FILED 

United States Court of Appeals 

Tenth Circuit 

PUBLISH APRS 2005 

UNITED STATES COURT OF APPEALS PATRICK FISHER 

Clerk 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

V. No. 04-3002 

SARA D. DUNMIRE, 

Defendant-Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF KANSAS 

(D.C. No. 02-CR-40145-02-SAC) 

B. Kay Huff, Lawrence, Kansas, for Defendant-Appellant. 

Anthony W. Mattivi, Assistant United States Attorney (Eric F. Melgren, United 

States Attorney, with him on the brief), District of Kansas, Topeka, Kansas, for 

Plaintiff-Appellee. 

Before McCONNELL and McKAY, Circuit Judges, and FRIOT, District Judge.* 

McKAY, Circuit Judge. 

Defendant was indicted for knowing and intentional distribution of 2.97 

*The Honorable Stephen P . Friot, United States District Judge for the 

Western District of Oklahoma, sitting by designation. 

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grams of crack cocaine and for conspiracy to knowingly and intentionally 

distribute in excess of fifty grams of the same substance. The case was tried to a 

jury, which returned a verdict of guilty on both counts. The interrogatories on the 

special verdict form provided the jury an opportunity to determine the quantity 

involved in the conspiracy count. The first question asked whether the 

government proved beyond a reasonable doubt that Defendant conspired to 

distribute more than fifty grams of crack cocaine. The jury marked the "no" box. 

The second question was similar but regarded a lesser quantity, more than five 

grams, but presumably less than fifty grams. This time the jury marked the "yes" 

box. 1 Defendant appeals only her conviction on the conspiracy count. The 

gravamen of her appeal is whether the government presented sufficient evidence 

to prove beyond a reasonable doubt that she agreed to distribute five or more 

grams of crack cocaine. 

FACTUAL BACKGROUND 

Narcotics detectives from the Emporia, Kansas, police department arranged 

a controlled buy through a confidential informant, Mr. Benton, to buy crack 

cocaine from Mr. Sharkey at 2 Union Street, Emporia, Kansas, on July 28, 2002. 

This particular buy was one of several arranged by Mr. Benton in an ongoing 

1 Defendant did not appeal the propriety of the special verdict form; 

therefore, this opinion does not address the correctness of the approach utilized 

by the district court in arriving at the quantity involved in the conspiracy count. 

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investigation of Mr. Sharkey. On this occasion, Mr. Benton arranged to buy five 

grams of crack cocaine from Mr. Sharkey. However, when Mr. Benton arrived at 

2 Union Street to consummate the deal, Defendant, not Mr. Sharkey, delivered the 

drugs. In addition, as is common in drug transactions, Defendant delivered less 

than the agreed-upon quantity of drugs; she delivered 2.97 grams, not five grams. 

July 28, 2002, was the first time Mr. Benton and the officers involved in 

the investigation of Mr. Sharkey had seen Defendant associate with Mr. Sharkey 

and his drug deals. Although several officers were involved in the July 28, 2002, 

controlled buy, only one officer witnessed the transaction. Deputy Chief 

Williams was in an unmarked car parked on Union Street approximately one block 

from the house and witnessed the transaction through binoculars. 

Deputy Chief Williams arrived at the scene a few moments before the 

controlled buy was to occur. While preparing for the controlled buy, he noticed 

people on the front porch of the house at 2 Union Street. Included in this group 

was a woman Deputy Chief Williams later identified as Defendant. Shortly after 

Deputy Chief Williams arrived, but before the controlled buy, a red car drove to 

and stopped in front of the house at 2 Union Street. At that time, Defendant 

walked from the porch to the car, stopped at the car briefly, and then returned to 

the porch. Soon thereafter, the controlled buy took place, and Defendant 

delivered 2.97 grams of crack cocaine to Mr. Benton. 

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DISCUSSION 

Whether the government presented sufficient evidence to support a 

conviction is a legal question we review de novo. United States v. Arras, 373 

F.3d 1071, 1073 (10th Cir. 2004). In undertaking our review, we consider the 

record "in the light most favorable to the government to determine whether a 

reasonable jury could find guilt beyond a reasonable doubt, based on the direct 

and circumstantial evidence, together with the reasonable inferences to be drawn 

therefrom." United States v. Smith, 133 F.3d 737, 741-42 (10th Cir. 1997). "To 

be sufficient, the evidence supporting [a] conviction must be substantial; that is, it 

must do more than raise a mere suspicion of guilt." Beachum v. Tansy. 903 F.2d 

1321, 1332 (10th Cir. 1990) (citing United States v. Troutman, 814 F.2d 1428, 

1455 (10th Cir. 1987)). We have warned against sustaining a conviction based on 

mere suspicion or speculation: "While the jury may draw reasonable inferences 

from direct or circumstantial evidence, an inference must be more than 

speculation and conjecture to be reasonable, and caution must be taken that the 

conviction not be obtained by piling inference on inference." United States v. 

Jones, 44 F.3d 860, 865 (10th Cir. 1995) (citation and quotation marks omitted). 

To support a conviction of conspiracy in the instant case, the government 

was required to submit sufficient evidence to the jury to find beyond a reasonable 

doubt each of the following elements: (1) an agreement between Defendant and 

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at least one other person to possess with the intent to distribute five or more 

grams of crack cocaine, (2) knowledge by Defendant of the essential elements of 

the conspiracy, (3) knowing and voluntary involvement with the conspiracy, and 

(4) an interdependence among the conspirators. Arras, 373 F.3d at 1074. 

Because conspiracies are, by definition, secretive, elements of the crime are 

often established through circumstantial evidence. United States v. Andrews, 585 

F .2d 961, 964 (10th Cir. 1978). Proof of a tacit agreement to break the law is 

often sufficient. United States v. Hartsfield, 976 F.2d 1349, 1354 (10th Cir. 

1992). This, however, does not lessen the burden on the government to prove 

each element of the charge beyond a reasonable doubt. Beachum, 903 F.2d at 

1332. 

The only evidence the government presented that conclusively established a 

connection between Defendant and Mr. Sharkey consisted of Defendant's 

presence at Mr. Sharkey's house on July 28, 2002, and Defendant's participation 

in the drug deal for 2.97 grams of crack cocaine. The government also presented 

considerable evidence of other drug deals directly involving Mr. Sharkey for 

between 0.5 and seven grams of crack cocaine,2 but Defendant was not seen with 

2

The government argues that the jury could have relied on the quantities 

distributed by Mr. Sharkey to arrive at the amount of five or more grams. This 

argument is in line with the government's theory of the case at trial: in for a 

penny, in for a pound. In other words, Defendant's involvement with one drug 

(continued ... ) 

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Mr. Sharkey during any other drug deals, Mr. Benton never contacted Defendant 

to set up a drug purchase, and, although Mr. Benton had purchased crack cocaine 

from Mr. Sharkey for some time, Mr. Benton had never seen Defendant prior to 

July 28, 2002. Rec., Vol. III, at 133-34, 187-88. 

The government presented some evidence in an attempt to establish an 

agreement to distribute drugs beyond the agreement to distribute 2.97 grams. 

This evidence is Defendant's conduct immediately prior to the drug deal at issue 

when she left the porch of Mr. Sharkey's house, approached the red car parked in 

front of the house, and then returned to the house. Deputy Chief Williams, who 

was the only witness to this occurrence, gave the following account: 

2( ... continued) 

transaction, with nothing more, demonstrates an implicit agreement to be involved 

with all of Mr. Sharkey's drug deals. This line of reasoning demonstrates a 

misunderstanding of the elements of a conspiracy to distribute drugs. As we 

stated in Arras, a conviction for conspiracy to distribute a certain quantity of 

drugs must be supported by evidence of an agreement to distribute that quantity of 

drugs. 373 F.3d at 1074. This requirement is only logical since our sentencing 

scheme for drug cases, at least prior to the remedial holding of United States v. 

Booker,_ U.S._, 125 S. Ct. 738 (2005), is driven in large part by the 

quantity of drugs involved. See U.S. Sentencing Guidelines Manual §2Dl. l ( c) 

(2004). Evidence of participation in one drug deal demonstrates an agreement to 

distribute the amount of drugs involved in that particular transaction. However, 

absent additional evidence, participation in one drug deal does not render one 

culpable for a conspiracy to distribute the quantity of drugs actually distributed by 

one's alleged co-conspirator. This is one of those rare cases where the 

government failed to present to the jury any additional evidence to permit an 

inference regarding an agreement to implicate Defendant's participation in the 

other drug transactions. 

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Q. From that location, tell the jury what it is that you saw, please. 

A. I arrived prior to the [ confidential informant] arriving. I 

elected to set up surveillance, as I had done before in that area 

on the other buys. At that location I set up where I could have 

a direct line of view to the residence at 2 Union. I was there 

very few minutes prior to. 

As I arrived there and set up where I could see, I first observed 

people on the front porch of the house, including a young 

female that was wearing a brown top and brown shorts. She 

walked from the front porch across the street up to a red 

vehicle and then returned back up on the porch. 

From there, why, I was able to see what transpired as the 

[ confidential informant] arrived in his red Dodge pickup. I 

saw her walk from the porch down to the pickup, lean over, 

bend into the window. And I did not see the transfer take 

place, but was advised by Detective Owens via radio that the 

buy had gone down. The money had transferred and the drugs 

were in the vehicle. 

Q. Okay. Let's back up a step. The same person who came out 

and approached Mr. Benton's vehicle, you saw her do the same 

thing a moment before? 

A. I did not see her actually hand off anything. I did see her walk 

across the street and approach a red vehicle that was sitting on 

the west side of the street. 

Rec., Vol. III, at 240-42. 

Based on this evidence, the jury was left to infer that at least 2.03 grams of 

crack cocaine changed hands during Defendant's encounter with the person in the 

other red vehicle. To reach that conclusion from this evidence, the jury would 

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have had to make speculative inference upon speculative inference. 3 

A reasonable juror could not find beyond a reasonable doubt that a drug 

deal for 2.03 grams of crack cocaine occurred without making the following 

string of impermissible inferences. First, the jury was required to infer that the 

conduct observed by Deputy Chief Williams constituted a drug deal. To arrive at 

this conclusion, the jury would have to assume that, because Defendant's brief 

encounter with Mr. Benton involved a drug deal, her brief encounter with the 

person in the red car was the same. While this inference may be permissible, it is 

barely so, in light of the government's burden to prove guilt beyond a reasonable 

doubt. Deputy Chief Williams did not see Defendant: lean over and bend into the 

window of the car (as she did when she sold crack cocaine to Mr. Benton), deliver 

anything to the passenger in the car, or walk away with money. Second, the jury 

was required to pile on top of the first inference the kind of drug allegedly 

transferred, i.e., crack cocaine. Finally, to arrive at the quantity determination, 

the jury was required to infer that the amount of crack cocaine exchanged 

3

We focus on the encounter with the person in the other red vehicle and on 

the resultant question of whether the evidence as to that encounter was sufficient 

(together with the 2.97 gram sale) to establish guilt beyond a reasonable doubt as 

to the conspiracy count, because the record discloses no other evidentiary leg on 

which the conviction for the conspiracy to distribute more than five grams of 

crack cocaine might stand. 

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amounted to at least 2.03 grams. 4 The continued leap from inference to inference 

demonstrates the possibility of Defendant conspiring to possess with intent to 

distribute five or more grams of crack cocaine; however, that does not render such 

a finding reasonable, let alone establish proof beyond a reasonable doubt that the 

quantity attributable to Defendant was five or more grams. See Smith, 133 F .3d 

at 741-42. We have repeatedly warned against such speculation. 

This case presents a somewhat novel scenario. Since the United States 

Supreme Court's decision in Apprendi v. New Jersey. 530 U.S. 466 (2000), we 

have decided only one sufficiency of the evidence case as it relates to a 

conspiracy to distribute drugs. See United States v. Arras, 373 F.3d 1071 (10th 

Cir. 2004). In Arras, we emphasized the need for the prosecution to prove, 

beyond a reasonable doubt, that the alleged conspirator agreed to distribute a 

certain quantity of drugs. See id. at I 074. 

In Arras, the defendants were convicted of importing more than 100 

4

The government again relies on the drug deals Mr. Sharkey participated in 

without Defendant's assistance in an effort to prove the amount of drugs involved 

in this alleged deal. Assuming reliance on that evidence is proper, it does not 

support a reasonable inference that the amount of drugs that supposedly was 

exchanged during the encounter with the person in the red car was at least 2.03 

grams. The government's evidence established that Mr. Sharkey, on five separate 

occasions, sold between 0.5 and 7 grams of crack cocaine. Three of the five 

transactions, more than half, involved less than the amount needed by the 

government to support the jury's verdict in this case. To infer an exact amount 

from the sporadic quantities involved in Mr. Sharkey's drug deals is pure 

conjecture. 

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kilograms of marijuana and conspiring to possess with intent to distribute the 

same. Id. at 1073. The defendants appealed, alleging insufficiency of evidence to 

support the quantity in question. Id. The evidence presented by the prosecution 

established the following: (1) defendants hired an individual to transport drugs to 

Denver by car from El Paso, Texas, and Juarez, Mexico, on four separate 

occasions; (2) on each occasion the defendants insisted that the driver check the 

oil and tire pressure regularly; (3) the driver was paid $2,000 for the trip from 

Texas and $4,000 for the trips from Mexico; ( 4) the driver was arrested during the 

fourth trip, resulting in the discovery of thirty-nine kilograms of marijuana hidden 

in metal canisters inside the car's tires; and (5) the government presented a 

witness who testified that the going rate for transporting marijuana was $50 a 

pound. Id. at 1073-74. After categorizing this as a "close case," we held that 

sufficient evidence was presented and affirmed the convictions. Id. at 1074. We 

reasoned that the jury could have logically and probabilistically arrived at the 

conclusion that the quantity of marijuana attributable to defendants was more than 

100 kilograms 

based on [defendant's] preoccupation with keeping up the tire 

pressure and his constant reminders to [the driver], the fact that [the 

driver] was paid or promised the same amount for each trip 

commensurate with the risk involved, and the fact that the going rate 

for smuggling marijuana across the border was roughly equal to her 

payments .... 

lg_,_ at 1076. 

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In light of Arras, which was a close case, the facts in this case clearly do 

not support a finding beyond a reasonable doubt that Defendant agreed to 

distribute five or more grams of crack cocaine. Although we address the same 

issue as was presented in Arras, the evidence supports an opposite legal 

conclusion. The two cases begin in a similar vein; the only direct evidence 

presented to the jury regarding the quantity of drugs was a single occurrence that 

involved fewer drugs than the amount for which the defendants were ultimately 

convicted. However, unlike the evidence presented by the government in Arras, 

in the case now before us, the government presented no evidence to the jury from 

which it could reasonably and logically infer that the amount of drugs Defendant 

agreed to distribute totaled five or more grams of crack cocaine. 

Accordingly, we hold that the government failed to submit sufficient 

evidence to support the jury's finding that the amount of crack cocaine Defendant 

agreed to knowingly and intentionally distribute amounted to five or more grams. 

REVERSED and REMANDED with instructions to vacate the conspiracy 

conviction. 

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