                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1286
                                   ___________

United States of America                *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Joshua Parks,                           *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: October 21, 2003

                                 Filed: April 14, 2004
                                  ___________

Before RILEY, BEAM, and SMITH, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       Joshua Parks was convicted by a jury of one count of conspiracy to distribute
and possession with the intent to distribute over fifty grams of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and three counts of aiding and abetting
a false statement in connection with a firearm purchase in violation of 18 U.S.C. §
922(a)(6). Parks disputes whether the jury had sufficient evidence to find a
conspiracy involving more than fifty grams, and whether there was sufficient
evidence presented to support the gun charges. Parks also challenges the district
court's1 denial of his motion for downward departure, pursuant to Sentencing
Guidelines § 5H1.1, § 5K2.0, and § 4A1.3. Finally, Parks questions the district court's
evidentiary ruling permitting the government's use of demonstrative aids during trial.
For the reasons set forth below, we affirm the judgment and sentence imposed by the
district court.

                                   I. Drug Conviction
       Parks first argues that the evidence was insufficient to support his conviction
for conspiracy with intent to distribute and possession of methamphetamine with
intent to distribute. He contends the evidence does not sufficiently establish that he
intended to distribute the methamphetamine. We disagree.

       In order to convict Parks of conspiracy to distribute, the government was
required to prove that (1) a conspiracy with an illegal purpose existed, (2) Parks knew
about the conspiracy, and (3) he knowingly became a part of the conspiracy. United
States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003). In reviewing whether
sufficient evidence was presented to support the charge, we consider the evidence "in
the light most favorable to the government, resolving evidentiary conflicts in favor
of the government, and accepting all reasonable inferences drawn from the evidence
that support the jury's verdict." United States v. Espino, 317 F.3d 788, 792 (8th Cir.
2003).

      Government witness Laura Tindall testified that she first met Parks in 2000,
while employed at a Kwik Shop located in Lincoln, Nebraska. At that time, Tindall
was using and selling methamphetamine. Tindall testified that Parks came to the
Kwik Shop and told her that he had something for her to try, which she later
determined to be a half gram of methamphetamine. She further testified that Parks


      1
        The Honorable Richard G. Kopf, Chief Judge, United States District Court
for the District of Nebraska.

                                         -2-
returned to the Kwik Shop a second time, and that they "started kinda doing business
together." She told the jury that Parks would provide her with samples of
methamphetamine for her own personal use, hoping that she would approve of the
drug's quality and sell it to other customers. She testified that Parks provided her with
methamphetamine samples fifteen to thirty times, and that each sample was
approximately one-half gram of methamphetamine.

       Tindall stated that Parks would frequently contact her to inquire whether she
needed any methamphetamine for resale, and that in the late fall of 2000 she began
to buy methamphetamine directly from Parks. Parks would come to her home, provide
her with a sample of methamphetamine to be purchased, and then would give her a
price for the methamphetamine. Tindall testified that she purchased "teeners" of
methamphetamine (1.75 grams) from Parks on approximately fifteen occasions. In
addition to the "teeners" purchased from Parks, she purchased additional amounts of
methamphetamine for resale in quantities ranging from one-eighth ounce to one-
quarter ounce.

       Beginning in the winter of 2000, and continuing through May 2001, Tindall
stated that she was purchasing a large enough quantity of methamphetamine from
Parks that he "fronted" her a resale supply. Tindall explained these drug fronts as a
procedure whereby Parks would provide her with methamphetamine, establish a
price, and then she would pay him after she sold the inventory. She stated that Parks
fronted her drugs for resale approximately fifteen times.

        Tindall also testified that she and Parks would "break down" the drugs. She
testified that the "breaking down" process entails separating the drugs–even the small
"teener" quantities–into smaller portions for resale. She further testified that on five
to six separate occasions Parks brought methamphetamine to her home and they
divided the drug into gram to half-gram quantities.



                                          -3-
       Tindall further testified that in early 2001 Parks brought four bags of
methamphetamine–wrapped in cellophane–to her home. She estimated these bags in
aggregate contained approximately four ounces of methamphetamine. Parks provided
Tindall with a half-gram "sample" and inquired if she could "get rid" of the remaining
methamphetamine for him. Tindall testified that because this particular
methamphetamine was not of sufficient quality for her customers–she needed
injection grade, not smoking grade–she was unable to accommodate his request.

       Another government witness, Leonard Woodrum, testified that he purchased
methamphetamine from Parks on two occasions. Woodrum purchased a quarter ounce
of methamphetamine from Parks in September of 2000. Approximately two weeks
later, Woodrum purchased another quarter ounce of methamphetamine from Parks.
Also, in October of 2000, Parks fronted one ounce of methamphetamine to Woodrum
for resale.2

       Benjamin Schwab also testified that, for approximately four to five months
(sometime after July 2000), he and Parks used and distributed methamphetamine.
During this time period, Schwab testified that he and Parks would use
methamphetamine approximately every other day. Schwab stated that on one
occasion–while traveling in Parks's vehicle–he observed at least one ounce of
methamphetamine secreted in a CD case. Also, Schwab testified that he observed
Parks "breaking down" an ounce of methamphetamine into "eight balls" (one-eighth
ounce quantities). Schwab acknowledged that he knew Parks was in the business of
selling methamphetamine and that in October of 2000 he accompanied Parks to York,
Nebraska, for the express purpose of acquiring a supply of methamphetamine.




      2
        Woodrum testified that he was unsuccessful in his attempt to resell this
quantity at the price that Parks designated, and the methamphetamine was ultimately
returned to Parks.

                                         -4-
Schwab testified that on this trip Parks received two ounces of methamphetamine
from Parks's supplier.

      Finally, LaTriesha Rogers testified that her roommate, Miranda Easton,
contacted Parks to acquire methamphetamine. In response to Easton's request, Parks
delivered an "eight ball" of methamphetamine to their residence.

       In our review, "the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319 (1979). Here, numerous witnesses testified that Parks sold and
distributed methamphetamine. The testimony also established that Parks provided
promotional amounts of the drug to encourage resale; that he often "fronted" drugs
for resale; and that he engaged in the "breaking down" process of the drug to facilitate
distribution for resale. The witnesses also detailed Parks's involvement in a
conspiracy involving a quantity of methamphetamine in excess of fifty grams.
Considering the evidence in the light most favorable to the verdict, we find that the
evidence was more than sufficient to support Parks's conviction on the challenged
count.

                               II. Gun Convictions
      Parks also challenges the sufficiency of the evidence to support the jury's
determination that–on three occasions–he aided and abetted a false statement in
connection with a firearm purchase. We are not persuaded by his argument.

       Tindall testified that in May of 2001, Parks approached her requesting that she
purchase a weapon for him using her handgun-purchase certificate. He indicated that
he would change ownership into his name at the police department after the purchase.
Tindall responded that she did not have the money to buy a handgun. Tindall stated
that Parks then agreed to supply the money for the handgun purchase. On May 20,

                                          -5-
2001, she and Parks entered Scheels Sporting Goods in Lincoln, Nebraska. Parks
selected a weapon and Tindall purchased the handgun and ammunition. At the time
of purchase, Tindall attested in writing that she was the actual purchaser of the
firearm. She testified at trial that–despite her declaration otherwise–Parks was the
actual purchaser of the firearm.3

       The following day, after Parks explained that he needed another gun, Tindall
and Parks went to the Arms & Ammo gun dealer and purchased two handguns with
funds supplied by Parks. She testified that after the purchase–and again, contrary to
her attestation that she was the actual purchaser–Parks took possession of both newly-
acquired firearms.

      On May 29, 2001, Tindall again purchased handguns on Parks's behalf. Parks
provided the money for the purchase of three additional handguns from the same
Arms & Ammo store. Again, Tindall indicated that she was the actual purchaser.

       In all, Parks and Tindall purchased six handguns in nine days. At the time of
these purchases, Parks was nineteen years of age, had not acquired a permit to
purchase a handgun pursuant to Nebraska law, and was ineligible to purchase or
possess a handgun. Parks, however, provided the funds for Tindall's purchase of the
handguns and took possession of the guns after Tindall completed each purchase.
Given Tindall's testimony, the jury's verdict rests on evidence that is more than
sufficient to support the gun-related convictions.




      3
        On appeal, Parks brings particular attention to the fact that at the time of the
gun purchases Tindall's–otherwise valid–Nebraska driver's license was expired.
While this fact may have assisted the jury in its ultimate determinations relating to
Tindall's credibility, it is of little relevance in our review of the sufficiency of the
evidence to support the gun charges.

                                          -6-
                              III. Downward Departure
       Parks next argues that the district court erred in its refusal to grant his motion
for a downward departure. Parks asserts that the Presentence Investigation Report
overstated his criminal history and that his case was outside the "heartland" of other
defendants. The district court was not persuaded and gave Parks a sentence within the
Guidelines range. According to the district court, Parks's criminal history was not
overstated, "either in terms of whether it accurately describes the true offense
behavior, or the likelihood of the predictive value of recidivism," and that Parks's
troubled youth was not "sufficiently extraordinary . . . to take it outside the
heartland."

       Parks asks us to reconsider the district court's refusal to depart downward in
light of the extraordinary circumstances of this case and asserts that we must review
the departure determination de novo. In response, the government asserts that we lack
jurisdiction to review the district court's discretionary refusal to depart downward.
Our holding in United States v. Henderson-Durand, 985 F.2d 970, 976 (8th Cir.),
cert. denied, 510 U.S. 856 (1993) is dispositive. In Henderson-Durand we held that
the discretionary refusal to depart downward is not reviewable under 18 U.S.C. §
3353. We review a denial of a downward departure only to determine whether the
district court properly applied the Sentencing Guidelines; we do not review its
determination that a departure was not warranted. Henderson-Durand, supra.

      It is clear from a reading of the district court's statement denying Parks's
downward-departure motion that the court recognized its authority to depart, and
simply chose not to. Thus, the valid sentence imposed by the district court is not
subject to our review.




                                          -7-
                               IV. Demonstrative Aids
              4
       Finally, Parks argues that the introduction of handguns similar to the ones that
he obtained–though not the actual ones–prejudiced him at trial. Consequently, he
argues, the district court abused its discretion in admitting the demonstrative
evidence. During the course of the trial, the government offered numerous firearms
into evidence for demonstrative purposes. The government sought to show the jury
the types of weapons that Parks allegedly purchased through Tindall. The government
argued that these replica weapons would assist the jury in its evaluation of the
pending gun charges. The district court permitted the use of the demonstrative aids
but gave a limiting instruction to the jury. The district court told the jury that these
weapons were admitted for demonstrative purposes only "so you get a sense of what
the guns looked like, what type of gun it was." The guns did not go to the jury room
during deliberations. The district court further instructed the jury that the handguns
were not the actual guns that were purchased.

       We review the district court's determinations concerning admissibility of
evidence for abuse of discretion. United States v. Kehoe, 310 F.3d 579, 590 (8th Cir.
2002). In balancing the prejudicial effect and probative value, great deference is
given to the district judge's determination. United States v. Allee, 299 F.3d 996, 1002
(8th Cir. 2002). We have previously approved the use of replica evidence, more
specifically guns, for demonstrative purposes. See United States v. McIntosh, 23 F.3d
1454, 1456 (8th Cir. 1994); see also, Flores v. State of Minnesota, 906 F.2d 1300,
1304 (8th Cir.), cert. denied, 498 U.S. 945 (1990). Courts in our sister circuits have
also frequently approved of the admission of replica evidence, more specifically guns,



      4
        Parks makes a passing argument that the district court erred in admitting
Parks's statement to Special Agent Leadingham. However, the statement was made
by a party opponent and offered against the party. The statement is admissible under
Rule 801(d)(2)(A) of the Federal Rules of Evidence. Accordingly, the district court
did not abuse its discretion in admitting Parks's statement.

                                          -8-
for demonstrative purposes. United States v. Aldaco, 201 F.3d 979, 986 (7th Cir.
2000); United States v. Russell, 971 F.2d 1098, 1105 (4th Cir. 1992); United States
v. Ferreira, 821 F.2d 1, 6 (1st Cir. 1987); Banning v. United States, 130 F.2d 330,
335–36 (6th Cir. 1942).

       Here, the potential prejudice–jury confusion over whether the guns displayed
in court were the actual guns at issue–was adequately addressed by the district court's
prohibition on the use of the weapons during deliberations and the accompanying
cautionary instructions. Because the use of replica evidence for demonstrative
purposes is a widely-accepted practice, and because the court took steps to minimize
potential prejudice to Parks, we find no abuse of discretion in allowing the use of
replica handguns in this case.

      For the foregoing reasons, we affirm the decision of the district court in all
respects.
                      ______________________________




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