United States v. Wesley Running Shield

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3163
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United States of America, *
*
Plaintiff – Appellee, *
*
v. *
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Jackie Manes, *
*
Defendant – Appellant. *
___________ Appeals from the United States
District Court for the
No. 09-3312 Eastern District of Arkansas.
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United States of America, *
*
Plaintiff – Appellee, *
*
v. *
*
Stanton Yancey, *
*
Defendant – Appellant. *
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Submitted: April 16, 2010
Filed: May 10, 2010
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Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
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MURPHY, Circuit Judge.
In these consolidated appeals Jackie Manes and Stanton Yancey challenge their
convictions by a jury for conspiring to distribute and to possess with an intent to
distribute at least 50 but less than 500 grams of a substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. Manes
contends that evidence obtained during an allegedly illegal stop should have been
suppressed, that the jury should have been instructed on the difference between a
conspiracy to distribute and a simple drug transaction, and that the evidence was
insufficient to sustain his conviction. Yancey appeals the admission at trial of a
photograph showing drugs and money that were seized from different locations. We
affirm.
I.
On March 1, 2008 officers of the 20th Judicial Drug Task Force (JDTF) in
Jonesboro, Arkansas were tipped off to a drug transaction scheduled to take place the
following morning. The tip came from a confidential informant who had provided the
investigating officers with reliable intelligence within the previous 6 months. The
tipster indicated that a sale of 3 ounces of methamphetamine would occur at around
10 a.m. on state highway 74 in Searcy County, Arkansas. The seller would be a
Hispanic male traveling from the direction of Batesville, Arkansas in a green Ford
Explorer. The buyers, two white males, would arrive in a red or maroon truck.
The next morning officers from the JDTF and the Arkansas State Police set up
surveillance along highway 74 near the intersection with state highway 66. Around
9:40 a.m. Agent Johnny Sowell observed a green Ford Explorer traveling on highway
66. In the vehicle were two individuals, one of whom appeared to be an Hispanic

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male. A check of the license plates revealed that the Explorer was registered in Cave
City which is near Batesville. As the Explorer turned onto highway 74, Agent Sowell
proceeded to follow in his unmarked vehicle. Special Agent Kevin Brown followed
behind. Agent Brian Tatum, who was posted westward down highway 74, pulled his
vehicle onto the highway in front of the Explorer.
As Agent Sowell followed, he observed the Explorer exceed the posted speed
limit and cross the center line a number of times. At approximately 10 a.m., a maroon
truck approached, traveling eastward on highway 74. The Explorer's Hispanic male
passenger then leaned forward and waved. The truck's passengers, two white males,
responded with a wave and turned to watch the Explorer pass. The vehicles continued
on their course, the truck driving eastward and the Explorer westbound.
Near the end of a curve approximately 1 mile down the highway, the officers
made a traffic stop of the Explorer. Officer Sowell approached the car and questioned
the driver, Laura Ciesneros (a/k/a Celica Aguilera), while Officer Tatum approached
the passenger, Moises Tellez Garcia. At this time the maroon truck reappeared from
around the curve and approached the area of the stop. Agent Sowell stepped into the
road and signaled for it to pull over. The truck's engine revved momentarily, but then
the truck pulled over on the opposite side of the highway.
While Special Agent Brown approached the truck and began to question its
passengers, Agent Sowell returned to the Explorer. Tellez Garcia did not speak
English well, but Ciesneros agreed to translate. After getting Tellez Garcia's consent
to search, Agent Sowell noticed a plastic bag protruding from his front jacket pocket.
There were three bags inside containing approximately 3 ounces of methamphetamine.
Tellez Garcia, speaking through Ciesneros, stated that he had intended to meet the
passengers of the maroon truck in order to sell the methamphetamine to them.
In the meantime the truck's passengers identified themselves to Special Agent
Brown as Jackie Manes and Stanton Yancey. They both maintained that they were on

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1The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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their way to purchase a hay baler. Manes volunteered that he had turned the truck
around because he believed he had seen his niece. Agent Sowell then informed
Special Agent Brown that Tellez Garcia had identified Manes and Yancey as the
intended buyers of his methamphetamine. Both nevertheless denied knowing Tellez
Garcia.
After waiving their Miranda rights, Manes and Yancey admitted to having used
methamphetamine recently. A search incident to their arrest revealed that each had
approximately $1950 cash in his pocket, separated from his other money. The officers
discovered a small sheet of paper in Manes' wallet on which numbers and names had
been written, apparently recording drug transactions. After a drug dog alerted on the
truck, the officers found three glass smoking pipes in the back of the driver's seat.
Manes, Yancey, Ciesneros, and Tellez Garcia were subsequently indicted on
charges of conspiring to distribute and to possess with an intent to distribute at least
50 but less than 500 grams of a substance containing methamphetamine. Tellez
Garcia pled guilty, while Ciesneros appears to be a fugitive. Manes and Yancey
proceeded to trial.
Manes filed a pretrial motion to suppress the evidence obtained as a result of
the stop. The district court 1 denied the motion after ruling that the stop, arrest,
questioning, and search had not violated the Fourth Amendment. The conspiracy
charges against Manes and Yancey proceeded to a jury trial beginning on May 18,
2009. During trial the district court overruled their joint objection to the admission
of a photograph showing the drugs and money seized from the two vehicles. The
court later refused their proffered instruction seeking to distinguish a simple
buyer/seller transaction from a conspiracy to distribute. The court denied their
motions for judgment of acquittal. After they were each found guilty, they were
sentenced to 60 months imprisonment. Thereafter they filed these appeals.

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II.
A.
Manes appeals the denial of his motion to suppress the statements he made to
law enforcement officers, as well as evidence found in his truck and on his person.
That evidence included three glass pipes, approximately $1950 in cash, and a sheet
of paper with what appeared to be drug notes. He contends that the evidence had been
obtained in violation of the Fourth Amendment as the result of a stop not supported
by a reasonable suspicion of criminal activity.
On appeal from the denial of a motion to suppress, we review the district court's
factual rulings for clear error and its conclusions of law de novo. United States v.
Pruneda, 518 F.3d 597, 603 (8th Cir. 2008). “We must affirm . . . unless the decision
is unsupported by substantial evidence, is based on an erroneous view of the
applicable law, or in light of the entire record, we are left with a firm and definite
conviction that a mistake has been made.” United States v. Rodriguez-Hernandez,
353 F.3d 632, 635 (8th Cir. 2003).
The Fourth Amendment is not violated when a law enforcement officer briefly
detains an individual to investigate circumstances which gave rise to a reasonable
suspicion that criminal activity was underway. Terry v. Ohio, 392 U.S. 1 (1968);
United States v. Stevens, 350 F.3d 778, 779 (8th Cir. 2003). A reasonable suspicion
arises when specific and articulable facts and rational inferences therefrom would lead
"a [person] of reasonable caution" to believe that an investigatory stop would be
appropriate because, for example, the suspect may be in the process of committing a
crime. Terry, 392 U.S. at 22 (quoting Carroll v. United States, 267 U.S. 132 (1925)).
We review the totality of the underlying circumstances to determine whether an
investigatory stop was predicated on the required level of suspicion. United States v.
Beck, 140 F.3d 1129, 1136 (8th Cir. 1998).

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A confidential informant's tip may support a reasonable suspicion if it has
sufficient indicia of reliability, United States v. Hill, 91 F.3d 1064, 1069 (8th Cir.
1996), such as the informant's track record as a reliable source or independent
corroboration of the tip, see United States v. Williams, 10 F.3d 590, 593 (8th Cir.
1993). As the Supreme Court has made clear, "[when] an informant is shown to be
right about some things, he is probably right about other facts that he has alleged,
including the claim that the object of the tip is engaged in criminal activity." Alabama
v. White, 496 U.S. 325, 331 (1990) (citing Illinois v. Gates, 462 U.S. 213, 244
(1983)). The reasonableness of such an inference is bolstered if the tip is corroborated
not only by matching an identity or description, but also by accurately describing a
suspect's future behavior. Id. at 332; Hill, 91 F.3d at 1069.
All of these factors were present here. A confidential informant who had
provided reliable information in the past indicated that at approximately 10 a.m. on
March 2, 2008 an Hispanic male suspect would be traveling in a green Ford Explorer
on Highway 74 in Searcy County from the direction of Batesville to deliver 3 ounces
of methamphetamine to two white males in a red or maroon truck. The investigating
officers corroborated the tip when they observed vehicles and passengers matching
the informant's description make contact with one another at the predicted time and
location.
The officers confirmed that the green Ford Explorer had license plates
registered in Cave City, near Batesville, and that its passenger was a Hispanic male.
As the officers followed the Explorer, they saw it pass one of the only other vehicles
in the vicinity at the time, a maroon truck traveling in the opposite direction with two
white male occupants. The officers observed that as the vehicles passed, the
occupants waved to each other in a conspicuous fashion. The Hispanic male used big,
sweeping motions as he leaned toward the windshield, and the occupants of the
maroon truck waved back. Immediately after passing the Explorer, the maroon truck's
occupants both looked back toward it as it began to slow down. Soon thereafter, the
maroon truck turned around and returned to the scene.

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Based on the informant's track record and corroboration of significant aspects
of the tip, the officers reasonably inferred that the two white males traveling in the
maroon truck—Manes and Yancey—were attempting to engage in an illicit drug
transaction. See White, 496 U.S. at 331–32; Hill, 91 F.3d at 1069. Accordingly, the
district court appropriately denied Manes' motion to suppress.
B.
Manes next contends that the district court erred in denying his motion for a
judgment of acquittal because there was insufficient evidence to sustain a conspiracy
conviction. We review de novo the sufficiency of the evidence underlying a
conviction, viewing the evidence and all reasonable inferences therefrom in the light
most favorable to the verdict. United States v. Washington, 318 F.3d 845, 852 (8th
Cir. 2003). Reversal is warranted only if no reasonable jury could have found all of
the elements of the offense proven beyond a reasonable doubt. Id.
A conspiracy conviction requires proof of three elements: (1) the existence of
a conspiracy with an illegal purpose, (2) the defendant's awareness of the conspiracy,
and (3) the defendant's knowing entry into it. United States v. Fitz, 317 F.3d 878, 881
(8th Cir. 2003). The evidence must support a finding that Manes knowingly entered
into an agreement with at least one other person, the purpose of which was to purchase
and distribute methamphetamine. See United States v. Robinson, 217 F.3d 560, 564
(8th Cir. 2000). That evidence may be direct or circumstantial, for "[t]he nature of the
offense of conspiracy with its necessary aspect of secrecy often requires that the
agreement be implied from the surrounding circumstances." United States v. Gooden,
892 F.2d 725, 729 (8th Cir. 1989).
Sufficient evidence was adduced at trial for the jury reasonably to find beyond
a reasonable doubt that Manes had knowingly agreed with Yancey and Tellez Garcia
to purchase and distribute methamphetamine. Tellez Garcia testified that he had
previously sold Manes and Yancey 2 ounces of methamphetamine and that he had

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agreed with them to meet on March 2, 2008 for the purpose of selling them 3
additional ounces. That Manes had agreed to that meeting and purchase was
corroborated by evidence that on March 2, 2008 he had proceeded exactly as the
informant had predicted, and that once at the meeting point he had waved to Tellez
Garcia and turned his truck around to approach him. Further corroboration was
furnished by the approximately $3900 in cash found on Manes and Yancey. Given
the testimony from Tellez Garcia that 1 ounce of methamphetamine cost
approximately $1200, the jury could reasonably infer that the cash was intended for
the purchase of 3 ounces.
The evidence also supported the conclusion that Manes and Yancey had agreed
to purchase the methamphetamine for the purpose of distributing it. Special Agent
Brown testified that the sheet of notes found in Manes wallet was similar to drug notes
that he had seen used to record transactions in other distribution cases. See United
States v. Kuenstler, 325 F.3d 1015, 1024 (8th Cir. 2003) (documentation appearing
to be coded records of drug transactions evidences defendant's intent to distribute).
The drug note and the evidence of the interaction between the conspirators was also
consistent with typical drug trafficking practice previously observed previously by the
government's expert witness, Special Agent Penagos. See United States v. Ramirez,
362 F.3d 521, 524–25 (8th Cir. 2004) (consistency with drug trafficking practice
evidences defendant's intent to distribute).
Since both Manes and Yancey were carrying approximately $1950 when they
were stopped, the jury could reasonably infer that they had agreed to split the 3 ounces
that they intended to purchase. See United States v. Whirlwind Soldier, 499 F.3d 862,
869 (8th Cir. 2007) (combining funds to purchase methamphetamine evidences an
agreement to distribute). The quantity of methamphetamine involved independently
supports the conclusion that they intended to distribute it. See United States v.
Schubel, 912 F.2d 952, 956 (8th Cir. 1990). Special Agent Penagos testified that
methamphetamine intended for distribution is purchased in amounts as small as 1/8
of one ounce (approximately 3.5 grams), while smaller amounts indicate possession

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purely for personal use. The amount that Manes and Yancey had agreed to purchase
(3 ounces, or approximately 82 grams) and the amount that they had purchased in the
past (2 ounces, or approximately 56 grams) both independently fell within the range
of distribution amounts. Cf. id. (possession of 90 grams of methamphetamine
supported finding of intent to distribute).
Because the jury could reasonably find that Manes had knowingly conspired to
distribute and possess with intent to distribute methamphetamine, the district court did
not err in denying his motion for a judgment of acquittal.
C.
Manes final contention is that the district court abused its discretion by refusing
to instruct the jury on the distinction between a conspiracy to distribute and a simple
buyer/seller transaction. We review for an abuse of discretion, Boesing v. Spiess, 540
F.3d 886, 891 (8th Cir. 2008), according the district court broad discretion in selecting
the form and substance of instruction, Mems v. City of St. Paul, 327 F.3d 771, 781
(8th Cir. 2003). Our inquiry is limited to determining "whether the instructions, when
taken as a whole and in light of the particular issues presented, fairly and adequately
presented the evidence and the applicable law to a jury." Id. Even the failure to
properly instruct will not warrant reversal, however, unless it affected a party's
substantial rights, such that it "misled the jury or had a probable effect on the verdict."
Slidell, Inc. v. Millennium Inorganic Chemicals, Inc., 460 F.3d 1047, 1054 (8th Cir.
2006).
Manes requested that the jury be instructed as follows:
You are instructed that transient sales where the buyer is purchasing
drugs for his own personal use and not for the purpose of distributing or
delivering the purchased drugs to others does not in and of itself make
the buyer a co-conspirator with the seller in the seller's drug distribution
conspiracy.

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The requested instruction's fidelity to the law is not in dispute. We approved the use
of the same language in United States v. Cabbell, 35 F.3d 1255, 1259 (8th Cir. 1994).
The theory of defense upon which Manes relied was that he was an innocent
bystander who had inadvertently found himself in the wrong place at the wrong time.
He maintained that he had never intended to meet with Tellez Garcia, that he had
mistaken him for someone else when they waved to each other on the road, and that
the $1950 found in his pocket was intended for the purchase of a hay baler rather than
methamphetamine. Manes did not attempt to prove that he had intended to meet with
Tellez Garcia to purchase drugs for his personal use.
The instruction requested by Manes did not correspond with the theory of
defense he sought to prove at trial. The failure to instruct the jury on a theory which
was never presented to it could not have affected Manes' substantial rights. We also
question whether the evidence would have supported a buyer/seller instruction given
the quantities of methamphetamine (approximately 82 grams) and money ($3900)
involved, see United States v. Hamell, 931 F.2d 466, 470 (8th Cir. 1991) (buyer/seller
instruction unwarranted where transaction involved distribution quantity), and given
Garcia's testimony that he had sold to Manes and Yancey on previous occasions, see
United States v. Montano–Gudino, 309 F.3d 501, 505–06 (8th Cir. 2002) (observing
that the buyer/seller instruction is appropriate "when there is evidence that only a
single, isolated sale of drugs occurred").
Citation to our decision in United States v. Prieskorn, 658 F.2d 631 (8th Cir.
1981) is also unavailing for Manes. The defendant's theory in that case was that he
had purchased drugs only for personal use (not in furtherance of a conspiracy to
distribute), id. at 636, but that was not Manes' theory of defense. Manes' theory was
fairly and adequately conveyed by the court's "mere presence" instruction. Cf.
Montano–Gudino, 309 F.3d at 505–06.

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Accordingly, the district court did not abuse its discretion in refusing the
requested instruction.
III.
Yancey raises one issue on his appeal. He charges that the district court abused
its discretion by admitting into evidence over his objection a photograph displaying
both the cash and the drugs seized at the scene. Three bags of drugs, containing
approximately 82 grams of a methamphetamine mixture, were found in the coat
pocket of Garcia, who had been riding in the Explorer. Thirty nine hundred dollars
in cash was found in the pockets of Yancey and Manes, who were stopped while
traveling in the maroon truck. The challenged photograph showed the drugs and
money lying adjacent to each other. Yancey contends that the photograph sent the
subliminal and unfairly prejudicial message that the drugs had been exchanged for the
money.
We will recognize an erroneous evidentiary ruling only if it constitutes a clear
abuse of discretion. United States v. McPike, 512 F.3d 1052, 1055 (8th Cir. 2008).
Reversal is nevertheless unwarranted if the government shows that the error was
harmless such that the defendant's substantial rights were unaffected and the error had
at most a slight influence on the verdict rendered. Id.
We conclude that the exhibit was unlikely to have affected the verdict. Through
extensive cross examination, Yancey's counsel made the jury aware that the
photograph did not reflect the location of the drugs and money at the time of the stop.
Counsel also was able to argue during closing that "[t]his [the photograph] is a
subliminal message to you" intended by the prosecution. Moreover, the court
instructed the jury that "I want to make sure [you] understand[] that the photograph
was made after the evidence was collected, [and that it was] placed on a table in that
way. It was not found in that condition." We conclude that Yancey's substantial
rights were not affected by admission of the challenged photograph.

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IV.
Accordingly, the judgments of the district court are affirmed.
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