                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 97-3197
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the District
Jerry D. Jensen,                        * of Nebraska.
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 13, 1998
                                 Filed: April 2, 1998
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit
      Judges.
                          ___________

BRIGHT, Circuit Judge.


       Jerry Jensen appeals the judgment of conviction on one count of conspiracy to
distribute amphetamine and his sentence of 150 months. Jensen contends that
insufficient evidence exists to support his conspiracy conviction. Jensen also argues
that because the government failed to specifically prove the existence of a conspiracy
between Jensen and Todd Milbourn, the district court erred in admitting into evidence
tape-recorded conversations of Milbourn planning a drug sale to an undercover police
informant. With respect to his 150-month sentence, Jensen asserts that the district
court erred in imposing a two-point enhancement for possession of a firearm, and by
denying his request for a downward departure because of his deteriorating health.
Because sufficient evidence in the record does not support Jensen’s conviction for
conspiracy to distribute amphetamine, we reverse.1

I.    BACKGROUND

       On August 6, 1996, the Lincoln Police Department arrested Todd Milbourn
when Milbourn attempted to sell three grams of amphetamine (“crank”) to James
Monlyn, an undercover police informant. Milbourn identified appellant Jensen as his
source for crank. Following the arrest of Milbourn, officers of the Lincoln/Lancaster
County Narcotics Unit arrested Jensen. Subsequent searches of Jensen’s residence and
vehicles produced substantial amounts of amphetamine and money, drug paraphernalia,
an address book, a pager, and a .22 caliber revolver with a holster and ammunition.

       At Jensen’s trial, the government relied upon the testimony of several of Jensen’s
alleged co-conspirators to establish the existence of a conspiracy. The alleged co-
conspirators, including Milbourn, James Phipps, Michael Ernst, Melayne Danekas, and
Paula Waldren, all testified on behalf of the government pursuant to plea agreements.
Milbourn met Jensen about three years before the trial of this case through a mutual
friend, Chris Muggy. Milbourn testified that he obtained crank from Jensen about three
times per week, a half-gram to two grams at a time. Milbourn stated that Muggy had
a similar pattern of purchasing crank. According to Milbourn, he and Muggy often
used crank together and shared drugs with each other. Milbourn admitted that he had
a “pretty bad” drug habit during the three years prior to his August 6th arrest.




      1
       In light of our ruling that sufficient evidence does not support Jensen’s
conviction, we need not reach other issues raised by Jensen in this appeal.

                                          -2-
      Milbourn only identified one person, Monlyn (the police informant), as someone
to whom Milbourn sold drugs that were originally obtained from Jensen. Otherwise,
Milbourn’s testimony only indicates that he and Muggy personally used the drugs
purchased from Jensen. The record shows that Milbourn sold Monlyn crank on three
separate occasions in July and August of 1996, totaling approximately four grams.
Milbourn testified that on the day of his arrest, Monlyn drove Milbourn to Jensen's
home, where Monlyn waited outside and down the street while Milbourn went into
Jensen’s home to purchase the crank. Milbourn testified that after he made his
purchase, he went into Jensen’s bathroom and closed the door. Milbourn then took
some of the crank out and replaced it with Fruit Fresh2 so that he could keep some
crank for himself without Monlyn’s knowledge. On this occasion, and on previous
occasions, Milbourn witnessed other individuals purchasing crank from Jensen. On
previous occasions, Milbourn also witnessed Jensen in possession of a large amount
of money and drugs, and a handgun.

       At trial, the government introduced several tapes of phone conversations and in-
person conversations between Monlyn and Milbourn in which the two men planned
Milbourn’s three sales of crank to Monlyn. The district court allowed these tapes to
go to the jury over Jensen’s hearsay objections because the district court determined
that the taped conversations constituted admissions of Jensen’s co-conspirator,
Milbourn.

        James Phipps met Jensen through a mutual acquaintance, Larry Wilson. Phipps
testified that he advanced, or fronted, one-half gram ($50.00 sale price) of crank to
Jensen. Phipps asserted that mere users of drugs usually did not purchase drugs in this
manner. Phipps also testified that Jensen had been present on several occasions when
Phipps fronted crank to Larry Wilson and on occasions when Phipps collected money


      2
       Testimony at trial established that Fruit Fresh, a brand name for a food
preservative, serves as a substance for diluting some types of drugs, including crank.

                                          -3-
from Wilson. Although Phipps did not have any personal knowledge of Wilson’s
relationship with Jensen, Phipps “believed” that Jensen helped Wilson distribute drugs.
However, Phipps acknowledged that Wilson never actually told him that Wilson had
any persons selling drugs for him.

       Michael Ernst met Jensen through Ernst’s girlfriend, Julie Burt. Ernst testified
that he received approximately one-fourth to one-half gram of crank from Jensen. Ernst
further testified that he sold approximately one and one-half ounces of crank to Jensen.
With respect to Burt, Ernst’s girlfriend, Ernst stated that although he did not see any
transactions between Burt and Jensen, Ernst believed that Burt sold drugs to Jensen.
Ernst, however, did not provide any details of Burt’s alleged sales to Jensen, including
the amount of drugs involved.

        Melayne Danekas met Jensen through her friend, Shelly Fetty. Danekas testified
that she sporadically used and sold crank for about ten years. Danekas estimated that
she purchased crank from Jensen on approximately five occasions. On one occasion,
Danekas stated that she overheard a discussion between Fetty and Jensen relating to
a trip Fetty and Jensen took to Grand Island in order to obtain drugs. Danekas stated
that Fetty appeared angry at Jensen because Jensen had left Fetty in Grand Island.
According to Danekas, Jensen left Fetty in Grand Island because the two had not
obtained any drugs and Jensen wanted Fetty to remain in Grand Island to continue
looking for drugs. Danekas also testified that she witnessed numerous other people
buying crank from Jensen.

       Paula Waldren, Jensen’s girlfriend, testified that she witnessed many people in
their home buying drugs. Waldren testified that she made Jensen keep his drugs in a
locked box because of their small child. Waldren also stated that the gun that police
found in their search belonged to Jensen’s father and that Jensen kept it as collateral
for a loan of money that Jensen made to his father.


                                          -4-
         The jury returned a guilty verdict on one count of conspiracy to distribute
amphetamine. At the sentencing hearing, Jensen moved the district court for a
downward departure under § 5K2.0 and § 5H1.4 of the Sentencing Guidelines based
upon the diagnosis that Jensen has a serious health condition. The district court denied
Jensen’s motion for downward departure, stating that “[t]he evidence is insufficient
. . . to conclude that a downward departure is justified.” The district court determined
that Jensen had a criminal history category of VI and an offense level of 26, which
included a two-point enhancement under § 2D1.1(b)(1) of the Sentencing Guidelines
based upon discovery of a .22 caliber handgun at Jensen’s home. The district court
sentenced Jensen to 150 months imprisonment.

II.   DISCUSSION

        Jensen argues that insufficient evidence exists in the record to support his
conviction for conspiracy to distribute amphetamine. In reviewing a challenge to the
sufficiency of the evidence, we may reverse a jury’s verdict only where a reasonable
fact-finder must have harbored reasonable doubt relating to the government’s proof on
at least one of the essential elements of the offense. United States v. McCracken, 110
F.3d 535, 540 (8th Cir. 1997). In applying this standard, we allow the jury’s verdict
the benefit of all reasonable inferences from the record. Id.

        In a conspiracy prosecution, the government must prove beyond a reasonable
doubt: (1) the existence of an agreement to achieve some illegal purpose; (2) “that the
defendant knew of the agreement[;]” and (3) “the defendant knowingly became a part
of the conspiracy.” United States v. Ivey, 915 F.2d 380, 383-84 (8th Cir. 1990)
(citation omitted). In the present case, we conclude that while the government’s case
may establish a series of small quantity, buyer/seller transactions, the record does not
establish that Jensen participated in any conspiracy to distribute amphetamine.




                                          -5-
       This court has previously ruled that “a mere sales agreement [between a buyer
and seller] with respect to contraband does not constitute a conspiracy . . . .” United
States v. West, 15 F.3d 119, 121 (8th Cir. 1994) (citing United States v. Prieskorn, 658
F.2d 631, 633 (8th Cir. 1981)). As stated, several of Jensen’s alleged co-conspirators,
including Milbourn, Phipps, Ernst, Danekas, and Waldren, testified on behalf of the
government pursuant to plea agreements. The government asserts that Milbourn’s
testimony established a drug distribution conspiracy between Milbourn and Jensen.
However, the record reflects that Milbourn testified primarily about his purchases of
crank from Jensen for Milbourn’s personal use. Milbourn’s testimony does not indicate
that Milbourn resold the amphetamine as a distribution scheme.3 Milbourn’s testimony
reflects that his only resale of crank obtained from Jensen consisted of his sale to
Monlyn, the government informant, as part of a setup. However, the record lacks any
evidence that Jensen knew of or agreed with Milbourn’s plan to resell the crank to
Monlyn. Moreover, Milbourn’s testimony indicates that on August 6, Milbourn kept
secret his intentions to resell the crank by making Monlyn wait outside and down the
street from Jensen’s home. In addition, Milbourn went into Jensen’s bathroom and
closed the door to conceal his exchange of Fruit Fresh for some of the crank so that he
could personally use some of the crank before selling it to Monlyn. Without any
suggestion from Milbourn that Jensen knew of and agreed with Milbourn’s plan to
resell the crank obtained from Jensen, Milbourn’s testimony does not support a
conclusion that Jensen and Milbourn participated together in a conspiracy to distribute
amphetamine. See West, 15 F.3d at 121.




      3
        Milbourn testified that he purchased between one-half and two grams of crank
about three time a week, depending on how much money Milbourn had at the time. We
do not consider this quantity alone as necessitating a conclusion that Milbourn resold
the drugs in light of Milbourn’s acknowledgment that he had a serious drug problem
during this time period. Furthermore, nothing in Milbourn’s testimony indicates that
Jensen would have known about or assented to Milbourn’s reselling of the drugs.

                                          -6-
       Next, the government asserts that Phipps’ testimony established a conspiracy
between Phipps and Jensen to distribute amphetamine. The record reflects that Phipps
fronted one-half gram of crank to Jensen on only one occasion. Phipps testified that
he “believed” that Jensen would resell the one-half gram of crank, because mere buyers
did not usually purchase crank on a front basis. However, Phipps stated that he had no
actual knowledge of whether Jensen resold or personally used the one-half ounce of
crank. In addition, Phipps testified that he believed Jensen assisted Wilson in
distributing drugs because Phipps occasionally saw Jensen with Wilson when Phipps
collected money from Wilson. Phipps admitted, however, that he had no personal
knowledge to support this belief. In fact, Phipps testified that Wilson never informed
him that anyone assisted him in his drug distribution. Accordingly, we conclude that
Phipps’ testimony does not establish that Jensen participated in a conspiracy to
distribute amphetamine. See Ivey, 915 F.2d at 384 (“Evidence of association or
acquaintance, though relevant, is not enough by itself to establish a conspiracy.”)
(citations omitted); United States v. Hernandez, 986 F.2d 234, 236 (8th Cir. 1993)
(“Mere presence at the location of the crime alone, even when coupled with knowledge
of that crime, is not sufficient to establish guilt on a conspiracy charge.”) (citation
omitted).

       With respect to Melayne Danekas, we note that Danekas testified that she
overheard Jensen and Shelly Fetty discussing a trip to Grand Island to purchase drugs.
Danekas, however, did not testify that Jensen and Fetty actually obtained drugs. In
fact, according to Fetty, Jensen left Fetty at Grand Island because they could not
purchase drugs. The remaining portion of Danekas’ testimony related to Jensen selling
crank to various individuals. We conclude that this testimony amounts to nothing more
than evidence of mere buyer/seller exchanges, which does not establish the existence
of a conspiracy. See West, 15 F.3d at 121.

      Finally, after reviewing Paula Waldren’s testimony, we conclude that Waldren’s
testimony does not indicate that Jensen participated in any conspiracy to distribute

                                         -7-
drugs. Waldren obviously knew Jensen sold drugs to others because Jensen carried on
most of his sales in their home. However, at no point during Waldren’s testimony does
she describe any situation that would suggest that Jensen conspired with anyone else
to distribute amphetamine.

III.   CONCLUSION

      In any conspiracy charge, the government possesses the burden of proving
beyond a reasonable doubt that the defendant knowingly agreed to become part of a
conspiracy to achieve an illegal purpose. While the evidence establishes that Jensen
sold significant amounts of drugs to numerous individuals, the government did not
charge him with any substantive offense. The government only charged Jensen with
conspiracy to distribute amphetamine, which the government did not prove in this case.
Accordingly, we reverse the district court’s judgment of conviction.

RICHARD S. ARNOLD, Chief Judge, dissenting.

       I agree with much of what the Court says. Most of the government's evidence
at this trial showed only buyer-seller relationships. The testimony of Melayne
Danekas, however, seems to me to support a reasonable inference that Jensen was a
party to a conspiracy to distribute methamphetamine. This testimony is summarized
in the Court's opinion, ante at 4. I believe the jury could reasonably infer from this
evidence that Jensen and Fetty agreed to go to Grand Island to buy drugs for resale.
This would be sufficient evidence to support a conviction.




                                         -8-
A true copy.

      Attest:

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




                              -9-
