United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 11-3485
     ___________________________

          United States of America

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

             Tyvarus Lee Lindsey

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 11-3513
     ___________________________

          United States of America

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

                Rashad Raleigh

   lllllllllllllllllllll Defendant - Appellant
                   ____________

  Appeal from United States District Court
   for the District of Minnesota - St. Paul
               ____________

       Submitted: November 15, 2012
          Filed: January 9, 2013
              ____________
Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       A jury convicted Tyvarus Lee Lindsey and Rashad Arthur Raleigh of one count
of possessing a firearm to further drug trafficking, and three counts of murder from
possessing a firearm to further drug trafficking — in violation of 18 U.S.C. §§ 2 and
924(c)(1)(A), (j)(1). They appeal. Lindsey argues that the district court1 should have
granted his motion to suppress evidence and not admitted prior-acts evidence (and
raises various pro se arguments). Both argue that the district court erred in admitting
a deceased co-conspirator’s statements and denying them acquittal based on
insufficient evidence of a conspiracy to distribute drugs. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.

                                          I.

       On March 23, 2007, Lindsey, Raleigh, and two co-conspirators broke into a
home where a man was living with his fiancée and her three children. The intruders
demanded drugs and money, took jewelry from the fiancée, and ransacked the house.
They found 4.5 ounces of crack cocaine in the man’s car. After he claimed not to
have known the cocaine was there, they began torturing him. One of the intruders
shot him dead. Raleigh entered the bedroom where the fiancée and her three children
were laying on the floor. He shot and killed the fiancée and her 15-year-old daughter.
The fiancée’s 10-year-old daughter and son survived. Items stolen included the
cocaine, two watches, and a television.


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.


                                         -2-
       Three days later, two officers were looking at a house for a suspect (unrelated
to this case). They knocked on the door. A woman answered. They asked if the
suspect was inside. The woman said, “No.” She consented to a search of the house.
An officer found Lindsey, arrested him for a prior, outstanding warrant, and
recovered a cell phone on him. (When Lindsey and Raleigh were indicted for the
present crimes, both were serving prison sentences for unrelated, independent state
murders. See State v. Raleigh, 778 N.W.2d 90 (Minn. 2010); State v. Lindsey, No.
A08-453, 2009 WL 4908842 (Minn. 2009) (unpublished).)

      The district court denied Lindsey’s motion to suppress the cell phone. Lindsey
opposed evidence of a 2005 crime, which the court admitted (and the government
referenced in its closing rebuttal argument). He also objected to admitting any
statements of Albert “Bozo” Hill, a deceased co-conspirator.

      At trial, three witnesses testified to three separate Hill statements. Cell phone
records placed Lindsey in the crime-scene vicinity and showed that he communicated
with the co-conspirators, including Raleigh, just before the crimes occurred. A
witness testified that the co-conspirators left an after-hours party together near the
crime scene before the murders. Multiple witnesses testified, and other evidence
showed, that Lindsey and Raleigh committed the crimes, including their intent to steal
drugs. At the close of the government’s case, the court denied the defendants’
motions for acquittal. The jury convicted them on all counts.

                                          II.

       Lindsey argues that the district court should have suppressed the cell phone,
attacking the woman’s consent to search the house where officers arrested him. For
denial of a suppression motion, this court reviews the district court’s factual findings




                                          -3-
for clear error and its legal conclusions de novo. United States v. Hudspeth, 518
F.3d 954, 956-57 (8th Cir. 2008) (en banc).

       Consent is valid “when an officer reasonably relies on a third party’s
demonstration of apparent authority” over the premises. United States v. Amratiel,
622 F.3d 914, 915 (8th Cir. 2010); see United States v. Matlock, 415 U.S. 164, 171
(1974) (“[A] third party who possesse[s] . . . [a] sufficient relationship to the premises
[may give consent] . . . .”). “Apparent authority exists when ‘the facts available to the
officer at the moment . . . warrant a man of reasonable caution in the belief that the
consenting party had authority over the premises.’” Amratiel, 622 F.3d at 916
(omission in original), quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990).
“[S]urrounding circumstances could conceivably be such that a reasonable person
would doubt” another’s consent “and not act upon it without further inquiry.”
Rodriquez, 497 U.S. at 188. “Some circuits have . . . require[d] police to go behind
appearances to verify third party authority.” United States v. Almeida-Perez, 549
F.3d 1162, 1171 (8th Cir. 2008), citing United States v. Cos, 498 F.3d 1115, 1128-31
(10th Cir. 2007), United States v. Whitfield, 939 F.2d 1071, 1074-75 (D.C. Cir.
1991). “[This] circuit . . . has been more liberal about allowing police to form their
impressions from context.” Id.

       In Almeida-Perez, consent to a search was valid where a man on the front porch
led officers “into the house without knocking” after they asked if they could talk
inside. Id. at 1164-65. The officers did not inquire further or ask “whether he ‘had
any interest in the house.’” Id. In United States v. Hilliard, 490 F.3d 635, 639 (8th
Cir. 2007), consent was valid where a woman allowed officers inside and showed
“familiarity with the premises” by picking “clothing off the floor to dress herself.”
If “someone comes to the door of a domestic dwelling with a baby at her hip . . . that
fact standing alone is enough” to show authority to consent to a search. Georgia v.
Randolph, 547 U.S. 103, 111 (2006).


                                           -4-
        Assuming, without deciding, that Lindsey had a legitimate expectation of
privacy in the cell phone – and thus has standing to challenge the search2 – the
woman’s consent to search the house was nonetheless valid. The two officers
testified – credibly according to the district court – that the woman answered the door
and showed familiarity with the house by responding “no” when asked if the suspect
was there. Cf. United States v. Iron Wing, 34 F.3d 662, 665 (8th Cir. 1994) (holding
that a woman showed familiarity with a house by climbing in through an unlocked
window). Then, she verbally consented to the officers’ request to walk through the
house. Answering the door and showing knowledge of occupants demonstrate greater
authority than in Almeida-Perez, where a man was outside and simply walked in the
house. The woman “exercise[d] . . . privileges that would only be proper for an
occupant of the house.” Almeida-Perez, 549 F.3d at 1171.

       Lindsey further argues that the woman’s consent was “mere acquiescence to
a claim of lawful authority.” See United States v. Escobar, 389 F.3d 781, 785 (8th
Cir. 2004), citing Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). The
officers were in plainclothes. They requested permission to look inside for the
suspect and did not show their weapons. See Almeida-Perez, 549 F.3d at 1165. They
(as the district court found) did not coerce consent. Cf. Escobar, 389 F.3d at 786
(holding that consent to search bags was coerced because the officer falsely
“represented a drug-sniffing dog had alerted,” and the defendant stated, “Go ahead,
you’re going to do it anyway.”). The woman’s consent to search the house was valid.
The district court properly admitted the cell phone evidence.



      2
       The government claims that Lindsey lacks standing to challenge the house
search, because he disavowed interest in the phone at the time of his arrest. See
United States v. Pierson, 219 F.3d 803, 806-07 (8th Cir. 2000). Because the search
was lawful, this court need not decide whether Lindsey had a legitimate expectation
of privacy in the cell phone.


                                         -5-
                                           III.

       Lindsey claims that the district court erred in admitting prior-acts evidence
under Federal Rule of Evidence 404(b). This court reviews for “clear abuse of
discretion a district court’s evidentiary rulings.” United States v. Chase, 451 F.3d
474, 479 (8th Cir. 2006).

                                            A.

         Lindsey objects to the government’s notice of intent to admit evidence of his
2005 crime. “[T]he prosecutor . . . shall provide reasonable notice in advance of trial
. . . of the general nature of any such evidence it intends to introduce at trial.” Fed.
R. Evid. 404(b).3 Factors to consider for whether notice was reasonable include: (1)
“when the government could have learned . . . of the evidence through timely
preparation for trial; (2) . . . prejudice to [the] defendant from lack of time to prepare;
and (3) how significant the evidence is to the government’s case.” United States v.
Green, 275 F.3d 694, 701 (8th Cir. 2001). In Green, the “government provided a
printout of the arrest record four months before trial and supplemented the
information as it became available.” Id. at 702. Notice given one week before trial
was reasonable. Id. at 701.

      Here, the government listed Lindsey’s 2005 crime in the 2010 indictment –
over one year before trial. One month before trial – consistent with the scheduling
order – the government provided formal notice to Lindsey. The district court did not
abuse its discretion in finding notice timely.

      3
       A new version of the Federal Rules of Evidence, with stylistic changes only,
became effective on December 1, 2011. United States v. Morales, 684 F.3d 749, 755
n.3 (8th Cir. 2012). “All quotations [and citations] here are from the rules in effect
during [Lindsey and Raleigh’s June 2011] trial.” Id.


                                           -6-
       Lindsey claims that notice was deficient because it did not reveal the purpose
for offering evidence of the 2005 crime. He cites United States v. Crenshaw, 359
F.3d 977, 999 (8th Cir. 2004), where this court noted that the Rule 404(b) evidence
was only “marginally relevant” to one of the government’s bases for using it at trial.
Crenshaw, however, did not involve notice. Cf. United States v. Robinson, 110 F.3d
1320, 1326 (8th Cir. 1997) (“The trial court has discretion to reject evidence if the
court finds that the notice is unreasonable due to ‘lack of . . . completeness.’”
(omission in original) (citation omitted)). Lindsey cites no authority that notice must
reveal the government’s purpose for the evidence. Regardless, the government did
file a memorandum that informed Lindsey why it was offering the evidence. The
district court did not abuse its discretion in finding notice sufficient.

                                          B.

       According to Lindsey, his 2005 crime was inadmissible propensity evidence
and its potential prejudice substantially outweighed its probative value. “[E]vidence
of prior crimes must be 1) relevant to a material issue; 2) similar in kind and not
overly remote in time to the charged crime; 3) supported by sufficient evidence; and
4) such that its potential prejudice does not substantially outweigh its probative
value.” Crenshaw, 359 F.3d at 998. He disputes only the first and fourth elements.

                                          1.

       The government argues that the evidence was relevant to show Lindsey’s state
of mind — specifically, intent, motive, and foreseeability. This court presumes that
Rule 404(b) evidence “is admissible to prove motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” United States v.
Smith, 383 F.3d 700, 706 (8th Cir. 2004). “The district court is afforded broad
discretion to admit such evidence . . . .” United States v. Ceballos, 605 F.3d 468, 470
(8th Cir. 2010).


                                         -7-
        Here, the evidence was relevant. Lindsey’s 2005 crime involved a drug-related
robbery and murder. The district court admitted evidence only of the robbery and
Lindsey firing shots, not of the victim’s death or Lindsey’s subsequent murder
conviction. The present crime also involved a drug-related robbery where shots were
fired. The evidence was relevant to show that Lindsey intended or could foresee
shots being fired during a drug-related robbery, and that his motive – as in the 2005
crime – was to steal drugs and money. See Crenshaw, 359 F.3d at 1000-01 (holding
that a prior assault conviction was relevant to the defendant’s intent to inflict serious
bodily harm or death on his victims in the crime at issue); see also Pinkerton v.
United States, 328 U.S. 640, 646 (1946) (holding that a member of a conspiracy is
liable for foreseeable acts of co-conspirators that further the conspiracy). Lindsey has
not “demonstrate[d] that [the evidence] serve[d] only to prove [his] criminal
disposition.” Smith, 383 F.3d at 706.

                                           2.

       Lindsey’s primary contention is that potential prejudice from the 2005 crime
substantially outweighed its probative value. This court “will normally defer to [the
district] court’s judgment” whether the prejudicial effect of admitting Rule 404(b)
evidence substantially outweighs its probative value. United States v. Halk, 634 F.3d
482, 488 (8th Cir. 2011).

       In Crenshaw, the defendant was on trial for murder with a firearm. Crenshaw,
359 F.3d at 981. The government introduced a prior assault conviction where the
defendant shot a man “four times in the stomach.” Id. at 1001. “The potential
prejudice was magnified by the government’s repeated and often graphic references
to the conviction during the trial.” Id. Moreover, “the jury never learned from the
government that the 1995 conviction had any relevance to the issue of intent,” and the
district court never mentioned intent in its instructions. Id. The government invoked


                                          -8-
intent “for the first time during oral argument” on appeal. Id. at 999. The risk of
prejudice from the prior assault conviction substantially outweighed its probative
value. Id. at 1002.

       In Halk, the defendant was on trial for a firearms offense. Halk, 634 F.3d at
487. The government offered two prior firearms offenses to prove that he knowingly
and intentionally possessed the firearm at issue. Id. The district court “minimized
the risk of unfair prejudice by disallowing any mention of the word ‘murder’ and
restricting the government’s description of [one of the offenses].” Id. at 488. The
district court also gave a limiting instruction. Id. The risk of prejudice did not
substantially outweigh the evidence’s probative value. Id.

       Here, any potential prejudice did not substantially outweigh the 2005 crime’s
probative value. Unlike in Crenshaw, the government did argue to the jury that
Lindsey’s 2005 crime showed intent, motive, and foreseeability. As in Halk, the
district court prohibited mention of his murder conviction. The court also instructed
the jury that they could use the evidence only “to determine such issues as intent and
motive.” “The presence of a limiting instruction diminishes the danger of any unfair
prejudice arising from the admission of other acts.” Id. A witness testified to
Lindsey robbing and firing shots at the victim, but did not discuss the victim’s death.
In closing rebuttal argument, the government briefly noted that the jury had “heard
the outcome” of the trial for the 2005 crime. The district court immediately gave a
curative instruction. The government neither repeatedly nor graphically referenced
the 2005 crime.

      The government here consistently stated that the 2005 crime was probative of
Lindsey’s intent to murder the victims “if necessary to accomplish the robbery,” and
of the foreseeability (or lack of mistake) that someone could be killed during an
armed robbery. See 18 U.S.C. § 1111 (requiring the government to prove that the


                                         -9-
killing was with “malice aforethought”). Rule 404(b) evidence is admissible when
the defendant “places his state of mind in issue” by a “general denial defense,” as
Lindsey did here. Anthony, 537 F.3d at 866. The potential prejudice – limited by the
restricted version of the evidence and the court’s limiting instructions – did not
substantially outweigh the 2005 crime’s probative value. The district court did not
abuse its discretion in admitting evidence of Lindsey’s 2005 crime.

                                            IV.

       Both Lindsey and Raleigh assert that the district court erred in admitting three
statements of Hill, a deceased co-conspirator. They argue that the first statement
violated the Sixth Amendment’s Confrontation Clause – requiring de novo review –
and that all three statements were inadmissible under Federal Rule of Evidence
803(b)(3) – requiring abuse-of-discretion review. United States v. Honken, 541 F.3d
1146, 1159, 1161 (8th Cir. 2008). The government counters that Lindsey and Raleigh
did not object at trial to the first and third statements, so review is for plain error. See
United States v. Tenerelli, 614 F.3d 764, 772 (8th Cir. 2010) (holding that plain error
review applies to unpreserved Confrontation Clause claims); United States v. Hyles,
521 F.3d 946, 959 (8th Cir. 2008) (holding that plain error review applies to
unpreserved evidentiary claims).

       Before trial, Lindsey (but not Raleigh) objected to all potential Hill statements,
which could include those against interest under Rule 804(b)(3). “Once the court
makes a definitive ruling on the record admitting or excluding evidence, either at or
before trial, a party need not renew an objection or offer of proof to preserve a claim
of error for appeal.” Morales, 684 F.3d at 755 (alteration omitted) (emphasis in
original), quoting Fed. R. Evid. 103(a).




                                           -10-
      After jury selection, the district court held a colloquy and stated:

      [A]s to any statement that is being offered under the statement against
      interest exception, we’ll have to have the proper foundation laid before
      that can come in. . . . [A]s to the statements of Mr. Hill . . . I don’t hear
      anything now that would render them inadmissible. Again, you are
      going to have to actually lay the foundation [at trial] that you’ve said,
      but if it’s as [the government has] described it . . . it has no confrontation
      problems, and Brutin [sic], and its redaction agreements and so on don’t
      apply.       The whole Sixth Amendment is inapplicable in the
      nontestimonial statement context, and so that will be allowed.

Trial R. 152 (emphases added). This “pretrial ruling was tentative” and ambiguous.
United States v. Echols, 346 F.3d 818, 820 (8th Cir. 2003). Although the court did
not “expressly invite[] [Lindsey and Raleigh] to raise the issue during trial,” id., it
nonetheless “never made a definitive ruling,” United States v. Frokjer, 415 F.3d 865,
872 (8th Cir. 2005). Thus, Lindsey or Raleigh needed to object at trial to preserve the
issue for appeal. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en
banc). Because neither objected to the first and third Hill statements, this court
reviews their admission for plain error. Both objected at trial to the second Hill
statement, necessitating abuse-of-discretion review.

                                           A.

       An officer testified to Hill’s first statement giving his cell phone number.
Lindsey and Raleigh claim this violated the Confrontation Clause, which “bars the
admission of testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” United States v. Johnson, 688 F.3d 494, 504 (8th Cir. 2012). Plain-
error review requires that they show that “(1) there was an error that was not
affirmatively waived, (2) the error was . . . clear and obvious, (3) the error affects .


                                          -11-
. . substantial rights, and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id.

      Their claim fails on plain-error review. Because the officer learned Hill’s cell
phone number while questioning him about the murders, the statement was
testimonial. See Crawford v. Washington, 541 U.S. 36, 53 n.4 (2004). Neither
Lindsey nor Raleigh had a prior opportunity to cross-examine Hill. Assuming,
without deciding, that there was plain error, it nonetheless did not affect their
substantial rights. See United States v. Butler, 238 F.3d 1001, 1005 (8th Cir. 2001)
(“A defendant’s rights are substantially affected when an error prejudicially
influenced the outcome of the district court proceedings.”).

       Even without Hill’s cell phone number, the evidence supporting their
convictions was overwhelming. See United States v. Moore, 639 F.3d 443, 448
(2011) (holding that no substantial right was affected where other evidence
supporting guilt was “overwhelming”). Cell records showed communication not only
between Lindsey and Hill, but also between Lindsey and the other two co-
conspirators, including Raleigh. These records placed the conspirators in the vicinity
of the crime scene just before the murders and showed no communication during the
time of the crimes. The fiancée’s surviving daughter testified to the robbery and
murders. The owner of the after-hours establishment testified that the conspirators
left the party together just before the crimes. One of Lindsey’s associates testified
that Lindsey tried to recruit him for the crime. As others testified, Lindsey confessed
his involvement, including trying to sell the stolen items. Evidence also included his
admissions during recorded jail calls.

      Evidence specifically against Raleigh included the gun used to kill the fiancée
and her oldest daughter. A number of witnesses testified that Raleigh confessed to
the murders. Moreover, the government could have introduced the phone number



                                            -12-
through another witness without using Hill’s statement. “In light of the
overwhelming evidence against” Lindsey and Raleigh, admission of the statement did
not affect their substantial rights. Id.

      Lindsey and Raleigh also claim that the district court erred in admitting the
statement under Rule 804(b)(3), which requires that the statement of an unavailable
witness be against penal interest and be sufficiently trustworthy. Fed. R. Evid.
804(b)(3). Even if there was plain error, it did not affect their substantial rights,
because other evidence supporting their convictions was overwhelming.

                                           B.

      The owner of the after-hours establishment, where the conspirators partied
before the crimes, testified to the second Hill statement: Hill told him to “make sure
we was at the party all night.” Lindsey and Raleigh assert that this statement was not
against Hill’s penal interest and lacked “corroborating circumstances that clearly
indicate its trustworthiness.” Id.

      This statement was not hearsay. “‘Hearsay’ is a statement . . . offered in
evidence to prove the truth of the matter asserted.” United States v. Buchanan, 604
F.3d 517, 521 (8th Cir. 2010) (citation omitted). The statement was not offered to
prove the truth of the matter asserted — that Hill wanted the witness to tell police that
the conspirators were at the party all night. Rather, the statement is a verbal act —
that Hill tried to establish an alibi, regardless of whether he actually wanted the
witness to make sure they were at the party all night. See Tenerelli, 614 F.3d at 771
(“Verbal acts . . . are not hearsay because they are not assertions and not adduced to
prove the truth of the matter.”); United States v. Roach, 164 F.3d 403, 410 (8th Cir.
1998) (“[T]estimony that [a person] had asked [a witness] to sell drugs involved a
verbal act; the government offered the statement not to prove its truth, but that it had


                                          -13-
been made.”). The government did not argue this below, but this court “may affirm
a district court’s judgment on any basis supported by the record.” United States v.
Jones, 643 F.3d 257, 258 (8th Cir. 2011). Because the statement was not hearsay, it
was properly admitted.

                                         C.

      The final Hill statement was an admission that he was present at the murders
and helped torture the male victim. Lindsey and Raleigh again assert that this
statement was not against Hill’s penal interest and lacked trustworthiness. Because
they did not object at trial, review is for plain error.

       To be against penal interest, “the statement must so far tend to subject the
declarant to criminal liability that a reasonable person in the declarant’s position
would not have made the statement unless he or she believed it to be true.” United
States v. Honken, 541 F.3d 1146, 1161 (8th Cir. 2008). Admitting to torturing and
participating in murder was against Hill’s penal interest.

      Corroborating circumstances that determine trustworthiness include:

      (1) whether there is any apparent motive for the out-of-court declarant
      to misrepresent the matter, (2) the general character of the speaker, (3)
      whether other people heard the out-of-court statement, (4) whether the
      statement was made spontaneously, (5) the timing of the declaration[,]
      and [(6)] the relationship between the speaker and the witness.

Halk, 634 F.3d at 490, citing United States v. Rasmussen, 790 F.2d 55 (8th Cir.
1986). Even if the statement lacked trustworthiness, its admission did not affect any
substantial right. See Hyles, 521 F.3d at 957 (holding the defendant’s “substantial
rights were not infringed” because the evidence “clearly show[ed] that [he]


                                        -14-
participated in both conspiracies”). As described in Point A, other evidence of guilt
was considerable. Admission of the third statement does not require reversal.

                                         V.

       Lindsey and Raleigh argue that the evidence was insufficient to prove a drug
conspiracy. This court reviews “de novo the sufficiency of the evidence and view[s]
that evidence in the light most favorable to the verdict, giving it the benefit of all
reasonable inferences.” Johnson, 688 F.3d at 502. This court will overturn the
convictions “only if no reasonable jury could have found [them] guilty beyond a
reasonable doubt.” United States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007).

       The government had to prove that Lindsey and Raleigh knowingly joined a
conspiracy to distribute drugs. See United States v. Jensen, 141 F.3d 830, 833-34
(8th Cir. 1998). “[M]ere buyer/seller exchanges . . . do[] not establish the existence
of a conspiracy.” Id. at 834. However, “the agreement need not be formal; a tacit
understanding will suffice.” United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir.
1995). “The government may . . . prove the existence of such a plan wholly by
circumstantial evidence or by inference from the actions of the parties.” United
States v. Vazquez-Garcia, 340 F.3d 632, 637-38 (8th Cir. 2003).

        In United States v. Eneff, 79 F.3d 104, 104-05 (8th Cir. 1996), one witness
testified that he had previously bought drugs from the defendant. The co-conspirator
testified that he had had “business dealings” with the defendant. Id. at 105. Phone
records “tended to show” communication between the co-conspirator and a third party
“during the period of the alleged conspiracy.” Id. This evidence was sufficient to
prove a drug conspiracy. Id.




                                        -15-
       Here, the evidence was more substantial than in Eneff. A witness testified that
Lindsey tried to recruit him to join a plan to rob a known drug dealer of two
kilograms of cocaine stored at the male victim’s house. An expert testified that this
was a distribution amount. Cf. United States v. Jones, 600 F.3d 985, 990 (8th Cir.
2010) (possessing “234.98 grams of a substance containing cocaine base . . . alone
would be sufficient circumstantial evidence for the jury to [find] . . . intent to
distribute”). Lindsey admitted to the witness that they tortured and killed the man
because he would not give them drugs. The fiancée’s surviving daughter testified that
the conspirators demanded drugs and money. Other evidence showed that the
targeted drug dealer’s car was parked at the male victim’s house the day of the
crimes. Additional witnesses testified that the conspirators intended to steal drugs.
Another witness testified to prior incidents of Lindsey selling drugs obtained from
robbing drug dealers.

       Testimony also showed that Raleigh joined the conspiracy to steal drugs from
the house. He admitted this to multiple witnesses. And the conspirators did steal 4.5
ounces (127.57 grams) of crack cocaine — a distribution amount. See United States
v. Wheat, 278 F.3d 722, 741 (8th Cir. 2001) (“[T]he jury could have inferred that
63.03 grams [of cocaine] is a quantity sufficiently large that [the defendant] intended
to distribute it . . . .”); United States v. Franklin, 728 F.2d 994, 998 (8th Cir. 1984)
(noting that intent to distribute can be inferred from possessing 147.09 grams of
cocaine), citing United States v. Muckenthaler, 584 F.2d 240, 247 (8th Cir. 1978).
Lindsey and Raleigh attack the credibility of the witnesses. “The jury has the
responsibility of resolving conflicts or contradictions in testimony, and [this court]
resolve[s] any credibility issues in favor of the verdict.” Johnson, 688 F.3d at 502.
There was sufficient evidence for a reasonable jury to find beyond a reasonable doubt
that Lindsey and Raleigh joined a conspiracy to distribute drugs.




                                         -16-
                                         VI.

       Finally, Lindsey raises various arguments pro se. This court has reviewed his
pro se brief and summarily affirms as to these issues. See 8th Cir. R. 47B; see, e.g.,
United States v. Ruiz, 446 F.3d 762, 777 (8th Cir. 2006).

                                   *******
      The judgment of the district court is affirmed.
                     ______________________________




                                        -17-
