United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-2307

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Trey Michael Boykin

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the Northern District of Iowa - Sioux City

____________

 Submitted: April 17, 2015

 Filed: July 24, 2015

____________

Before BYE and SMITH, Circuit Judges, and SCHILTZ, District Judge. 1

____________

SMITH, Circuit Judge.

Trey Michael Boykin was convicted of one count of kidnapping, in violation

of 18 U.S.C. § 1201, and one count of conspiracy to distribute marijuana, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846. On appeal, Boykin argues that the

The Honorable Patrick J. Schiltz, United States District Judge for the District 1

of Minnesota, sitting by designation.
superseding indictment was missing an essential element on the kidnapping charge,

rendering the indictment fatally flawed and entitling him to a judgment of acquittal.

As to the conspiracy conviction, Boykin asserts that there was insufficient evidence

of a conspiracy to distribute marijuana and that the district court erred in failing to

give his requested buyer-seller instruction. Having reviewed the record, we affirm

Boykin's kidnapping conviction but reverse his conspiracy conviction for insufficient

evidence. We remand for further proceedings consistent with this opinion. 

I. Background

"We recount the evidence in the light most favorable to the jury's verdict."

United States v. Battle, 774 F.3d 504, 508 (8th Cir. 2014) (citation omitted). R.W.,

a football player and student at Briar Cliff University ("Briar Cliff") in Sioux City,

Iowa, occasionally smoked marijuana. In the summer of 2012, R.W. learned of

Boykin after receiving his phone number from another individual from whom R.W.

was purchasing marijuana. The individual informed R.W. that Boykin would deliver

the marijuana to R.W. on campus because R.W. did not have a vehicle at the time. 

R.W. first purchased marijuana from Boykin after he texted Boykin and asked

if he had any marijuana. After Boykin texted a response back to R.W., Boykin drove

to the Briar Cliff campus where he met R.W. in the parking lot. R.W. got inside of

Boykin's vehicle and paid him $15 for one gram of marijuana, which R.W. smoked.

According to R.W., when he smoked marijuana, he typically smoked "one or two"

grams at a time and smoked "occasionally" or on "weekends." 

During Briar Cliff's Thanksgiving or Christmas break in 2012, Boykin called

R.W. to tell R.W. that Boykin had marijuana. R.W. took little notice of the phone call

because he was in St. Louis, Missouri, for the break. R.W. told Boykin that R.W.

would call Boykin when R.W. got back into town. 

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A few days prior to February 25, 2013, Boykin "bumped into" Gerry Patterson

in Sioux City. Boykin and Patterson knew of each other through acquaintances.

Boykin asked Patterson if Patterson had any marijuana. Patterson replied that he did

not have any at the time. The two men then exchanged phone numbers in the event

that Patterson obtained some marijuana later. 

On February 24, 2013, after football practice, R.W. texted people—including

Boykin—looking for marijuana. R.W. wanted to get "[a]n ounce" of marijuana.

According to R.W., who was a "gram user" of marijuana, an "[o]unce is a lot of

marijuana." He was going to pay $170 for the ounce of marijuana. R.W. was going

to "[s]hare [the marijuana] with friends on campus, share it with other teammates."

R.W. testified that he "would smoke marijuana with other teammates and on the

reassurance that they would either pay me back orsmoke back with me." When asked

whether he was "going to sell it," R.W. replied, "I was going to share it I would say,

yes." When asked whether "[p]eople were going to give [R.W.] money" for the

marijuana, R.W. replied, "Yes." R.W. did not testify that he disclosed to Boykin that

R.W. was planning on sharing the marijuana with others or receiving money for the

marijuana that he wanted to purchase from Boykin. 

Boykin texted Patterson and asked him if he had a "[h]alf ounce" of marijuana.

Boykin then asked for a "full ounce" of marijuana. Patterson informed Boykin that

he did not have any marijuana. Boykin and Patterson then started discussing a plan

to rob R.W., whom Patterson did not know. They planned to rob R.W. at a bar but

changed their plan afterBoykin discovered police officersthere. Instead, they decided

to meet at the intersection of West Third and George in Sioux City.

Boykin texted R.W. and told him that he had the marijuana. R.W. told Boykin

the amount of money that R.W. had to spend on the marijuana. Through the exchange

of text messages, R.W. agreed to buy one ounce of marijuana from Boykin for $170.

R.W. indicated to Boykin that he had more money and could buy more marijuana if

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the deal worked out. Boykin first suggested taking R.W. to an off-campus location

to obtain the marijuana, but R.W. responded that he did not want to leave campus

because it was late. Boykin replied that he would meet R.W. on campus. 

Patterson met Boykin at West Third and George and got into Boykin's vehicle.

Patterson was carrying a handgun in his waistband, which he placed on his lap once

he got into the car. Boykin then drove to Briar Cliffso that he and Patterson could rob

R.W. When Patterson expressed his concern that R.W. would call the police, Boykin

replied that R.W. would not call the police "[b]ecause it was a drug deal." Once

Boykin and Patterson arrived on the Briar Cliff campus, Boykin parked and texted

R.W. to let R.W. know that Boykin had arrived. 

Early in the morning of February 25, 2013, R.W. saw Boykin on campus and

entered Boykin's car at his direction. Upon entering the back seat of the car behind

the driver's seat, R.W. noticed a stranger in front seat. R.W. entered the car thinking

that he was going to purchase marijuana from Boykin.

According to R.W., Boykin then drove the car in reverse even thoughR.W. had

told Boykin that he did not want to leave campus. As Boykin drove the car in reverse,

the front-seat passenger—which was Patterson—pulled a gun on R.W.R.W. testified

that the first commentsthat Boykin and Patterson made to him were that they had just

talked with the Briar Cliff security guards, as those security guards had approached

them while they were parked on campus and asked them to park the vehicle within

the lines or be ticketed. Patterson held the gun to R.W. and giggled, "basically saying

that he had just talked to [R.W.'s] security guards." Boykin also giggled. R.W. did not

exit the vehicle because Patterson was holding him at gunpoint. R.W. wasscared and

did not know where they were going. Patterson told R.W. that he had to "give up

everything that [he] had." In response, R.W. "started emptying [his] pockets and

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giving up everything that [he] had." R.W. had an iPhone, a wallet, a "gar card," his

2

dorm room key, and $310 in cash. Patterson took the $310 and everything else but the

iPhone and dorm key. 

After they traveled a short distance fromcampus, Patterson told Boykin to stop

the car and release R.W. Once Boykin stopped the car, Patterson pointed the gun at

R.W. and told R.W. not to "try anything stupid" or he would "get shot." Boykin

opened the back car door—because there was a child safety lock on that door—and

let R.W. out. R.W. exited the car and started walking. As soon as R.W. saw Boykin's

vehicle drive away, he called Briar Cliff security and reported that he had just been

robbed at gunpoint. R.W. spoke very quickly and was very excited, which made him

difficult to understand. After calling security, R.W. walked back to campus. He then

called security again because Patterson had taken his gar card. A security guard met

R.W. at the entrance of Noonan Hall and let him in. According to the security guard,

R.W. "was very nervous, and he was very shaky, and he wanted to call his mom"

because he had just been robbed.

After releasing R.W., Boykin drove to a gas station where Patterson gave

Boykin $155 of the $310 taken from R.W. They divided the money evenly because

the robbery was both of their ideas and they had both participated. Boykin then drove

Patterson to a convenience store where they made purchases. Boykin then drove

Patterson to another location where Patterson bought marijuana from "a home girl."

Then, Boykin drove to the intersection of Eighth and Court for Patterson to "pay a

marijuana debt." Patterson then asked Boykin to take him on another errand. While

on that errand, an officer stopped Boykin and Patterson. Officers seized a handgun

from Boykin's car and discovered R.W.'s gar card in the backseat. At the time of their

arrest, Boykin had $145, and Patterson had $40 and a .22 caliber round in his pocket. 

A "gar card" is a card that Briar Cliff security issues to every Briar Cliff 2

student, and the students use it to gain access to their dorm buildings. 

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A grand jury returned a six-count superseding indictment against Boykin and

Patterson. Count 1 charged Boykin with conspiring to distribute marijuana, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 846. Count 2 charged Boykin

with willfully and unlawfully seizing, confining, inveigling, decoying, kidnapping,

abducting, and carrying away and holding R.W. by a means, facility, and

instrumentality of interstate commerce, in violation of 18 U.S.C. § 1201. Count 3

charged Boykin with possessing and brandishing and aiding and abetting the

possession and brandishing of a firearm in furtherance of the kidnapping, in violation

of 18 U.S.C. §§ 2 and 924(c)(1)(A). Count 6 charged Boykin with knowingly

possessing or aiding and abetting the possession of a firearm while being an unlawful

user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).

A jury trial commenced asto Boykin on Counts 1, 2, 3 and 6 of the superseding

indictment. At the close of the government's evidence and at the close of all evidence,

Boykin moved for a judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29. The district court denied his motion as to Count 1, struck the aiding

and abetting language from Count 6, and reserved ruling as to Counts 2 and 3. The

jury returned guilty verdicts as to Counts 1 and 2 and not guilty verdicts as to Counts

3 and 6.

Thereafter, Boykin filed a motion for judgment of acquittal or in the alternative

a new trial requesting that the court grant a judgment of acquittal or new trial on

Counts 1 and 2. As to Count 2, Boykin argued that he was entitled to a judgment of

acquittal because the superseding indictment failed to allege all the necessary

elements constituting the offense of kidnapping; specifically, it failed to include the

language "for ransom or reward or otherwise." The court rejected this argument,

concluding that "an indictment sufficiently charges the crime of kidnapping without

any reference to the 'for ransom or reward or otherwise' language." (Citing Hayes v.

United States, 296 F.2d 657, 666 (8th Cir. 1961).) The court also found "unavailing"

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Boykin's allegation that the verdicts were contrary to the weight of the evidence and

that Counts 1 and 2 were unsupported by substantial evidence.

II. Discussion

On appeal, Boykin argues that the superseding indictment was missing an

essential element on the kidnapping charge, rendering the indictment fatally flawed

and entitling him to a judgment of acquittal. As to the conspiracy conviction, Boykin

assertsthat there wasinsufficient evidence of a conspiracy to distribute marijuana and

that the district court erred by failing to give his requested buyer-seller instruction. 

A. Sufficiency of the Indictment—Kidnapping

Boykin argues that the district court erred in denying his motion for judgment

of acquittal on the kidnapping charge because the indictment failed to contain the

element of kidnapping requiring that the purpose of holding the victim was "for

ransom, reward or otherwise." Boykin contends that "for ransom, reward or

otherwise" was an essential element of the offense and that the indictment's failure

to include such language violated his Fifth Amendment right to be tried on charges

found by the grand jury. 

We generally review de novo a challenge to the sufficiency of an indictment,

"but Federal Rule of Criminal Procedure 12(b)(2) requires such challenges to be

raised prior to trial, and a failure to do so constitutes a waiver." United States v.

Villarreal, 707 F.3d 942, 957 (8th Cir. 2013) (quotation and citation omitted).

Nevertheless, a defendant may raise at any time a claim that the indictment fails to

state an offense. Id. (citation omitted). Here, Boykin admittedly did not raise his

sufficiency challenge to the indictment prior to trial; therefore, "we apply a more

deferential standard of review, because [w]hen an indictment is challenged after

jeopardy attaches, it is upheld unless it is so defective that by no reasonable

construction can it be said to charge the offense." Id. (alteration in original)

(quotations and citations omitted).

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An indictment need not use the specific words of the statute as "long as by fair

implication it alleges an offense recognized by law." Id. (quotations and citations

omitted). Only when an essential element "of substance" rather than "of form" is

omitted is an indictment fatally insufficient. Id. (quotation and citation omitted). "To

determine whether an essential element has been omitted, a court may not insist that

a particular word or phrase appear in the indictment when the element is alleged in

a form which substantially states the element." Id. (quotations and citation omitted).

An indictment's citation to the applicable statute "'[is] not in itself sufficient to supply

an element of a charged offense omitted by the grand jury'"; however, "when such a

citation is 'considered in combination with the other allegations in the indictment as

a whole, [it may be] adequate under the circumstances to have charged the defendant

with the offense for which he was convicted.'" Id. at 957–58 (alteration in original)

(quoting United States v. Diaz-Diaz, 135 F.3d 572, 576 (8th Cir. 1998)). 

Boykin was charged with violating 18 U.S.C. § 1201(a)(1), which provides:

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,

abducts, or carries away and holds for ransom or reward or otherwise

any person, except in the case of a minor by the parent thereof, when—

(1) the person is willfully transported in interstate or

foreign commerce, regardless of whether the person was

alive when transported across a State boundary, or the

offender travels in interstate or foreign commerce or uses

the mail or any means, facility, or instrumentality of

interstate or foreign commerce in committing or in

furtherance of the commission of the offense . . . 

***

shall be punished by imprisonment for any term of years or for life and,

if the death of any person results, shall be punished by death or life

imprisonment.

-8-
(Emphasis added.)

Here, Count 2 of the superseding indictment omitted "for ransom or reward or

otherwise" as provided in § 1201(a)(1), stating:

On or about February 25, 2013, in the Northern District of Iowa,

defendants, GERRY ALAN PATTERSON and TREY MICHAEL

BOYKIN, did willfully and unlawfully, seize, confine, inveigle, decoy,

kidnap, abduct, and carry away and hold, R.W., and did use a means,

facility, and instrumentality of interstate commerce (i.e., telephones

(including cell phones), multimedia messaging service (MMS), Short

Message Service (SMS), iMessage, and an automobile) in furtherance

of the commission of the offense. 

This was in violation of Title 18, United States Code, Section 1201.

(Emphasis added). 

The question is whether the superseding indictment's omission of "for ransom

or reward or otherwise" rendered it fatally insufficient as to Count 2. 

We addressed this precise question in Hayes v. United States, 296 F.2d 657

(8th Cir. 1961), when reviewing a prior version of § 1201 that contained the "for

ransomor reward or otherwise" language. The indictment had charged the defendant 3

In Hayes, the version of § 1201 under review provided:

3

"Whoever knowingly transports in interstate or foreign commerce, any

person who has been unlawfully seized, confined, inveigled, decoyed,

kidnaped, abducted, or carried away and held for ransom or reward or

otherwise, except, in the case of a minor, by a parent thereof, shall be

punished (1) by death if the kidnaped person has not been liberated

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with knowingly transporting via automobile in interstate commerce "a person who

had been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted,

carried away and by defendants held" but omitted "for ransom or reward or

otherwise." Id. at 658; see also id. at 665 ("The indictment charged the interstate

transportation by [the defendant] of persons he had kidnaped, in violation of 18

U.S.C. § 1201," but "[i]t did not charge that he had held them for any specific

reason."). 

On appeal, the defendant argued "that the indictment was fatally defective

because there can be no violation of [§ 1201] unless the kidnaped individual is 'held

for ransom or reward or otherwise.'" Id. at 665. Thus, the defendant "asserted that an

indictment charging a violation of the Act must allege that the kidnaped person was

held for some reason which comes within the meaning of 'ransom or reward or

otherwise.'" Id. at 665–66. We found the indictment sufficient, relying on the Fifth

Circuit's reasoning in Clinton v. United States, 260 F.2d 824 (5th Cir. 1958); in that

case, the Fifth Circuit

considered the sufficiency of an indictment charging a violation of the

Federal Kidnaping Act, similar to the indictment in [Hayes], and had

this to say (p. 825):

"Appellant complainsthat, although he was charged

with unlawfully kidnapping and holding the victim, he was

not charged with holding him 'for ransom or reward.' The

statute does not make this an ingredient of the crime. It

requires only that the person charged with transportation be

shown to have 'unlawfully * * * kidnaped * * * or carried

unharmed, and if the verdict of the jury shall so recommend, or (2) by

imprisonment for any term of years or for life, if the death penalty is not

imposed."

Id. at 658 n.1 (emphasis added). 

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away and held for ransom or reward or otherwise' the

victim. An allegation that appellant unlawfully and

knowingly transported in interstate commerce the victim

who had theretofore been unlawfully kidnapped and

carried away by the said defendants and held is entirely

adequate to withstand this motion. It is difficult to see how

the addition of the words 'for ransom or reward or

otherwise' would have added anything to the indictment

because obviously 'otherwise' comprehends any purpose at

all. If appellant desired to know more of the purpose the

government intended to prove for his unlawful holding, he

could have made a proper motion before trial to that end.

His failure to do so waived his right to raise the point after

conviction. Knight v. Hudgpeth, 10 Cir., 112 F.2d 137;

Knight v. United States, 8 Cir., 137 F.2d 940."

Id. at 666 (emphasis added) (quoting Clinton, 260 F.2d at 825). 

We also noted that the Supreme Court had previously "laid no stress on the

statutory words'held for ransom or reward or otherwise'" in setting forth the essential

elements of § 1201. Id. at 667 (citing Smith v. United States, 360 U.S. 1, 9 (1959)).

Furthermore, the Supreme Court had stated that "'[c]onvictions are no longer reversed

because of minor and technical deficiencies which did not prejudice the accused.'" Id.

(quoting Smith, 360 U.S. at 9). Likewise, this court had previously observed that an

indictment's sufficiency

"should be judged by practical, and not by technical, considerations. It

is nothing but the formal charge upon which an accused is brought to

trial. An indictment which fairly informs the accused of the charge

which he is required to meet and which is sufficiently specific to avoid

the danger of his again being prosecuted for the same offense should be

held good."

Id. (quoting Hewitt v. United States, 110 F.2d 1, 6 (8th Cir. 1940)). 

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In light of the foregoing, we held that the defendant

was sufficiently informed by the indictment . . . of the charges he was

required to meet; that the defect or imperfection of which complaint is

made was minor and formal; and that the indictment was sufficiently

specific to avoid any possibility of his being prosecuted a second time

for the same offenses. There cannot be the slightest doubt that [the

defendant] knew exactly with what offenses he was charged.

Id. 

Consistent with Hayes, "[t]he Supreme Court has interpreted the word

'otherwise' as encompassing any purpose at all." United States v. Noble, Criminal

Action No. 05-369, Civil Action No. 09-594, 2010 WL 653539, at *3 (E.D. Pa. Feb.

23, 2010 (citing Gooch v. United States, 297 U.S. 124, 127–28 (1936); United States

v. Healy, 376 U.S. 75, 81–83 (1964)). "Because of this expansive construction, the

kidnapping statute can be violated regardless ofthe defenda[n]t's motivation, and thus

the 'purpose' language does not form an essential element [of] kidnapping under 18

U.S.C. § 1201." Id. (rejecting defendant's argument that "his grand jury indictment

was defective so asto deny him, inter alia, "his Fifth Amendment right to be charged

by grand jury indictment") (citing Gawne v. United States, 409 F.3d 1399, 1403 (9th

Cir. 1969); United States v. Martell, 355 F.2d 764, 766 (4th Cir. 1964); Hayes, 296

F.2d at 665–67; Clinton, 260 F.2d at 825). 

Post-Hayes, other circuits have agreed with this court that an indictment for

kidnapping under § 1201 is sufficient even though the words "for ransom or reward

or otherwise" do not appear. See, e.g., United States v. Webster, 162 F.3d 308,

328–29 (5th Cir. 1998) ("If 'otherwise' can include any purpose, adding it to the

indictment—irrespective ofwhether itspecifies the 'otherwise' benefit—adds nothing.

This view consists with that of our sister circuits."); United States v. Adams, 83 F.3d

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1371, 1373–75 (11th Cir. 1996) (following Clinton and holding an indictment

sufficient that alleged only that victim was "held"); United States v. Atchison, 524

F.2d 367, 370–71 (7th Cir. 1975) ("[I]t now appears to be well settled that purpose

is not an element of the offense of kidnaping and need not be charged or proved to

support a conviction under the kidnaping statute, a defect in the indictment's

allegation of purpose is collateral in nature."); United States v. Lutz, 420 F.2d 414,

416 (3th Cir. 1970) (holding that indictment could be regarded as charging in effect

that kidnapping was for purpose of raping victim and was therefore within federal

kidnapping statute despite contention that indictment failed to charge that victim was

"held for ransom or reward or otherwise"); Gawne, 409 F.2d at 1403–04 (holding (1)

kidnapper's motivation is not an element of offense under Federal Kidnapping Act

which covers interstate transportation of the kidnapped persons held for ransom or

reward or otherwise; (2) under Federal Kidnapping Act the involuntariness ofseizure

and detention is very essence of crime, and the true elements of offense are unlawful

seizure and holding followed by interstate transportation; and (3) because purpose of

defendants in illegally seizing and holding victim was not an element of offense

under charge of violating Federal Kidnapping Act, allegation ofindictment regarding

the purpose of defendants in kidnapping and transporting victim was surplusage and

need not have been proved); Martell, 335 F.2d at 766 ("Nor would the inclusion of

the words 'held for ransom or reward or otherwise' have added anything to the

sufficiency of the indictment. While it did not use the word 'held,' it charged that

Martell seized and confined the victim and 'did fail to release' him. The Supreme

Court has recently declared that the statute is violated regardless of the ultimate

purpose of the kidnapper. This being so, use of the statutory language, 'ransom or

reward or otherwise,' was not necessary." (internal citations omitted)).4

Both the current and prior versions of § 1201 have in common the language 4

"for ransom or reward or otherwise," and our sister circuits have consistently held,

regardless of the particular version of § 1201 under review, that the omission of such

language does not render the indictment insufficient. 

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"It is a cardinal rule in [this] circuit that one panel is bound by the decision of

a prior panel." Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002) (per curiam)

(citation omitted). Seeing no discernable difference between the present case and

Hayes, we are compelled to follow our prior holding that an indictment charging

kidnapping under § 1201 is sufficient, even though it does not charge that the person

kidnapped was held "for ransom or reward or otherwise." 

B. Sufficiency of the Evidence—Conspiracy to Distribute Marijuana

Boykin next argues that insufficient evidence exists to support his marijuanaconspiracy conviction because the government presented evidence of only one

transaction between Boykin and R.W. for one gram of marijuana and one other

contact between Boykin and R.W. eighth months later where no actual sale occurred.

According to Boykin, this evidence showed only two distinct buyer-seller type

transactions, not a conspiracy to distribute marijuana. 

"We review the sufficiency of the evidence de novo, reversing only if no

reasonable jury could have found [Boykin] guilty." United States v. Ruiz-Zarate, 678

F.3d 683, 689 (8th Cir. 2012) (citation omitted). To sustain Boykin's marijuanaconspiracy conviction, "the government had to prove that (1) a conspiracy to

distribute marijuana existed; (2) [Boykin] knew of the conspiracy; and (3) [Boykin]

intentionally became a part ofthe conspiracy." Id. (citation omitted). The government

often has to establish "the agreement and members' participation in the conspiracy

. . . by way of inference" considering that "the nature of conspiracy entails secrecy."

Id. (quotation and citation omitted). In the absence of direct evidence of a conspiracy,

"the jury is free to consider all the evidence—direct and indirect—presented of the

defendant's statements and actions[,] and [it] may draw reasonable inferences from

the evidence presented about what the defendant's state of mind was when he did or

said the things presented in the evidence." Id. at 689–90 (first alteration in original)

(quotation and citation omitted). 

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Boykin "argues that the government proved only that he had a buyer-seller

relationship with [R.W.], which by itself was insufficient to support the conspiracy

conviction." United States v. Peeler, 779 F.3d 773, 776 (8th Cir. 2015). Boykin "is

correct that proof of a buyer-seller relationship without more is not sufficient to prove

a conspiracy." United States v. Finch, 16 F.3d 228, 231 (8th Cir. 1994) (citing United

States v. Prieskorn, 658 F.2d 631, 633 (8th Cir. 1981)). "'Because the crime of

conspiracy requires a concert of action among two or more persons for a common

purpose, the mere agreement of one person to buy what another agrees to sell,

standing alone, does not support a conspiracy conviction.'" United States v. Huggans,

650 F.3d 1210, 1222 (8th Cir. 2011) (quoting Prieskorn, 658 F.2d at 634). "The

principle is well-established, at least in this circuit, but it is limited to a narrow

category of cases. '[B]uyer-seller relationship casesinvolve only evidence of a single

transient sales agreement and small amounts of drugs consistent with personal use.'"

Peeler, 779 F.3d at 776 (alteration in original) (emphases added) (quoting Huggans,

650 F.3d at 1222). "[T]o reach such a conclusion there must be 'no independent

evidence tending to prove that the defendant had some knowledge of the broader

conspiracy.'" United States v. Vinton, 429 F.3d 811, 815 (8th Cir. 2005) (emphasis

added) (quoting Prieskorn, 658 F.2d at 635). 

By contrast, "evidence is sufficient to show a conspiracy where drugs are

purchased for resale." United States v. Conway, 754 F.3d 580, 588 (8th Cir. 2014)

(emphasis added) (citation omitted). "'Evidence of multiple sales ofresale quantities

of drugs is sufficient in and of itself to make a submissible case of a conspiracy to

distribute.'" Peeler, 779 F.3d at 776 (emphases added) (quoting Conway, 754 F.3d at

588). "When evidence exists that large amounts of drugs were distributed over an

extended period of time, including fronting transactions, there is ample evidence to

support a conspiracy." Conway, 754 F.3d at 588 (emphases added) (citing United

States v. Slagg, 651 F.3d 832, 841 (8th Cir. 2011)). "[A] reasonable jury can find that

a defendant has more than a mere buyer-seller relationship 'if the evidence supports

a finding that they shared a conspiratorial purpose to advance other transfers."

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Slagg, 651 F.3d at 842 (alteration in original) (emphasis added) (quotations and

citations omitted). 

We have previously approved of the following description of "the buyer/seller

defense as defined in our prior cases":

that transient sales where a buyer is purchasing drugs for his own

personal use and not for the purpose of distributing or delivering the

purchased drugs to another does not, in and of itself, make the buyer a

co-conspirator with the seller in the seller's drug distribution conspiracy.

If, however, the buyer acquires the drugs from the seller intending to

distribute or deliver the drugs to another person instead of using them

for his own personal use, or if he purchased the drugs from the seller as

part of the continuing buyer/seller relationship, he may be, depending

on what the evidence shows, a co-conspirator with the seller in a drug

distribution conspiracy.

Peeler, 779 F.3d at 775, 776 (emphases added). 

This is not a case in which the government offered evidence of multiple drug

transactions between Boykin and R.W. Instead, the government's evidence

established no more than a "transient sales agreement" between Boykin and R.W. for

R.W. to purchase a "small amount of drugs consistent with personal use." See Peeler,

779 F.3d at 776 (quotation and citations omitted). First, the government does not

dispute that the first transaction in which R.W. purchased one gram of marijuana for

$15 was for R.W.'s personal use and amounted to nothing more than a buyer-seller

relationship. Second, R.W. did not purchase anymarijuana fromBoykin when Boykin

approached him during the end of 2012. Finally, the government offered no evidence

that R.W.'s attempted purchase of one ounce of marijuana in 2013 from Boykin

constituted a resale quantity of marijuana as opposed to a personal-use amount. Cf.

United States v. Gay, No. 2:10–CR–54, 2010 WL 3781555, at *2 (E.D. Tenn. Sept.

21, 2010) ("The real issue concerns the 14.6 grams of marijuana, which equates to

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approximately one-half ounce. The case agent, who attended the hearing, candidly

advised the court that one-half ounce of marijuana could be either for personal use

or for distribution, that 'it could go either way.'"). Indeed, a review of case law reveals

that one ounce ofmarijuana could be considered a personal-use amount ofmarijuana.5

R.W.'s subjective intention that he was going to "share" the marijuana with his

teammates and that "they would either pay [R.W.] back or smoke back with [him]"

is not proof that one ounce of marijuana is a resale quantity of marijuana. First, R.W.

never testified that one ounce of marijuana is a resale quantity of marijuana; instead,

Compare United States v. Chauncey, 420 F.3d 864, 869 (8th Cir. 2005) ("Fast

5

Horse purchased approximately two ounces of marijuana for $240, apparently

intending to keep one ounce for personal use and to sell the other ounce later that day

in Winner, South Dakota, where Chauncey knew of a potential customer."), and

United States v. Emery, 34 F.3d 911, 913 (9th Cir. 1994) ("Until recently, it waslegal

under Alaska law for persons over age eighteen to possess up to four ounces of

marijuana for personal use."), and United States v. Anderson, 981 F.2d 1560, 1564

(10th Cir. 1992) ("No informant, undercover agent, or coconspirator testified

regarding Mr. Anderson's involvement in the conspiracy. Mr. Anderson may well

have been convicted of conspiracy because of his misfortune to conduct a one-time

transaction at the Grogan residence on this particular day. The evidence only

established Mr. Anderson's single delivery ofsix ounces of marijuana to Joe Cordova

for personal use. This transaction does not show that Mr. Anderson knew of the

essential objectives or the scope of the conspiracy, or that he knowingly and

voluntarily became a part of it." (citation omitted)), with United States v. McCollum,

64 F. App'x 402, 402 (4th Cir. 2003) (per curiam) ("The bag contained approximately

eleven ounces of marijuana, an amount typically kept not for personal use, but for

redistribution."); United States v. Duong, Criminal No. 3:10–cr–9 (VLB), 2011 WL

24113521, at *4 (D. Conn. June 10, 2011) ("Duong was selling drugs out of the

residence he shared with Elizabeth, and Elizabeth was present in 2002 when Duong

was arrested with more than 9 ounces of marijuana in his vehicle, an amount

exceeding that customarily possessed for personal use and which Duong admitted he

intended to sell."). 

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he merely testified that, in his subjective opinion, it was "a lot of marijuana." Second,

his testimony indicates that he was going to smoke some of the marijuana; therefore,

some of it was for his personal use. Third, and most importantly, R.W. never

disclosed his intention to Boykin to share the marijuana with others or receive money

from others for the marijuana that he purchased from Boykin. See Vinton, 429 F.3d

at 815; Slagg, 651 F.3d at 841. 

Given the government's failure to offer any proof that Boykin sold R.W. a

resale quantity of marijuana or that Boykin had knowledge of what R.W. planned to

do with the marijuana, we hold that the government proved only that Boykin had a

buyer-seller relationship with R.W., which is insufficient to support the conspiracy

conviction. 

But the government also contendsthatBoykin wasin a conspiracy to distribute

marijuana with "others," such as Patterson and Boykin's "source of supply." As to

Patterson, the record is devoid of any evidence that Patterson and Boykin conspired

to distribute marijuana. While Boykin inquired of Patterson on at least two occasions

whether Patterson had any marijuana, Patterson did not have any marijuana on the

occasions when Boykin asked. The government offered no evidence that Patterson

was Boykin's "source of supply" or that Boykin ever purchased any drugs from

Patterson. 

As to Boykin's unknown "source of supply," we have recognized that "'[t]he

fact that the identity ofsome or all other members ofthe conspiracy remains unknown

will not preclude a conspiracy conviction.'" United States v. Mann, 701 F.3d 274, 296

(8th Cir. 2012) (quoting United States v. Agofsky, 20 F.3d 866, 870 (8th Cir. 1994)).

But in the present case the government offered no evidence of Boykin acquiring

marijuana from any source; instead, it simply points to the fact that Boykin was able

to fill R.W.'s $15 order for marijuana. 

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Given the record evidence, we hold that the government failed to prove that

Boykin was in a conspiracy to distribute marijuana with R.W., Patterson, or an

unknown source of supply. Accordingly, we reverse his conviction on Count 1.

6

III. Conclusion

Accordingly, we affirm Boykin's kidnapping conviction but reverse his

conviction on the conspiracy count. We remand for further proceedings consistent

with this opinion. 

BYE, Circuit Judge, dissenting in part.

The superseding indictment wasmissing an essential element of the kidnapping

charge and Boykin's kidnapping conviction should be vacated. Therefore, I

respectfully dissent from Part II.A. of the Court's opinion.

The Court relies on Hayes v. United States, 296 F.2d 657 (8th Cir. 1961), to

hold the Fifth Amendment does not require an indictment to list a motive in

kidnapping cases. In Hayes, the § 1201 indictment did not charge the defendant held

victims for any specific reason and the Eighth Circuit determined the indictment was

sufficient. The discussion of the motive element, however, was dicta. Before

discussing the sufficiency of the indictment, the court found Hayes had waived the

issue. Id. at 666. Because the court determined the issue was waived before 7

discussing the merits, any discussion was dicta. "[W]e need not follow dicta. Dicta

Because we reverse Boykin's conviction on Count 1, we need not address

6

whether the district court erred in declining to give the requested buyer-seller

instruction. 

I note Hayes' conclusion regarding the waiver is no longer good law. In 7

United States v. Camp, 541 F.2d 737, 741 (8th Cir. 1976), the Eighth Circuit held a

challenge to the sufficiency of the indictment, where it is alleged the indictment is

missing an essential element of the offense, is permissible for the first time on appeal.

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is a judicial comment made while delivering a judicial opinion, but one that is

unnecessary to the decision in the case and therefore not precedential." Shephard v.

United States, 735 F.3d 797, 798 (8th Cir. 2013). The dicta from Hayes has not been

followed by the Eighth Circuit, and I would not follow it now. 8

Even assuming Hayes created precedent, any such precedent is no longer valid

because intervening Supreme Court cases have changed the law on kidnapping. See

McCullough v. AEGON USA Inc., 585 F.3d 1082, 1085 (8th Cir. 2009) ("A limited

exception to the prior panel rule permits us to revisit an opinion of a prior panel if an

intervening Supreme Court decision is inconsistent with the prior opinion."). In

Hayes, the Eighth Circuit found important that the Supreme Court had previously

"laid no stress on the statutory words 'held for ransom or reward or otherwise'" in

setting forth the essential elements of § 1201. Hayes, 296 F.2d at 667 (citing Smith

v. United States, 360 U.S. 1, 9 (1959)). After Hayes was decided in 1961, the

Supreme Court made clear motive is an essential element of kidnapping. United

States v. Healy, 376 U.S. 75, 81 (1964) (holding motive for kidnapping conviction

can be pecuniary or non-pecuniary). The Eighth Circuit has since repeatedly held

motive is an essential element of kidnapping. United States v. Brown, 330 F.3d 1073,

1078 (8th Cir. 2003) (discussing whether government had adequately proven motive

at trial); United States v. Bordeaux, 84 F.3d 1544, 1548 (8th Cir. 1996) (same);

United States v. McCabe, 812 F.2d 1060, 1061 (8th Cir. 1987) (same). Motive is an

essential element of a kidnapping conviction: if the government failsto prove motive

a conviction cannot stand. "If an essential element is omitted from the indictment,

then the defendant's Fifth Amendment right to be tried on charges found by a grand

The discussion in Hayes about the sufficiency of the indictment has only been 8

cited once by the Eighth Circuit. See Davidson v. United States, 312 F.2d 163, 165

(8th Cir. 1963). In Davidson, the indictment included the language "and held for

ransom, reward and otherwise," id. at 163 n.2, and is thus inapplicable to the present

case. 

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jury has been violated." United States v. O'Hagan, 139 F.3d 641, 651 (8th Cir. 1998). 

Boykin's Fifth Amendment right to indictment by a grand jury was violated.

I agree Boykin was sufficiently informed by the indictment of the charges

against him to protect him from double jeopardy. However, the Fifth Amendment

right to be tried upon charges found by a grand jury is separate from the requirement

that an indictment provide notice of the offense and bar the defendant from double

jeopardy. United States v. Camp, 541 F.2d 737, 739-40 (8th Cir. 1976) (citing Ex

Parte Bain, 121 U.S. 1 (1887)). I cannot agree the indictment complied with Boykin's

Fifth Amendment right to indictment by a grand jury because the grand jury did not

"consider[] and f[i]nd all essential elements of the offense charged." O'Hagan, 139

F.3d at 651.

Accordingly, I would vacate Boykin's kidnapping conviction.

______________________________

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