United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1721
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Bruce Listman, *
*
Appellant. *
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Submitted: December 17, 2010
Filed: April 12, 2011
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Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.
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RILEY, Chief Judge.
A jury convicted Bruce Listman of conspiracy to possess with intent to distribute
at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 846. Listman appeals, arguing there was insufficient evidence to support
the conviction. Listman also challenges the district court’s1 evidentiary rulings and
inclusion of a deliberate ignorance jury instruction. We affirm.
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
I. BACKGROUND
A. Facts2
From approximately March to November 2008, Listman was a courier for the
Valdovinos drug trafficking organization. Candice Russell recruited Listman to drive
with her from California to Arkansas because she did not have a driver’s license.
Russell and Listman drove vehicles modified to include a trap door concealing
a hidden compartment. The vehicles carried methamphetamine to Arkansas and cash
back to California. Listman and Russell deny knowing the specific locations of the
traps.
Listman accompanied Russell on four trips.3 Russell did not tell Listman they
were smuggling drugs during their first trip to Arkansas. During their second trip,
Russell told Listman “what was going on . . . [b]ecause it wasn’t right for him not to
know.” Russell received approximately $2500 per round-trip. In turn, Russell paid
Listman $1000 per trip in addition to methamphetamine.
Starting in September 2008, the offices of the United States Department of
Justice Drug Enforcement Agency (DEA) in California and in Arkansas began
investigating the Valdovinos drug trafficking organization, surveilling and arresting
various participants. During the investigation, the DEA identified Russell as a courier.
On November 21, 2008, California Highway Patrol Officer Anthony Cichella,
acting on DEA information relayed to him from an area police department, stopped a
2
“We recite the facts in the light most favorable to the jury’s verdict[].” United
States v. Clay, 618 F.3d 946, 948 n.2 (8th Cir. 2010) (quoting White v. McKinley, 605
F.3d 525, 528 (8th Cir. 2010)) (internal quotation marks omitted).
3
Listman did not return with Russell on the first trip, opting instead to fly home
to California.
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gray Toyota Corolla traveling westbound on Interstate 10 near Fontana, California.
Russell was driving the vehicle and Listman was a passenger. Russell consented to a
search of the vehicle. With a drug dog’s assistance, Officer Cichella discovered a trap
over a modified compartment under the rear bench seat. The trap contained a
crystalline residue, which Officer Cichella believed to be methamphetamine.
During the encounter, Officer Cichella observed Listman was fidgety, moody,
easily agitated, and at times uncooperative. This led Officer Cichella to conclude
Listman “was definitely under the influence.” Officer Cichella did not conduct a field
sobriety test and did not arrest Listman for being under the influence of a controlled
substance. Officer Cichella took both Russell and Listman to the police station and
seized the Corolla.
B. Prior Proceedings
A federal grand jury charged Listman with conspiracy to possess with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.4
Listman moved to suppress evidence of Officer Cichella’s discovery of the trap,
arguing the stop and search violated his Fourth Amendment rights. Alternatively,
Listman moved in limine to exclude evidence of the trap, contending “testimony that
he was a passenger in a vehicle which contained a hidden compartment which police
suspected of being used to transport drugs would unduly prejudice his defense.” The
district court denied both motions.
A three-day jury trial began on January 19, 2010. Law enforcement officers and
four co-conspirators, including Russell, testified for the government. At trial, Listman
objected to Officer Cichella’s observation that Listman was under the influence of
drugs during the traffic stop, arguing Listman’s drug use was not relevant. The district
4
This indictment superseded an already existing indictment against other
participants in the conspiracy. In January 2010, a grand jury returned a second
superseding indictment, charging Listman with the same crime.
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court ultimately found the evidence admissible because “although [Listman’s] personal
use of methamphetamine does not lead to the conclusion that he must have been
involved in a conspiracy, it does show . . . that methamphetamine was . . . in his
presence . . . [a]nd . . . would indicate he had some knowledge.” At Listman’s request,
the court instructed the jury “if you believe . . . Listman used methamphetamine . . .
you may not just from that alone conclude that he was involved in a conspiracy . . . to
possess with intent to distribute.”
At the close of the government’s case, the district court denied Listman’s Fed.
R. Crim. P. 29 motion for a judgment of acquittal. Listman testified in his own
defense. Before closing arguments, Listman objected to the district court’s inclusion
of a deliberate ignorance jury instruction. The district court overruled the objection
and included the instruction. The jury found Listman guilty. Listman appeals.
II. DISCUSSION
A. Sufficiency of the Evidence
Listman claims the evidence supporting his conviction was insufficient. We
“review[] sufficiency of the evidence de novo and reverse[] only if no reasonable jury
could have found the defendant guilty.” Clay, 618 F.3d at 950. We must sustain a
conviction when the evidence, viewed most favorably to the government, substantially
supports the verdict. See id.
To convict Listman of conspiracy to distribute methamphetamine, “the
government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute
[methamphetamine]; (2) that [Listman] knew of the conspiracy; and (3) that [Listman]
intentionally joined the conspiracy.” United States v. Rolon-Ramos, 502 F.3d 750, 754
(8th Cir. 2007) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007))
(internal quotation marks omitted). Listman concedes there was a conspiracy, but
argues the government failed to prove he knew of or intentionally joined the
conspiracy.
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The evidence was sufficient for the jury to conclude Listman knew he was
transporting methamphetamine. Russell testified she told Listman they were
transporting drugs, and it was the jury’s prerogative to believe her. “The jury is the
final arbiter of the witnesses’ credibility, and we will not disturb that assessment.”
United States v. Hayes, 391 F.3d 958, 961 (8th Cir. 2004). The government also
produced circumstantial evidence—such as Russell paying Listman cash and
methamphetamine, and Russell and Listman using methamphetamine together during
the trip—supporting an inference Listman knew he was transporting drugs.
Listman argues “a person who is caught driving a car full of drugs does not
possess them in a legal sense if he did not know what he had.” See United States v.
Mendoza-Larios, 416 F.3d 872, 873-74 (8th Cir. 2005) (noting legal possession could
not be inferred based solely on the defendant driving a car containing large quantities
of hidden illegal drugs). This proposition, while true, is inapplicable here because the
jury heard direct and circumstantial evidence demonstrating Listman knew he was
transporting methamphetamine. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th
Cir. 1994) (holding direct and circumstantial evidence supported finding driver was
aware of the presence of drugs within the vehicle). It is not necessary to prove Listman
knew exactly where in the vehicle the drugs were hidden.
B. Motion in Limine
Listman argues “the trial court erred in denying Listman’s motion in limine and
objections at trial” to Officer Cichella’s testimony regarding the vehicle stop.
Specifically, Listman challenges Officer Cichella’s testimony regarding the existence
of the hidden trap and his assessment that Listman was under the influence of drugs.
“We review the district court’s evidentiary ruling for clear abuse of discretion,
and will not reverse if the error was harmless.” United States v. Hyles, 479 F.3d 958,
968 (8th Cir. 2007) (internal citation omitted). “The trial court has broad discretion in
determining the relevancy and admissibility of evidence” and “great deference is given
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to a district court’s balancing of the relative value of a piece of evidence and its
prejudicial effect.” United States v. Zierke, 618 F.3d 755, 759 (8th Cir. 2010)
(quoting Jiminez, 487 F.3d at 1145) (internal quotation marks omitted); see also United
States v. Emmanuel, 112 F.3d 977, 979 (8th Cir. 1997) (“The district court’s discretion
is particularly broad in the context of a conspiracy trial.”)
We perceive no reversible error here. The very existence of the hidden trap was
probative as to whether Listman participated in the conspiracy and the danger of unfair
prejudice, if any, did not substantially outweigh this probative value. See Fed. R. Evid.
403. “[E]vidence is not unfairly prejudicial merely because it tends to prove a
defendant’s guilt.” United States v. Boesen, 541 F.3d 838, 849 (8th Cir. 2008).
Neither are we persuaded the admission of Officer Cichella’s assessment that
Listman was under the influence of drugs was an abuse of discretion. The district court
found this assertion probative of Listman’s knowledge that he was transporting
methamphetamine. The officer’s assessment also corroborated Russell’s testimony that
Russell and Listman discussed methamphetamine, Russell paid Listman, in part, with
methamphetamine, and they used methamphetamine during the trips. Considering the
court’s accompanying cautionary instruction that the jury could not conclude Listman
was involved in the conspiracy based solely upon Listman’s use of drugs, we find no
abuse of discretion. See United States v. Davidson, 449 F.3d 849, 853 (8th Cir. 2006)
(noting a cautionary instruction to the jury diminished the risk of unfair prejudice to
the defendant). Regardless, any error was harmless. It is difficult to imagine the
challenged evidence substantially influenced the verdict, see United States v. Donnell,
596 F.3d 913, 919 (8th Cir. 2010), particularly because Listman admitted he often used
methamphetamine with Russell, and on at least one occasion during their trips to
Arkansas, Russell started to smoke methamphetamine.
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C. Jury Instruction
Listman argues the district court erred in instructing the jury on a theory of
deliberate ignorance consistent with Eighth Circuit Model Criminal Jury Instruction
7.04 (2007), contending “there is absolutely no evidence that Listman deliberately
avoided learning about the drug conspiracy.” We disagree.
We review the inclusion of a jury instruction for an abuse of discretion and
consider whether any error was harmless. See United States v. Hernandez-Mendoza,
600 F.3d 971, 979 (8th Cir. 2010). “A deliberate ignorance instruction is appropriate
when the evidence is sufficient to support a jury’s conclusion that ‘the defendant had
either actual knowledge of the illegal activity or deliberately failed to inquire about it
before taking action to support the activity.’” Id. (quoting United States v. Whitehill,
532 F.3d 746, 751 (8th Cir. 2008)). “Ignorance is deliberate if the defendants were
presented with facts putting them on notice criminal activity was particularly likely and
yet intentionally failed to investigate.” Whitehill, 532 F.3d at 751. It is “not
appropriate if the evidence implies defendants could only have had ‘either actual
knowledge or no knowledge of the facts in question.’” Id. (quoting United States v.
Parker, 364 F.3d 934, 946 (8th Cir. 2004)).
As discussed above, Russell’s testimony and other evidence supported a
conclusion Listman knew he was transporting methamphetamine. The jury could have
disbelieved Russell and still concluded Listman knew it was likely he was transporting
drugs and chose to remain ignorant. Listman contends, “There is no reason to believe
that a methamphetamine user like [Listman] could conduct an investigation worthy of
Sherlock Holmes and discover the existence of a multi-level conspiracy to transport
methamphetamine.” To the contrary, we deduce it is elementary that someone
recruited to drive across the country on multiple occasions in exchange for cash and
drugs would suspect criminal activity was afoot. Listman’s own testimony that he
wondered whether Russell had methamphetamine on her “[b]ecause she used so much
more [methamphetamine] than anyone [Listman had] known before” is strong evidence
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Listman had some notice. The deliberate ignorance instruction was appropriate, and
giving the instruction was not an abuse of discretion.
III. CONCLUSION
We affirm the judgment of the district court.
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