UNITED STATES оf America, Plaintiff-Appellee. v. Travis Sentell PEELER, Defendant-Appellant.
No. 14-2080.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 12, 2014. Filed: March 5, 2015.
773 F.3d 773
Finally, Allard argues the disciplinary action supports his deliberate indifference claim. Although a reasonable inference can be made from the disciplinary actions that the prison health officials did not beliеve Allard was as sick as he claimed to be, this does not create a question of material fact which must be sent to a jury. It is not for this Court to determine whether the disciplinary action should have been filеd. The evidence in favor of the CCF Health Services staff on Allard‘s Eighth Amendment claim is strong and Allard has not shown how the CCF requiring him to walk rises to the level of deliberate indifference.
III
Although Allard demonstrates the mediсal staff at CCF failed to properly diagnose his bowel obstruction, and although Allard demonstrates the failure to treat the bowel obstruction led to a bowel perforation, Allard fails to put forward еvidence to support a finding of deliberate indifference. Accordingly, we affirm the judgment.
LeeAnn K. Bell, AUSA, argued and on the brief, Minneapolis, MN.
Before LOKEN, BRIGHT, and KELLY, Circuit Judges.
LOKEN, Circuit Judge.
A jury convicted Travis Peeler of conspiracy to possess with intent to distribute more than five kilograms of powder cocaine and 280 grams of crack cocaine in violation of
At trial, FBI Special Agent James Somerville testified that, in early January 2012, law enforcement officers investigating widespread cocaine trafficking in Minneapolis began intercepting the phone calls of suspected drug dealer Rossco Ross. The calls revealed that Ross was distributing cocaine and crack cocaine supplied by Musaaleh Muhammad to multiple lower-level dealеrs. On January 8, Ross complained to Muhammad about the quality of his latest supply. The two arranged a meeting on January 9, and the poor cocaine was “swapped out” for a fresh supply. Ross then bеgan calling his buyers to let them know he had cocaine and “was ready to sell.”
On January 12, Ross called Peeler—who was not previously known to the investigators—at a Wisconsin phone number. Ross told Peeler he had “some new thunder whenever you ready.” Peeler responded “[a]lright,” and said he had been “slow rolling” because “you said you was gonna be gone for that little week.” Peeler said, “soon as I‘m right, I‘ll give your ass a call.” Somerville explained to the jury that “new thunder” meant new cocaine, “slow rolling” meant Peeler had been selling his current supply of cocaine slowly, and “soon as I‘m right” meant when Peеler has money to buy more cocaine.
On January 19, Ross called Peeler to ask why he had not heard from him. Peeler responded he was “just waiting on this little bread” and was at “twenty [or] twenty-two.” Somerville explained that bread meant money; Peeler was saying he had about two-thousand or twenty-two hundred dollars. The next day, Peeler and Ross arranged to meet between Green
Muhammad pleaded guilty to conspiracy to distribute cocaine and testified for the government at Peeler‘s trial. Muhammad testified that he had been distributing powder cocaine to Ross for eight or nine years and knew Ross cooked powder cocaine to crack cocaine “on occasion.” During the conspiracy period charged in the indictment, March 2009 to March 2012, Muhammad acquired from one to seven kilograms of cocaine from his supplier each month. Muhammad would cut (dilute) the pоwder cocaine and distribute it to Ross and other customers. Muhammad testified that he sold more than five kilograms of powder cocaine to Ross over this three-year period. Muhammad knew from their conversations that Ross resold the cocaine to multiple customers, including a buyer named “Travis” from Green Bay.
At the close of the evidence, Peeler timely moved for judgment of acquittal, arguing that a reasonable jury could not find beyond a reasonable doubt that he joined the alleged conspiracy because the government had no evidence, only “impermissible speculation,” of anything more than a single 81-gram transaction between a buyer, Peeler, and a seller, Ross. After hearing argument, the district court denied the motion but then instructed the jury—
that transient sales where a buyer is purchasing drugs for his оwn personal use and not for the purpose of distributing or delivering the purchased drugs to another does not, in and of itself, make the buyer a co-conspirator with the seller in the seller‘s drug distribution conspirаcy. If, however, the buyer acquires the drugs from the seller intending to distribute or deliver the drugs to another person instead of using them for his own personal use, or if he purchased the drugs from the seller as part of thе continuing buyer/seller relationship, he may be, depending on what the evidence shows, a co-conspirator with the seller in a drug distribution conspiracy.
In closing argument, defense counsel vigorously arguеd that the evidence established that Peeler was merely Ross‘s customer, not a co-conspirator in the large conspiracy involving Muhammad, Ross, and many others. The government argued the evidenсe established that Ross and Peeler had an on-going relationship in which Peeler purchased distribution quantities on at least two occasions,2 and that Ross‘s sales of more than five kilograms of cocaine to Peeler and Ross‘s other customers were reasonably foreseeable to Peeler, even if Peeler was unaware of the full scope of the entire conspiracy.
In Prieskorn, we held that the evidence was sufficient to convict defendant of participating in the alleged conspiracy, but the district court erred in refusing to give a requested buyer/seller theory-of-defense instruction because “there was evidence indicating” defendаnt made only one purchase, knew only the seller, and had not ordered the cocaine he bought. Here, the district court gave a theory-of-defense instruction that accurately explainеd the buyer/seller defense as defined in our prior cases. Counsel for Peeler then vigorously argued this defense in closing. The jury‘s guilty verdict reflects that it found, in the words of the district court‘s instruction, that Peeler “acquire[d 81 grams of crack cocaine] from [Ross] intending to distribute or deliver the drugs to another person instead of using them for his own personal use, or ... purchased the drugs from [Ross] as part of the continuing buyer/seller relationship.” In reaching its verdict, the jury listened to the taped phone calls, as well as Agent Somerville‘s testimony explaining what the code words and jargon used in the conversations meant. Viewеd in the light most favorable to the jury‘s verdict, this evidence together with Muhammad‘s partial corroboration was sufficient for a reasonable jury to find beyond a reasonable doubt that the 81-gram purchase was part of Peeler‘s ongoing relationship with Ross (and whoever was supplying Ross) to possess with intent to distribute powder and crack cocaine to other persons. “A defendant may be convicted for even a minor role in a conspiracy, so long as the government proves beyond a reasonable doubt that he or she was a member of the conspiracy.” Conway, 754 F.3d at 587 (quotation omitted).
The judgment of the district court is affirmed.