith claim that the evidence was insufficient to support their 

witness-tampering convictions on counts one and two. The statute of conviction 

criminalizes killing another person with intent to “prevent the attendance or 

testimony of any person in an official proceeding,” or conspiring to do so. 18 U.S.C. 

§ 1512(a)(1)(A), (k). An “official proceeding” is “a proceeding before a judge or 

court of the United States, a United States magistrate judge, . . . or a Federal grand 

jury.” Id. § 1515(a)(1)(A). But the “official proceeding need not be pending or 

about to be instituted at the time of the offense.” Id. § 1512(f)(1). The parties do 

not dispute, and we assume, that to sustain the witness-tampering convictions the 

evidence must be sufficient to show some nexus between the defendants’ conduct 

and a particular, foreseeable official proceeding. See id. § 1512(a)(1)(A) 

(criminalizing killing a person “with intent to prevent the attendance or testimony of 

any person in an official proceeding” (emphasis added)); see also Arthur Anderson 

LLP v. United States, 544 U.S. 696, 707-08 (2005); United States v. Tyler, 732 F.3d 

241, 249-50 (3d Cir. 2013). 

Sherman and Smith argue that the Government failed to establish a nexus 

between their conduct and an official proceeding. At the time Susan was murdered, 

the Government had petitioned to revoke Sherman’s supervised release based on her 

work as a confidential informant. Sherman contends that he had already decided to 

admit the violations alleged in the petition and that Susan would not have been a 

witness at his upcoming revocation hearing. Thus, Sherman and Smith say that there 

could have been no official proceeding with which the two could have interfered.
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We disagree. Sufficient evidence demonstrates a nexus between Susan’s 

murder and the upcoming revocation hearing, as well as a potential future federal 

prosecution for distributing drugs. The jury heard from the prosecutor in the 

revocation matter and from Sherman’s defense attorney that, while plea negotiations 

had taken place, those negotiations had resolved neither the pending revocation 

matter nor the potential additional charges. The jury also heard from the prosecutor 

that Susan would have been a key witness in the revocation hearing and in the 

potential future prosecution. We conclude that the evidence was sufficient for a 

reasonable jury to find a nexus between Sherman’s and Smith’s conduct and the 

pending revocation proceeding, as well as the potential future prosecution.

3

B. 

Smith also claims that the evidence was insufficient to support his conviction 

for conspiracy to possess with intent to distribute methamphetamine and the related 

firearms charge. He contends that the evidence shows nothing more than a buyerseller relationship between him and his alleged co-conspirators. Relatedly, he argues 

that, if there was insufficient evidence on the drug-distribution-conspiracy count,

then the firearms charge predicated on that drug-trafficking crime must also fail.

To sustain Smith’s conviction, the evidence must be sufficient for a 

reasonable jury to conclude beyond a reasonable doubt “(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.” 

3

Besides the nexus issue, Sherman argues (in a mere two sentences) that the 

evidence was generally insufficient to prove that he conspired to murder Susan. As 

best we can tell, Sherman claims that the evidence was merely “circumstantial.” But 

a “conspiracy may be proven through circumstantial evidence and by inferences 

based on the actions of the parties.” See Bailey, 54 F.4th at 1040. Here, the jury 

heard that Susan was a key witness in Sherman’s drug prosecution, that Sherman 

and Smith had a “hit” out on her, and that they had threatened her. Cell-site data 

indicated that Sherman and Smith were in close contact immediately before and after 

Smith shot Susan. This was sufficient. 
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United States v. Keys, 721 F.3d 512, 519 (8th Cir. 2013). In this context, “an express

agreement is unnecessary—a conspiracy may consist of simply a tacit

understanding.” United States v. Herra-Herra, 860 F.3d 1128, 1132 (8th Cir. 2017). 

In drug-distribution cases, we distinguish between conspiracy and a mere “buyerseller” relationship. United States v. Rodriguez, 984 F.3d 704, 708-09 (8th Cir. 

2021). Evidence of a single transaction involving a small quantity of drugs

consistent with personal use is consistent with a mere buyer-seller relationship. Id. 

at 709. “However, evidence of multiple transactions is evidence of a conspiracy.” 

Id.; see Conway, 754 F.3d at 591.

Sherman and Smith were charged with conspiring with each other and “with 

other persons known and unknown” to possess with intent to distribute 

methamphetamine. The district court acquitted Sherman of this charge and the 

related firearms charges, and the Government does not argue that the evidence was 

sufficient to convict Smith of conspiring with Sherman. Cf. United States v. Morton, 

412 F.3d 901, 904 (8th Cir. 2005) (holding that acquittal of only alleged coconspirator does not require reversal of defendant’s conspiracy conviction). 

However, the evidence presented at trial was nevertheless sufficient for the jury to 

find that Smith conspired with Racheal to possess with intent to distribute 

methamphetamine. See United States v. Jones, 880 F.2d 55, 65 n.12 (8th Cir. 1989) 

(“The superseding indictment alleges and the evidence establishes, however, that 

unindicted individuals known and unknown to the grand jury also were involved in 

the [drug] trafficking. In such circumstances a defendant’s conviction for conspiracy 

may stand notwithstanding the acquittal of his co-defendants.”).

Racheal testified that she bought methamphetamine from Smith and that she

did so two to three times a week. She further testified that she routinely obtained

the drugs from Smith before selling to third parties. And at one point, Racheal 

agreed that she could “get the meth [from Smith] before [she] ha[d] the money or 

the drugs to exchange it.” From this answer, a jury could infer a conspiracy, as it 

suggests that she could only pay in full once she sold some of the methamphetamine 

to others. Thus, the evidence shows more than a mere buyer/seller relationship 
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between Smith and Racheal and suffices to support Smith’s convictions for 

conspiracy to possess with intent to distribute methamphetamine. See Rodriquez, 

984 F.3d at 709-10; Conway, 754 F.3d at 591; cf. United States v. Stevenson, 979 

F.3d 618, 622 (8th Cir. 2020) (“We have repeatedly upheld jury verdicts based solely 

on the testimony of co-conspirators and cooperating witnesses.”). Because Smith’s 

challenge to his conviction on the firearms offense rests entirely on his argument 

that the evidence was not sufficient to prove a drug-distribution conspiracy, we find 

the evidence sufficient to prove Smith’s guilt on the firearms offense as well.

IV.

Lastly, we consider Smith’s argument that the district court erred by admitting 

into evidence text messages sent by Smith to his girlfriend, as well as testimony by 

one of Smith’s acquaintances that he knew Smith because they dealt drugs together. 

We review the district court’s evidentiary rulings for an abuse of discretion. United 

States v. Walker, 68 F.4th 387, 391-392 (8th Cir. 2023). 

To be admissible, evidence must be relevant. Fed. R. Evid. 402. Evidence is 

relevant if “(a) it has any tendency to make a fact more or less probable than it would 

be without the evidence; and (b) the fact is of consequence in determining the 

action.” Fed. R. Evid. 401. This threshold is “quite minimal.” Walker, 68 F.4th at 

392. Under Rule 403, relevant evidence may be excluded “if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative 

evidence.” We afford “great deference” to a district court’s determination of 

admissibility under Rules 402 and 403. See Walker, 68 F.4th at 392.

Smith argues that his threatening and profane text messages to his girlfriend

were inadmissible because they were irrelevant, unfairly prejudicial, and 

impermissible bad-character evidence. We disagree. The text messages were 

relevant because they revealed that Smith was aware that he was being investigated 

and that he threatened his girlfriend for upsetting another woman who could 
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implicate him in Susan’s murder. The fact that Smith’s text messages were 

aggressive and profanity-laden does not render the evidence “unfairly prejudicial,” 

where the evidence was otherwise admissible “to show consciousness of guilt of the 

crime charged.” United States v. Skarda, 845 F.3d 370, 377-78 (8th Cir. 2016). And 

contrary to Smith’s argument, the Government did not use the text messages as badcharacter evidence, but rather to show consciousness of guilt. See id. Thus, the 

district court did not abuse its discretion by admitting the text messages.

Smith also contends that his acquaintance’s testimony that he had sold drugs 

with Smith was irrelevant and therefore inadmissible because their joint drug dealing 

ended before the period charged in the indictment. However, the Government 

elicited the testimony not to show that Smith sold drugs but to establish the trusting 

relationship between the acquaintance and Smith and to explain why Smith would 

be willing to discuss Susan’s murder with him. The district court gave a limiting 

instruction explicitly confining that portion of the testimony to this purpose. 

Because the testimony showed the basis of Smith’s trust of his acquaintance and 

bolstered the acquaintance’s credibility, we discern no abuse of discretion. See 

United States v. Geer, 923 F.2d 892, 896 (1st Cir. 1991). 

 

V.

For the foregoing reasons, we affirm the convictions.

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