                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1616
                         ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                         v.

                                 Donald B. Loomis

                                    Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                    for the Western District of Missouri - Joplin
                                  ____________

                            Submitted: March 13, 2020
                                 Filed: April 6, 2020
                                 ____________

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
                       ____________

GRUENDER, Circuit Judge.

       Donald Loomis appeals the admission of certain evidence at his jury trial, the
district court’s 1 denial of his motion for a mistrial, and the sufficiency of the
evidence supporting his conviction. We affirm.



      1
      The Honorable Douglas Harpool, United States District Judge for the
Western District of Missouri.
       A federal grand jury returned an indictment charging Loomis and five other
defendants with conspiring to distribute 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine. See 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846.     The indictment stated that the conspiracy existed from
approximately March 1, 2015 until September 24, 2016.

       After the Government presented its case at trial, Loomis’s attorney moved for
a mistrial based on what Loomis argued was testimony about his potential
involvement in other crimes. Loomis’s attorney also filed a written motion for
judgment of acquittal, arguing the Government failed to prove beyond a reasonable
doubt all the elements of the offense. The district court denied both motions. The
jury returned a guilty verdict, and the district court sentenced Loomis to 360 months’
imprisonment.

      Loomis appeals, challenging the admission of certain evidence, the denial of
his motion for a mistrial, and the sufficiency of the evidence. We consider each
argument in turn.

       Loomis argues the district court should not have admitted certain evidence.
The parties agree we review the admission of the evidence for plain error because
Loomis did not raise his evidentiary arguments before the district court. “To
constitute a plain error, a district court’s decision must be (1) an error, (2) which is
clear or obvious, and (3) which affects substantial rights.” United States v.
Thompson, 289 F.3d 524, 526 (8th Cir. 2002).

      First, Loomis argues that the district court plainly erred in admitting evidence
of a gun found on codefendant Terrance Romero during a traffic stop and arrest on
June 1, 2016. Romero testified that he purchased methamphetamine from Loomis
and codefendant Alisha Courtney from February to May 2016. According to
Loomis, the evidence should not have been admitted because any partnership
Romero had with Loomis “had ended before the stop of [Romero’s] vehicle.”



                                          -2-
      Second, Loomis argues that several witnesses testified as experts without
proper foundation or notice. Loomis points to Romero’s testimony that he had
manufactured methamphetamine and his testimony about the precursors needed to
manufacture methamphetamine, Drug Enforcement Administration Special Agent
Sean Henry’s testimony about drug investigations, including the amount of
methamphetamine a user would possess compared to the amount a dealer would
possess, and Newton County Sheriff Officer Travis Spencer’s testimony about
methamphetamine manufacturing.

       Third, relying on Griffin v. California, 380 U.S. 609, 615 (1965), Loomis
argues that the district court should not have allowed Henry to testify about Loomis’s
invocation of his Fifth Amendment right to remain silent. See id. (explaining that
the Fifth Amendment “forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is evidence of guilt”). At trial,
Henry described his interview with Loomis: “He started out being cooperative then
once we started digging a little deeper into the investigation he kind of just didn’t
want to talk anymore so we stopped it.” Henry clarified, “[H]e has his rights to
refuse to talk. We weren’t getting anywhere in the investigation.” Loomis argues
this testimony violated his Fifth Amendment right to remain silent.

      Finally, Loomis challenges the admission of evidence regarding
methamphetamine seized during his arrest because the Government’s notice of
evidence under Rule 404(b) of the Federal Rules of Evidence “does not make any
mention of the methamphetamine discovered upon his arrest.”

       We conclude that even if the above evidence was erroneously admitted, the
errors did not affect Loomis’s substantial rights as required by the plain-error
standard because the evidence of his guilt was overwhelming. “The Supreme Court
has explained that, in the ordinary case, an error affects the defendant’s substantial
rights if the defendant shows a reasonable probability that, but for the error, the
outcome of the proceeding would have been different.” United States v. Davies, 942
F.3d 871, 873 (8th Cir. 2019) (internal quotation marks and alteration omitted); see


                                          -3-
also United States v. Griffin, 413 F.3d 806, 807 (8th Cir. 2005) (“Defendant also
concedes that the plain error standard applies because he did not raise his
constitutional challenge in the district court.”); United States v. Okolo, 998 F.2d
1011 (4th Cir. 1993) (per curiam) (finding that a jury instruction regarding the
defendant’s right to remain silent did not affect the defendant’s substantial rights).

       “To establish that a defendant conspired to distribute drugs under 21 U.S.C.
§ 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement
to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that
the defendant intentionally joined the conspiracy.” United States v. Saddler, 538
F.3d 879, 887 (8th Cir. 2008). “Either direct or circumstantial evidence may be used
to prove a conspiracy.” United States v. Johnson, 470 F.3d 1234, 1237 (8th Cir.
2006).

        Here, Detective Ed Bailey of the Ozark Drug Enforcement Team testified that
a confidential informant provided him with information around April or May 2016
that Loomis was dealing methamphetamine. Bailey then conducted limited
surveillance of a residence where Loomis lived with Courtney, and he subsequently
arranged a series of controlled buys. An informant purchased about 3.3 grams of
methamphetamine at Loomis and Courtney’s residence. Several days later, the same
informant purchased about 3.5 grams of methamphetamine at the residence. Bailey
testified that he later searched the residence and found three baggies of
methamphetamine and that after the search, Courtney confessed to dealing almost
150 pounds of methamphetamine in one year and “indicated that she obtained the
majority of that methamphetamine from Donald Loomis.”

       Courtney also testified that she had known Loomis for years and that she saw
Loomis with methamphetamine “all the time,” including one instance where Loomis
had a couple pounds in a Ziploc bag. She also said that Loomis “utilize[d]” her to
distribute methamphetamine and that he would compensate her with drugs. From
2015 to 2016, Courtney testified that she and Loomis sold about 120 pounds of



                                         -4-
methamphetamine. According to Courtney, she introduced Loomis to Romero, who
bought drugs from Courtney.

       Romero confirmed that Courtney introduced him to Loomis, and he testified
that he purchased one half of an ounce of methamphetamine for $500 from Loomis
on one occasion and one half of an ounce of methamphetamine for $400 on a
different occasion.       He conservatively estimated that he purchased
methamphetamine from Courtney fifty different times at the residence where she
lived with Loomis. In total, he estimated he received three pounds of
methamphetamine from Loomis and Courtney.

       Codefendant Katherine Stein testified that Loomis was one of her sources for
methamphetamine. At first she bought 3.5 grams from him, but that amount
increased to about one half of an ounce of methamphetamine every other week.
Stein said her relationship with Loomis ended after they argued about whether she
owed him $600 for methamphetamine.

      Law enforcement officers also testified that, when stopped on several
occasions, Loomis was carrying large quantities of money: $6,000 on one occasion,
$4,000 on another, and $8,494 on still another. According to Stein, Loomis did not
have a job during the time she knew him. Courtney also testified that Loomis was
not employed during the time he lived with her.

      This evidence is more than sufficient to show that any error in admitting the
evidence Loomis challenges on appeal did not affect his substantial rights because,
even without the challenged evidence, there is not a reasonable probability that a
jury would have acquitted Loomis. Loomis argues that we should discount certain
testimony because it was not credible, but “credibility determinations are left to the
jury.” United States v. Wallace, 713 F.3d 422, 428 (8th Cir. 2013). We thus reject
Loomis’s evidentiary arguments.




                                         -5-
       Next, Loomis argues the district court abused its discretion in denying his
motion for a mistrial based on Spencer’s testimony about Loomis’s potential
involvement in a shooting and a burglary and Henry’s testimony about money
laundering. “The denial of a motion for mistrial is reviewed for an abuse of
discretion.” United States v. Thompson, 533 F.3d 964, 971 (8th Cir. 2008). In
reviewing whether the district court abused its discretion, “the prejudicial effect of
any improper testimony is determined by examining the context of the error and the
strength of the evidence of the defendant’s guilt.” Id. (alteration omitted).

       Spencer testified that when he interviewed Loomis, Loomis stated that he was
not involved in a shooting or burglary at Bykota Trailer Park. After a sidebar, the
district court subsequently instructed the jury to “disregard the testimony of
[Spencer] as it related to any reference to a shooting or burglary.” Assuming
Spencer’s testimony was improper, we conclude that “the district court’s curative
instruction sufficiently cured any prejudice caused by [Spencer’s] improper
testimony.” United States v. Ybarra, 700 F. App’x 543, 545 (8th Cir. 2017) (per
curiam); see also United States v. Sherman, 440 F.3d 982, 988 (8th Cir. 2006)
(“Here, the evidence of the defendant’s guilt was substantial, and the district court
acted promptly to strike the allegedly improper testimony and to instruct the jury to
disregard it.”).

      Henry testified that “[a] lot of times drug dealers don’t use player’s cards
[when gambling] because it’s traceable.” Loomis argues this testimony was
improper and unfairly prejudicial because he says the testimony relates to money
laundering, and “[t]his case did not involve money laundering.” But both Stein and
Courtney testified that Loomis did not have a job, so a reasonable juror could infer
that Henry’s testimony indicated that Loomis was making his money through a drug
conspiracy and spending it while gambling.

      Even assuming this testimony was improper, “[w]hen the evidence of guilt is
substantial,” as previously detailed, “we may find that the allegedly improper
testimony was harmless.” United States v. Brandon, 521 F.3d 1019, 1026 (8th Cir.


                                         -6-
2008). We thus conclude, as above, that even if Henry’s and Spencer’s testimony
was erroneously admitted, the error was harmless. The district court did not abuse
its discretion in denying the motion for a mistrial.

       Finally, Loomis argues the evidence was insufficient to support his
conviction. “We review de novo the sufficiency of the evidence, viewing the
evidence in the light most favorable to the verdict and upholding it if, based on all
the evidence and all reasonable inferences in favor of the verdict, any reasonable
juror could find the defendant guilty beyond a reasonable doubt.” United States v.
Hill, 410 F.3d 468, 471 (8th Cir. 2005). For the reasons explained above, Loomis’s
argument fails because the evidence of his guilt was overwhelming.

      Accordingly, we affirm.
                     ______________________________




                                         -7-
