The HONORABLE RODNEY S. WEBB, United States District Judge for the 1

District of North Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-2138

_____________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Kenneth James Summers, *

*

Appellant. *

_____________

Submitted: October 22, 1997

Filed: February 25, 1998

_____________

Before BEAM and FLOYD R. GIBSON, Circuit Judges, and WEBB, District Judge. 1

_____________

FLOYD R. GIBSON, Circuit Judge.

A jury convicted Kenneth James Summers of conspiring to distribute marijuana,

cocaine, and methamphetamine, see 21 U.S.C. §§ 841(a)(1), 846 (1994), and using or

carrying a firearm during and in relation to a drug trafficking offense, see 18 U.S.C. §

924(c)(1) (1994). The district court sentenced Summers to terms of 151 months and

sixty months, to be served consecutively. Summers raises three arguments on appeal:

(1) the government failed to present evidence sufficient to support his firearm conviction

(2) the proof at trial materially varied from the charges in his indictment; and
-2-

(3) the district court abused its discretion when it allowed the government to introduce

evidence of prior bad acts. For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

In the spring of 1993, Summers began working for Daniel Stevens's construction

company. Shortly after Summers's employment commenced, he began selling small

amounts of methamphetamine to Stevens. Eventually, Stevens abandoned his

construction business and moved into Summers's home and received free

methamphetamine in exchange for weighing and packaging drugs for Summers. Stevens

testified that he delivered methamphetamine, cocaine, and marijuana for Summers from

late 1993 until late summer of 1994. After further questioning, Stevens changed his

testimony, and stated several times that he worked for Summers into the winter of 1994.

Through working with Summers, Stevens eventually met the Ortiz brothers: Eric,

Ramon, and Roeles. The Ortiz brothers visited Summers's home on numerous

occasions to deliver drugs and collect money. In the winter of 1994, Stevens began

working for Eric Ortiz because he did not feel that Summers treated him fairly. Stevens

testified that from November 4, 1994, the beginning of the alleged conspiracy, until he

stopped working for Summers, the largest single receipt of methamphetamine Summers

received from Eric Ortiz weighed ten pounds. While Stevens worked for Eric Ortiz, he

once delivered three pounds of cocaine to Summers, and on another occasion, he

delivered ten to fifteen pounds of methamphetamine. Stevens also stated that he once

delivered between ten and fifteen pounds of marijuana to Summers.

At all times, Summers required Stevens to carry a gun. Stevens testified that

Summers kept a twelve-gauge shotgun within reach at all times, and would often display

the gun when meeting with others involved in the drug trade as a means of intimidation.
The HONORABLE RONALD E. LONGSTAFF, United States District Judge 2

for the Southern District of Iowa.

-3-

The government also presented the testimony of George Sholley, who stated that

he had gone to Summers's home on three or four occasions to purchase marijuana and

methamphetamine. George testified that in May or June of 1995, Summers came to

George's home with several other people to collect money George's wife, Helen, owed

him for previous drug purchases. During this visit, Summers and two other people in

his group showed George the guns they were carrying and used threatening language.

Summers apparently had his gun tucked into his waistband. Helen Sholley testified that

she reprimanded Summers for wielding a gun at her home while her children were

present. In response, Summers told Helen that he and the others did not carry weapons

and that George must have been lying. Helen's testimony also indicated that the event

may have occurred in the fall of 1994 rather than in the spring of 1995.

After hearing the evidence in the case, a jury convicted Summers of conspiring

to distribute marijuana, cocaine, and methamphetamine, see 21 U.S.C. §§ 841(a)(1),

846, and using or carrying a firearm during and in relation to a drug trafficking offense,

see 18 U.S.C. § 924(c)(1). The district court denied Summers's motion for a new trial.

On appeal, Summers argues: (1) the government failed to present evidence sufficient

to support his firearm conviction; (2) the proof at trial materially varied from the charges

in his indictment; and (3) the district court abused its discretion when it allowed the

government to introduce evidence of prior bad acts. Because we conclude that the

district court properly denied Summers's motion for a new trial, we affirm. 2

II. DISCUSSION

A. Firearm conviction
-4-

Summers's first argument on appeal is that the government failed to produce

evidence sufficient to support his firearm conviction under § 924(c)(1). When

reviewing the sufficiency of the evidence, we consider the evidence in the light most

favorable to the jury verdict. See United States v. Purvis, 114 F.3d 737, 738 (8th Cir.

1997). "We will not weigh the evidence or assess the credibility of witnesses." United

States v. Willis, 89 F.3d 1371, 1376 (8th Cir.), cert.denied, 117 S. Ct. 273 (1996).

Moreover, we will "uphold the jury verdict if there is an interpretation of the evidence

that would allow a reasonable jury to find the defendant guilty beyond a reasonable

doubt." Purvis, 114 F.3d at 738-39.

To sustain a conviction under § 924(c)(1), the government must prove that the

defendant used or carried a firearm during and in relation to a drug trafficking crime.

See 18 U.S.C. § 924(c)(1); Willis, 89 F.3d 1377-78. To convict a defendant under the

"use" prong of § 924(c)(1), the government must present "evidence sufficient to show

an active employment of the firearm by the defendant, a use that makes the firearm an

operative factor in relation to the predicate offense." Bailey v. United States, 116 S. Ct.

501, 505 (1995) (emphasis in original). "The active-employment understanding of 'use'

certainly includes brandishing, displaying, bartering, striking with, and most obviously,

firing or attempting to fire, a firearm." Id. at 508. 

In this case, the government presented evidence sufficient to establish that

Summers "used" or carried a firearm during and in relation to a drug trafficking offense.

First, Stevens testified that Summers required him to carry a weapon at all times in an

effort to provide protection for their drug trafficking activities. Based on principles of

coconspirator liability, Summers is "criminally liable for the substantive offenses

committed by another conspirator within the scope and in furtherance of the

conspiracy." United States v. Rodger, 100 F.3d 90, 91 n.2 (8th Cir. 1996) (per curiam),

cert. denied, 118 S. Ct. 145 (1997). The government presented evidence that Stevens,

while working for Summers, carried his gun at all times. The government also

presented evidence that Stevens continued to work for Summers after November 4,
-5-

1994, the date the government charged that the conspiracy began. Thus, the jury

reasonably could have inferred that Stevens carried a firearm during and in relation to the

conspiracy. Summers would, therefore, be liable for the firearm count based on Stevens's

offense of carrying a firearm under § 924(c)(1).

Second, Stevens testified that Summers often conducted drug transactions with a

firearm displayed on the coffee table as a means of intimidation. Stevens's trial testimony

illustrates the point:

A. I guess if that's your meaning of use, they were displayed all of the

time.

Q. By whom?

A. Well, [Summers] used to have a shotgun out, sometimes he'd have

that old .38 thing laying on the coffee table, or I would have the 9-

millimeter.

Q. These guns would be out in the open when the customers would

come?

A. I didn't leave mine out, but he did a lot.

Q. Do you know why?

A. To intimidate people, I guess.

Summers's App. at 41. As the Supreme Court clarified in Bailey, displaying a firearm

satisfies the "use" prong of § 924(c)(1). See Bailey, 116 S. Ct. at 508. Though the trial

testimony did not establish exact dates that Summers displayed the firearms, the jury

reasonably could have inferred that, because Summers displayed firearms "a lot," at

least one such incident likely occurred after the conspiracy began in November of 1994.

Stevens continued to work for Summers for at least a short period of time after the
-6-

conspiracy began, and he still dealt with Summers after he began working for Eric

Ortiz. Therefore, Stevens's testimony supports the reasonable inference that Summers

displayed a firearm during the scope of the charged conspiracy.

Finally, George Sholley testified that Summers came to his home in May or June

of 1995, during the conspiracy, to collect money Helen Sholley owed him for previous

drug purchases. George testified that, during this meeting, Summers had a gun tucked

into his waistband and referred to it in threatening ways. Summers contends that Helen

Sholley's testimony seemed to indicate that George lied about Summers's carrying a

weapon. Her testimony also called into question whether the incident occurred during

the time frame of the conspiracy. However, the jury heard the testimony of both

George and Helen Sholley. It is likely that the jury credited George's testimony over

Helen's, and we will not review questions of witness credibility on appeal. See Willis,

89 F.3d at 1376. A jury verdict will stand "if there is an interpretation of the evidence

that would allow a reasonable jury to find the defendant guilty beyond a reasonable

doubt." Purvis, 114 F.3d at 738-39. We conclude that the government presented

evidence sufficient to support the jury's determination that Summers used or carried a

firearm during and in relation to the conspiracy.

B. Variance

Summers contends that the government's proof at trial materially varied from the

charges contained in his indictment. Summers's primary complaint is that the

indictment charged that the conspiracy began "on or about November 4, 1994,"

Summer's App. at 6, but the government's evidence referred primarily to acts which

occurred prior to November 4, 1994. Summers also asserts that the events occurring

before November 4, 1994, evidenced one conspiracy, while the indictment charged a

separate conspiracy beginning on November 4, 1994. He argues that the evidence of

the first conspiracy created a "spillover" effect which prejudiced his case.
-7-

An indictment is sufficient "if it contains all of the essential elements of the

offense charged, fairly informs the defendant of the charges against which he must

defend, and alleges sufficient information to allow a defendant to plead a conviction or

acquittal as a bar to a subsequent prosecution." United States v. Wessels, 12 F.3d 746,

750 (8th Cir. 1993), cert. denied, 513 U.S. 831 (1994). Summers argues that a fatal

variance occurred in his case because a substantial portion of the government's

evidence referred to events occurring before November 4, 1994 -- the date the

indictment charged that the conspiracy began. Summers claims that he could not have

known he would have to defend against the pre-November 4 evidence. We note,

however, that "a variance between the date in the indictment and the proof is not fatal

if the proof shows that the acts charged were committed on a date within the statute of

limitations and prior to the return date of the indictment." United States v. Prescott, 33

F.3d 922, 923-24 (8th Cir. 1994) (quotation and citation omitted).

Summers also contends that a variance occurred because the government's

evidence established multiple conspiracies when the indictment charged a single

conspiracy. "A single conspiracy is composed of individuals sharing common purposes

or objectives under one general agreement." United States v. Morales, 113 F.3d 116,

118-19 (8th Cir. 1997) (quotation and citations omitted). If the jury finds "one overall

agreement to commit an illegal act, the evidence establishes a single conspiracy."

United States v. Reagan, 940 F.2d 1134, 1135 (8th Cir. 1991). "In determining

whether a variance exists, we consider the totality of the circumstances, including the

nature of the activities, the location and time frame in which the activities were

performed, and the participants involved." Morales, 113 F.3d at 119. After a careful

review of the evidence presented at trial, we conclude that the government established

the existence of a single, ongoing conspiracy to distribute methamphetamine, cocaine,

and marijuana between Summers, Stevens, and the Ortiz brothers, as well as others.

The only significant change which occurred was that Stevens went from reporting to

Summers to reporting to Eric Ortiz. The pre-November 4 evidence introduced by the

government was merely background evidence which tended to show how the
-8-

conspiracy developed in its initial stages. See United States v. Heidebur, 122 F.3d 577,

579 (8th Cir. 1997). Therefore, we cannot conclude that the pre-November 4 evidence

created a variance.

C. Evidence of Prior Bad Acts

Summers also argues that the district court erred when it admitted evidence of

events occurring prior to November 4, 1994 because that evidence was beyond the

scope of the charged conspiracy. Therefore, he claims, such evidence should have

been excluded as evidence of prior bad acts under Fed. R. Evid. 404(b). We review

a district court's decision to admit evidence of a defendant's prior bad acts for an abuse

of discretion. See United States v. Tomberlin, 130 F.3d 1318, 1320 (8th Cir. 1997).

We conclude that the evidence Summers complains of -- the pre-November 4,

1994 evidence -- is evidence of "bad acts that form the factual setting of the crime in

issue," Heidebur, 122 F.3d at 579 (quotation omitted), which does not come within

Rule 404(b)'s coverage at all, see id. Therefore, we cannot conclude that the district

court abused its discretion in admitting such evidence.

III. CONCLUSION

For the reasons set forth in this opinion, we affirm the district court's judgment.

A true copy.

Attest:

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