                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 05-1576
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Todd Alan Scofield,                     *
                                        *
            Appellant.                  *

      ___________
                                            Appeals from the United States
      No. 05-1577                           District Court for the
      ___________                           District of South Dakota.

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Robert George Worshek,                 *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 13, 2005
                                Filed: January 4, 2006
                                 ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________
SMITH, Circuit Judge.

      A jury convicted Todd Alan Scofield and Robert George Worshek of crimes
stemming from the distribution of methamphetamine.1 Following post-verdict motions
for acquittal by both defendants, the district court granted Worshek's motion for
acquittal with regard to his conspiracy conviction and the first count of distribution,
finding that there was insufficient evidence to support those convictions. The court
denied Scofield's motion. Both defendants now appeal their convictions and their
sentences. We affirm Scofield's conviction and sentence in all respects. However, we
reverse Worshek's remaining distribution count for insufficiency of evidence.

                                    I. Background
       Todd Alan Scofield dealt methamphetamine from a small house with a detached
garage in Sioux Falls, South Dakota. Wayne Johnson was a small-time drug dealer in
the area. On at least three occasions before Johnson was arrested, Scofield provided
or "fronted" Johnson with approximately one-ounce quantities of methamphetamine.
Johnson would then resell the drugs, repay his debt to Scofield, and receive another
fronted ounce.

      Following his arrest on drug charges, Johnson became a confidential informant
and told investigators that he had purchased methamphetamine from Scofield on
several occasions. Johnson told police that he still owed Scofield money for the last
transaction. Johnson also stated that Worshek was present during each transaction but


      1
        Scofield was convicted of one count of conspiracy to possess
methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 846,
841(a)(1); two counts of distribution of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1); and one count of possession of a firearm by a prohibited person, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Worshek was convicted of one count
of conspiracy to possess methamphetamine with intent to distribute, in violation of 21
U.S.C. §§ 846, 841(a)(1); and two counts of distribution of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2.

                                         -2-
made no statements regarding the level of Worshek's involvement. Cooperating with
police, Johnson went to Scofield's house to pay for the previous purchase and to make
a controlled drug buy for the police. Following payment, Scofield fronted Johnson an
additional 28 grams of methamphetamine. Johnson stated that Scofield went into a
bedroom to retrieve the methamphetamine and then went into the bathroom to weigh
it. Johnson saw Worshek in Scofield's residence at the time of the transaction but did
not see Worshek directly involved in the transaction.

      When Johnson arrived at Scofield's house for a second controlled buy, Worshek
answered the door and let in Johnson, explaining that Scofield was bathing his dog.
While waiting to conduct the transaction with Scofield, Johnson sat in the living room
and watched television with Worshek. Scofield then came out and asked Johnson what
he wanted. Johnson followed Scofield into the bedroom and paid Scofield $2,000 for
the two buys. Johnson told Scofield that he wanted two ounces of methamphetamine,
explaining that "I have a guy who wants another one."

       According to Johnson, he returned to the living room and resumed watching
television. Johnson noticed Scofield enter the kitchen and begin to get dressed to go
outside, presumably to the garage. Johnson surmised that Worshek entered the kitchen
upon seeing Scofield dressing, commented that Scofield was getting sick and had wet
hair, and offered to help. Johnson did not hear what Scofield said in response to
Worshek.2 Because Johnson was in the living room facing east, he could not see into
the kitchen, which was behind him.3 However, after the brief exchange between
Scofield and Worshek, Johnson believed someone went outside but did not know if

      2
        In fact, Johnson testified that he had trouble hearing anything that took place
in the kitchen, stating that "I was actually trying to listen, but I couldn't hear."
      3
       Johnson's inability to see what took place in the kitchen was supported by his
own trial testimony, as well as the testimony of Officer Duprey. In a police report
about the second controlled buy, Duprey wrote that the informant never actually saw
Worshek bring in any box from outside.

                                         -3-
it was Worshek or Scofield. Although unable to see the back door located in the
kitchen, Johnson heard the bells on the door ring, indicating that someone had left. A
few minutes later, the bells rang again presumably as someone came back into the
house. Worshek then returned to the living room. Scofield then came into the living
room and tossed a large box containing several plastic bags of methamphetamine to
Johnson. Johnson handed the box back to Scofield, who measured out two ounces of
methamphetamine and gave it to Johnson. The police intervened and received over
58.6 grams of methamphetamine from Johnson.

       On direct-examination, Johnson testified that Worshek had gone to the garage
and retrieved the box of methamphetamine that Scofield brought into the living room.
However, on cross-examination, Johnson admitted that he could not hear the entire
conversation between Scofield and Worshek in the kitchen, that he could not see who
went out or came in the kitchen door, and that he could not see whether the person
who entered through the kitchen door was even carrying a box. Johnson candidly
admitted he assumed Worshek went to the garage and returned with the box.

        The next day, law enforcement executed a search warrant on Scofield's house.
Both defendants were present and were arrested. During the search, law enforcement
officers seized scales, methamphetamine paraphernalia, cash, and 447.2 grams of
methamphetamine. The officers also discovered a Glock pistol. A subsequent search
of a storage unit rented by Worshek uncovered a container of dimethylsulfone powder
or MSM. Chemical analysis of the methamphetamine purchased from Scofield and
seized during the search of his house showed that it had been diluted by being mixed
with MSM.

       Thomas Skinner, the government's fingerprint expert, analyzed the box
containing the methamphetamine, as well as the bags inside the box and one extra bag.
Skinner testified that he found only two latent fingerprints—one on the box and the
other on a bag—and that both prints belonged to Scofield. Upon further questioning,

                                         -4-
Skinner testified that he was never asked to check for fingerprints on the safe, the
paraphernalia, or either of the scales.

       The government filed a four-count indictment against Scofield and a three-
count indictment against Worshek. The jury found both defendants guilty on all
counts. However, the district court granted, in part, Worshek's motion pursuant to
Federal Rules of Criminal Procedure 29(c), entering an order that affirmed his guilt
with respect to Count IV (distribution of methamphetamine during the second
controlled buy) but acquitted him with respect to Count I (conspiracy to possess
methamphetamine) and Count III (distribution of methamphetamine during the first
controlled buy). The district court denied Scofield's Rule 29(c) motion, finding
sufficient evidence on the conspiracy count.

         The district court sentenced Scofield to 240 months' imprisonment on Counts
I, III, and IV to run concurrently with his sentence of 120 months' imprisonment for
Count II. Worshek was sentenced to 97 months' imprisonment on Count IV.

       On appeal, Scofield contends that the district court committed two reversible
errors: (1) the denial of his Rule 29(c) motion; and (2) evidentiary error by allowing
the admission of certain evidence against him. For the reasons stated below, we affirm
the denial of Scofield's Rule 29(c) motion because there was sufficient evidence of his
guilt. Similarly, we affirm with respect to his evidentiary arguments because we find
no plain error.

      Worshek raises several points on appeal, including the district court's denial of
his Rule 29(c) motion with respect to Count IV. Because we agree that Worshek's
Rule 29(c) motion should have been granted in full, Worshek's other arguments on
appeal, all of which relate to sentencing, are rendered moot and need not be addressed.




                                         -5-
                                    II. Discussion
                           A. Sufficiency of the Evidence
       Scofield and Worshek challenge the district court's denial of their respective
motions for post-verdict acquittal pursuant to Fed. R. Crim. P. 29(c). Both defendants
argue that there was insufficient evidence to support their convictions. Scofield
contends that there was insufficient evidence to support his conviction on Count I
(conspiracy to possess methamphetamine), and Worshek argues that there was
insufficient evidence to support his conviction on Count IV (distribution of
methamphetamine during the second controlled buy). The following standard of
review applies to both arguments:

      We review the sufficiency of the evidence de novo, viewing evidence in
      the light most favorable to the government, resolving conflicts in the
      government's favor, and accepting all reasonable inferences that support
      the verdict. This standard of review is strict; we will uphold the verdict
      if there is any interpretation of the evidence that could lead a reasonable-
      minded jury to find the defendant guilty beyond a reasonable doubt.

United States v. Hamilton, 332 F.3d 1144, 1148–49 (8th Cir. 2003) (internal
quotations and citation omitted).

                              1. Sufficiency as to Scofield
       Sufficient evidence supports Scofield's conviction of conspiracy. Scofield,
relying on United States v. Rios, 171 F.3d 565, 566 (8th Cir. 1999), contends that
Johnson's status as a confidential informant working for the government negates his
ability to have unlawfully conspired with Johnson. In Rios, we stated "[i]t is of course
a well-established rule that 'there can be no indictable conspiracy involving only the
defendant and government agents and informers.'" United States v. Rios, 171 F.3d
565, 566 (8th Cir. 1999) (quoting United States v. Nelson, 165 F.3d 1180, 1184 (8th
Cir. 1999)). However, the very authority that he cites for support undermines
Scofield's argument. Scofield is correct that no conspiracy could have existed between

                                          -6-
him and the confidential informant during the two controlled buys. But, here, as in
Rios, the record contains ample evidence that Scofield knew of and participated in a
conspiracy to distribute methamphetamine prior to the controlled buys. Id.

       In this case, Johnson testified that he purchased methamphetamine from
Scofield on several occasions prior to the controlled buys. Johnson testified that each
of these transactions involved approximately one ounce of methamphetamine. Each
time, Scofield would "front" the ounce to Johnson. Two weeks later, Johnson would
repay Scofield for the prior ounce and would receive another fronted ounce. The
continuing nature of these transactions establishes an agreement between Scofield and
Johnson that Johnson would resell the drugs to others in order to repay Scofield.
Moreover, evidence at trial showed that a mere user of methamphetamine commonly
purchases in quantities ranging up to half of a gram. Johnson received more than 50
times that amount in each transaction with Scofield. Combined with the credit
arrangement, a reasonable jury could conclude that there was an agreement to possess
and distribute methamphetamine to persons known or unknown to Scofield.

       Finally, evidence of such an agreement comes from Johnson's testimony that
he once made a partial payment to Scofield and explained that he could not pay in full
because "nobody was buying." This testimony, in conjunction with the regular
transactions involving large quantities of fronted methamphetamine, provides
sufficient evidence that there was an agreement between Scofield and Johnson to
possess and distribute methamphetamine before Johnson became an agent for the
government. See United States v. Ramirez, 350 F.3d 780, 783 (8th Cir. 2003) (setting
forth the essential elements of a conspiracy offense). Scofield attacks the credibility
and coherence of Johnson's testimony but such disputes are issues for the jury to
decide. United States Osuna-Zepeda, 416 F.3d 838, 842 (8th Cir. 2005).




                                         -7-
                              2. Sufficiency as to Worshek
       The evidence supporting Worshek's conviction is much less convincing. In fact,
we hold that the evidence was insufficient to support Worshek's conviction. The
evidence established that Worshek was a "lay about," or a "mooch," but did not prove
beyond a reasonable doubt that he knowingly and intentionally possessed or
distributed, or aided and abetted the possession or distribution of, methamphetamine.
The government proved Worshek was present but more is required to establish guilt
than "mere presence." "Mere physical proximity to contraband is insufficient to
convict a person of possession with intent to distribute." United States v. Cruz, 285
F.3d 692, 697 (8th Cir. 2002) (brackets omitted) (citing United States v. Lemon, 239
F.3d 968, 970 (8th Cir. 2001)). However, "[p]ossession of contraband can either be
actual or constructive." Id. Constructive possession occurs if there is (1) knowledge
of the presence of the contraband, combined with (2) control or dominion over either
the contraband itself or the premises in which the contraband is concealed. Cruz, 285
F.3d at 697; Lemon, 239 F.3d at 970. We have held that it takes more evidence of
knowledge and control to prove that a defendant constructively possessed contraband
found in someone else's residence, as opposed to his own abode. Cruz, 285 F.3d at
697 (citing United States v. Brett, 872 F.2d 1365, 1369 (8th Cir. 1989)).

      While the evidence showed that Worshek had access to Scofield's home and
was often present, a reasonable jury could not conclude that Worshek had constructive
possession of the contraband. Johnson's assumption that Worshek retrieved a box from
the garage does not establish that Worshek was involved in a drug transaction.4


      4
        While on one occasion Worshek stated that he and Scofield were the only
"importers" of methamphetamine, the district court concluded that the statement was
puffery in the context of the overwhelming lack of evidence that Worshek was
involved in a conspiracy to possess and distribute methamphetamine to Johnson. The
district court pointed out the following in support of its conclusion: (1) there was no



                                         -8-
Johnson acknowledged he did not see what happened in the kitchen. He could not see
who went outside, where that person went, and if that person brought anything back
into the house. Scofield, not Worshek, gave Johnson the box containing the
methamphetamine. The box of drugs and a bag from within it carried Scofield's
fingerprints but not Worshek's. The government presented no evidence that Worshek
knew the drugs were stored in the garage. Moreover, Johnson testified that he never
had any conversations with Worshek regarding the consummation of actual sales of
drugs. In fact, Johnson testified that he talked about drug transactions only with
Scofield. Proximity and association, without more, are insufficient to establish
Worshek's guilt.

                                   B. 404(b) Evidence
       Scofield argues that testimony of (1) his possession of methamphetamine
paraphernalia; (2) his consumption of methamphetamine; and (3) Johnson's passing
reference to Scofield's "felonies" during cross-examination violated Federal Rules of
Evidence 404(b). Rule 404(b) prohibits admission of evidence of other crimes, wrongs
or acts to show a defendant is a bad person. Scofield did not object to the admission
either (1) or (2) at trial so we review for plain error. Olano provides the following
four-part test that governs plain error review:

      before an appellate court can correct an error not raised at trial, there
      must be (1) "error," (2) that is "plain," and (3) that "affects substantial
      rights." If all three conditions are met, an appellate court may then
      exercise its discretion to notice a forfeited error, but only if (4) the error
      "seriously affects the fairness, integrity, or public reputation of judicial
      proceedings."


evidence of Worshek selling, accepting, or delivering methamphetamine; (2) Worshek
did not direct the distribution activities of Scofield or anyone else; and (3) there was
no evidence that Worshek received any proceeds from the sale of methamphetamine.



                                           -9-
Johnson v. United States, 520 U.S. 461, 466–467 (1997) (brackets and citations
omitted) (interpreting United States v. Olano, 507 U.S. 725, 734–35 (1993)).

       Scofield fails to meet his burden to show plain error in the admission of
evidence of his use of methamphetamine and his possession of methamphetamine
paraphernalia. The government contends that it used this evidence to prove that
Scofield knew that the substance he was distributing was indeed methamphetamine.
As the government correctly states, knowledge is one of the permissible purposes for
other-act evidence under Rule 404(b). The district court's admission of the evidence
for that purpose was not plain error.

       Similarly, the district court did not err by refusing to grant a mistrial because
of Johnson's statement involving Scofield's prior "felonies." Scofield believes this
statement unfairly prejudiced him because he had, in fact, only been convicted of one
prior felony. Scofield did not object contemporaneously to Johnson's statement, but
his defense counsel did move for a mistrial the next day based upon the remark. The
district court denied the motion but issued a limiting instruction informing the jury
that the parties had stipulated that Scofield had been convicted of a felony. We hold
that this limiting instruction was sufficient to cure any error that may have occurred
as a result of Johnson's comment.

                                   III. Conclusion
       We affirm the conviction of Scofield in all respects. The district court properly
denied his motion for acquittal on Count I as sufficient evidence supported Scofield's
knowing involvement in a conspiracy to possess and distribute methamphetamine. We
further hold that Scofield's claims that there was plain error under Fed. R. Evid.
404(b) must fail. With respect to Worshek, we reverse the district court's order




                                         -10-
denying Worshek's motion to enter a judgment of acquittal on Count IV because we
find that there was insufficient evidence to support his conviction.
                        ______________________________




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