United States of America v. Gary D. Timmons, also known as Mush

United States Court of Appeals
For the Eighth Circuit
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No. 19-1645
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United States of America
Plaintiff - Appellee
v.
Gary D. Timmons, also known as Mush
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: March 10, 2020
Filed: March 30, 2020
[Unpublished]
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Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
After a jury trial, Gary D. Timmons was convicted of two counts of violating
federal narcotics laws, including one count of conspiracy to distribute one kilogram
or more of a mixture or substance containing a detectable amount of heroin. See 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 846. Timmons appeals, challenging the
sufficiency of the evidence against him on this count and requesting that we vacate

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his conviction on this count and remand the matter to the district court1 for
resentencing. We affirm.
In November 2015, inspectors with the United States Postal Inspection
Service discovered 996.7 grams of heroin in a package that was shipped from
Lakewood, California to Florissant, Missouri. Video surveillance of the Lakewood
Post Office revealed that Timmons sent this package, and investigators later
discovered his palm print on the package. After a controlled delivery of the package,
investigators arrested the intended recipient, Laverne Adams, who agreed to
cooperate with them. With Adams’s consent, investigators installed a wiretap on his
phone so they could record calls between Timmons and Adams. On these calls,
investigators heard Timmons discuss with Adams their past drug transactions as well
as plans for Timmons to ship more heroin in the near future for Adams to sell. In
February 2016, investigators also intercepted a package containing $40,000 that
Timmons later admitted was payment for drugs he distributed, though he testified
that it was payment for marijuana. Law enforcement apprehended Timmons shortly
thereafter. He ultimately was charged with one count of conspiracy to distribute one
kilogram or more of a mixture or substance containing a detectable amount of heroin,
see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 846, and one count of distribution of
100 grams or more of a mixture or substance containing a detectable amount of
heroin, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i).
The foregoing evidence and more was presented to the jury, which returned a
guilty verdict on both counts. The district court sentenced Timmons to the
applicable mandatory minimums—180 months’ imprisonment on the first count, see
21 U.S.C. § 841(b)(1)(A), and 120 months’ imprisonment on the second count, see
21 U.S.C. § 841(b)(1)(B)—to run concurrently.
1 The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

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On appeal, Timmons challenges the sufficiency of the evidence concerning
only his conviction for conspiracy to distribute one kilogram or more of heroin,
arguing that the amount of heroin is an element of the offense and that the
Government failed to prove that element beyond a reasonable doubt.2 We review
the sufficiency of the evidence de novo. United States v. Oliver, 950 F.3d 556, 565
(8th Cir. 2020). In doing so, we evaluate “the evidence in the light most favorable
to the verdict and draw[] all reasonable inferences in its favor.” United States v.
Perkins, 948 F.3d 936, 938 (8th Cir. 2020). We will affirm if “the entire body of
evidence” is “sufficient to convince the fact-finder beyond a reasonable doubt of the
defendant’s guilt.” United States v. Kelley, 861 F.3d 790, 796 (8th Cir. 2017).
“Reversal is warranted only where no reasonable jury could have found the
defendant guilty beyond a reasonable doubt.” Oliver, 950 F.3d at 565.
It is true that the amount of heroin is an element of the charged offense. See
United States v. Brown, 331 F.3d 591, 595 (8th Cir. 2003); see also United States v.
Tillmon, --- F.3d ---, 2019 WL 921534, at *7 (4th Cir. Feb. 26, 2019) (recognizing
that a conviction under § 841(b)(1)(A)(i) requires proof that the crime “involved at
least one kilogram of heroin”). As such, the Government had to prove beyond a
reasonable doubt that Timmons had conspired to distribute at least one kilogram of
heroin. See United States v. Daniel, 887 F.3d 350, 360 (8th Cir. 2018). A reasonable
jury could find beyond a reasonable doubt that the Government did so here.
The Government presented direct evidence that Timmons had shipped the
package containing 996.7 grams of heroin to Adams, including video surveillance
showing Timmons was the sender as well as evidence that Timmons’s palm print
was on the package. The Government also presented direct evidence of Timmons’s
plans to ship more heroin to Adams in the form of recorded calls between the two.
On these calls, Timmons made the following comments: (1) he could “open up the
2 Timmons preserved this issue for appeal by moving for a judgment of
acquittal at the close of the evidence. See United States v. Bruguier, 735 F.3d 754,
763 (8th Cir. 2013).

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gates” for Adams, meaning Timmons had a large heroin supply he was willing to
ship to Adams for Adams to sell, and he would do so once they had a “good
relationship” so that both of them could “make plenty of money”; (2) he would have
more heroin “sitting on [Adams’s] front door” in one week’s time if Adams sold the
previously shipped heroin quickly and paid Timmons for it; and (3) he would send
“bigger packages” of heroin to Adams if certain conditions were met. This evidence
demonstrates that Timmons had previously shipped nearly one kilogram of heroin
to Adams for Adams to sell and that Timmons planned to send Adams significantly
more heroin for that same purpose in the near future, which suffices to support the
jury’s verdict. See United States v. Ruvalcaba, 9 F.3d 41, 43 (8th Cir. 1993) (“When
a conspiracy to supply drugs exists, the conspirators’ criminal liability is determined
by the amount of drugs promised or negotiated, not the amount contained in a
particular delivery.”).
Timmons asserts that the Government failed to proffer sufficient evidence “to
make up the difference between the one kilogram it charged [him] with conspiring
to distribute[] and the 996.7 grams it actually seized.” He maintains that the
Government “offered no other evidence” to prove the additional 3.3 grams besides
the package containing $40,000 that he testified was payment for marijuana, and he
argues that any “inference” that this $40,000 was payment for heroin he had shipped
to another person was not proven beyond a reasonable doubt. But he ignores the
recorded calls evidencing his plans to ship more heroin to Adams that the
Government presented to the jury. Based on these calls, a “reasonable jury could
have found the defendant guilty beyond a reasonable doubt” of conspiring to
distribute one kilogram or more of a substance or mixture containing heroin. See
Oliver, 950 F.3d at 565.
Therefore, we affirm.
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