                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2989
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Jesse Lee Crawford,                      *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: February 14, 2006
                                  Filed: June 7, 2006
                                   ___________

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

       A jury found Jesse Lee Crawford guilty of conspiracy to distribute
methylenedioxymethamphetamine (MDMA), a Schedule I controlled substance
commonly known as ecstasy, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846.
Crawford appeals his conviction, arguing that he is entitled to a new trial because the
district court1 erred in refusing to give two proposed jury instructions regarding
conspiracy issues. We affirm.



      1
      The HONORABLE ROBERT W. PRATT, United States District Judge for the
Southern District of Iowa.
        The indictment charged Crawford and seven others with conspiracy to distribute
MDMA, cocaine, and marijuana in the Southern District of Iowa from May 1996 to
October 2002. At the February 2005 trial, California native Robert Morataya testified
that he began distributing marijuana to various Iowa customers while attending an
Iowa college in 1994. California associates continued to ship marijuana to Iowa
customers when Morataya moved to Spain in 1997. The group expanded its
operations to include cocaine in 1998 and commenced regular cocaine shipments to
their Iowa customers. Crawford met Morataya in California and agreed to transport
cocaine to Morataya in Spain in May 1999. After arriving in Spain, Crawford
accompanied Morataya to Amsterdam, where they established a Dutch source for
MDMA. Morataya testified that, between May and late October 1999, Crawford
transported 1000 MDMA pills from Spain to California for Morataya, some of which
were distributed in Iowa; received thousands of MDMA pills in California from
Morataya in Spain; made two more trips to Amsterdam with Morataya to buy MDMA
pills; and obtained 10,000 of the second 30,000-pill purchase. Crawford was arrested
in late October 1999 after pills addressed to him in California were seized at the JFK
Airport mail facility in New York. Morataya continued distributing MDMA in Iowa
and elsewhere until his arrest in October 2002.

       At the close of the evidence, the district court instructed the jury, without
objection, that the essential elements of the charged conspiracy offense were that two
or more persons agreed to distribute MDMA or cocaine or marijuana, and that a
particular defendant knowingly joined in the agreement at some time while it was still
in effect. As there was no evidence linking Crawford to the distribution of marijuana,
the court, again without objection, submitted a verdict form asking whether Crawford
was guilty of “knowingly and intentionally distribut[ing] a controlled substance, as
charged in Count 1,” and if so, asking separately whether he conspired to distribute
MDMA and cocaine. The jury found Crawford guilty of conspiring to distribute
MDMA but not cocaine.



                                         -2-
       On appeal, Crawford first argues that the district court abused its discretion in
refusing to give his proposed jury instruction on multiple conspiracies. The lengthy
proposal included an instruction that, “The common aim or purpose alleged in this
indictment is the distribution of MDMA, cocaine and marijuana.” (Emphasis added.)
Though that language accurately paraphrased the indictment, it is well settled that a
conspiracy to distribute more than one controlled substance may be charged in the
conjunctive -- MDMA, cocaine, and marijuana -- but submitted to the jury, as here,
in the disjunctive -- MDMA, cocaine, or marijuana. United States v. Barrios-Perez,
317 F.3d 777, 779-80 (8th Cir. 2003). Thus, Crawford’s proposed multiple
conspiracies instruction would have improperly instructed the jury to acquit, given the
absence of evidence linking him to marijuana distribution. Acknowledging that
multiple conspiracies was a legitimate issue, the government objected to the proposed
instruction and urged the court to give the multiple conspiracies instruction found in
Eighth Circuit Model Instruction 5.06G. The court did so, thereby avoiding the error
of law lurking in Crawford’s proposal. There was no abuse of discretion. The
instructions as a whole properly conveyed the law to be applied. See United States
v. Ryder, 414 F.3d 908, 917 (8th Cir. 2005).

       Crawford next argues that the district court abused its discretion in refusing to
give a purported theory-of-defense instruction that instructed the jury to determine
whether he was an “independent contractor,” as opposed to a “conspirator,” and
incorporated a multi-factor test that the Internal Revenue Service has adopted to
distinguish independent contractors from employees. This argument is without merit.
Crawford cites no authority for the contention, implicit in the proposed instruction,
that an independent contractor for tax purposes may never be a criminal conspirator.
The contention is absurd on its face. However the tax laws might describe Crawford’s
relationship to Morataya and other conspirators in business terms, the evidence was
more than sufficient to prove that Crawford knowingly joined a conspiracy to
distribute MDMA in the Southern District of Iowa and elsewhere. Thus, the district
court did not abuse its discretion in sustaining the government’s objection to this

                                          -3-
proposed instruction. A defendant is only entitled to a theory of defense instruction
“if the evidence supports the proffered instruction, and the instruction correctly states
the law.” United States v. Ellerman, 411 F.3d 941, 945 (8th Cir. 2005) (quotation
omitted).

      The judgment of the district court is affirmed.
                     ______________________________




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