United States of America v. Kirbesha Bailey

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3896
___________________________
United States of America
Plaintiff - Appellee
v.
Kirbesha Bailey
Defendant - Appellant
___________________________
No. 21-3928
___________________________
United States of America
Plaintiff - Appellee
v.
Christopher James
Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Western
____________
Submitted: October 20, 2022
Filed: December 6, 2022
____________

-- 1 of 7 --

-2-
Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
____________
BENTON, Circuit Judge.
A jury convicted Kirbesha Bailey and Christopher L. James of conspiracy to
distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A) and 846. After trial, the district court1 denied their motions
for acquittal. Bailey and James appeal, arguing the evidence is insufficient to
support their convictions. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
I.
This court reviews de novo the sufficiency of the evidence for a conviction.
United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002). “When reviewing the
sufficiency of the evidence to support a jury verdict, this 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. Ellefson, 419 F.3d 859, 862 (8th
Cir. 2005), quoting United States v. Espino, 317 F.3d 788, 791 (8th Cir. 2003). The
standard to overturn a jury verdict is “very strict.” Id. A jury verdict should be
reversed only “where a reasonable jury could not have found all of the elements of
the offense beyond a reasonable doubt.” United States v. Armstrong, 253 F.3d 335,
336 (8th Cir. 2001).
To prove a conspiracy to distribute a controlled substance under 21 U.S.C. §§
841(a)(1), 841(b)(1)(A) and 846, the government must prove: “(1) that there was a
conspiracy, i.e., an agreement to distribute [500 grams or more of meth]; (2) that the
defendant knew of the conspiracy; and (3) that the defendant intentionally or
1 The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.

-- 2 of 7 --

-3-
knowingly joined the conspiracy.” United States v. Trejo, 831 F.3d 1090, 1094 (8th
Cir. 2016); United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009). “An
agreement to join a conspiracy need not be explicit but may be inferred from the
facts and circumstances of the case.” United States v. Rodriguez-Mendez, 336 F.3d
692, 695 (8th Cir. 2003) (internal quotation omitted). “Once the government
establishes the existence of a drug conspiracy, only slight evidence linking the
defendant to the conspiracy is required to prove the defendant’s involvement and
support the conviction.” United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.
1996). The conspiracy may be proven through circumstantial evidence and by
inferences based on the actions of the parties. United States v. Shoffner, 71 F.3d
1429, 1433 (8th Cir. 1995). “However, the government is not entitled to inferences
based on conjecture and speculation.” United States v. Aponte, 619 F.3d 799, 804
(8th Cir. 2010). To prove a conspiracy, the evidence “need not exclude every
reasonable hypothesis except guilt.” United States v. Boesen, 491 F.3d 852, 858
(8th Cir. 2007), quoting United States v. Water, 413 F.3d 812, 816 (8th Cir. 2005).
II.
Bailey argues the evidence is insufficient to prove she “knew of the conspiracy
or intended to accomplish a specific illegal objective.” She emphasizes that the
conspirators did not mention her name in their testimony at trial. She claims that the
government’s evidence establishes only that she was present or associated with the
conspirators, not that she was a member. “[A] defendant’s mere presence, coupled
with the knowledge that someone else who is present intends to sell drugs, is
insufficient to establish membership in a conspiracy.” United States v. Rolon-
Ramos, 502 F.3d 750, 754 (8th Cir. 2007), quoting United States v. Jimenez-
Villasenor, 270 F.3d 554, 558 (8th Cir. 2001).
At trial, the government introduced three main pieces of evidence against
Bailey. First, a photograph showed a woman—later identified as Bailey—shipping
a package from a post office in Las Vegas on September 3, 2019. This package went
to a conspirator in Rapid City. Second, someone using the IP address on Bailey’s

-- 3 of 7 --

-4-
internet account tracked two packages shipped from Las Vegas to Rapid City—one
sent on August 26, 2019, and another package intercepted in December 2019 by a
Postal Inspector and found to have 446 grams of meth. Third, Bailey received $400
on August 24, 2019 and $700 on September 1, 2019 from a conspirator, Edward
Lamont Martin.
Viewing the evidence most favorably to the verdict, there was sufficient
evidence for a reasonable jury to find Bailey satisfied each element of the conspiracy
charge beyond a reasonable doubt. First, an agreement was proven from Martin’s
distribution of meth supplied by shipments from James and Bailey. Second, the
evidence supports a reasonable inference that Bailey knew of the conspiracy by
shipping a package to a conspirator; tracking packages sent to Rapid City—at least
one with meth; and receiving payments from Martin. Third, Bailey intended to join
the conspiracy by these facts and circumstances.
On appeal, Bailey tries to explain the evidence against her. To explain the
shipment of the package, Bailey asserts there is no proof of its contents or her
knowledge of the contents. To explain the tracking of packages, Bailey cites the
evidence that the four other adults living with her could have tracked the package
using the IP address. However, a reasonable jury could credit her admissions to a
special agent with the Drug Enforcement Administration that she alone could access
the IP address and only she had the password stored on her phone. She also admitted
that no one else used her phone and there were no computers in the apartment (a
search of the apartment found three cell phones but no computers). Because Bailey
was watching Martin’s child at the time, she asserts that the money was for child
care.
Although Bailey provided alternative explanations for the government’s
evidence, “if the evidence rationally supports two conflicting hypotheses, the
reviewing court will not disturb the conviction.” United States v. Burks, 934 F.2d
148, 151 (8th Cir. 1991). Here, the evidence rationally supports two conflicting
hypotheses. It was within the jury’s power to weigh the conflicting evidence and

-- 4 of 7 --

-5-
decide what to believe. See Armstrong, 253 F.3d at 337 (affirming conviction,
reasoning it was the jury’s decision to resolve conflicting testimony).
Bailey relies on cases where this court determined the evidence was
insufficient to establish a conspiracy. See United States v. Rork, 981 F.2d 314, 316
(8th Cir. 1992); United States v. Fitz, 317 F.3d 878, 883 (8th Cir. 2003).
In Rork, the government appealed a grant of a motion for acquittal of
conspiracy to distribute cocaine and use of a firearm related to it. Rork, 981 F.2d at
315. Defendant Rork was never involved in selling or transporting the drugs but
was merely present when a sale was about to occur. Id. at 316. A conspirator told
him to leave the scene of the sale. Id. at 315. He did but later returned to stop the
sale. Id. This court affirmed the acquittal because “a reasonably minded jury
necessarily would have harbored a reasonable doubt concerning whether Rork
knowingly agreed . . . to participate in the conspiracy to distribute cocaine.” Id. at
316.
In Fitz, this court reversed the defendant’s convictions, concluding that the
district court erred in denying the motion for acquittal because there was insufficient
evidence for the conviction because the defendant was merely present at the scene
of a controlled substance buy, and nothing else implicated him in the conspiracy.
Fitz, 317 F.3d at 882-83. The conversations at the sale were in English, but there
was no evidence in the record that showed Fitz spoke or understood English because
he was provided with an interpreter at the trial and sentencing hearing. Id. at 882.
There was no evidence that Fitz, a passenger in the car, knew of the drugs hidden
inside the gas tank. Id. This court concluded that the government could not prove
Fitz was aware of the conspiracy or knowingly participated. Id. at 883.
Bailey’s case is distinct from Rork and Fitz because she was involved in
selling and transporting meth. More persuasive are two other cases.

-- 5 of 7 --

-6-
This court affirmed a jury verdict of conspiracy to distribute marijuana where
the defendant shipped packages to co-conspirators and received wired payments.
United States v. Stewart, 854 F.3d 472, 475 (8th Cir. 2017). Similarly, this court
upheld a verdict of conspiracy to distribute drugs where the defendant wired
payments totaling over $100,000 to co-conspirators, and his phone records showed
communications with other co-conspirators. United States v. Sherman, 262 F.3d
784, 791 (8th Cir. 2001).
The evidence against Bailey is similar to Stewart and Sherman. Like Stewart,
Bailey was directly involved in shipping meth and receiving payments from a
conspirator. Like Sherman, Bailey exchanged payments with the conspirators. In
fact, while Sherman only spoke on the phone with conspirators, Bailey had more
extensive contact with conspirators because she was emotionally involved with
James.
Because the evidence supports that a reasonable jury could find Bailey guilty
of each element of conspiracy to distribute meth, this court affirms the jury’s verdict.
The district court did not err in denying Bailey’s motion for acquittal.
III.
James appeals, claiming the government’s evidence was insufficient because
it relied on conjecture and speculation to prove his connection to the conspiracy. He
also asserts mere association with the conspirators.
James repeatedly cites his own trial testimony to support his argument on
appeal. “In reviewing the motion for judgment of acquittal . . . the court does not
assess the credibility of the witnesses, because that is the province of the jury.”
Stewart, 854 F.3d at 475. See United States v. Hassan, 844 F.3d 723, 726 (8th Cir.
2016) (explaining that a reviewing court similarly “cannot pass upon the credibility
of the witnesses or the weight to be given their testimony, as this is uniquely within
the province of the trier of fact, and entitled to special deference”). It was for the

-- 6 of 7 --

-7-
jury to determine James’s credibility and decide whether to accept or reject his
testimony.
Sufficient evidence supported James’s conviction of conspiracy to distribute
500 grams or more of meth. In 2019, James received eleven wire payments from
other conspirators. Some payments coincided with dates packages arrived in Rapid
City. Testimony from several witnesses further implicated James in the conspiracy.
Sara Skinner, a conspirator, testified she was in a relationship with Martin who ran
the meth distribution ring in Rapid City. According to Skinner, Martin identified his
meth source was James. Skinner also recounted conversations she overheard
between Martin and James about arrangements to ship meth. A confidential
informant purchased meth from Martin on three different occasions—52 grams; 8.3
ounces (234 grams), and 7.7 ounces (218 grams)—for a total of 504 grams. The
informant also received James’s cell-phone number to pay for the meth. Martin told
the informant to send the payment to “Christopher James.”
The jury had sufficient evidence for each element of the conspiracy offense
under 21 U.S.C. § 846. First, as evidence of an agreement, the informant testified
that Martin received his meth from James and in return, James received several wire
payments. Second, James knew of the conspiracy by providing his cell-phone
number for the informant’s payments. Third, based on all the facts and
circumstances, James knowingly and intentionally joined the conspiracy. Since the
informant alone purchased over 500 grams of meth from Martin, the jury reasonably
found a conspiracy to distribute over 500 grams of a controlled substance in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The district court did not err in denying
James’s motion for acquittal.
* * * * * * *
The judgment is affirmed.
______________________________

-- 7 of 7 --