                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                    No. 08-2170
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Harlan Garcia,                           *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: December 11, 2008
                                 Filed: April 15, 2009
                                  ___________

Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG,1 Judge.
                          ___________

SHEPHERD, Circuit Judge.

       Harlan Garcia was convicted by a jury of conspiracy to distribute 500 grams or
more of methamphetamine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and
distribution of 50 grams or more of methamphetamine, see 21 U.S.C. § 841(a)(1),
(b)(1)(B). Garcia appeals his convictions, contending that the district court erred in
denying his motion for disclosure of portions of the Presentence Investigation Reports
(“PSRs”) of government witnesses, instructing the jury, and denying his motion for
judgment of acquittal. We conclude that the district court’s failure to review the PSRs

      1
       The Honorable Richard W. Goldberg, United States Court of International
Trade, sitting by designation.
of government witnesses requires remand of Garcia’s convictions to determine
whether those PSRs contained any material exculpatory or impeachment information
and, if they do, whether failure to provide it was harmless error. We otherwise affirm.

                                            I.

       “We state the facts in the light most favorable to the jury verdict.” United States
v. Garth, 540 F.3d 766, 769 (8th Cir. 2008). In 2002 and 2003, Harlan Garcia sold
methamphetamine in what he describes as “[s]mall quantities, very small.
Eightballs.”2 (Trial Tr. 190.) Garcia was the regular source of supply for a number
of lesser dealers, including Michelle Lucero. Frequently, Garcia would supply Lucero
with methamphetamine and then he and Lucero would use together. Lucero tended
to buy an eighth of an ounce of methamphetamine from Garcia one to two times a
week.

      In 2003, Garcia also provided methamphetamine to Colleen Loris, who later
became his girlfriend.3 At first, Loris did not actively participate in Garcia’s
methamphetamine sales. However, Loris observed Garcia selling methamphetamine
in quantities of up to one ounce. Loris also assisted Garcia in small ways and became
familiar with Garcia’s regular customers.

      In the middle or end of 2003, Loris took over Garcia’s methamphetamine sales.
Loris stated, “I wouldn’t say he wasn’t capable [of running the organization]; he
wasn’t running it and I was.” (Id. at 163.) Loris believed that Garcia had insufficient

      2
       “An ‘8-ball’ refers to one-eighth of an ounce, or 3.5 grams, of
methamphetamine.” United States v. Becker, 534 F.3d 952, 954 n.4 (8th Cir. 2008)
(quotation omitted).
      3
       Loris and Garcia were married on July 12, 2006; at that time, Loris was in
custody following her arrest for conspiracy to distribute methamphetamine in June
2006.

                                           -2-
funds to run the business because he had lost some money in Las Vegas. Essentially,
Garcia and Loris underwent a role reversal such that Loris was actually dealing the
methamphetamine while Garcia was present. Loris would share methamphetamine
with Garcia. Lucero indicated that Garcia “was no longer able to supply what was
needed; he wasn’t answering phone calls; [he was] pretty much out of the business.”
(Id. at 20.) At that time, Loris was selling to Lucero in quantities of up to an ounce
or more on a frequent basis, as often as every other day.

      In the spring of 2004, Zacchari Muncy, who had friends who were purchasing
methamphetamine from Loris, began purchasing directly from Loris. Initially, Muncy
purchased quarter-ounces or half-ounces of methamphetamine. It was not unusual for
Muncy to use methamphetamine with Loris or for Garcia to join them. Muncy
described Garcia as Loris’s “enforcer” or “intimidator.” Whether Garcia was around
depended on the status of his relationship with Loris.

       In December 2004, Loris asked Muncy to travel from Denver, Colorado, to
Rapid City, South Dakota, to deliver a pound of methamphetamine and collect the
money. Muncy knew the purchasers as “Dave” and “Vicki.” When Muncy returned
from this first trip, he gave the money to Loris with Garcia present. In the summer of
2005, Muncy made an additional trip to South Dakota on Loris’s behalf; this time
Garcia accompanied Muncy. Muncy observed Dave and Vicki give Garcia an
envelope of money. Muncy also saw Garcia give a plastic bag containing
methamphetamine to Dave. After returning from at least one of these trips, Muncy
recalls Garcia counting out the money after Muncy delivered it to Loris.

      Muncy also delivered methamphetamine for Loris to Jeff McMahan in Rapid
City. In the course of his contact with McMahan, Muncy became aware that




                                         -3-
McMahan was angry because the drugs he had received were “wet.”4 Muncy recalls
seeing a text message on McMahan’s phone, which he understood to have come from
Garcia, blaming Muncy for the fact that the methamphetamine had been watered
down. When asked why he believed the text message actually came from Garcia and
that Loris had not simply used Garcia’s phone to send it, Muncy answered that
“[Garcia] would be the one that would do that. He would usually be the one that was
calling to cover the tracks, you know, to intimidate me, or to get me to say something,
like, I had watered it down, or the intimidation process, basically.” (Id. at 107.)

       McMahan confirmed that he received text messages that he believed came from
Garcia. Although McMahan did not recall the specific text message concerning wet
methamphetamine about which Muncy testified, McMahan did discuss the wet
methamphetamine with Garcia, and Garcia blamed Muncy. The conversation took
place in late September or early October 2005, when McMahan met with Loris and
Garcia in Edgemont, South Dakota. This meeting was McMahan’s first face-to-face
encounter with Loris or Garcia. At the meeting, McMahan agreed to loan Loris and
Garcia $20,000 in cash. In exchange, Loris agreed to discount the price of the drugs
she was selling to McMahan. Up to that point, McMahan had been paying $12,000
for a pound of methamphetamine. Loris suggested that she would cut the price to
$10,000 per pound, and Garcia interjected that the price was too low. McMahan
suggested that he pay $11,000 per pound. After the deal was reached, Garcia counted
the cash from McMahan.




      4
        According to the government’s brief, “[s]ince methamphetamine is a
crystalline substance sold by weight, adding water or other liquid to it will artificially
increase the weight. By the time the substance is used, the water has often been
evaporated, leaving a lesser weight than the purchaser expected.” (Appellee’s Br. 5
n.2.)

                                           -4-
       On October 18, 2006, a federal grand jury indicted Garcia in a four-count
indictment.5 Count I alleged conspiracy to distribute 500 grams or more of a mixture
containing a detectable amount of methamphetamine pursuant to 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 846. Counts II and IV both alleged distribution of 50 grams
or more of a mixture containing a detectable amount of methamphetamine pursuant
to 21 U.S.C. § 841(a)(1), (b)(1)(B). Count II involved distribution in Rapid City,
South Dakota, in February 2005, while count IV addressed distribution in Rapid City
in June and July 2005. Lucero, Muncy, Loris, and McMahan were all also prosecuted
in federal court in the District of South Dakota for their offenses.

       Garcia proceeded to trial. The government’s case consisted of the testimony
of cooperating witnesses Lucero, Muncy, and McMahan. During the course of trial,
count II was dismissed on the motion of the government. The case was submitted to
the jury on the remaining counts I and IV. The jury returned a guilty verdict on both
counts. Garcia moved for a judgment of acquittal or a new trial, arguing that the
government’s evidence was insufficient to sustain a conviction on either count. The
district court denied his motion. The district court sentenced Garcia to 135 months
of imprisonment.

                                         II.

                                         A.

       Garcia contends that the district court erred in failing to conduct in camera
review of the PSRs of cooperating government witnesses, Muncy and McMahan.
Prior to trial, Garcia filed a Motion for Access to the PSRs of Muncy and McMahan,




      5
       Count III only named Lucero and, thus, is not at issue in this appeal.

                                         -5-
citing Brady v. Maryland, 373 U.S. 83 (1963), 6 and Giglio v. United States, 405 U.S.
150 (1972).7 The government responded:

      [M]ost of these reports are not discoverable to the defense. . . . The
      portion dealing with each defendant’s criminal history is . . . potentially
      discoverable as impeachment evidence. The United States would,
      therefore, request that the Court conduct an in camera review of the pre-
      sentence reports and order disclosure of those portions, if any, that the
      Court believes is discoverable.

(Gov’t Mem. in Opp’n to Def.’s Mot. for Access to Sentencing & Related Documents
1-2.) The district court, citing United States v. Shyres, 898 F.2d 647 (8th Cir. 1990),
concluded that “the government is under no obligation to produce the presentence
reports sought by defendant.” The record does not indicate that the district court
conducted in camera review of the PSRs prior to issuing its ruling. We review the
district court’s ruling for abuse of discretion. United States v. DeVore, 839 F.2d
1330, 1332 (8th Cir. 1988).

      In Shyres, the “appellants moved for production of [a government witness’s]
statements to his probation officer contained in his presentence report” for the purpose


      6
       “Under Brady, the government must disclose any evidence both ‘favorable to
an accused’ and ‘material either to guilt or to punishment.’” United States v.
Whitehill, 532 F.3d 746, 753 (8th Cir.), cert. denied, 129 S. Ct. 610 (2008) (quoting
Brady, 373 U.S. at 87) (emphasis added).
      7
        “Under Giglio v. United States, 405 U.S. 150, 153-55 (1972), the government
must disclose matters that affect the credibility of prosecution witnesses.” United
States v. Morton, 412 F.3d 901, 906 (8th Cir. 2005). “[F]or example, a defendant is
entitled to know of a promise to drop charges against a key witness if that witness
testifies for the government.” Id. However, the nondisclosure of Giglio evidence
only justifies a retrial if the withheld information is deemed material. United States
v. Spinelli, 551 F.3d 159, 164 (2d Cir. 2008).


                                          -6-
of “impeaching his credibility . . . ,” and “the district court[] fail[ed] to order
production of the report.” 989 F.2d at 656. Recognizing that PSRs “are not public
and should not be disclosed to third persons absent a demonstration that disclosure is
required to meet the ends of justice,” the court “made an in camera review of [the
witness’s] presentence report” and determined that “nondisclosure of the report did
not violate any of appellants’ rights.” Id. (quotation omitted).

       Prior to Shyres, this court decided Devore. There, the magistrate judge denied
the defendant’s motion to discover the PSR of McPherson, an individual with whom
the defendant had originally been indicted and who had pled guilty to the robbery
charge at issue. Devore, 839 F.2d at 1332. “[T]he district court reviewed the [PSR]
in camera and ordered that DeVore could discover that portion of the report
containing McPherson’s version of the robbery.” Id. On appeal, this court reviewed
the PSR at issue and found that “the district court did not fail to turn over any
exculpatory evidence or impeachment material.” Id. The Devore Court explained that
“[t]he district court’s order stated that it had reviewed the [PSR] in camera and would
reveal to DeVore that portion of it that ‘in fairness’ should be made available to him.
More was not required.” Id. at 1333.

       Shyres and Devore demonstrate that where, as here, the defendant has sought
access to a coconspirator’s PSR, the government has recognized the possibility that
the PSR contains Brady/Giglio information and requested in camera review, and the
district court fails to carry out such review, the district court abuses its discretion.
Thus, the district court’s failure to conduct in camera review of Muncy’s and
McMahan’s PSRs was an abuse of discretion.

        We therefore remand Garcia’s convictions but do not reverse them. See United
States v. Spinelli, 551 F.3d 159, 164 (2d Cir. 2008) (“Under Brady and Giglio, the
government’s failure to disclose favorable information will result in an order of retrial
if the undisclosed information is ‘material,’ within the exacting standard of materiality

                                          -7-
established by the governing case law.”). On remand, we instruct the district court to
review Muncy’s and McMahan’s PSRs in camera and determine whether they contain
any Brady/Giglio information that satisfies the materiality standard.

      [U]ndisclosed [Brady/Giglio] information is deemed material so as to
      justify a retrial only “if there is a reasonable probability that, had [it]
      been disclosed to the defense, the result of the proceeding would have
      been different.” A reasonable probability of a different result is shown
      when the government’s failure to disclose “undermines confidence in the
      outcome of the trial.”

Id. at 164-65 (quoting Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)); see United
States v. Quintanilla, 25 F.3d 694, 698 (8th Cir. 1994). Accordingly, the district court
should only vacate Garcia’s convictions and order a new trial if it concludes that
undisclosed Brady/Giglio information qualifies as material. See Kyles, 514 U.S. at
421-22 (“Because the net effect of the evidence withheld by the State in this case
raises a reasonable probability that its disclosure would have produced a different
result, [the defendant] is entitled to a new trial.”). The PSRs, filed under seal if
necessary, should be made a part of the record to allow for review of the district
court’s conclusions.

                                           B.

       Garcia next alleges that the district court committed several errors in instructing
the jury. We address each in turn.

                                           1.

       First, Garcia contends the district court plainly erred by misreading jury
instruction 18 addressing how jurors are to view sentence reductions received by
cooperating witnesses in assessing their credibility. As this claim was not “preserved


                                           -8-
for review by objection below, . . . we apply a plain error standard . . . .” JCB, Inc. v.
Union Planters Bank, NA, 539 F.3d 862, 878 (8th Cir. 2008). Under plain error
review, the defendant “must show that the court committed an error that was plain,
that affected his substantial rights, and that seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v. Davis, 538 F.3d 914, 917
(8th Cir. 2008) (quotation omitted).

      The trial transcript provides that the district court stated:

      You have heard evidence that various witnesses have received a reduced
      sentence on a criminal charge in return for cooperation with the
      government in this case. You may give the testimony of that witness
      such weight as you think it deserves. Whether or not testimony of a
      witness may have been influenced in hope of receiving a reduced
      sentence is not for you to decide. I will read that last sentence again.
      Whether or not testimony of a witness has been influenced in hope of
      receiving a reduced sentence is for you to decide.

(Trial Tr. 221 (emphasis added).) Garcia simply cannot carry his burden, on plain
error review, where the error is a misread jury instruction and the district court
immediately re-read the instruction in its correct form. Cf. Amos v. United States, 496
F.2d 1269, 1274 (8th Cir. 1974) (harmless error where the district court misread a jury
instruction, stating that the defendant contended that several documents were false and
fraudulent when instruction provided that the government contended that they were
false and fraudulent, because “[a]ny question raised by this minor misstatement was
clarified by the balance of the instructions”).




                                           -9-
                                          2.

       Second, Garcia asserts that the district court erred in refusing to give his
proposed cautionary instruction about the credibility of accomplices.8 We review the
district court’s decision for abuse of discretion. United States v. Worthing, 434 F.3d
1046, 1050 (8th Cir. 2006). “This court has held that no absolute and mandatory duty
is imposed upon the court to advise the jury by instruction that they should consider
the testimony of an uncorroborated accomplice with caution.” Id. at 1049-50
(quotations omitted). The Worthing Court recognized that the defendant’s proposed
cautionary instruction addressing accomplice credibility was a correct statement of the
law but found no abuse of discretion in the district court’s failure to give the
instruction where: (1) “the testimony of the cooperating witnesses was corroborated
by the other cooperating witnesses, by the investors [defrauded by the defendant], and
by documents” and (2) “[t]he instructions given adequately informed the jury about
the factors to consider in assessing the credibility of witnesses who had entered into
plea agreements with the government, including their hope to receive a reduced
sentence for cooperation . . . , advised them not to consider a guilty plea as evidence
of [the defendant’s] guilt . . . , and instructed them to give the testimony of the
cooperating witnesses such weight as they thought it deserved . . . .” Id. at 1050.

      8
       Proposed Jury Instruction No. 15 provides:

             The testimony of an alleged accomplice, someone who said he or
      she participated in the commission of a crime, must be examined and
      weighed by the jury with greater care than the testimony of a witness
      who did not participate in the commission of that crime.
             The fact that an alleged accomplice has entered a plea of guilty to
      the offense charged is not evidence of the guilt of any other person
      including the defendant.
             The jury must determine whether the testimony of an accomplice
      has been affected by self-interest, or by an agreement he or she may have
      with the government, or by his own or her own interest in the outcome
      of this case, or by prejudice against the defendant.

                                         -10-
       Similarly, here the accomplice testimony in this case was corroborated by the
testimony of other cooperating witnesses and, to an extent, by Garcia. Garcia
admitted that (1) he sold methamphetamine, (2) Loris “took over” his
methamphetamine distribution business, and (3) after Loris began dealing, he
continued to use methamphetamine she provided to him. Furthermore, the district
court sufficiently instructed the jury as to the relevant considerations in assessing the
credibility of cooperating witnesses. In addition to informing the jury as to the factors
to consider in determining a witness’s credibility in general, the district court
instructed the jury as to the credibility of cooperating witnesses specifically by stating
that: the testimony of a witness who has entered into a plea agreement with the
government should be given the weight the juror believes appropriate and whether the
juror believes that the testimony was influenced by the agreement is a matter for him
or her to decide; witnesses’ guilty pleas could be considered only to the extent of
determining how much, if at all, to rely upon the testimony and were not evidence of
Garcia’s guilt; and whether the fact that a witness had received a sentence reduction
for cooperating with the government in this case influenced the testimony of that
witness is the juror’s decision. (Trial Tr. 220-21.) Therefore, the district court’s
refusal to give the cautionary instruction with regard to the credibility of accomplices
was not an abuse of discretion.




                                          -11-
                                            3.

       Third, Garcia argues that the district court abused its discretion in failing to give
Garcia’s proposed addict-informer instruction.9 “This circuit has not adopted the rule
that an addict-informer instruction must be given if requested. The need for such an
instruction depends on the circumstances of each case.” United States v. Gladney,
474 F.3d 1027, 1032 (8th Cir. 2007). The Gladney Court stated that:

       The presence of any of the following factors may make an
       addict-informer instruction unnecessary: (1) a dispute as to whether the
       informant is actually an addict, (2) cross-examination concerning the
       informant’s addiction, (3) an instruction alerting the jury to view the
       informant’s testimony with care, and (4) corroboration of the informant’s
       testimony.

Id. Here, all four factors are present. First, Garcia concedes that “each of the three
cooperating prosecution witnesses admitted to prolonged methamphetamine use at the
time of their conspiratorial crimes about which they were testifying,” (Appellant’s Br.
31) such that factors one and two are present. Second, factor three is met because
each of the “addict” witnesses were also “informant” witnesses and, as the preceding
section established, the district court instructed the jury as to how to weigh the
testimony of cooperating witnesses. Finally, there was corroboration for the addict-
informers’ testimony, including from Garcia himself, as discussed in the preceding



       9
        Proposed Instruction No. 14 provides:

             The testimony of a drug or alcohol abuser must be examined and
       weighed by the jury with . . . greater care than the testimony of a witness
       who does not abuse drugs or alcohol.
             The jury must determine whether the testimony of the drug or
       alcohol abuser has been affected by drug or alcohol use or the need for
       drugs or alcohol.

                                           -12-
section, fulfilling factor four. Thus, under Gladney, the district court did not abuse
its discretion by declining to give the addict instruction.

                                          4.

       Finally, Garcia alleges prejudicial error in the district court’s supplemental
instruction in response to the jury’s question concerning potential sentence reductions
for government witnesses. Because Garcia did not object to the supplemental
instruction below, we review for plain error. See JCB, Inc., 539 F.3d at 878; Davis,
538 F.3d at 917.

      At sentencing, Lucero, Muncy, and McMahan each received sentence
reductions on government motions pursuant to United States Sentencing Commission,
Guidelines Manual, §5K1.1.10 When questioned whether she could receive any

      10
        USSG §5K1.1 provides:

     Upon motion of the government stating that the defendant has provided
     substantial assistance in the investigation or prosecution of another person
     who has committed an offense, the court may depart from the guidelines.

     (a) The appropriate reduction shall be determined by the court for reasons
     stated that may include, but are not limited to, consideration of the
     following:

            (1) the court’s evaluation of the significance and usefulness of the
            defendant’s assistance, taking into consideration the government's
            evaluation of the assistance rendered;
            (2) the truthfulness, completeness, and reliability of any
            information or testimony provided by the defendant;
            (3) the nature and extent of the defendant’s assistance;
            (4) any injury suffered, or any danger or risk of injury to the
            defendant or his family resulting from his assistance;
            (5) the timeliness of the defendant’s assistance.

                                         -13-
potential further reduction in her sentence in relation to her testimony at Garcia’s trial,
Lucero testified that she would not receive any such reduction. Similarly, Muncy
responded, “nothing,” when asked “what are you getting for being here today?”
McMahan was questioned about the possibility of a Federal Rule of Criminal
Procedure Rule 35 motion for sentence reduction,11 and he stated that he might receive
a further reduction pursuant to a Rule 35 motion in addition to his previous USSG
§5K1.1 reduction.

       Following a period of deliberation, the jury sent a note to the district court
inquiring: “Do any of the witnesses get a further reduction in their sentences for
testifying? With the present understanding that [there is] ‘no guarantee’ as in the
original reductions [they received for their cooperation relating to Garcia’s case] other


      11
        Rule 35(b) provides:

      (b) Reducing a Sentence for Substantial Assistance.

      (1) In General. Upon the government’s motion made within one year of
      sentencing, the court may reduce a sentence if the defendant, after
      sentencing, provided substantial assistance in investigating or
      prosecuting another person.
      (2) Later Motion. Upon the government’s motion made more than one
      year after sentencing, the court may reduce a sentence if the defendant’s
      substantial assistance involved:

      (A) information not known to the defendant until one year or more after
      sentencing;
      (B) information provided by the defendant to the government within one
      year of sentencing, but which did not become useful to the government
      until more than one year after sentencing; or
      (C) information the usefulness of which could not reasonably have been
      anticipated by the defendant until more than one year after sentencing
      and which was promptly provided to the government after its usefulness
      was reasonably apparent to the defendant.

                                           -14-
than Rule 35 for Jeff McMahan.” (Opening Statements, Preliminary Instructions, Jury
Questions Tr. 21.) Both the government and defense counsel requested that the
district court instruct the jury to rely on their memories as to the testimony with regard
to potential sentence reductions, but the district court was concerned that such a
response would not be helpful to the jury. The district court questioned the
government about the possibility of a sentence reduction for Muncy or Lucero and
determined that, in accordance with their testimony, neither would receive a further
sentence reduction in exchange for their testimony at Garcia’s trial.12 Accordingly,


      12
        The following exchange took place:

THE COURT:                 Is it possible under the guidelines to get a further
                           reduction?

GOVERNMENT:                It is a legal possibility, Your Honor. In theory I could file
                           a Rule 35. [However,] I went through with both Mr. Muncy
                           and Ms. Lucero that they would not receive any further
                           reduction for their testimony in trial. That was part of their
                           original deal.

THE COURT:                 But there is a possibility of a Rule 35?”

GOVERNMENT:                For other reasons.

THE COURT:                 For other reasons. Such as?

GOVERNMENT:                Were they to learn something in prison where they could
                           cooperate with authorities on something that we never dealt
                           with before. In other words, it would have to be a new
                           circumstance in each of their cases.

THE COURT:                 Within one year.

GOVERNMENT:                Within one year. Or there is a proviso of the rule if it is
                           something that happens that is not within the year, that

                                          -15-
the district court proposed the following supplemental instruction: “You are
instructed that no witness (other than possibly Jeff McMahan under Rule 35) will
receive a further reduction in their sentences for testifying in this trial.” (Id. at 28.)
The district court asked both the government and defense counsel if they had any
objection, and both agreed to the supplemental instruction. The jury was so
instructed.

        This court discussed supplemental instructions in United States v. Morrison,
332 F.3d 530 (8th Cir. 2003), stating that “[w]hen a jury explicitly requests
supplemental instruction, a trial court must take great care to [e]nsure that any
supplemental instructions are accurate, clear, neutral, and non-prejudicial. In addition,
the trial judge should answer with concrete accuracy, and within the specific limits of
the question presented.” Id. at 532 (quotation and citation omitted). In this case, only
McMahan had a written agreement with the United States that he would receive a
sentence reduction in return for his testimony. The two witnesses at issue, Muncy and
Lucero, testified that there was no possibility of a further reduction in sentence based
upon their testimony at trial, and the government represented that this was accurate.
Garcia concedes as much; however, he argues that it was not legally accurate because
there was still a possibility that Muncy and Lucero could receive reductions in their
sentence. Although a Rule 35 Motion was still a possibility for Muncy and Lucero
based on unrelated matters, the jury’s question pertained to a sentence reduction for
testimony given at Garcia’s trial. Therefore, as Morrison instructs, the district court
answered the jury’s question “with concrete accuracy . . . and within the specific limits

                           could not have been known within the year, so again, if we
                           looked at a hypothetical cooperation within the prison,
                           something that happened after a year and they were
                           cooperative on, they could still receive a Rule 35 reduction
                           even outside a year.

(Opening Statements, Preliminary Instructions, Jury Questions Tr. 23-24.)


                                          -16-
of the question presented.” Id. Accordingly, Garcia has failed to demonstrate that the
supplemental instruction was a plain error.

                                           C.

       Garcia’s final challenge is to the district court’s denial of his motion for
judgment of acquittal, arguing that the evidence is insufficient to support either of his
convictions. We apply the same standard of review to the district court’s ruling on a
defendant’s motion for judgment of acquittal as we do to challenges to the sufficiency
of the evidence to support a guilty verdict. United States v. Reddest, 512 F.3d 1067,
1070 (8th Cir. 2008). “In reviewing the sufficiency of the evidence, we resolve all
evidentiary conflicts in the Government’s favor and accept all reasonable inferences
from the evidence that support the jury’s verdict. Further, we will overturn the verdict
only if no reasonable jury could have found [Garcia] guilty.” United States v. Price,
542 F.3d 617, 620 (8th Cir. 2008) (quotation and citation omitted).

       Garcia admitted that he sold methamphetamine in 2002 and 2003. The evidence
at trial further demonstrated that Loris eventually took over Garcia’s
methamphetamine-distributing organization. The evidence further showed that, even
after Loris took over, Garcia was often present when Loris sold methamphetamine,
served as Loris’s enforcer, made at least one drug delivery, was involved in
negotiating the price of drug sales, and handled money from drug sales. Thus, the
evidence is not such that no reasonable jury could have found Garcia guilty of
participating in a methamphetamine conspiracy and distributing methamphetamine.




                                          -17-
                                         III.

      We remand Garcia’s convictions for determinations as to whether the PSRs of
Muncy and McMahan contain material Brady or Giglio information and the
appropriate relief, if any. As to all other issues raised in this appeal, we affirm the
judgment of the district court.
                         ______________________________




                                         -18-
