                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2066
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Jose Luis Delacruz

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                  ____________

                            Submitted: March 10, 2017
                               Filed: July 31, 2017
                                 ____________

Before LOKEN, MURPHY, and BENTON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

      An October 2014 superseding indictment charged Jose Luis Delacruz with
conspiracy to possess with intent to distribute and distribute over 500 grams of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One), and
use of a firearm during a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A) (Count Two). After a three-day trial, a jury convicted Delacruz of
both offenses. The district court1 denied post-trial motions for judgment of acquittal
and a new trial and sentenced Delacruz to the mandatory minimum sentence of life
in prison on Count One and a consecutive seven years on Count Two. Delacruz
appeals, arguing the district court erred in denying a judgment of acquittal because
evidence at trial showed multiple conspiracies rather than the single conspiracy
charged in the indictment; abused its discretion in denying the motion for a new trial
because the court failed to give a specific unanimity instruction on Count Two and
the weight of the evidence did not support the jury’s verdict; and abused its discretion
in denying his pretrial motions for substitute counsel. We affirm.

                                   I. Background.

        Count One charged that from January 2013 until October 2014 Delacruz,
Patrick Peltier, Anthony Farrell, Kimberly Ratliff, and Brian McMahan conspired to
distribute in excess of 500 grams of methamphetamine in North Dakota, Minnesota,
and elsewhere, committing overt acts of concealment, use of telecommunication
facilities and United States currency, and violence to further their drug trafficking
activities. Count Two charged that Delacruz and Peltier used a firearm during a drug
trafficking crime “on or about March 21, 2014.” We summarize the evidence at trial
viewed in the light most favorable to the jury’s verdict. See United States v. Buckley,
525 F.3d 629, 632 (8th Cir.), cert. denied, 555 U.S. 977 (2008).

      Conspirator Anthony Farrell testified that he started dealing methamphetamine
for Delacruz in 2013, typically buying a quarter-gram to an eight-ball (3.5 grams)
each week. Delacruz fronted the sales, meaning Farrell bought the methamphetamine
on credit and repaid Delacruz after resales to others. At the end of the summer,
Delacruz introduced Farrell to his source, Robles. Farrell purchased directly from


      1
       The Honorable Ralph R. Erickson, then Chief Judge of the United States
District Court for the District of North Dakota.

                                          -2-
Robles until Delacruz returned to selling drugs one month later. Farrell then
purchased from both Robles and Delacruz. In early 2014, Farrell fell behind in his
payments to Robles. Robles showed Farrell a video of a beheading based on failure
to pay a drug debt, and Delacruz hounded Farrell about paying. At one point,
Delacruz and Robles took Farrell for a “tense” drive in the country, and Delacruz told
Farrell he needed to pay his debt. This scared Farrell, who then paid his debt to
Robles through Delacruz.

       Conspirator Kimberly Ratliff testified that she dealt methamphetamine for
Delacruz directly and through Farrell. Delacruz told Ratliff to get the title to Farrell’s
car to satisfy his drug debts. When she failed to do this quickly, Delacruz and Peltier
threatened Ratliff’s father and children at their home. On another occasion, Delacruz
made Ratliff strip naked and pointed a gun at her. And on yet another occasion, after
Ratliff failed to pay Delacruz on time, Delacruz took her for a ride in the country
where he threatened her with a gun and said he was going to kill her baby.

       Conspirator Brian McMahan testified that he began using methamphetamine
with Delacruz during the summer of 2013. He drove Delacruz in exchange for drugs
and witnessed Delacruz sell methamphetamine “a couple dozen” times. At one point,
McMahan drove Ratliff to the country, where Delacruz yelled at her and pretended
to have a gun. On March 21, 2014, McMahan accompanied Delacruz to the
apartment of Pat Peltier, who served as Delacruz’s “muscle,” because Delacruz had
to “deal with a guy.” Inside the residence, Delacruz argued with Shawn Ellingson,
whom McMahan had never met. Delacruz brandished his gun, used it to hit Ellingson
in the nose, and put it down Ellingson’s throat.

      Ellingson testified that he was friends with Peltier and had witnessed Delacruz
handle dealer-level amounts of methamphetamine in Peltier’s apartment. On March
21, 2014, Delacruz told Ellingson to go to Peltier’s apartment where Delacruz called
Ellingson a snitch, made him strip, punched him, and shoved a gun down his throat.

                                           -3-
Delacruz yelled, “I fucking hate you,” and “I’m going to kill you.” Delacruz and
Peltier dragged Ellingson to his car, drove him to a remote area, and forced him out
into the cold winter night, taking Ellingson’s car keys. Two young girls picked up
Ellingson and brought him home. Police found his abandoned car and went to his
apartment. Ellingson first told police about the assault, and later told them about the
methamphetamine distribution. Detective Daniel Cassetta testified that a warrant
search of Peltier’s apartment uncovered baggies for distributing illegal narcotics. He
alerted federal authorities, who opened a drug distribution investigation.

       Other cooperating witnesses testified to the extent of the conspiracy and
Delacruz’s role. Jessica Kirchoffner testified that Farrell was her methamphetamine
dealer; in 2013, she helped him deliver roughly ten thousand dollars to Delacruz.
Heather Schake dealt small amounts of drugs for Delacruz and witnessed some of his
drug transactions. Delacruz once asked Schake if she would kill Ratliff because he
was paranoid about her being a snitch. Brian Noyes bought drugs from Delacruz and
witnessed transactions involving large sums.

                               II. The Variance Issue.

       Delacruz argues that the trial evidence established multiple conspiracies rather
than the single conspiracy charged in the indictment. Citing Kotteakos v. United
States, 328 U.S. 750 (1946), he contends that Farrell’s testimony that he purchased
methamphetamine from Robles as well as Delacruz showed a rival conspiracy,
parallel to the one charged, resulting in a variance that infringed his substantial rights
and required a judgment of acquittal. “Whether the government’s proof established
a single conspiracy or multiple conspiracies is a question of fact; we reverse only if
no reasonable jury could have found the single conspiracy charged in the indictment
and this variance in the government’s proof has prejudiced the defendant’s substantial
rights.” United States v. Hunter, No. 16-3248, slip op. at 4 (8th Cir. July 10, 2017),
quoting United States v. Hamilton, 837 F.3d 859, 863 (8th Cir. 2016). “Failure to

                                           -4-
prove the single drug conspiracy charged in an indictment results only in a variance,
rather than an acquittal . . . . If the elements of an unlawful conspiracy are proved,
relief because of variance requires an additional showing of prejudice.” Buckley, 525
F.3d at 634 n.2.

       Here, Delacruz does not (and could not) argue that the above-summarized
evidence did not permit a reasonable jury to find that the elements of an unlawful
conspiracy were proved. We conclude a reasonable jury could find the government
proved the single conspiracy charged in the indictment. As in United States v. Slagg,
651 F.3d 832, 842 (8th Cir. 2011), “the Government’s evidence largely involved the
same group of individuals working with one another to conduct the same activity,
distribution of methamphetamine, in the same location, . . . during the time frame
alleged in the indictment.” A single conspiracy may exist despite being composed
of multiple groups, even when those groups compete. See United States v. Delgado,
653 F.3d 729, 736 (8th Cir. 2011), cert. denied, 565 U.S. 1115 (2012).

       Delacruz also cannot show prejudice from any multiple-conspiracy variance.
Even if Farrell’s purchases of methamphetamine from Robles were part of a separate
conspiracy, Delacruz was a key participant in that conspiracy as well. “The chance
of a prejudicial spillover effect from one conspiracy to another if the defendant is a
member of both conspiracies is minimal if not nonexistent.” Buckley, 525 F.3d at
634 (quotation omitted); see United States v. McCauley, 715 F.3d 1119, 1125 (8th
Cir. 2013).

       Delacruz argues he was prejudiced because the indictment denied him adequate
notice of the evidence against him. This contention, not raised before trial, is without
merit. The detailed indictment “fully and fairly apprised” Delacruz of the charges
against him, and the government’s trial evidence was not “materially different” from
the indictment’s allegations. United States v. Whirlwind Soldier, 499 F.3d 862, 870-
71 (8th Cir. 2007), cert. denied, 552 U.S. 1209 (2008). “Where the indictment fairly

                                          -5-
specifies the offense charged and notifies the defendant of the particulars, the
defendant has knowledge that other overt acts underlying the conspiracy might be
pleaded at trial.” United States v. Lewis, 759 F.2d 1316, 1344 (8th Cir. 1985).

                       III. The Unanimity Instruction Issue.

       Count Two of the indictment alleged that, “on or about March 21, 2014,”
Delacruz and Peltier knowingly used a firearm during and in furtherance of a drug
trafficking crime. Jury Instruction No. 6 instructed that the offense charged in Count
Two has “two essential elements”: “One, On or about March 21, 2014, the defendant
committed the crime of conspiracy to possess with intent to distribute and distribute
a controlled substance; and Two, The defendant knowingly used, carried, and
brandished a firearm in relation to and in furtherance of that crime.” Instruction No.
9 instructed that “the verdict -- whether guilty or not guilty -- must be unanimous.”

       Delacruz asserts that the district court committed plain error that requires a new
trial because the evidence at trial included other incidents of drug-related gun use
(none of which occurred on March 21, 2014). As use of a firearm in furtherance of
the drug conspiracy was an element of Count Two, Delacruz argues a more specific
unanimity instruction was required.

       “A general unanimity instruction is usually sufficient to protect a defendant’s
Sixth Amendment right to a unanimous verdict.” United States v. Boyle, 700 F.3d
1138, 1142 (8th Cir. 2012) (quotation omitted), cert. denied, 133 S. Ct. 2371 (2013).
Though “a genuine risk of jury confusion” may require a specific unanimity
instruction, the district court does not err if it instructs the jury its verdict must be
unanimous and “the indictment specifies the particular defendants, the date, and the
alleged illegal conduct that constitutes each specific count charged against each
defendant.” United States v. Gruenberg, 989 F.2d 971, 975 (8th Cir.), cert. denied,
510 U.S. 873 (1993). Here, the inclusion of the March 21, 2014 date in both the

                                          -6-
indictment and jury instructions and the general unanimity instruction eliminated any
genuine risk of jury confusion. The district court did not err, much less plainly err,
in not giving a more specific unanimity instruction for Count Two. See United States
v. Alcorn, 638 F.3d 819, 822-23 (8th Cir. 2011).

                             IV. Weight of the Evidence.

       Delacruz argues the district court abused its discretion in denying his motion
for a new trial because the jury’s verdict was against the weight of the evidence. See
Fed. R. Crim. P. 33(a). “[W]e will reverse the district court’s ruling on the motion for
new trial only if we find that ruling to be a clear and manifest abuse of discretion.”
United States v. Huyck, 849 F.3d 432, 444 (8th Cir. 2017) (quotation omitted).
“Motions for new trials based on the weight of evidence generally are
disfavored. . . . A district court may grant a new trial for insufficiency of the evidence
only if the evidence weighs heavily enough against the verdict that a miscarriage of
justice may have occurred.” United States v. Harris-Thompson, 751 F.3d 590, 600
(8th Cir.) (quotation omitted), cert. denied, 135 S. Ct. 415 (2014).

        Delacruz argues a miscarriage of justice may have occurred because the
government’s case lacked physical evidence and its witnesses were motivated by the
potential for leniency, were memory-impaired from past drug use, and provided some
inconsistent statements. At the start of trial, the court gave preliminary instructions
explaining that a cooperating witness could receive a reduced sentence for his or her
cooperation: “Whether or not the testimony of a witness may have been influenced
by his or her hope of receiving a reduced sentence is for you to decide.” In its post-
trial order denying Delacruz a new trial, the court explained: “Witness credibility was
an issue squarely in front of the jury. The court has reviewed the evidence in the
record and finds there is overwhelming evidence to support the verdict on each
count.” We decline to second-guess the court’s evaluation of witness credibility. See
United States v. Gabe, 237 F.3d 954, 961 (8th Cir. 2001).

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       “We have repeatedly upheld jury verdicts based solely on the testimony of
conspirators and cooperating witnesses, noting that it is within the province of the
jury to make credibility assessments and resolve conflicting testimony.” Buckley,
525 F.3d at 632. Although there were minor inconsistencies, the government’s
numerous witnesses told a consistent narrative as to Delacruz’s role in the drug
distribution conspiracy, and his use of a gun in the drug-related assault on Ellingson.
The district court did not abuse its discretion in denying a new trial.

                            V. Substitution of Counsel.

       Delacruz argues he is entitled to a new trial because the district court abused
its discretion in denying his multiple pretrial motions to substitute counsel. We
briefly summarize the lengthy record relating to this issue.

       In November 2014, Delacruz’s first attorney withdrew after recognizing a
likely conflict of interest. The district court appointed Brian Toay to represent
Delacruz. Two months later, Delacruz filed a pro se, ex parte motion requesting a
new attorney because Toay had visited once, called once, and refused to file multiple
motions.2 On February 5, 2015, the court held an ex parte hearing. Delacruz
complained about Toay’s refusal to file motions. The court asked Toay whether there
was an irretrievable breakdown in the attorney-client relationship. Toay replied that
he had been unable to get past the subject of criminal history and Delacruz had hung
up twice, but Toay was willing to continue and try to convince Delacruz to talk about
the substance of his case. Judge Erickson encouraged Delacruz to work with Toay.


      2
       Delacruz wanted Toay to challenge Delacruz’s career offender classification
under the sentencing guidelines. Toay responded to Delacruz with a three-page letter
explaining that, while he might be able to argue about whether Delacruz should be
subject to the career offender classification, this argument was moot because
Delacruz was facing a mandatory minimum sentence of life in prison based on the
offense charged and his two prior convictions for felony drug offenses.

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       The court held another ex parte hearing on February 10. Delacruz said he
wanted to hire his own attorney; Toay said he was willing to continue representing
Delacruz. Noting that defendants frequently assert they will hire their own counsel
and fail to do so, the court told Delacruz to work with Toay until he retained his own
counsel and denied the motion to substitute counsel, noting that “anyone I appoint is
going to have similar difficulties because I think they arise out of the overall
frustration with the circumstances that [Delacruz] finds himself in.”

       Toay contacted the district court on March 5 requesting advice on preparing
for trial. Toay said he had visited Delacruz four times, but Delacruz refused to
discuss anything but sentencing issues or refused to speak at all. The district court
held another ex parte status conference and suggested that Delacruz work with Toay
to prepare his defense, so that any new counsel Delacruz hired would not start from
scratch. Toay agreed to continue preparing as though he would be trying the case.

       On April 27, Delacruz sent the district court a letter alleging “malpractice,”
“mistreatment,” and “negligent bias” by Toay. Delacruz complained that Toay said
he would likely lose at trial and requested appointment of an attorney who would file
the motions Delacruz requested, including motions to challenge prior convictions and
to “suppress exculpatory evidence.” The court held another ex parte hearing, allowed
Delacruz and Toay to comment, and concluded there had not been an irretrievable
breakdown in the relationship. In denying the motion for substitute counsel, the court
noted, “An attorney has a duty to give his client a fair assessment of the likely
outcome of trial, and a frank assessment of the case is not abandonment.”

       At the final pretrial conference, the government stated that Delacruz had
rejected a plea agreement reducing the mandatory minimum sentence to ten years in
prison. Delacruz accused Toay of never providing this offer in writing, which Toay
denied. After the court allowed the parties time to discuss the offer, Delacruz rejected



                                          -9-
it and complained again that Toay refused to file motions. The court permitted
Delacruz to state these motions on the record and concluded none had merit.3

      Toay represented Delacruz at the three-day trial. Following his conviction,
Delacruz filed a disciplinary complaint against Toay, and the district court appointed
a new attorney, Jade Rosenfeldt, who helped Delacruz file a post-trial motion for a
new trial based on the court’s denial of his motions to substitute counsel. The district
court denied the motion, noting that the breakdown in communication between
Delacruz and Toay “was the direct result of Delacruz’s frustration when his appointed
counsel declined to pursue pointless motions and meritless legal theories. Delacruz
did not wish to believe that the information being provided by his counsel was true
and on that basis alone he refused to communicate with him.”

       Subsequent events confirmed the district court’s prediction that granting
substitute counsel would not solve the problem. Soon after the court appointed
Rosenfeldt as substitute post-trial counsel, Delacruz complained that Rosenfeldt was
unwilling to raise numerous issues. He later filed a disciplinary complaint against
her. We appointed Steven Morrison to represent Delacruz on appeal. Though he has
vigorously done so, Delacruz then attempted to file a pro se appellate brief,
complaining that Morrison refused to raise numerous issues to this court.

      “A motion for appointment of substitute counsel is committed to the district
court’s sound discretion.” United States v. Taylor, 652 F.3d 905, 908 (8th Cir. 2011).
To prevail, a defendant must show “justifiable dissatisfaction” with his attorney,
which “can arise from irreconcilable conflict, a complete breakdown in

      3
        First was a motion to challenge the use of hearsay evidence, which the court
stated it would address as raised during trial. Next was a motion to reduce charges
based on a lack of physical evidence, which the court stated was an issue for the jury.
Third was a motion to strike prior convictions -- a sentencing issue that the court said
was not ripe until there was an adjudication of guilt.

                                         -10-
communication, or any other factor interfering significantly with an attorney’s ability
to provide zealous representation.” Id. (quotation omitted). In deciding such a
motion, “the district court must balance several factors, including ‘the need to ensure
effective legal representation, the need to thwart abusive delay tactics, and the reality
that a person accused of crime is often genuinely unhappy with an appointed counsel
who is nonetheless doing a good job.’” United States v. Barrow, 287 F.3d 733, 738
(8th Cir.) (citation omitted), cert. denied, 537 U.S. 1024 (2002).

        The record clearly reveals that Delacruz’s unwillingness to communicate with
Toay before trial resulted from Delacruz’s refusal to move beyond a meritless
sentencing issue and prepare a trial defense. The district court repeatedly and
carefully considered Delacruz’s complaints and did not abuse its discretion in
denying the motions to substitute counsel. “The focus of the justifiable
dissatisfaction inquiry is the adequacy of counsel in the adversarial process, not the
accused’s relationship with his attorney.” Barrow, 287 F.3d at 738. Justifiable
dissatisfaction “does not include a defendant’s frustration with counsel who does not
share defendant’s tactical opinions but continues to provide zealous representation.”
Id. (citation omitted); see United States v. Trevino, 829 F.3d 668, 674 (8th Cir. 2016);
Taylor, 652 F.3d at 908. Where a lack of communication results from a defendant’s
refusal to speak with counsel, rather than counsel’s ineffectiveness, the defendant’s
stonewalling does not entitle him to new counsel. See Taylor, 652 F.3d at 909;
Barrow, 287 F.3d at 738. This is particularly true where granting the motion would
require a continuance or delay the trial. See Barrow, 287 F.3d at 738.

      The judgment of the district court is affirmed.
                     ______________________________




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