317 F.3d 788 (8th Cir. 2003), 02-1966, U.S. v. Espino

Docket Nº:02-1966.
Citation:317 F.3d 788
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose ESPINO, Defendant-Appellant.
Case Date:January 09, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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317 F.3d 788 (8th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,


Jose ESPINO, Defendant-Appellant.

No. 02-1966.

United States Court of Appeals, Eighth Circuit

January 9, 2003

Submitted: Oct. 8, 2002.

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Leonard P. Vyhnalek, argued, North Platte, Nebraska, for appellant.

Lynett M. Wagner, argued, Special Assistant U.S. Attorney, Lincoln, Nebraska (Michael G. Heavican, on the brief), for appellee.

Before JOHN R. GIBSON, MURPHY, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Jose Espino appeals his conviction of conspiracy to distribute and possess with intent to distribute more than 500 grams of methamphetamine.1 Espino challenges the sufficiency of the evidence used to convict him. He also contends that the District Court2 erred in allowing his wife to testify against him in violation of the spousal privilege and in allowing lay witnesses to testify about the weight and amount of the drugs distributed by Espino. We affirm.


Espino's April 27, 2001, arrest stemmed from his alleged participation in the sale and distribution of methamphetamine for approximately four years beginning in July 1997. The government built its case against Espino upon the testimony of six witnesses, including Espino's wife, Brandy Goatley, who testified in exchange for the possibility of reduced sentences in their own drug prosecutions. These witnesses testified that they either bought from or were delivered methamphetamine by Espino or Goatley during the four years of their distribution operation. Following trial, a jury convicted Espino of the charge and found that the amount of methamphetamine involved was 500 grams or more. The District Court sentenced Espino to 235 months' imprisonment on March 15, 2002.


Sufficiency of the Evidence

First, we address whether sufficient evidence exists to support the jury's verdict. "The standard of review of an appeal concerning sufficiency of the evidence is very strict, and the verdict of the jury should not be overturned lightly." United States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002) (quoting United States

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v. Burks, 934 F.2d 148, 151 (8th Cir. 1991)). In reviewing the sufficiency of the evidence on appeal, the court views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict. United States v. Erdman, 953 F.2d 387, 389 (8th Cir. 1992). We will reverse only if no reasonable jury could have found the accused guilty beyond a reasonable doubt. United States v. Harmon, 194 F.3d 890, 892 (8th Cir. 1999).

Espino concedes that the evidence proves that he independently sold and distributed methamphetamine. However, he argues that none of the admissible testimony3 proves that he conspired with anyone to commit this crime. Furthermore, he argues that these witnesses were biased in that they each received a substantial benefit from the government to testify that there was a conspiracy.

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. Jones, 101 F.3d 1263, 1267 (8th Cir. 1996); United States v. Westbrook, 896 F.2d 330, 338 (8th Cir. 1998). Tacit understanding—as opposed to mere presence at and knowledge of an intended drug sale—will suffice; a formal agreement is unnecessary. Id. (citing United States v. Shoffner, 71 F.3d 1429, 1433-34 (8th Cir. 1995)). The existence of a conspiracy may be proved by either direct or circumstantial evidence. United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996). Evidence of association or acquaintance, though relevant, is not enough by itself to establish a conspiracy. United States v. Ivey, 915 F.2d 380, 384 (8th Cir. 1990).

The evidence in this case supports the jury's finding of Espino's involvement in a conspiracy to distribute methamphetamine. With the exception of Goatley, the government's witnesses testified that they either bought or were distributed methamphetamine from Goatley or Espino from the couple's home during the years of the couple's drug operation.4 Melanie Berlie testified that she had been purchasing methamphetamine from Goatley since 1996, and that she first met Espino at Goatley's home in 1998. Berlie testified that Goatley told her that it would be possible to buy drugs from Espino, and that "[i]t was just one or the other, whoever was there or whichever one was doing it." Berlie purchased methamphetamine three or four times a week from the couple at their residence. She purchased the drugs half the time from Goatley and half the time from Espino. Berlie further stated that if Goatley or Espino did not have the drugs when she wanted them, "[o]ne of them would pick it up and one of them would bring it to me."

Penelope Woodward testified that she met Espino at a bar in Grand Island, Nebraska. In the year thereafter, she bought methamphetamine from Espino at the bar, her home, or Espino's and Goatley's home. She testified that Espino would come by her home as often as every other day to sell or distribute methamphetamine to her.

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Joe Olivo, a twenty-year methamphetamine user, testified that he first bought drugs from Espino in the winter of 1998. Olivo said he bought methamphetamine from Espino four or five times, and that he resold some of it.

Cassandra Brunick ("Cassandra") testified that she first bought drugs from Goatley in late 1997 and met Espino through Goatley in 1998. Cassandra began buying methamphetamine from Espino in April 1998, and continued through February 1999. She purchased methamphetamine from Espino through Goatley once or twice a week. Cassandra testified that she would go alone or with her husband, Steve Brunick ("Steve"), to purchase the drug from Espino at a trailer where Espino and Goatley lived, and later at a house on Charles Street where Espino, Goatley, and others were living. Although she initially purchased methamphetamine mostly from Goatley, she later purchased up to half from Espino.

Steven Brunick testified that he and his wife first met Espino through Goatley during the summer of 1998. Steve made his first purchase from the couple in November 1998 at Espino's and Goatley's trailer, and continued to buy methamphetamine one or two times a week from Espino and Goatley until the end of January 1999. Steve testified that he would resell the narcotic. Steve derived his entire financial support from this enterprise during the period from February 1998 to January 1999.

Lastly, Goatley testified that she and Espino first lived together in a trailer on Sylvan Street, then at a trailer at Mobile Manor. Later, they lived in a house on Charles Street with Michelle and Joe Olivo. Goatley testified that she had been selling and using methamphetamine for nine years, and that she sold methamphetamine from the residence at Mobile Manor. While living at Mobile Manor, Goatley saw a person named "Chappo" give Espino methamphetamine on two occasions. During one of these exchanges, Goatley overheard Chappo and Espino arguing over methamphetamine "because Chappo had an ounce in the house and had said that Jose had stole it or something."

Goatley also testified that while living at the Charles Street residence, she knew Espino was...

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