United States of America v. Andrew Jerome Bigbee

United States Court of Appeals
For the Eighth Circuit
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No. 24-3160
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United States of America
Plaintiff - Appellee
v.
Andrew Jerome Bigbee
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 21, 2025
Filed: July 17, 2026
[Unpublished]
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Before L.R. SMITH, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Law enforcement officers found large quantities of methamphetamine and
evidence of drug trafficking after searching Andrew Bigbee’s motorhome and
residences in Richfield and Elko, Minnesota. During the search of the Elko
residence, law enforcement seized Bigbee’s cell phone. Twenty-two months later,
the government searched the cell phone and uncovered more evidence, including

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photographs of methamphetamine. A grand jury indicted Bigbee on one count of
conspiracy to distribute methamphetamine (Count One) and three counts of
possession with intent to distribute methamphetamine (Counts Two, Three, and
Four) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. A few days before
trial, Bigbee moved to suppress the evidence the government found on his cell
phone. The district court1 denied the motion, in part, because it was untimely.
Bigbee’s case then proceeded to trial, where he moved for judgment of acquittal after
the government’s case-in-chief, arguing the government failed to present sufficient
evidence from which a reasonable jury could convict him on any count. The district
court also denied this motion, and the jury ultimately convicted Bigbee on all counts.
Bigbee now appeals the denial of his motion to suppress and for judgment of
acquittal. We affirm.
Taking the two issues in turn, a motion to suppress is generally subject to a
mixed standard of review, with the factual findings reviewed for clear error and the
motion’s denial reviewed de novo. United States v. Mayo, 97 F.4th 552, 555 (8th
Cir. 2024). But when a motion to suppress is denied as untimely, as was the case
here, we review for abuse of discretion. See United States v. King, 854 F.3d 433,
443 (8th Cir. 2017).
Bigbee argues the government’s search of his cell phone was unreasonable
because the government waited too long to search it. But he failed to address the
district court’s conclusion that his motion was untimely on appeal. Because claims
not raised in an appellant’s brief are deemed waived, we affirm here. See Jenkins v.
Winter, 540 F.3d 742, 751 (8th Cir. 2008).
Turning to Bigbee’s motion for acquittal, he argues the government did not
present sufficient evidence to support his conviction on any count. “We review the
sufficiency of the evidence de novo, viewing evidence in the light most favorable to
the government, resolving conflicts in the government’s favor, and accepting all
reasonable inferences that support the verdict.” United States v. Hayward, 124 F.4th
1 The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

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1113, 1120 (8th Cir. 2025) (quoting United States v. Thompson, 881 F.3d 629, 632
(8th Cir. 2018)).2
Starting with Count One, to prove conspiracy to distribute methamphetamine,
the government must show “(1) a conspiracy to distribute methamphetamine existed;
(2) the defendant knew about the conspiracy; and (3) the defendant knowingly
became a part of the conspiracy.” United States v. Garcia, 646 F.3d 1061, 1066 (8th
Cir. 2011). “The conspiracy’s existence may be proved by direct or circumstantial
evidence.” United States v. Milk, 66 F.4th 1121, 1135 (8th Cir. 2023) (quoting
United States v. Cain, 487 F.3d 1108, 1111 (8th Cir. 2007)). “The jury may rely on
the testimony of a co-conspirator to determine whether the defendant knew of and
intentionally joined the conspiracy.” United States v. Agena, 138 F.4th 1063, 1071
(8th Cir. 2025).
Here, the government presented sufficient evidence to support Bigbee’s
conviction on Count One. The government introduced evidence that law
enforcement recovered approximately 30 pounds of methamphetamine, hundreds of
thousands of dollars in cash, and other items associated with drug distribution,
including firearms, money counters, digital scales, and plastic bags during the
searches of Bigbee’s residences and motorhome. Two witnesses also testified they
conspired with Bigbee to obtain methamphetamine from Arizona to distribute in
Minnesota. And the government introduced text messages from Bigbee facilitating
the purchase of drugs in Arizona with two individuals who were arrested in Arizona
2 After the close of the government’s evidence, Bigbee moved for acquittal,
which the district court denied. He did not renew his motion for acquittal at the close
of all evidence as required by Federal Rule of Criminal Procedure 29. Our precedent
conflicts as to whether a motion for acquittal must be renewed at the close of the
defendant’s case where he put on his own evidence, if the motion was already made
at the close of the government’s case. See King, 854 F.3d at 441 (noting the conflict);
see also United States v. Marble, No. 23-1615, 2024 WL 3507643, at *2 n.3 (8th
Cir. July 23, 2024) (explaining the conflict). Regardless of whether de novo or plain
error review is proper here, we affirm.

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after setting a rental car containing approximately 12 pounds of methamphetamine
on fire.
Turning to Counts Two, Three, and Four, to prove possession with intent to
distribute methamphetamine, the government must show Bigbee “(1) knowingly
possessed a controlled substance and (2) intended to distribute some or all of it.”
United States v. Thompson, 686 F.3d 575, 583 (8th Cir. 2012). “Possession can be
actual or constructive, and an individual has constructive possession of contraband
if he has dominion over the premises in which the contraband is concealed.” Id.
(cleaned up). “Constructive possession need not be exclusive.” Id. at 584.
As to Count Two, the government presented sufficient evidence for a
reasonable jury to conclude Bigbee possessed methamphetamine with intent to
distribute at his Richfield residence. The government’s evidence showed that law
enforcement officers executed a search warrant at Bigbee’s Richfield residence. At
the residence, officers found Bigbee inside the residence’s detached garage with
dishware containing methamphetamine, two firearms, $8,800, a money counting
machine, a digital scale, plastic bags, and mail addressed to Bigbee. In the attached
garage, officers found approximately one pound of methamphetamine. While
Bigbee puts forth a theory that the methamphetamine found in the attached garage
belonged to two other people who were present during the search, this is insufficient
to overturn the jury’s verdict. See United States v. Burch, 113 F.4th 815, 822 (8th
Cir. 2024) (“[E]ven if [the defendant]’s alternative theories are within the realm of
possibility, they do not give us reason to overturn the jury’s verdict.”).
Regarding Count Three, the government presented sufficient evidence for a
reasonable jury to conclude Bigbee possessed methamphetamine in his motorhome
with intent to distribute. Specifically, the government’s evidence demonstrated that
when officers executed a search warrant on the motorhome, they found documents,
receipts, and an identification card supporting Bigbee’s residence in and control over
the motorhome. They also uncovered about 12 pounds of methamphetamine, over
$300,000, digital scales, a money counting machine, a vacuum sealer, and plastic
bags. Officers submitted some of the drug packaging for forensic testing, and it

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revealed a partial male DNA profile matching Bigbee. Officers also seized Bigbee’s
cell phone from the motorhome, which contained detailed communications
consistent with drug trafficking. And two witnesses, including Bigbee’s girlfriend,
testified that Bigbee sold methamphetamine out of the motorhome. Bigbee argues
this evidence is insufficient because he remained in the motorhome for an extended
time after officers arrived and would have destroyed the methamphetamine had he
known about it. However, the jury heard this argument at trial and rejected it, and
we will not second-guess the jury’s credibility determinations. See United States v.
Hassan, 844 F.3d 723, 726 (8th Cir. 2016).
With respect to Count Four, the government presented sufficient evidence for
a reasonable jury to conclude Bigbee possessed methamphetamine in his Elko
residence with intent to distribute. The government’s evidence showed that Bigbee
and his girlfriend began living together in the Elko residence after Bigbee was
released from a prior stint in jail. Officers later went to this residence to execute
arrest warrants against Bigbee and his girlfriend, along with a search warrant for the
residence. Officers arrested Bigbee, searched the home, and found over 17 pounds
of methamphetamine, money, Bigbee’s cell phone, and a firearm. Bigbee’s
girlfriend and another witness testified that Bigbee lived at the Elko residence and
sold methamphetamine out of it.
Bigbee attacks the credibility of the government’s witnesses on each count.
But assessing witness credibility “is uniquely within the province of the trier of fact,”
and “we cannot pass upon the credibility of witnesses or the weight to be given their
testimony.” Hassan, 844 F.3d at 726 (8th Cir. 2016). So this argument is unavailing.
In conclusion, we affirm the district court’s denial of Bigbee’s motion to
suppress because he waived his timeliness argument and failed to demonstrate good
cause for his motion. And we affirm the denial of his motion for acquittal because,
viewing the evidence in the light most favorable to the verdict and accepting the
jury’s credibility determinations, the government presented sufficient evidence of
Bigbee’s guilt on each count.
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