                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                              Nos. 04-1207/04-1385
                                  ___________

United States of America,             *
                                      *
       Appellee/Cross-Appellant,      *
                                      * Appeal from the United States
       v.                             * District Court for the
                                      * Southern District of Iowa.
Elijah Hayes,                         *
                                      *
       Appellant/Cross-Appellee.      *
                                 ___________

                             Submitted: October 19, 2004
                                Filed: December 14, 2004
                                 ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

      On September 3, 2003, a jury convicted Appellant Elijah Hayes on two counts:
conspiracy to distribute and possess with intent to distribute crack cocaine, and
possession with intent to distribute crack cocaine. Hayes appeals his conviction on
both counts. The government cross-appeals, claiming the District Court erred by
granting Hayes a sentencing reduction for being a minor participant in the charged
offenses. After carefully reviewing the record, we affirm the conviction on both
counts. In addition, we vacate the District Court's sentencing order and remand for
resentencing.
                                           I.

       We begin with a summary of the testimony and evidence adduced at Elijah
Hayes's trial. At some time prior to 1993, Hayes moved from Chicago, Illinois to
Clinton, Iowa and began "hanging around" with Fred Dodd, whom Hayes had known
in Chicago. Trial Tr. at 114. Shortly thereafter, Hayes was observed receiving crack
cocaine from Dodd and selling crack cocaine at an apartment in Clinton. During this
period, several other people received drugs from Dodd and sold them at the Clinton
apartment and elsewhere. Further, Dodd's girlfriend Meko Davis testified that Dodd
would convert powder cocaine to crack cocaine at the Clinton apartment, while
Hayes, Davis, and a large group of other people would "bag it up in little amounts . . .
to be sold." Id. at 313. This activity was going on "[a]ll of the time . . . [t]hree to
four" days per week. Id. at 314.

       Hayes's involvement in the drug activity was abruptly suspended in August
1993, after he was arrested and convicted on an unrelated charge. Hayes was
subsequently incarcerated from December 1993 until his release in February 2002.
Immediately thereafter, Hayes moved to Rock Island, Illinois, where Dodd had
relocated. Between February 2002 and January 2003, Dodd and Hayes were together
almost constantly. In August 2002, Dodd's girlfriend Heidi Jungwirth observed Dodd
cooking powder cocaine into crack cocaine at her house while Hayes was present.
Jungwirth further observed Dodd, Hayes, and several others cutting the crack cocaine
and "bagging it all up together in the same room." Id. at 360, 388. On that occasion,
the group manufactured enough crack cocaine to fill half of a ten-inch-square plastic
Ziploc bag.

       The group led by Dodd ran a drug-selling operation at the Trinity Apartments
in Davenport, Iowa, which along with Rock Island forms part of the Quad Cities area
on the Mississippi River. Dodd also conducted drug-related activities at an additional
residence he rented in Davenport. In January 2003, the police obtained a warrant to

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search the Davenport residence and three of Dodd's vehicles. While the residence
was under surveillance, the police observed Dodd and Hayes enter with a female, stay
for about an hour, and then leave together in Dodd's car. The car was one of the
vehicles for which the police had a search warrant.

       Thereafter, the police stopped Dodd's car in an area known for drug trafficking
and ordered Dodd and Hayes to exit the car. Before Dodd exited, a police officer saw
clear plastic in Dodd's right hand. Afterwards, the police found crack cocaine in
seven plastic baggies, weighing a total of 2.5 grams, on the floorboard near where
Hayes had been sitting. The police officer testified that the baggies found on the
floorboard were those he had seen in Dodd's hand. The police found no other
contraband in the car. Hayes was not carrying any drugs or currency, but Dodd was
carrying $720.00. The police arrested both Hayes and Dodd.

       After the arrest, the police searched the residence using Dodd's keys to gain
entry. In one bedroom the police found fifteen baggies, each containing
approximately one eighth of an ounce of crack cocaine. The police also found in the
bedroom a plastic bag containing over sixty grams of powder cocaine, a pistol, a
digital scale, more plastic baggies, razor blades, scissors, and substances used to
dilute cocaine. Finally, the police recovered from the trash in the same bedroom a
liquor bottle bearing Hayes's fingerprint.

       Hayes and Dodd were tried before a single jury along with another defendant.
The jury convicted both Hayes and Dodd of conspiracy to distribute and possess with
intent to distribute crack cocaine, and also convicted each of possession with intent
to distribute crack cocaine. On both counts, the amount of crack cocaine for which
each was convicted was over fifty grams. Hayes, having been sentenced, brings this
appeal.




                                         -3-
                                          II.

      Hayes appeals the judgment of conviction entered against him, asking this
Court to vacate his conviction on both counts because of the alleged insufficiency of
the evidence. The government cross-appeals, challenging a "minor participant"
sentencing reduction granted by the District Court. We address each appeal
separately.

                                          A.

       Where a party challenges the evidence underlying his conviction, the standard
of review is very strict, and the jury's verdict is not to be lightly overturned. United
States v. Surratt, 172 F.3d 559, 564 (8th Cir. 1999), cert. denied, 528 U.S. 910 (1999)
and 537 U.S. 850 (2002). We view the evidence in the light most favorable to the
government, and we resolve any evidentiary conflicts in the government's favor. Id.
at 563. We accept all reasonable inferences drawn from the evidence that support the
jury's verdict, and we will uphold that verdict as long as a reasonable-minded jury
could have found the defendant guilty beyond a reasonable doubt. Id. The jury is the
final arbiter of the witnesses' credibility, and we will not disturb that assessment.
United States v. Espino, 317 F.3d 788, 794 (8th Cir. 2003).

       Hayes first attacks his conviction for knowingly and intentionally conspiring
to distribute and possess with intent to distribute fifty grams or more of cocaine base.
See 21 U.S.C. §§ 841(a)(1), 846 (2000). Hayes claims the evidence was insufficient
to find a conspiracy existed, and that if such a conspiracy did exist, the evidence was
insufficient to find he knowingly agreed to join it.

       To convict a defendant on a conspiracy charge, the jury is required to find that
1) an agreement existed among two or more people to accomplish an illegal purpose,
2) the defendant knew of the conspiracy, and 3) the defendant knowingly joined and

                                          -4-
participated in the conspiracy. See United States v. Munoz, 324 F.3d 987, 990 (8th
Cir. 2003); United States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002). Once a
conspiracy is established, only slight evidence is required to connect a defendant to
the conspiracy. United States v. Navarrete-Barron, 192 F.3d 786, 793 (8th Cir. 1999).
The defendant need not have expressly agreed to join the conspiracy. United States
v. Kamerud, 326 F.3d 1008, 1012 (8th Cir.), cert. denied, 124 S.Ct. 969 (2003).
Instead, the government need only show a tacit agreement by the defendant. Id.;
Crossland, 301 F.3d at 913.

       We hold the evidence was sufficient for a reasonable jury to conclude that a
conspiracy existed and that Hayes knowingly joined the conspiracy. As to the
existence of a conspiracy, numerous people testified that they purchased or witnessed
others purchasing crack cocaine from Fred Dodd during a period from before 1992
until January 2003. Willie Harris and Anthony Dodd testified they were instructed
at times by Fred Dodd to buy crack cocaine from others, and that sometimes when
they arranged to buy crack cocaine from Fred Dodd, the drugs would be delivered by
others. Anthony Dodd also testified about a drug selling operation at the Trinity
Apartments that included Fred Dodd and Aikins Frimpong. Melvin Yancy, Deandre
Williams, and Ashia Brown each testified they sold crack cocaine under an agreement
whereby they would receive drugs from Fred Dodd at no up-front charge, sell them
on his behalf, and then receive a percentage of the profits. Meko Davis and Heidi
Jungwirth both testified they had witnessed Dodd and others dividing and bagging
large amounts of crack cocaine that Dodd had manufactured. Finally, Dodd
possessed large amounts of powder and crack cocaine, as well as other indicia of drug
distribution, when he was arrested.

       Moreover, Hayes's knowing participation in the conspiracy was firmly
established. Melvin Yancy and Deandre Williams both testified that Hayes received
and sold crack cocaine for Dodd. Meko Davis testified that Hayes sold crack cocaine
for Dodd many times, and that Hayes often helped Dodd divide and bag large

                                        -5-
amounts of crack cocaine at the Clinton apartment. Heidi Jungwirth testified that
Hayes was present when Dodd manufactured crack cocaine at Jungwirth's house in
Rock Island, and that Hayes helped Dodd divide and bag it. Finally, Hayes was
present and arrested with Dodd after leaving the Davenport residence where evidence
of drug distribution was found.

       In all, there was a wealth of evidence upon which the jury could reasonably
have found Hayes guilty of joining the conspiracy to distribute crack cocaine. The
evidence of Hayes's participation in the distribution activities was sufficient to find
that he tacitly agreed to further the purpose of the conspiracy. Though Hayes attacks
the credibility of the government's witnesses, noting a lack of specific dates and
details of his participation, the jury assessed the witnesses and apparently found them
credible. We affirm the conspiracy conviction.

        Hayes next challenges his conviction for possession with intent to distribute
fifty grams or more of crack cocaine under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
Hayes argues there was insufficient evidence to show he had either actual or
constructive possession of the 53.1 grams of crack cocaine found in the Davenport
residence. The government appears to concede this argument, having abandoned it
in its brief, and instead argues the evidence was sufficient to convict Hayes for aiding
and abetting Dodd's possession. On appeal, however, we need not decide the merit
of either argument, because our decision in United States v. Navarrete-Barron is
dispositive of Hayes's claim. 192 F.3d 786 (8th Cir. 1999).

       Navarrete-Barron concerned circumstances similar to those here, in which the
defendant was convicted of both conspiracy to distribute crack cocaine and
possession with intent to distribute crack cocaine. Id. at 789. On appeal, the
defendant challenged the evidence supporting his conviction on the possession with
intent to distribute charge. Id. We upheld the conviction under the theory of co-
conspirator liability announced in Pinkerton v. United States, 328 U.S. 640 (1946).

                                          -6-
See Navarrete-Barron, 192 F.3d at 792–93. Under Pinkerton and our subsequent
cases, "each member of a conspiracy may be held criminally liable for any substantive
crime committed by a co-conspirator in the course and furtherance of the conspiracy,
even though those members did not participate in or agree to the specific criminal
act." Id. at 792 (quoting United States v. Golter, 880 F.2d 91, 93 (8th Cir. 1989))
(emphasis added); Pinkerton, 328 U.S. at 647.

      Curiously, the government did not argue a Pinkerton liability theory in its brief,
arguing only that "when viewed in light of the evidence establishing Hayes'
involvement in the conspiracy, the evidence establishing Hayes' guilt on the aiding
and abetting count was sufficient to sustain the conviction." Brief of Appellee/Cross-
Appellant at 14. However, the jury was properly instructed on co-conspirator liability
in accordance with Pinkerton. Specifically, the jury was instructed that they

      may consider acts knowingly done . . . by a defendant's co-conspirators
      during the existence of the conspiracy and in furtherance of it as
      evidence pertaining to a defendant even though they were done or made
      in the absence of and without the knowledge of a defendant. . . . [A]
      person who knowingly, voluntarily and intentionally joins an existing
      conspiracy is responsible for all of the conduct of the co-conspirators
      from the beginning of the conspiracy.

Jury Instructions, Instruction No. 15 (emphasis added).

       In light of the conspiracy charge against Hayes, the District Court was
warranted in giving this instruction, even though co-conspirator liability was not
charged in the indictment. See United States v. Thirion, 813 F.2d 146, 152 (8th Cir.
1987) (citing United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975), cert. denied,
426 U.S. 923 (1976)); United States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990),
cert. denied, 499 U.S. 977 (1991). Therefore, our task on appeal is to decide whether



                                          -7-
a reasonable-minded jury could have convicted Hayes beyond a reasonable doubt
based on co-conspirator liability.

      In order to convict Hayes based on co-conspirator liability, the jury had to be
convinced that 1) Dodd knowingly or intentionally possessed fifty or more grams of
crack cocaine, 2) Hayes and Dodd were members of a conspiracy at the time of the
possession, 3) Dodd's possession was in furtherance of the conspiracy, and 4) Dodd's
possession was reasonably foreseeable by Hayes as a natural outgrowth of the
conspiracy. See Navarrete-Barron, 192 F.3d at 792–93.

       We have little trouble concluding the jury might reasonably have found Hayes
liable for the acts of his co-conspirator, Fred Dodd. First, the same jury convicted
Dodd of possession with intent to sell fifty grams or more of crack cocaine. Dodd's
conviction has not been challenged here, so we need not review the evidence
supporting it, but given the evidence of Dodd's control over the residence and car in
which the crack cocaine was seized, we believe the conviction would withstand
appeal. Second, the jury convicted Hayes of conspiring to distribute and possess
crack cocaine with Dodd—a conviction we have herein upheld. As charged, the
conspiracy was in existence when Hayes and Dodd were arrested on January 4, 2003.

       As for the third and fourth elements required, the jury specifically found
beyond a reasonable doubt that the crack cocaine was "involved in [i.e. in furtherance
of] the conspiracy and reasonably foreseeable to . . . Hayes." Verdict Forms, Count
One, Form No. 2, Interrogatory No.1 (emphasis added). Indeed, the large amount of
crack cocaine Dodd possessed played an essential part of the conspiracy to distribute
crack cocaine, as it was the main product to be distributed. It was reasonable for the
jury to so infer and to attribute foresight of this obvious fact to Hayes. Thus, along
with the other evidence of Hayes's involvement, and in light of the instruction given
them, it was reasonable for the jury to impute Dodd's possession of the crack cocaine
to Hayes as a co-conspirator. We therefore hold that a reasonable-minded jury could

                                         -8-
have found Hayes guilty on this theory beyond a reasonable doubt. Hayes's
conviction for possession of crack cocaine with intent to distribute is therefore
affirmed.

                                          B.

       The government cross-appeals Hayes's sentence, arguing that the District Court
erred by granting Hayes a two-level sentencing reduction for being a minor
participant in the offense.1 See U.S. Sentencing Guidelines Manual § 3B1.2(b)
(2003). The government claims the District Court erred by placing the burden on the
government to show Hayes was not entitled to a minor participant reduction, rather
than placing the burden on Hayes to show he was so entitled. It is well-settled that
a defendant bears the burden of showing facts entitling him to receive a sentencing
reduction, including a reduction for being a minor participant. United States v.
Chatman, 119 F.3d 1335, 1341 (8th Cir.) (citing United States v. Dinges, 917 F.2d
1133, 1135 (8th Cir. 1990)), cert. denied, 522 U.S. 976 (1997).

       Here, the record is unclear as to the party to which the District Court allocated
the burden. At the sentencing hearing, the District Court stated that the government
had "the burden with respect to drug quantity and the other issues." Sentencing Tr.
at 5 (emphasis added). Because the District Court did not revisit the burden at any
point thereafter, it appears the District Court may have included the minor-participant
reduction as one of the "other issues" on which the government had the burden. Id.
On the present state of the record, we simply cannot be sure. We therefore remand
the case to the District Court for factual findings on Hayes's entitlement to the minor-
participant reduction, with the burden of proof on this sentencing-reduction issue


      1
      Although the government states its claim under a single heading, it in effect
makes two arguments. Because we agree with the first argument, we need not
address the second.

                                          -9-
properly and clearly allocated to Hayes. Accordingly, we need not review the
findings already made.2

                                         III.

      As described above, we affirm the judgment entered against Hayes on both
counts. We vacate the District Court's sentencing order and remand for resentencing
consistent with this opinion.
                       ______________________________




      2
        We note in passing that we do not believe that Hayes's intervening prison term
for another offense, resulting in a lengthy, enforced absence from the conspiracy
charged in this case, necessarily establishes his entitlement to a minor-participant
sentencing reduction. Instead, his entitlement to this reduction depends, at least in
part, on a comparison of his degree of participation in the conspiracy with the degree
of participation therein by other defendants not receiving such a reduction, and a
showing by Hayes that he is significantly less culpable than those other defendants.
See United States v. Johnson, 358 F.3d 1016, 1018 (8th Cir. 2004) (following United
States v. Snoddy, 139 F.3d 1224, 1231 (8th Cir. 1998)).

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