                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-3476
                          ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                     April Tillman

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa, Waterloo
                                  ____________

                             Submitted: August 22, 2014
                               Filed: August 27, 2014
                                   ____________

Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

BENTON, Circuit Judge.


       April Bregette Tillman was convicted of conspiracy to distribute and possess
with intent to distribute at least one kilogram of heroin, in violation of 21 U.S.C. §§
841(b)(1)(A) and 846. She appeals, arguing: (1) the evidence was insufficient to
convict, (2) the district court1 erred in denying her “buyer/seller” jury instruction, and
(3) the district court incorrectly instructed the jury on the drug quantity attributable
to her. Having jurisdiction under 18 U.S.C. § 1291, this court affirms.

                                            I.

      Tillman contends the evidence was insufficient to support the conspiracy
conviction. This court reviews “the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the jury’s verdict, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Harris-Thompson, 751 F.3d 590, 598 (8th Cir. 2014). This court
reverses “only if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt.” United States v. Brooks, 715 F.3d 1069, 1081 (8th Cir. 2013).
“This standard applies even when the conviction rests entirely on circumstantial
evidence.” United States v. Worman, 622 F.3d 969, 977 (8th Cir. 2010).

       “To establish a conspiracy, the government must prove: (1) the existence of an
agreement among two or more people to achieve an illegal purpose, (2) the
defendant’s knowledge of the agreement, and (3) that the defendant knowingly joined
and participated in the agreement.” United States v. Johnson, 719 F.3d 660, 666 (8th
Cir. 2013). The government “is not required to prove an express agreement.” United
States v. Jackson, 610 F.3d 1038, 1044 (8th Cir. 2010). Rather, the government
“need only establish a tacit understanding between the alleged co-conspirators, which
may be shown through circumstantial evidence.” Id. Still, the government “must
‘offer enough evidence to prove a defendant’s connection to a conspiracy beyond a
reasonable doubt.’” Id., quoting United States v. Lopez, 443 F.3d 1026, 1028 (8th
Cir. 2006) (en banc).


      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

                                           -2-
      Tillman asserts that the evidence for the third element—her participation in the
conspiracy—was insufficient because there was no physical evidence and the
government witnesses were not credible. At trial, four cooperating government
witnesses testified they bought heroin and pain medication from Tillman. One witness
connected Tillman to Catherine Elaine Johnson—a co-defendant who had pled guilty
to conspiracy to distribute heroin—referring to Tillman as Johnson’s “right-hand
man.” Johnson testified that Tillman: drove her to Chicago to buy heroin, drove her
to drug transactions in exchange for heroin, sold heroin to her, bought heroin and
oxycodone from her, broke down heroin to sell with her, and sold heroin out of her
home.

      Tillman challenges the credibility of the cooperating witnesses, arguing they
were “either co-defendants, previously indicted co-conspirators, or users who were
also cooperating with law enforcement.” However, a jury verdict may be based
“solely on the testimony of cooperating witnesses.” United States v. Smith, 632 F.3d
1043, 1046 (8th Cir. 2011). See United States v. L.B.G., 131 F.3d 1276, 1278 (8th
Cir. 1997) (“It is well established that the uncorroborated testimony of a single
witness may be sufficient to sustain a conviction.”). This court does not “judge
credibility of witnesses.” United States v. Conway, 754 F.3d 580, 587 (8th Cir.
2014). “Juries are capable of evaluating the credibility of testimony given in light of
the agreements each witness received from the government.” Id.

      Physical evidence corroborated the testimony of the cooperating witnesses.
Police and DEA agents testified that a search of Tillman’s home produced six baggies
of cocaine, foil and other drug packaging materials, a check to Catherine Johnson, and
a pipe with marijuana residue. A DEA agent said these items were consistent with
drug distribution. Tillman’s phone records corroborated the testimony of the
cooperating witnesses, showing significant contacts with them during the conspiracy.
The government’s expert testified that the call patterns were consistent with
“narcotics trafficking, contact between source of supply and user and vice versa.”

                                         -3-
      The evidence was sufficient to support the conspiracy conviction.

                                           II.

       Tillman alleges that the district court abused its discretion by refusing to give
a buyer-seller instruction. This court “review[s] a district court’s jury instructions for
abuse of discretion,” reviewing the instructions “as a whole.” United States v.
Faulkner, 636 F.3d 1009, 1019-20 (8th Cir. 2011). A defendant is entitled to a
specific jury instruction conveying the substance of the request if it is timely,
supported by evidence, and correctly states the law. Johnson, 719 F.3d at 670. This
court reverses if the omission was prejudicial. United States v. White Calf, 634 F.3d
453, 456 (8th Cir. 2011). This court will reverse “when the errors misled the jury or
had a probable effect on the jury’s verdict.” United States v. Pereyra-Gabino, 563
F.3d 322, 328 (8th Cir. 2009).

       At the close of evidence, Tillman requested a buyer-seller instruction based on
United States v. Cabbell, 35 F.3d 1255 (8th Cir. 1994), which approved the
instruction: “You are instructed that transient sales where the buyer is purchasing
drugs for his own personal use and not for the purpose of distributing or delivering the
purchased drugs to others does not in and of itself make the buyer a co-conspirator
with the seller in the seller’s drug distribution conspiracy.” However, a buyer-seller
instruction “is not supported by the evidence and thus ‘not appropriate when there is
evidence of multiple drug transactions, as opposed to a single, isolated sale.’”
Johnson, 719 F.3d at 671, quoting United States v. Hester, 140 F.3d 753, 757 (8th
Cir. 1998). The district court found:

      The buyer/seller instruction is not supported by the evidence in this case.
      The trial evidence shows that this was more than a single transaction
      involving Ms. Tillman. The amount of the drugs was significant, a large
      amount of drugs. There was an ongoing relationship among the buyers
      and sellers. There’s no evidence that she did just one purchase, she -- or

                                           -4-
      that she knew only one of the alleged conspirators. And there’s no
      evidence that it was a one order for a quantity of drugs. So long story
      short, the instruction just simply is not supported by the evidence and I
      won’t be giving it.

Trial Tr. Vol. III, at 467. Tillman’s participation in the conspiracy spanned years,
with multiple drug transactions and multiple customers. Because it was not a single,
isolated sale, the buyer-seller instruction was not supported by the evidence.

       Regardless, Tillman cannot establish prejudice based on the jury instructions
as a whole. Her theory of the case was that she was a mere heroin user, unaware of
the larger conspiracy. The district court gave a “mere presence” instruction:

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

This instruction “correctly states the applicable law and adequately and fairly covers
the substance of a ‘mere buyer’ theory-of-defense instruction.” United States v.
Cubillos, 474 F.3d 1114, 1119 (8th Cir. 2007), quoting Hester, 140 F.3d at 757.

       The district court did not abuse its discretion in denying the buyer-seller
instruction.

                                          III.

       Tillman maintains that the district court plainly erred in instructing the jury on
the drug quantity attributable to her. “In order to preserve the issue of whether a
particular jury instruction should or should not have been issued, an attorney must

                                          -5-
make a timely objection, explaining the grounds upon which the instruction should or
should not issue.” United States v. Kirkie, 261 F.3d 761, 770 (8th Cir. 2001); see
Fed. R. Crim. P. 30(d). Plain error requires “(1) error, (2) that is plain, (3) that
affects substantial rights, and (4) that affects the fairness and integrity of judicial
proceedings.” United States v. Olguin, 428 F.3d 727, 728 n.3 (8th Cir. 2005).
However, if a defendant waives an issue before the district court, the claim is
unreviewable on appeal. United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir.
2010); United States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009); United States v.
Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997).

      Instruction 20 states, in relevant part:

      The quantity of controlled substances involved in the agreement or
      understanding includes the controlled substances that the defendant
      possessed for personal use or distributed or agreed to distribute. The
      quantity also includes the controlled substances fellow conspirators
      distributed or agreed to distribute, if you find that those distributions or
      agreements to distribute were within the scope of the conspiracy charged
      in the Indictment, or were reasonably foreseeable to the defendant as a
      necessary or natural consequence of the conspiracy charged in the
      Indictment.

(Emphasis added). Tillman alleges that the district court erred by instructing the jury
in the disjunctive rather than the conjunctive. She argues that the “or” is contrary to
the law on co-conspirator liability. See Pinkerton v. United States, 328 U.S. 640, 647
(1946); United States v. Foxx, 544 F. 3d 943, 954 (8th Cir. 2008).

        Before trial, the parties jointly submitted proposed jury instructions. The
instructions contained—and even underlined—the now-contested “or,” highlighting
that it differed from the model instruction.




                                          -6-
      As to Count I, the quantity of controlled substances involved in the
      agreement or understanding includes the controlled substances that the
      defendant under consideration by you possessed for personal use or
      distributed or agreed to distribute. The quantity also includes the
      controlled substances fellow conspirators distributed or agreed to
      distribute, if you find that those distributions or agreements to distribute
      were within the scope of the conspiracy charged in the Indictment, or
      were reasonably foreseeable to the defendant under consideration by you
      as a necessary or natural consequence of the conspiracy charged in the
      Indictment.

At the instruction conference before closing arguments, Tillman’s counsel stated,
“With regards to the instructions that are currently in the packet, I have no objections
with regards to the language in any of them.” Trial Tr. Vol. III, at 464. Tillman did
not object when the government argued the disjunctive language in closing. Trial Tr.
Vol. IV, at 519-20.

       “[W]hen a defendant specifically requests a particular instruction, [s]he gives
up the right to appeal any error in that instruction.” United States v. Mariano, 729
F.3d 874, 881 (8th Cir. 2013). Because Tillman jointly proposed the disputed
instruction and never objected, she waived the right to contest it. Her challenge is
unreviewable on appeal. Wisecarver, 598 F.3d at 988.

                                     *******

      The judgment is affirmed.
                      ______________________________




                                          -7-
