                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-3345
                       ___________________________

                            United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                  Steven B. Davis

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                     Appeal from United States District Court
                for the Southern District of Iowa - Council Bluffs
                                 ____________

                             Submitted: April 7, 2017
                              Filed: August 15, 2017
                                  ____________

Before SMITH, Chief Judge, SHEPHERD, Circuit Judge, and FENNER, District
Judge.1
                              ____________

SMITH, Chief Judge.




      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, sitting by designation.
      Steven Davis was convicted of conspiracy to distribute methamphetamine.
Davis appeals, arguing that the district court2 erred in denying his motion to suppress,
motions in limine, motion for mistrial, motion for judgment of acquittal, and proposed
buyer–seller instruction. For the reasons below, we affirm.

                                    I. Background
       In June 2014, the Iowa Division of Narcotics Enforcement (DNE) began
investigating Randy Heinrichs for selling methamphetamine. On August 26, 2014, an
undercover DNE agent arranged to purchase methamphetamine from Heinrichs on
August 28, 2014. When the undercover agent met with Heinrichs, Heinrichs was
arrested, and the DNE searched his residence. The DNE recovered four ounces of
methamphetamine.


       In a post-Miranda3 interview, Heinrichs identified his source of supply as
“Steve.” Heinrichs described Steve’s approximate age, hair color, telephone number,
and two vehicles: a white panel van and a red Dodge pickup. Heinrichs told the DNE
that he had been purchasing methamphetamine from Steve for approximately one
year—beginning with one ounce every two to three weeks and increasing to two
ounces every one to one and one-half weeks. Heinrichs admitted that at the time of
his last purchase, on August 27, 2014, he purchased four ounces of methamphetamine
for $1,600 per ounce. The purchase occurred at a gas station on the northwest corner
of the intersection of 96th Street and F Street in Omaha, Nebraska.




      2
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
      3
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -2-
      The Drug Enforcement Administration (DEA) traced the phone number that
Heinrichs identified to Steven B. Davis at 4936 South 95th Avenue in Omaha,
Nebraska. The DEA closely watched the residence on September 12 and 15, 2014,
and observed a white panel van and a red Dodge pickup matching those that
Heinrichs described. On September 22, 2014, DEA agents found methamphetamine
residue and mail addressed to Davis in the trash outside the residence.


       Based on this information, DEA Special Agent James Wahle obtained a
warrant to search the residence on September 24, 2014. In his affidavit and
application in support of the search warrant, Special Agent Wahle detailed
Heinrichs’s post-Miranda statements; the method and results of tracing the telephone
number that Heinrichs said belonged to Davis; the proximity of the residence to the
gas station that Heinrichs described as the most recent point of sale (less than one
mile away); the observation of a white panel van and a red Dodge pickup at the
residence, matching the vehicles that Heinrichs described; the methamphetamine
residue and mail addressed to Davis found in the trash outside the residence; and
Davis’s prior convictions related to the possession and distribution of
methamphetamine.


       On October 3, 2014, Special Agent Wahle amended his affidavit in support of
the search warrant. In the amended affidavit, Special Agent Wahle noted that
Nebraska parole officers spot-checked Carrie Long, a parolee and Davis’s roommate,
on September 29, 2014. During the spot check, officers seized .9 grams of
methamphetamine from Long’s bedroom. Special Agent Whale stated that Long told
the parole officers that “DAVIS and some of his associates possessed and used illegal
drugs in the white work van . . . belong[ing] to DAVIS.”




                                         -3-
      On October 9, 2014, DEA agents executed the search warrant and arrested
Davis. During the search, agents recovered approximately one ounce of
methamphetamine; two digital scales; $12,970 in cash ($200 of which was serialized
money used to purchase methamphetamine from Heinrichs); drug paraphernalia;
packaging materials; and a cell phone with a phone number matching the number that
Heinrichs reported to be Davis’s.


        Davis was indicted on one count of conspiracy to distribute methamphetamine.
The district court granted Davis pretrial release, but it required Davis to wear a GPS
ankle bracelet. The court set a preliminary hearing for November 5, 2015. On the
morning of the hearing, Davis removed his ankle bracelet and absconded. Davis was
apprehended 11 days later in Indiana. He was returned to Iowa and detained pending
trial. Ultimately, a jury convicted Davis of conspiracy to distribute methamphetamine,
and Davis was sentenced to 180 months’ imprisonment.


                                    II. Discussion
      On appeal, Davis argues that the district court erred in denying his motion to
suppress, motions in limine, motion for mistrial, motion for judgment of acquittal, and
proposed buyer–seller instruction. We address each challenge in turn.

                               A. Motion to Suppress
      Before trial, Davis moved to suppress the evidence seized from his residence.
Davis argued that the search warrant lacked sufficient probable cause and that its
information was fatally stale.

      The district court found that the warrant was supported by probable cause
because




                                          -4-
      [i]t was based on the August 2014 statements of Mr. Heinrichs
      indicating that he had purchased methamphetamine from the defendant
      for approximately one year. It reported that he had purchased substantial
      quantities from the defendant. The defendant’s criminal history
      supported Mr. Heinrichs’[s] information about the defendant being a
      drug dealer. The trash pull which revealed a baggie containing
      methamphetamine residue also corroborated Heinrichs’[s] statements.
      It also suggested that some drug activity was taking place recently at the
      residence. Then the amended affidavit provided evidence of the seizure
      of methamphetamine from the residence and Ms. Long’s statements
      about the defendant’s drug activity at the residence.

       The court determined that the information in the warrant was not stale because
the amended affidavit described multiple acts that “demonstrate[] a reasonable belief
that drug activity was recently associated with the residence and had been ongoing
for some[]time.” The court concluded by noting that “[i]n the unlikely event that a
court were to find that probable cause did not support the issuance of th[e] warrant,
the good[-]faith exception to the exclusionary rule in Leon[5] would obviously apply.”

      On appeal, Davis argues that no information in the search warrant connected
Davis’s drug-related activities to the residence,6 and that the information contained
in the warrant was stale because too much time elapsed between Heinrichs’s
statements and the execution of the warrant. Further, Davis asserts that the good-faith
exception does not apply because Special Agent Wahle had “no information linking




      5
          United States v. Leon, 468 U.S. 897 (1984).
      6
        Davis contends that the evidence established that all of Davis’s drug-related
activities occurred at other locations. Davis concedes that it would have been
reasonable for officers to believe that contraband may be found in his van, which was
parked outside of the residence, and that “[a] search warrant limited in scope to the
van would have been appropriate.”

                                          -5-
[Davis’s] alleged drug distribution to the residence” and was “aware of specific
information that excluded Davis from selling drugs from the residence.”

                                   1. Probable Cause
        “We review the district court’s factual determinations in support of its denial
of a motion to suppress for clear error and its legal conclusions de novo.” United
States v. Johnson, 848 F.3d 872, 876 (8th Cir. 2017) (quoting United States v.
Johnson, 601 F.3d 869, 872 (8th Cir. 2010)). “Whether probable cause to issue a
search warrant has been established is determined by considering the totality of the
circumstances, and resolution of the question by an issuing judge should be paid great
deference by reviewing courts.” United States v. Brackett, 846 F.3d 987, 992 (8th
Cir.), cert. denied, 137 S. Ct. 2177 (2017) (internal quotation marks omitted) (quoting
United States v. Brewer, 588 F.3d 1165, 1170 (8th Cir. 2009)). “We will not disturb
a court’s finding of probable cause ‘unless there was no substantial basis for that
finding.’” Id. (quoting United States v. Montgomery, 527 F.3d 682, 686 (8th Cir.
2008)).

       “We assess probable cause from the viewpoint of a reasonably prudent police
officer acting in the circumstances of the particular case.” United States v. Seidel, 677
F.3d 334, 337 (8th Cir. 2012) (per curiam) (quoting United States v. Reinholz, 245
F.3d 765, 776 (8th Cir. 2001)). “A supporting affidavit establishes probable cause to
issue a search warrant if it ‘sets forth sufficient facts to establish that there is a fair
probability that contraband or evidence of criminal activity will be found in the
particular place to be searched.’” Brackett, 846 F.3d at 992 (quoting United States v.
Snyder, 511 F.3d 813, 817 (8th Cir. 2008)). “The determination of whether or not
probable cause exists to issue a search warrant is to be based upon a common-sense
reading of the entire affidavit.” Seidel, 677 F.3d at 338 (quoting United States v.
Sumpter, 669 F.2d 1215, 1218 (8th Cir. 1982)).




                                           -6-
        We conclude that the search warrant application supports a finding of probable
cause. The affidavits in support of the warrant detailed Heinrichs’s post-Miranda
statements; the method and results of tracing the telephone number that Heinrichs
said belonged to Davis; the close proximity of the residence to the gas station that
Heinrichs described; the observation of a white panel van and a red Dodge pickup at
the residence (matching the vehicles that Heinrichs described); the methamphetamine
residue and mail addressed to Davis found in the trash outside the residence; Davis’s
prior methamphetamine-related convictions; the September 29, 2014 spot check that
recovered methamphetamine in Long’s bedroom; and Long’s statements about
Davis’s drug-related activities. Considering the totality of the circumstances, the
affidavits and application in support of the search warrant contain sufficient facts to
establish a fair probability that evidence of criminal activity would be found in
Davis’s residence. See Seidel, 677 F.3d at 338 (“Many of our cases recognize that the
recovery of drugs or drug paraphernalia from the garbage contributes significantly to
establishing probable cause.” (quoting United States v. Briscoe, 317 F.3d 906, 908
(8th Cir. 2003))); Reinholz, 245 F.3d at 776–77 (finding sufficient facts to support
probable cause of finding illegal drugs in home when affidavit established that the
trash outside the home contained methamphetamine residue and documents
connecting the defendant to the home); see also United States v. Koons, 300 F.3d
985, 990 (8th Cir. 2002) (“An informant’s tip is sufficient to support probable cause
if the totality of the circumstances shows that it is reliable.”).

                                     2. Staleness
       “A warrant becomes stale if the information supporting the warrant is not
sufficiently close in time to the issuance of the warrant and the subsequent search
conducted so that probable cause can be said to exist as of the time of the search.”
Johnson, 848 F.3d at 877 (internal quotation marks omitted) (quoting United States
v. Colbert, 828 F.3d 718, 727 (8th Cir. 2016)). “We have no fixed formula for
deciding when information has become stale, but we consider the nature of the crime
being investigated and the property to be searched.” United States v. Nieman, 520

                                         -7-
F.3d 834, 839 (8th Cir. 2008) (internal quotation marks omitted) (quoting United
States v. Stevens, 439 F.3d 983, 988 (8th Cir. 2006)). “In investigations of ongoing
narcotic operations, intervals of weeks or months between the last described act and
the application for a warrant [does] not necessarily make the information stale.”
United States v. Smith, 266 F.3d 902, 905 (8th Cir. 2001) (alteration in original)
(internal quotation marks omitted) (quoting United States v. Formaro, 152 F.3d 768,
771 (8th Cir. 1998)). “A ‘lapse of time is least important when the suspected criminal
activity is continuing in nature and when the property is not likely to be destroyed or
dissipated.’” Johnson, 848 F.3d at 877 (quoting United States v. Lemon, 590 F.3d
612, 614 (8th Cir. 2010)).

       As detailed in the warrant application, the officers had reason to believe that
Davis had continually sold methamphetamine for over a year. The warrant application
also detailed multiple instances of confirmed drug-related activity at the residence
between August 27, 2014, and September 29, 2014. The warrant issued on October
3, 2014, and the search occurred on October 9, 2014. Because the underlying criminal
activity was continuing in nature, probable cause did not dissipate during the ten-day
period between the last identified drug-related activity and execution of the warrant.
Thus, the information contained in the warrant was not fatally stale. See Colbert, 828
F.3d at 727 (concluding the information used to establish probable cause was not
stale because the affidavit established the existence of an ongoing drug conspiracy).7

                               B. Motions in Limine
      Davis also filed pretrial motions in limine to exclude evidence of his prior
felony drug convictions and evidence of his “flight” from the jurisdiction on
November 5, 2015. The court denied Davis’s motions in limine. The court determined


      7
        Because we conclude that the warrant was supported by probable cause and
that the information contained within the warrant was not fatally stale, we need not
address Davis’s good-faith arguments.

                                         -8-
that the probative value of the prior convictions was not outweighed by potential
undue prejudice, stating:

      I have considered the appropriateness of this evidence as non-propensity
      evidence under [Federal Rule of Evidence] 404(b). I’ve also considered
      a [Federal Rule of Evidence] 403 analysis as to whether or not the
      probative value is substantially outweighed by undue prejudice, and I
      find that it is not outweighed by undue prejudice.

              The court will allow the evidence of these two prior convictions
      in for the purposes proffered by the government; knowledge, intent, and
      absence of mistake.

And the court found that the evidence of Davis’s flight was “probative of
consciousness of guilt, . . . and it is not unduly prejudicial.”

      On appeal, Davis argues that the district court should have excluded evidence
of his prior felony convictions because the convictions are not relevant to any
material issue in this case and are too remote in time. Further, Davis argues that the
evidence of his flight could not imply consciousness of his guilt because the flight
occurred over a year after his arrest and is irrelevant to whether Davis formed an
agreement to distribute methamphetamine.

                               1. Rule 404(b) Evidence
       “We review for abuse of discretion rulings admitting Rule 404(b) evidence and
will reverse only when such evidence clearly had no bearing on the issues in the case
and was introduced solely to prove the defendant’s propensity to commit criminal
acts.” United States v. Benitez, 531 F.3d 711, 716 (8th Cir. 2008). “Rule 404(b) is a
rule of inclusion, and, as such, if ‘evidence [is] offered for permissible purposes [it]
is presumed admissible absent a contrary determination.’” United States v. Horton,
756 F.3d 569, 579 (8th Cir. 2014) (alterations in original) (quoting United States v.
Johnson, 439 F.3d 947, 952 (8th Cir. 2006)). Evidence is admissible under Rule

                                          -9-
404(b) if it is “(1) relevant to a material issue; (2) similar in kind and not overly
remote in time to the crime charged; (3) supported by sufficient evidence; and (4)
higher in probative value than prejudicial effect.” United States v. Walker, 470 F.3d
1271, 1274 (8th Cir. 2006) (quoting United States v. Strong, 415 F.3d 902, 905 (8th
Cir. 2005)).

       Beginning with the first 404(b) consideration, Davis’s prior convictions are
relevant to the material issue of Davis’s state of mind. “It is settled in this circuit that
a prior conviction for distributing drugs, and even the possession of user-quantities
of a controlled substance, are relevant under Rule 404(b) to show knowledge and
intent to commit a current charge of conspiracy to distribute drugs.” Horton, 756 F.3d
at 579 (internal quotation marks omitted) (quoting United States v. Robinson, 639
F.3d 489, 494 (8th Cir. 2011)). Thus, Davis’s prior drug convictions “for simple
possession of [methamphetamine] w[ere] material and relevant to prove both his
knowledge of drugs and his intent to commit drug offenses.” United States v.
Ruiz–Estrada, 312 F.3d 398, 403 (8th Cir. 2002).

      As to the second 404(b) consideration that Davis raises, the prior convictions
are similar in kind and close in time to the charged conspiracy to distribute
methamphetamine. Davis’s prior drug convictions involve possession of
methamphetamine and were “eight years old at the time of trial, a length of time we
have found sufficiently close on several occasions.” Horton, 756 F.3d at 580.8




       8
        See also United States v. Gaddy, 532 F.3d 783, 789 (8th Cir. 2008) (holding
prior convictions of “four, ten and eleven years old” were “not so remote as to be
inadmissible”); United States v. McCarthy, 97 F.3d 1562, 1573 (8th Cir. 1996)
(17 years before trial); United States v. Holmes, 822 F.2d 802, 804 n.3 (8th Cir. 1987)
(over 12 years); United States v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981) (13
years).
                                           -10-
Accordingly, we conclude that the district court did not err in admitting evidence of
Davis’s prior drug convictions.6

                                   2. Evidence of Flight
       “It is ‘well established’ that evidence of flight ‘is admissible and has probative
value as circumstantial evidence of consciousness of guilt . . . .’” United States v.
Thompson, 690 F.3d 977, 991 (8th Cir. 2012) (quoting United States v. Hankins, 931
F.2d 1256, 1261 (8th Cir. 1991)). It is “universally conceded” that evidence “of an
accused’s flight, escape from custody, resistance to arrest, concealment, assumption
of a false name, and related conduct, are admissible as evidence of consciousness of
guilt, and thus of guilt itself.” Id. (emphasis omitted) (quoting Hankins, 931 F.2d at
1261). To determine if evidence of flight is circumstantial evidence of guilt, the court
must evaluate

      the degree of confidence with which four inferences can be drawn:
      (1) from the defendant’s behavior to flight; (2) from flight to
      consciousness of guilt; (3) from consciousness of guilt to consciousness
      of guilt concerning the crime charged; and (4) from consciousness of
      guilt concerning the crime charged to actual guilt of the crime charged.

Id. (quoting Hankins, 931 F.2d at 1261).

       In this case, the district court determined that the evidence of Davis’s flight “is
probative of consciousness of guilt, . . . and it is not unduly prejudicial.” Given the
evidence in this case, this determination was not an abuse its discretion. Davis fled
on the morning of a mandatory hearing. Thus, one can confidently infer that his flight
was related to the conspiracy charge. “Before his [flight], [Davis] had been made fully
aware of the charges against him. Thus, ‘there is a sufficient basis in the evidence to


      6
       Because Davis does not appear to raise the third or fourth 404(b)
considerations, we decline to address them.
                                          -11-
warrant the inference that the flight was prompted by considerations related to the
issue in question.’” Hankins, 931 F.2d at 1262 (internal quotation marks omitted)
(quoting United States v. Roy, 843 F.2d 305, 310 (8th Cir. 1988)).

                               C. Motion for Mistrial
      During trial, Special Agent Wahle testified to the events leading up to and
following Davis’s arrest. On redirect examination, Special Agent Wahle testified that
Davis gave a post-Miranda statement about the source of his methamphetamine
supply.

      Q:     Now, do you have any information in the DEA’s investigation as
             to who Steven Davis was obtaining methamphetamine from?

      A.     Mr. Davis indicated to us who his—where his source of supply
             lived after we arrested him. The investigation didn’t progress past
             that because Mr. Davis withdrew his cooperation.

      The court dismissed the jury from the courtroom. In the jury’s absence, Davis
objected to the statement as nonresponsive and moved for a mistrial, arguing that the
testimony was not previously disclosed, in violation of Federal Rule of Criminal
Procedure 16, and constituted an unfair surprise that was substantially prejudicial.
Defense counsel argued that the statement implied “that at one point in time [Davis]
[wa]s negotiating with law enforcement and [wa]s cooperating with law enforcement
basically acknowledg[ing] that he was involved in some conspiracy to distribute
methamphetamine, but then withdrew that cooperation.”

       After extensive argument and voir dire of Special Agent Wahle, the court held
that the statement’s potential prejudice did not taint the jury or otherwise warrant a
mistrial. The court noted, “Here we have a nonresponsive answer that includes two
parts. The first is that Mr. Davis indicated where his source of supply lived and [the
second is] that he withdrew his cooperation.” As to the first part, the court pointed out

                                          -12-
that Davis’s defense “has not been that he didn’t know about any type of drugs.”
Thus, the court held, “[t]he context of this case . . . makes that statement not
particularly prejudicial, particularly in light of the fact that the jury, without that
statement, could infer clearly from the evidence presented in this case thus far and
unobjected to by the defense that there had to have been a source.” As to the second
part, the court determined that the use of the term “cooperation” was “not so
prejudicial to require a mistrial” because it “does not necessarily implicate plea
negotiations or a bargain or any type of arrangement” between Davis and the
authorities.

       The court offered to give a curative instruction. However, Davis declined the
offer, believing that such an instruction “merely highlights or draws more attention
to the statement than perhaps would otherwise be given.”

      THE COURT:          Mr. Conway [(Davis’s counsel)], that is what I heard
                          you say is that you are specifically not asking for a
                          curative instruction.

      MR. CONWAY: That is correct; but for the record, I want to be clear
                  the reason why I am not is because I think that that
                  curative instruction ruling sort of highlights already
                  what is a damaging piece of testimony.

      THE COURT:          You clearly are not waiving your challenge to the
                          fact that I have denied the mistrial Motion?

      MR. CONWAY: Yes.

      THE COURT:          But in terms of the manner in which we are
                          proceeding, we are proceeding in the manner in
                          which you are requesting, that is, no curative
                          instruction and striking the record—striking the
                          answer as nonresponsive.


                                         -13-
       Thus, the court ultimately struck the question as nonresponsive without issuing
a curative instruction.

       On appeal, Davis argues that the unexpected testimony concerning his post-
Miranda statements severely prejudiced his defense. Davis argues that the statements
directly undercut his defense that he was merely engaged in a buyer–seller
relationship and unaware of a larger conspiracy. Further, Davis maintains that “[a]
curative jury instruction asking the jury to disregard the statements would have been
fruitless and merely served to highlight [Davis’s] past cooperation. Aside from
[Davis’s] own testimony at trial, there was no effective antidote to [Special Agent]
Wahle’s poisoning of the jury.”

       We review a district court’s denial of a motion for new trial for abuse of
discretion. United States v. Wallette, 686 F.3d 476, 482 (8th Cir. 2012). Federal Rule
of Criminal Procedure 16 requires the government, upon the defendant’s request, to
“disclose to the defendant the substance of any relevant oral statement made by the
defendant, before or after arrest, in response to interrogation by a person the
defendant knew was a government agent if the government intends to use the
statement at trial.” Fed. R. Crim. P. 16(a)(1)(A). “Failure to comply with Fed. R.
Crim. P. 16(a)(1)(A) or a pretrial disclosure agreement is not grounds for reversal
unless it prejudiced the substantial rights of the defendant.” United States v. Bledsoe,
674 F.2d 647, 670 (8th Cir. 1982). Any prejudice arising from a Rule 16 violation is
normally remedied by a curative instruction. See, e.g., United States v. Big Eagle, 702
F.3d 1125, 1132 (8th Cir. 2013) (noting that a curative instruction is generally
sufficient to remedy prejudice from improperly admitted evidence); United States v.
Beltran–Arce, 415 F.3d 949, 953–54 (8th Cir. 2005) (“As we have oft stated, ‘less
drastic measures such as a cautionary instruction are generally sufficient to alleviate
prejudice flowing from improper testimony.’” (quoting United States v. Davidson,
122 F.3d 531, 538 (8th Cir. 1997))). “Whether a curative instruction is sufficient must



                                         -14-
be evaluated in the context of the entire trial, including the strength of the
government’s evidence.” United States v. Encee, 256 F.3d 852, 854 (8th Cir. 2001).

       Davis intentionally and voluntarily rejected the court’s suggested curative
instruction, which could have remedied much of any prejudice resulting from Special
Agent Wahle’s testimony. Davis thus effectively “waived his right to appeal the
denial of his motion for a mistrial as to any prejudice that would have been cured by
such an instruction.” United States v. Petrovic, 701 F.3d 849, 857 (8th Cir. 2012).
“Where such an instruction is given or waived, we ‘will affirm a conviction where
there was substantial evidence of guilt.’” Big Eagle, 702 F.3d at 1132 (quoting United
States v. Diaz–Pellegaud, 666 F.3d 492, 503 (8th Cir. 2012)).

       “To the extent any prejudice from [Special Agent Wahle’s] testimony would
not have been remedied by a curative instruction, any error by the district court in
failing to grant a mistrial was harmless because the jury was presented with
‘substantial evidence of [Davis’s] guilt.’” See Petrovic, 701 F.3d at 857 (internal
quotation marks omitted) (quoting United States v. Weaver, 554 F.3d 718, 724 (8th
Cir. 2009)). Davis’s trial lasted three days, and nine witnesses testified. The
government introduced into evidence numerous exhibits, including phone records
showing dozens of calls between Davis and Heinrichs, and images of the
methamphetamine, scales, packaging materials, and cash recovered during the search
of Davis’s residence. The jury also had Long’s testimony confirming Davis’s drug
sales. Substantial evidence supports Davis’s guilt. Therefore, any error in declining
to grant a mistrial based on Wahle’s statements was harmless. See id.

                         D. Motion for Judgment of Acquittal
       At the close of the government’s case, Davis moved for judgment of acquittal,
arguing that there was insufficient evidence to support a conviction. Davis noted that
the testimony of two witnesses contained numerous contradictions and no direct
evidence proved that he was dealing the quantity of drugs alleged. The district court

                                        -15-
denied the motion, finding “there’s sufficient evidence for submission to the jury.
There is sufficient evidence for a jury to weigh and determine the credibility of the
witnesses for all of the elements of the single count charged in terms of the crime of
conspiracy to distribute methamphetamine.” On appeal, Davis argues that the only
evidence that he sold large quantities of drugs to Heinrichs comes from Heinrichs, a
highly unreliable and inconsistent witness.

       We review the sufficiency of the evidence de novo and view the “evidence in
the light most favorable to the verdict, giving it the benefit of all reasonable
inferences.” United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir. 2007).

      “We reverse only if no reasonable jury could find the defendant[] guilty
      beyond a reasonable doubt.” We do not weigh the evidence or the
      credibility of the witnesses. Rather “the jury has sole responsibility for
      resolving conflicts or contradictions in testimony, and we must resolve
      credibility issues in favor of the verdict.”

Id. (citations omitted) (quoting United States v. Spears, 454 F.3d 830, 832 (8th Cir.
2006)); see also United States v. Jefferson, 725 F.3d 829, 834 (8th Cir. 2013) (“We
have repeatedly upheld jury verdicts based solely on the testimony of co-conspirators
and cooperating witnesses . . . .” (quoting United States v. Coleman, 525 F.3d 665,
666 (8th Cir. 2008))).

       To establish a conspiracy to distribute a controlled substance, “the government
must prove (1) that there was a conspiracy, i.e., an agreement to distribute the drugs;
(2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally
joined the conspiracy.” United States v. Taylor, 813 F.3d 1139, 1146–47 (8th Cir.
2016) (quoting United States v. Conway, 754 F.3d 580, 587 (8th Cir. 2014)). An
agreement to join a conspiracy to distribute a controlled substance “need not be
explicit and can be inferred from the facts of the case.” United States v. Davis, 826
F.3d 1078, 1081 (8th Cir. 2016). A jury can reasonably infer knowledge of a

                                         -16-
conspiracy based on sales of large quantities of drugs beyond that intended for
individual use. See United States v. Mendoza–Gonzalez, 363 F.3d 788, 796 (8th Cir.
2004). Large drug quantities, rather than personal-use amounts, also support an
inference that the defendant knew that he participated in a conspiracy, which can be
“shown through evidence of an ongoing relationship the purpose of which is buying
and selling drugs.” United States v. Moya, 690 F.3d 944, 949 (8th Cir. 2012).

       Davis’s main argument is that Heinrichs’s testimony was unreliable because
he was an inconsistent witness that was cooperating with law enforcement. However,
credibility determinations are left to the jury. Jefferson, 725 F.3d at 834. Also, as
mentioned above, the government presented nine witnesses and numerous exhibits
supporting Davis’s guilt. “If we view the evidence in the light most favorable to the
verdict, as we must, we conclude that a ‘rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,’ notwithstanding [Davis’s]
objections to the unsavory character of some of the witnesses.” United States v.
Coplen, 533 F.3d 929, 931 (8th Cir. 2008) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). Thus, the district court did not err in denying Davis’s motion for
acquittal.

                       E. Proposed Buyer–Seller Instruction
       As a theory of defense, Davis argued that his relationship with Heinrichs was
merely a buyer–seller relationship. Davis proposed a buyer–seller instruction, which
stated:

             A conspiracy requires more than just a buyer-seller relationship
      between the defendant and another person. In addition, a buyer and
      seller of methamphetamine do not enter into a conspiracy to distribute
      methamphetamine simply because the buyer resells the
      methamphetamine to others, even if the seller knows that the buyer
      intends to resell the methamphetamine.



                                        -17-
              To establish that a seller knowingly became a member of a
       conspiracy with a buyer to distribute methamphetamine, the government
       must prove that the buyer and seller had the joint criminal objective of
       distributing methamphetamine to others.

Davis acknowledged that under Eighth Circuit precedent, a buyer–seller instruction
is inappropriate when there is evidence of multiple sales of controlled substances in
resale quantities. However, Davis urged the district court to adopt the buyer–seller
instruction that other circuits employ. The district court declined, stating that it “is
bound by the binding precedent in this circuit regardless of what other circuits have
determined.”

       We review the district court’s jury instructions for an abuse of discretion.
Lincoln Composites, Inc. v. Firetrace USA, LLC, 825 F.3d 453, 461 (8th Cir. 2016).
“Our review is limited to determining ‘whether the instructions, taken as a whole and
viewed in the light of the evidence and applicable law, fairly and accurately submitted
the issues to the jury.’ We will not reverse a jury verdict unless an erroneous
instruction affects a party’s substantial rights.” Id. (citation omitted) (quoting Slidell,
Inc. v. Millennium Inorganic Chems., Inc., 460 F.3d 1047, 1054 (8th Cir. 2006)).

       On appeal, Davis argues that the district court erred in rejecting his proposed
buyer–seller instruction and urges this court to adopt the reasoning of our sister
circuits regarding the applicability of the buyer–seller instruction when there is
evidence of multiple transactions. “This we cannot and will not do.” United States v.
Wyatt, 853 F.3d 454, 459 (8th Cir. 2017). “It is a cardinal rule in our circuit that one
panel is bound by the decision of a prior panel.” Id. (quoting Owsley v. Luebbers, 281
F.3d 687, 690 (8th Cir. 2002)). “While proof of a conspiracy requires evidence of
more than simply a buyer–seller relationship, we have limited buyer–seller
relationship cases to those involving ‘only evidence of a single transient sales
agreement and small amounts of drugs consistent with personal use.’” United States
v. Trotter, 837 F.3d 864, 867–68 (8th Cir. 2016), cert. denied, 137 S. Ct. 1125 (2017)

                                           -18-
(quoting United States v. Boykin, 794 F.3d 939, 948–49 (8th Cir. 2015)). Eighth
Circuit law is clear: “[E]vidence of multiple sales of resale quantities of drugs is
sufficient in and of itself to make a submissible case of a conspiracy to distribute.”
Conway, 754 F.3d at 588 (alteration in original) (internal quotation marks omitted)
(quoting United States v. Slagg, 657 F.3d 832, 842 (8th Cir. 2011)); see also United
States v. Morales, 813 F.3d 1058, 1068 (8th Cir. 2016) (“It is a cardinal rule in our
circuit that one panel is bound by the decision of a prior panel.” (quoting Mader v.
United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc))). When a case involves
multiple sales of controlled substances and quantities that are greater than that for
personal use, a buyer–seller instruction is not appropriate. Conway, 754 F.3d at 592.

       Because the evidence establishes that Davis sold resale quantities of
methamphetamine over an extended period of time, the district court did not abuse
its discretion in rejecting the proposed buyer–seller instruction.


                                   III. Conclusion
      Accordingly, we affirm the judgment of the district court.

                       ______________________________




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