                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT


           ___________

           No. 96-2309
           ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
Reynaldo Quesada Morales,             *
                                      *
           Appellant.                 *

           ___________
                                           Appeals from the United States
           No. 96-2351                     District Court for the
           ___________                     Eastern District of Missouri.

United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
Juan Felix Toca,                      *
                                      *
           Appellant.                 *


                                  ___________

                    Submitted:    January 16, 1997

                         Filed:   May 6, 1997
                                  ___________

Before WOLLMAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
                               ___________
WOLLMAN, Circuit Judge.


     Reynaldo   Quesada     Morales   and   Juan   Felix   Toca   appeal       their
                                                                           1
convictions and resulting sentences imposed by the district court.              The
jury convicted both men of conspiracy to distribute marijuana in violation
of 21 U.S.C. § 846.    Toca was also convicted of possession of heroin with
intent to distribute in violation of 21 U.S.C. § 841 (a)(1).         Both argue
that the evidence adduced at trial proved two conspiracies rather than a
single overall conspiracy and that the district court erred in computing
the amount of marijuana to establish their base offense levels.2                 We
affirm.


                                      I.


     On January 11, 1995, the United States Postal Inspection Service in
Chicago, Illinois, intercepted a package sent from a fictitious address in
San Diego, California.    The package was addressed to Felix Toca at Ricardo
Atanay’s address.     A federal search warrant was obtained and the package
was found to contain 2232.10 grams of marijuana contained in freezer bags
wrapped in plastic and contact-type paper.    A controlled delivery was made
to Atanay, who signed for the package with the name “Felix Toca.”




     1
      The Honorable Catherine D. Perry, United States District
Judge for the Eastern District of Missouri.
     2
      In his opening brief, Quesada Morales argued that the
district court erred in not granting his motion to dismiss based on
double jeopardy. Appellant concedes in his reply brief that this
claim is foreclosed by the Supreme Court’s decision in United
States v. Ursery, 116 S. Ct. 2135 (1996).

     Toca has alleged on appeal that his right to a speedy trial
was violated.    Toca waived this claim by failing to move for
dismissal prior to trial. See United States v. Kime, 99 F.3d 870,
881 (8th Cir.), cert. denied, 117 S. Ct. 1015 (1997).

                                      -2-
Upon their departure from Atanay’s residence, Toca and Atanay were taken
into custody, and Toca was later released.


     In addition to the transaction in Chicago, evidence was presented to
show that a package of marijuana was sent through the mail to Eliseo Duenas
in St. Louis, Missouri, sometime in early May of 1995.     Duenas testified
that he met Quesada Morales in February or March of 1995 and that in April
or May of that year Quesada Morales asked Duenas if he was interested in
making some money by accepting delivery of a package.      Duenas testified
that they later discussed whether Duenas would also be interested in
selling marijuana.   Duenas accepted delivery of the package and gave it to
Quesada Morales that same day.     This package was never recovered by the
authorities.


     Duenas testified that Quesada Morales asked him to accept delivery
of a second package that would be sent by Quesada Morales’ cousin “Pipi”
(later identified as Toca).   Duenas agreed, and on May 10, 1995, an express
mail package was sent from a fictitious address in San Diego to Duenas in
St. Louis.    The package was intercepted by postal inspectors in St. Louis.
After obtaining a search warrant, the inspectors found that the package
contained 6162.57 grams of marijuana.   A beeper was placed in the package,
and on May 11, 1995, a controlled delivery was made to the address on the
package.    Duenas signed for the package and carried it into the residence.
About a half an hour later, Quesada Morales, Toca, and Keisha Donaby
arrived at Duenas’s residence, and within minutes of their arrival the
beeper     indicated that the package had been opened.       Pursuant to a
previously obtained search warrant, St. Louis police entered the residence
and found the just-delivered package, along with two balls of black tar
heroin, scales, and some additional marijuana.




                                     -3-
     Quesada Morales, Toca, and Duenas were arrested and subsequently
indicted by a grand jury for conspiracy to distribute marijuana.                    A
superseding indictment charged Toca and Duenas with possession of heroin
with intent to distribute.       Duenas pled guilty to both charges.         At their
joint trial, Quesada Morales and Toca were convicted of engaging in a
single    overall   conspiracy    based   upon   the    above-described     marijuana
deliveries.


     The district court calculated Quesada Morales’ and Toca’s base
offense    levels   and   resultant    sentences       based   on   all   three   drug
transactions, which the court concluded amounted to a total of 12,531.50
grams of marijuana -- 6162.57 grams from the St. Louis seizure, 2232.10
grams from the Chicago seizure, and 4136.83 grams from the unrecovered
package.    The court determined from the two seized packages of marijuana
that the weight of the marijuana comprised fifty-seven percent of the total
weight of each of the packages.            Using this figure, the court then
estimated that the weight of the marijuana contained in the unrecovered
package would be approximately 4136.83 grams.          Based upon Quesada Morales’
offense level of eighteen and criminal history category of six, the
district court sentenced him to sixty months’ imprisonment.                Based upon
Toca’s offense level of twenty-four and a criminal history category of
four, the district court sentenced him to ninety-six months’ imprisonment.



                                          II.


     Quesada Morales and Toca both appeal their convictions on a single
overall conspiracy, contending that the evidence at trial proved the
existence of two separate conspiracies.          Whether the government’s proof
established a single conspiracy or multiple conspiracies is a question of
fact for the jury.     See United States




                                          -4-
v. Jenkins, 78 F.3d 1283, 1288 (8th Cir. 1996).    “‘A single conspiracy is
composed of individuals sharing common purposes or objectives under one
general agreement.’”   United States v. Maza, 93 F.3d 1390, 1398 (8th Cir.)
(quoting United States v. Davis, 882 F.2d 1334, 1342 (8th Cir. 1989)),
cert. denied, 117 S. Ct. 1008 (1997).       If the jury finds “one overall
agreement to commit an illegal act, the evidence establishes a single
conspiracy.”   United States v. Regan, 940 F.2d 1134, 1135 (8th Cir. 1991).
An overall agreement can be inferred when “the participants shared a common
aim or purpose and mutual dependence and assistance existed.”     Id.


     A variance results where a single conspiracy is charged but the
evidence at trial shows multiple conspiracies.   See United States v. Jones,
880 F.2d 55, 66 (8th Cir. 1989) (citing Kotteakos v. United States, 328
U.S. 750, 755-56 (1946)).    In determining whether a variance exists, we
consider the totality of the circumstances, including the nature of the
activities, the location and time frame in which the activities were
performed, and the participants involved.    See United States v. McCarthy,
97 F.3d 1562, 1571 (8th Cir.), cert. denied, 117 S. Ct. 1011, and cert.
denied, 117 S.Ct. 1284 (1997).
     Even after viewing the evidence in the light most favorable to the
verdict, we conclude that the jury could not have reasonably found a single
conspiracy.    Rather, based upon the totality of the circumstances, we
conclude that two separate conspiracies existed.    Although the activities
in both Chicago and in St. Louis involved the distribution of marijuana,
the operations took place in two wholly separate locations, were separated
by more than four months, and had but one common participant, Toca.


     The evidence shows that there was an agreement between Toca and
Atanay to distribute marijuana in the Chicago area and an




                                    -5-
agreement among Toca, Quesada Morales, and Duenas to distribute marijuana
in the St. Louis area.    What the evidence did not show was that these two
agreements were connected in any way.       No evidence was presented to show
that Quesada Morales or Duenas joined, assisted, or even knew of the
Chicago    agreement, or that Atanay joined, assisted, or knew of the
operation in St. Louis.


     The    government   attempts    to   associate   the   two   agreements    by
maintaining that both transactions had a common participant, Toca, and that
they both involved the distribution of marijuana.      However, “an overlap in
personnel [does] not prove one overall agreement.”            United States v.
Rosnow, 977 F.2d. 399, 406 (8th Cir. 1992) (citations omitted).        Moreover,
the fact that both transactions involved agreements to mail and distribute
marijuana, that both operations were apparently headed by Toca, and that
some of the participants of each operation knew each other, is not enough
to prove a single conspiracy.       See id. (similar acts by similar people,
assistance by some of the same people, and knowledge of some of the
participants not enough to show a common purpose or objective).          We find
that the record is devoid of any evidence that “the participants shared a
common aim or purpose and mutual dependence and assistance existed,” and
we therefore conclude that a variance existed between the indictment and
the proof offered at trial.


     The existence of a variance does not, however, mandate reversal.          Id.
Rather, we must reverse only when a “spillover” of evidence from one
conspiracy to another has prejudiced a defendant’s substantial rights.         See
United States v. Jones, 880 F.2d at 66.          Quesada Morales argues that
evidence introduced at trial prejudiced him in that there was substantial
inflammatory testimony unrelated to him which the jury imputed to him
through




                                      -6-
the instructions on co-conspirator’s acts and statements.              We do not agree.


        The government presented no evidence that purported to connect
Quesada Morales to the Chicago transaction.             Indeed, the government never
brought up Quesada Morales’ name during its presentation of the evidence
relating to the Chicago transaction.          In addition, both defendants elicited
testimony that Quesada Morales’ name appeared nowhere on the mailing
receipts, that there was no indication that the packages were sent at his
direction, and that he was not present during the controlled delivery in
Chicago.     Furthermore, this was not a complex case, nor were the events
leading up to the indictments complicated or confusing, for the case
involved    only     four     participants,      two   defendants,    and   three     drug
transactions.       See Jones, 880 F.2d at 66 (“this case did not involve so
many coconspirators and conspiracies that a jury could not be expected to
give separate and individual consideration to the evidence against each
defendant”).        Compare Rosnow, 977 F.2d at 408 (“due to the number of
defendants, the complexity of the issues, the failure of the court to give
a limiting instruction, and the lack of overwhelming evidence of guilt,”
the variance substantially prejudiced the defendants).


        Moreover,    at     different   points    during   the   presentation    of    the
government’s       case   defense   counsel      requested   and     received   limiting
instructions directing the jury to consider certain testimony only against
Toca.    The court also gave the following instruction to the jury:


        You should understand that      merely being present at the scene of
        an event, or merely acting      in the same way as others or merely
        associating with others,        does not prove that a person has
        joined in an agreement or       understanding. A person who has no
        knowledge of a




                                           -7-
     conspiracy but who happens to act in a way which advances some
     purpose of one, does not thereby become a member.


The court further instructed that “[p]roof of separate or independent
conspiracies is not sufficient.”       These instructions lend additional
support to our conclusion that the variance did not prejudice Quesada
Morales.   See United States v. Rosnow, 977 F.2d at 407 (in determining
whether there was prejudicial spillover, the adequacy of the trial court’s
instructions are an important factor) (citations omitted).


     Toca makes a similar argument, asserting that “the introduction of
the numerous, unrelated transactions was so confusing that the jury could
not separate them from the charged transactions.”    We cannot see how Toca
could have been prejudiced by the variance, for he admits not only the
existence of both of the conspiracies, but also his participation in both.
Because the evidence shows, and Toca admits, that he was a member of both
conspiracies, “‘the danger of prejudice from [spillover] is minimal, if not
non-existent.’” Jones, 880 F.2d at 66 (there was no prejudicial spillover
because “whether the facts show one or two conspiracies is here immaterial,
for even if there were two conspiracies the evidence clearly shows that
[the defendant] participated in both”)(quoting United States v. Scott, 511
F.2d 15, 20 (8th Cir. 1975)).


                                    III.


     Both Quesada Morales and Toca challenge the district court’s method
for calculating the amount of marijuana contained in the unrecovered
package.   As previously explained, the district court used the figures from
the two seized packages of marijuana to estimate the amount contained in
the unrecovered package.    The




                                    -8-
court determined that the net weight of marijuana contained in the seized
packages was fifty-seven percent of the packages’ total weight.    The court
used the same percentage to determine the net weight of the unrecovered
package.   We review this method and the determination of drug quantity for
clear error.   See, e.g., United States v. Pugh, 25 F.3d 669, 677 (8th Cir.
1994); United States v. Brown, 19 F.3d 1246, 1248 (8th Cir. 1994) (per
curiam).


       The Sentencing Guidelines provide that unrecovered drug quantities
can be estimated from similar known transactions.    See U.S.S.G. § 2D1.1,
comment. (n. 12) (“When there is no drug seizure . . ., the court shall
approximate the quantity of the controlled substance.       In making this
determination, the court may consider . . . similar transactions in
controlled substances by the defendant . . . .”); see United States v.
Byler, 98 F.3d 391, 395 (8th Cir. 1996); United States v. Pugh, 25 F.3d at
677.   We conclude that the district court’s methodology was a reasonable
way to estimate the drug quantity of the unrecovered package and that its
finding was not clearly erroneous.3


       The judgments are affirmed.
       A true copy.


            Attest:


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




       3
      Because Quesada Morales’ offense level would have been the
same had the district court not included the marijuana seized from
the Chicago transaction in calculating the drug quantity, any error
in including that marijuana in the quantity determination was
harmless.

                                     -9-
