                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2716
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Shawn Jones

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Ft. Dodge
                                  ____________

                             Submitted: April 10, 2013
                              Modified: August 13, 2020
                                 Filed: August 13, 2020
                                  [Unpublished]
                                 ____________

Before RILEY, Chief Judge, BYE and BENTON1, Circuit Judges.
                              ____________

PER CURIAM.




      1
       This matter was originally submitted to a three-judge panel. The opinion is
modified and, pursuant to the provisions of 8th Cir. R. 47E, the revised opinion is
submitted by Judge Benton and Judge Kobes.
      Shawn Jones appeals the sufficiency of the evidence to support his conviction
for conspiracy to distribute methamphetamine in violation of 21 U.S.C.
§ 841(b)(1)(A) and the district court's2 admission of an allegedly suggestive
photographic lineup at trial. We affirm.

                                          I

       In 2009, law enforcement officers conducted two controlled purchases of
methamphetamine from an unnamed conspirator at his residence in Clear Lake, Iowa.
After the second purchase, officers executed a search warrant and seized three pounds
of methamphetamine and several thousand dollars from the unnamed conspirator's
residence. Following his arrest, the unnamed conspirator implicated Shawn Jones,
among others, in a conspiracy to distribute methamphetamine from Mexico to Iowa,
by way of California.

       The unnamed conspirator then participated in a controlled investigation
involving numerous recorded phone calls between the named co-conspirators. During
their conversations, the co-conspirators discussed past drug transactions, drug debts
owed, and plans for future drug transactions. Jones made several references to the
unnamed conspirator's need to "settle-up" or "square up," regarding their outstanding
drug debt.

      In November of 2009, the unnamed conspirator and the named co-conspirators
arranged for the transport of several pounds of methamphetamine over three trips from
Mexico to California to Iowa. In the first transaction, Jones delivered one pound of
methamphetamine to the unnamed conspirator in exchange for $18,000. In the
second, Jones delivered three pounds of methamphetamine to the unnamed conspirator


      2
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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in exchange for $54,000. The unnamed conspirator 's cellular phone bill documented
calls between the unnamed conspirator and Jones on and around the dates of the two
transactions. In December of 2009, the unnamed conspirator and Jones participated
in a third transaction in which Jones assisted a co-conspirator in transporting and
delivering about one pound of methamphetamine from California to Iowa in exchange
for $18,000.

       During the first transaction in November, the unnamed conspirator and Jones
visited a muffler shop owned by the unnamed conspirator's friend to replace the
battery in Jones's car. Prior to trial, an agent presented the owner with a photographic
lineup and asked him to identify the person he had seen with the unnamed conspirator
on that day. The owner selected Jones's picture and said he was not certain that was
the person with the unnamed conspirator , but the photo "looked like a clean-cut guy
like [the unnamed conspirator] would hang around with." At trial, the district court
admitted the lineup into evidence. The agent testifying regarding the lineup explained
it had been generated by a computer program based on the owner’s recollection of the
November meeting.

       At trial, the government also introduced the testimony of James Olson, another
co-conspirator. Olson testified he had met Jones in California and later met the other
co-conspirators through Jones. Together, they had made an agreement to transport
one pound of methamphetamine to the unnamed conspirator . Olson, assisted by
Jones, had received one pound of methamphetamine at the United States/Mexico
border and driven to Iowa with the drugs hidden in the vehicle. Olson testified that
Jones had assisted in hiding the drugs within the vehicle, repackaging the drugs with
a disinfectant cleaner and vacuum sealed plastic, and advising Olson regarding routes
and procedures to avoid detection by law enforcement. Once Olson had delivered the
drugs to the unnamed conspirator , Olson returned to California with $18,000, which
he and Jones then delivered to a co-conspirator in Mexico. Olson also testified as to



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a second, similar transaction involving the unnamed conspirator and Jones and the
movement of one pound of methamphetamine from the United States/Mexico border.

       A jury convicted Jones of conspiracy to distribute 500 grams or more of a
mixture or substance containing 50 grams or more of actual methamphetamine. The
district court sentenced Jones to 360 months of imprisonment and 10 years of
supervised release. Jones now appeals, challenging the sufficiency of the evidence
against him and the admission of the photo lineup at trial.

                                           II

       Jones first challenges the district court's admission of evidence regarding the
photographic lineup. The admissibility of a pretrial identification is reviewed de novo
using a two-part test. United States v. Donelson, 450 F.3d 768, 772 (8th Cir. 2006).
First, we determine whether the identification procedure used was "impermissibly
suggestive." Id. (quoting United States v. Williams, 340 F.3d 563, 567 (8th Cir.
2003)). If so, we examine whether, under the totality of the circumstances, the
suggestive procedure created a very substantial likelihood of irreparable
misidentification. Id. at 773 (internal quotation and citation omitted). Prior to trial,
Jones sought to exclude evidence of the photo lineup, arguing he had been the most
clean-cut individual pictured and the owner 's identification had been based not on his
memory of the individual in question, but on his idea of someone with whom the
unnamed conspirator might associate. Jones renews these arguments on appeal.

       The district court found Jones had suffered no due process violation with
respect to the photo lineup and denied Jones's request to exclude evidence thereof at
trial. First, it found the government had engaged in no impermissible conduct with
regard to the photo array. See Perry v. New Hampshire, 132 S.Ct. 716, 728 (2012)
("The fallibility of eyewitness evidence does not, without the taint of improper state
conduct, warrant a due process rule requiring a trial court to screen such evidence for

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reliability before allowing the jury to assess its creditworthiness."). Second, the
district court examined the photos used in the lineup and determined, contrary to
Jones's argument, that Jones was not the only clean-cut individual pictured. Finally,
with respect to the owner's statement about the kind of person he expected the
unnamed conspirator to "hang around with," the court emphasized Jones's opportunity
to cross-examine the owner on the stand, before the jury.

       We agree with the district court. Each photograph depicts a Caucasian man
with short hair, light eyes (with the exception of one photograph), and facial hair.
While the men exhibit different lengths and styles of facial hair, these variations do
not indicate the lineup was "impermissibly suggestive." See Schawitsch v. Burt, 491
F.3d 798, 803 (8th Cir. 2007) ("Reasonable variations in hair length and facial hair are
not impermissibly suggestive, especially as they can vary on any given person at
different times."). Moreover, Jones was afforded an opportunity to attack the
credibility of the owner 's identification at trial. "Once a pretrial identification has
been admitted . . . it is for the jury to weigh it against countervailing evidence."
Donelson, 450 F.3d at 773. Jones's motion to suppress the evidence of the photo
lineup was properly denied.

       Jones next argues there is insufficient evidence to support his conviction for
conspiracy to distribute methamphetamine. We review questions of sufficiency of the
evidence de novo, viewing the evidence in the light most favorable to the verdict.
United States v. Moe, 536 F.3d 825, 832 (8th Cir. 2008). "When reviewing the
sufficiency of the evidence to support a conspiracy conviction, we will affirm if the
record, viewed most favorably to the government, contains substantial evidence
supporting the jury's verdict, which means evidence sufficient to prove the elements
of the crime beyond a reasonable doubt." United States v. Lopez, 443 F.3d 1026,
1030 (8th Cir. 2006) (en banc).




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       To convict Jones of conspiracy to distribute methamphetamine, the government
had to prove (1) Jones and at least one other person reached an agreement to distribute
methamphetamine, (2) Jones voluntarily and intentionally joined the agreement, and
(3) at the time he joined the agreement, Jones knew its essential purpose. United
States v. Harris, 493 F.3d 928, 931 (8th Cir. 2007). Jones argues that apart from the
witness testimony offered at trial, the government's corroborating evidence does not
support his conviction. Specifically, he notes the unnamed conspirator's phone bill
documents only calls to Jones, with none from Jones. In addition, Jones suggests his
responses to the unnamed conspirator during their documented conversations are "at
best ambiguous in relation to drug activity." Finally, he contends both the unnamed
conspirator and Olson had an incentive to fabricate their testimony in exchange for
reductions in sentence through "substantial assistance" to the government.

       Jones's arguments are unavailing. Two co-conspirators testified regarding their
direct communication and involvement with Jones in the trafficking of
methamphetamine from Mexico through California to Iowa. Between the two
witnesses, five pounds of methamphetamine can be traced to Jones. The credibility
of those witnesses in light of any deals struck with the government was an issue
presented to the jury and one we should not disturb on appeal. See United States v.
Jefferson, 652 F.3d 927, 930 (8th Cir. 2011) (noting a "jury's credibility
determinations are virtually unreviewable on appeal" (internal quotation marks and
citation omitted)). As to the government's alleged lack of corroborating evidence, we
have previously held 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).
Accordingly, we conclude the evidence was sufficient to support the jury's finding that
Jones participated in a conspiracy to distribute methamphetamine.

      The judgment of the district court is affirmed.
                     ______________________________



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