United States of America v. Joshua Nesbitt, also known as T

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-2357
___________________________
United States of America
Plaintiff - Appellee
v.
Joshua Nesbitt, also known as T
Defendant - Appellant
___________________________
No. 24-2382
___________________________
United States of America
Plaintiff - Appellee
v.
Shawn Burkhalter, also known as Deuce
Defendant - Appellant
____________
Appeals from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: January 15, 2026
Filed: August 20, 2026

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____________
Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
A jury convicted Joshua Nesbitt and Shawn Burkhalter of committing a spate
of federal crimes in the Kansas City, Missouri, area. Based on these convictions, the
district court sentenced Nesbitt to four consecutive life sentences, and Burkhalter to
five. Nesbitt and Burkhalter appeal. They challenge the district court’s1 denial of
Burkhalter’s motion to sever their trials, the sufficiency of the evidence as to several
of the charges of which they were convicted, the district court’s decision to admit
certain witnesses’ grand jury testimony, the instructions given to the jury, and the
procedural soundness and substantive reasonableness of part of their sentences.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
In the summer of 2015, Burkhalter and his friend Anthony Peltier burgled an
AR-15 rifle from the apartment of one of Peltier’s coworkers.2 The rifle was black,
but it bore distinctive white markings on its magazine. Near the time of the theft,
Burkhalter met Nesbitt, who had recently moved to Kansas City from Mississippi.
The two hit it off; Nesbitt soon moved into the apartment that Burkhalter shared with
his girlfriend, Joslyn Lee.
On September 8, 2015, Burkhalter, Nesbitt, and an associate robbed a Fast
Stop convenience store at a Kansas City gas station. Burkhalter cased the store
1 The Honorable Brian C. Wimes, then United States District Judge for the
Western District of Missouri, now Chief Judge.
2 “We recite the facts in the light most favorable to the jury’s verdict.” United
States v. Galloway, 917 F.3d 631, 632 (8th Cir. 2019) (citation omitted).

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before the robbery. Nesbitt entered the store after Burkhalter left and leveled the
stolen AR-15 at the cashier, demanding money.
Two days later, on September 10th, Nesbitt and Burkhalter met a drug dealer
named Danny Dean in the parking lot of the Mama China restaurant in Raytown,
Missouri. They stole Dean’s drugs. And Nesbitt shot Dean four times with the
stolen rifle, killing him.
Anthony Johnson, who lived in the same apartment complex as Nesbitt and
Burkhalter and whom Burkhalter considered a cousin, overheard Nesbitt and
Burkhalter discussing their involvement in the Mama China shooting. On
September 11th, the day after the shooting, Johnson approached Kansas City,
Missouri police officers responding to an unrelated incident. One of the officers put
Johnson on the phone with a detective. Johnson reported overhearing the
conversation between Burkhalter and someone he knew as “T.” “T” is Nesbitt’s
nickname. Johnson also stated that Burkhalter was boasting of his involvement in a
“clap out” at Mama China and noted that “someone got smoked.” Johnson’s
understanding was that an assault rifle had been used in the murder; he told the
officers that someone he knew was thinking about buying the weapon. On
September 12th, Johnson called an anonymous tips hotline and relayed the same
general information about the Mama China killing.
On September 14th, two Raytown detectives, following up on Johnson’s tip,
attempted to speak with Burkhalter and Nesbitt at their apartment. Without
prompting, Burkhalter asked if they were there about “the Raytown homicide.”
Then, he fled into the woods adjacent to the apartment complex. After Burkhalter
escaped, the detectives continued speaking with Nesbitt, whom they briefly
detained. Unaware that Nesbitt was the “T” referenced in Johnson’s tip, they
decided not to arrest him at that point.
On October 2nd, law enforcement officers located Burkhalter in his vehicle
and tried to conduct a traffic stop. Burkhalter fled, leading police on a high-speed

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chase that ended only when Burkhalter drove his vehicle into a truck. The police
arrested Burkhalter and interviewed him about the Mama China killing. During the
interview, one of the officers present mentioned that law enforcement had received
a tip about Burkhalter and Nesbitt’s involvement in the Mama China shooting.
On October 3rd, Johnson visited the apartment that Nesbitt and Burkhalter
shared with Lee. Two other women—Nickayla Jones and Rachel Ryce—had also
recently moved in. Johnson shared marijuana with Lee, Jones, and Ryce. He
bragged that he was “a little spoiled rich kid that sells weed.”
The next day, Burkhalter called Lee from jail. Lee told him that Johnson had
claimed to have “weed and money.” Burkhalter asked Lee to tell Nesbitt to “go
holler at” Johnson, and Nesbitt, who was listening in, confirmed that he would do
so. Later in that call, Burkhalter told Nesbitt that the police said they were looking
for somebody named “T.” And Nesbitt told Burkhalter that Johnson was the one
tipping off the police. He also expanded on Lee’s statements that Johnson had weed
and money, claiming that Johnson had both “bread” and “a pound of shit.”
Burkhalter told Nesbitt to “go down there, bruh” and “take everything.” Nesbitt
responded, “Alright, say no more.” On another call that morning, October 4th,
Burkhalter told a friend that his cousin “Ant” had snitched on him to the police.
Later, he confirmed to that friend that all was well because he “had somebody holler
at him.”
On the afternoon of October 4th, Nesbitt, Lee, Ryce, Jones, and a man named
Autry Hines gathered in the shared apartment, where Nesbitt and Hines discussed
robbing Johnson. Nesbitt told Hines that Johnson had marijuana, and Hines
understood that the plan was to steal that marijuana. Nesbitt, Hines, and Jones went
downstairs to Johnson’s apartment with the stolen AR-15. Lee and Ryce waited in
Hines’s vehicle, a red Chevrolet HHR, on a nearby street.
Nesbitt knocked on Johnson’s door. When Johnson opened it, Nesbitt, Hines,
and Jones entered. They made Johnson sit on his couch while they stole marijuana

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and other property. Nesbitt then shot Johnson three times with the AR-15, killing
him. Nesbitt, Hines, and Jones fled to the waiting HHR, which Lee drove to the
apartment Hines shared with his girlfriend, Kira Williams. Nesbitt cleaned the gun
and Hines burned rubber gloves used during the robbery. Nesbitt left the gun at
Hines’s apartment for safekeeping. He also split the marijuana taken from Johnson
among the conspirators.
On a recorded jail call, Lee confirmed to Burkhalter that Johnson was dead.
Burkhalter was pleased. He exclaimed, “On my mama, salute that.” He and Nesbitt
then discussed the death of “that bitch” downstairs; Nesbitt remarked, “That ho gone,
boy.” And Burkhalter told a friend, “That n*****, Ant, gone, bruh,” and laughed.
On October 7th, three days after murdering Johnson, Nesbitt, with the
assistance of Burkhalter’s friend Peltier and Lee, Ryce, Jones, and someone from
Atlanta called “Scoop,” robbed drug dealers in Lawrence, Kansas. Peltier knew
those dealers dealt in cocaine and marijuana. The robbery’s purpose was—at least
in part—to send money to Burkhalter in jail. Lee kept Burkhalter apprised of the
robbery’s progress via phone as it happened. The robbers ultimately made off with
marijuana, cocaine, and money. Burkhalter later described the robbery to one of his
friends as “one of [his] . . . little missions.”
After carrying out the Lawrence robbery, Nesbitt informed Burkhalter that the
AR-15—previously stashed at Hines’s residence—had gone missing. Burkhalter
was displeased with that development. He exclaimed, “Man, man, man, man, man,
man, fuck, fuck, fuck, fuck, fuck,” and “bruh, that, that, that will, bruh, that, that,
that fucks me in the ass, bruh.” And he said that the missing gun was “jeopardizing
every fuckin’ thing” and that they were “fuckin’ fucked” if the gun did “not come
up.” Burkhalter implied that this was the case because he had killed several people
with the gun; he noted that Nesbitt had “two tons” on the gun as well. He threatened
to kill Lee and others if the gun was not located.

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In an attempt to locate the gun, Nesbitt, Lee, Jones, and Ryce went to the
workplace of Williams, Hines’s girlfriend. They put her on the phone with
Burkhalter, who threatened to kill her, Hines, and Hines’s family if she did not return
the AR-15. The same day, police pulled Hines over in the HHR. They arrested him
and seized the gun. Forensic analysis later confirmed that this was the weapon that
had fired the bullets recovered at the Mama China and Johnson murder scenes. The
police later located and arrested Nesbitt.
A federal grand jury indicted Nesbitt, Burkhalter, Lee, Jones, Ryce, Hines,
and others on various charges relating to Nesbitt and Burkhalter’s crime spree in
February 2018. A third superseding indictment charged Nesbitt and/or Burkhalter
with 15 counts: Count 1 (conspiracy to distribute and possess with intent to distribute
cocaine and marijuana); Count 2 (possession of cocaine with intent to distribute, in
connection with the Mama China murder); Count 3 (discharge of a firearm in
furtherance of a crime of violence and a drug trafficking crime, also relating to the
Mama China murder); Count 4 (possession of marijuana with intent to distribute,
relating to the Johnson murder); Count 5 (discharge of a firearm in furtherance of a
drug trafficking crime and a crime of violence, relating to the Johnson murder);
Count 6 (murder resulting from use of a firearm, in connection with the Mama China
murder); Count 7 (murder resulting from use of a firearm, in connection with the
Johnson murder); Count 8 (conspiracy to tamper with witnesses and evidence);
Count 9 (witness tampering by murder); Count 10 (evidence tampering through
intimidation of Williams); Count 11 (witness tampering against Burkhalter alone,
relating to post-indictment threats he made against Lee); Count 12 (witness
tampering against Burkhalter alone, relating to post-indictment threats against
Ryce); Count 13 (Hobbs Act robbery, relating to the Fast Stop robbery); Count 14
(brandishing a firearm in furtherance of a crime of violence, relating to the Fast Stop
robbery); and Count 15 (unlawfully possessing the AR-15 as convicted felons).
Nesbitt and Burkhalter moved to sever their trials. The district court denied
their requests. At trial, the district court admitted grand jury testimony about the
Mama China murder over Nesbitt’s and Burkhalter’s objections. The district court

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also overruled objections to the jury instructions on Hobbs Act robbery, which
served as a predicate crime for the firearm discharge counts.
The jury found Nesbitt guilty of every Count he was charged with; it also
found Burkhalter guilty of every Count he faced, save Count 12, one of the
post-indictment witness-tampering charges. The district court denied oral and
written motions for judgments of acquittal. Before sentencing, the Government
moved to dismiss Counts 6 and 7, noting potential double jeopardy concerns in light
of the United States Supreme Court’s decision in Lora v. United States, 599 U.S.
453 (2023). The district court granted that motion. It ultimately sentenced Nesbitt
to four consecutive life sentences, and Burkhalter to five, based on their other
convictions.
Nesbitt and Burkhalter appeal. They raise various challenges to the
sufficiency of the evidence presented at trial. They also challenge the procedural
soundness and substantive reasonableness of their sentences for Count 14 and the
district court’s decision to admit grand jury testimony. Burkhalter further contends
that the district court erred in denying his motion to sever and in formulating its
Hobbs Act robbery jury instructions.
II.
First, Burkhalter argues that the district court erred in denying his motion to
sever his trial from Nesbitt’s. He contends that severance was warranted because he
wanted to call Nesbitt as a witness on his behalf. “We review a district court’s denial
of a motion to sever for an abuse of discretion.” United States v. May, 70 F.4th
1064, 1071 (8th Cir. 2023) (citation omitted).
Under Federal Rule of Criminal Procedure 14(a), a district court
“may . . . sever the defendants’ trials” if “the joinder of defendants in an
indictment . . . or a consolidation for trial appears to prejudice a defendant.” “In this
circuit, it is not reversible error to deny severance requested on the ground that a

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defendant wants to call a codefendant as a witness, unless the defendant shows that
the codefendant is likely to testify at a separate trial and the testimony would
exculpate him.” United States v. Garcia, 647 F.2d 794, 795-96 (8th Cir. 1981)
(citation omitted). The first showing—that a codefendant is likely to testify at
trial—requires a “‘firm representation’ that [the] co-defendant would be willing to
testify on the defendant’s behalf.” United States v. Ali, 799 F.3d 1008, 1023 (8th
Cir. 2015) (citation omitted). Otherwise, there is no abuse of discretion in denying
the motion to sever. Id.
Burkhalter filed a motion to sever, asserting that Nesbitt would
“likely . . . testify at a separate trial.” He speculated that this was so based on three
pieces of evidence. First, during a status conference, Nesbitt exclaimed that he
wanted to “work with the Government” and that Burkhalter “had nothing to do
with . . . this shit.” Second, a person purporting to be Nesbitt produced a written
statement confessing to the murders and contending that Burkhalter had nothing to
do with them. And third, a person purporting to be Nesbitt attempted to call one of
Burkhalter’s lawyers and told a paralegal that he “want[ed] to speak on
[Burkhalter’s] behalf.” The district court denied Burkhalter’s motion to sever,
reasoning that Burkhalter had “not supplied the Court with a firm representation that
Nesbitt [was] likely to testify on his behalf at a separate trial.”
We discern no abuse of discretion in the district court’s severance decision.
Burkhalter’s representation that Nesbitt would “likely . . . testify at a separate
trial”—supported only by equivocal evidence—does not constitute a firm
representation that Nesbitt would be willing to testify on his behalf. See
id.; Christian v. Dingle, 577 F.3d 907, 912 (8th Cir. 2009) (recognizing that
codefendants’ purported “intimat[ions] that they would be prepared to testify for”
the defendant did not support a “firm representation” that they would testify). Not
once did Nesbitt actually say he would testify at trial on Burkhalter’s behalf; all he
said was that he intended to cooperate with the Government and that he wanted to
speak on Burkhalter’s behalf in some unspecified capacity. But despite ample
opportunity, he never acted upon or otherwise firmed up his purported

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statements: Nesbitt never cooperated with the Government, nor did he ever expressly
offer to testify.
On appeal, Burkhalter notes a fourth piece of evidence that he contends shows
Nesbitt was likely to testify at a separate trial: when Burkhalter indicated during trial
that he wished to call Nesbitt as a witness, Nesbitt’s counsel referenced tension
between Nesbitt’s Fifth Amendment right against self-incrimination and
Burkhalter’s right to compulsory process and said the solution would have been to
sever the defendants’ trials. But again, an argument supported by that statement falls
short of a “firm representation” that Nesbitt would be willing to testify on
Burkhalter’s behalf. At best, it reflects Nesbitt’s counsel’s apparent
misunderstanding that Nesbitt would not retain his privilege against
self-incrimination at Burkhalter’s separate trial. See, e.g., United States v. Barber,
442 F.2d 517, 529 n.22 (3d Cir. 1971) (“It would appear axiomatic that the
constitutional right of a defendant not to testify at the behest of a co-defendant
remains his right despite the severance of their trials.”). That is a far cry from a
commitment that Nesbitt would testify on Burkhalter’s behalf.
Burkhalter contends that our decision in United States v. Starr, 584 F.2d 235
(8th Cir. 1978), governs here. In that case, we concluded that the district court erred
in denying a motion to sever where the defendant’s codefendant had testified
favorably to him in grand jury proceedings. Id. at 238-39. We reasoned that “[t]he
fact that [the codefendant] was willing to exculpate [the defendant] before the grand
jury in sworn testimony demonstrates that it was at least likely that he would do the
same in [the defendant’s] trial if he were not being tried in the same proceeding.”
Id. at 239. But no statement Burkhalter attributes to Nesbitt or his counsel supports
the inference we made in Starr. Nesbitt’s in-court outburst, his purported letter and
phone call, and his counsel’s apparent misunderstanding of his Fifth Amendment
rights do not at all resemble the sworn prior testimony showing that the codefendant
was likely to testify on the defendant’s behalf in Starr. In short, Burkhalter’s
reference to Starr does not persuade us.

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We hold that the district court did not abuse its discretion in denying
Burkhalter’s request to sever his trial from Nesbitt’s.
III.
Next, Nesbitt and Burkhalter raise several challenges to the sufficiency of the
evidence supporting their convictions. “We review de novo the sufficiency of the
evidence, viewing the evidence in the light most favorable to the jury verdict and
giving the verdict the benefit of all reasonable inferences.” United States v. Foard,
108 F.4th 729, 735 (8th Cir. 2024) (citation omitted).
A.
Nesbitt and Burkhalter contend that the Government failed to present
sufficient evidence at trial to support their convictions for conspiracy to distribute or
possess with intent to distribute cocaine and/or marijuana as alleged in Count 1 of
the Third Superseding Indictment. To prove that charge, the Government had to
show that (1) there was an agreement to distribute cocaine or marijuana (or possess
with intent to distribute cocaine or marijuana); (2) Nesbitt and Burkhalter knew of
the conspiracy; and (3) Nesbitt and Burkhalter intentionally joined the conspiracy.
See United States v. Davis, 826 F.3d 1078, 1081 (8th Cir. 2016) (detailing elements
of conspiracy).
When construed in the light most favorable to the jury’s verdict, the evidence
supports Nesbitt’s and Burkhalter’s convictions for the conspiracy charged in Count
1. The evidence shows that Nesbitt and Burkhalter participated in multiple robberies
of drug dealers—including Dean, Johnson, and the dealers robbed in Lawrence.
Witness Marcus Johnson testified that Burkhalter made money from robbing drug
dealers and that Burkhalter tried to sell him drugs after the Mama China robbery.
The robberies involved an overlapping cast of participants (including Nesbitt and
Burkhalter) and occurred close in time. The robberies support Nesbitt’s and
Burkhalter’s conspiracy convictions. See United States v. Lindsey, 702 F.3d 1092,

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1102-03 (8th Cir. 2013) (finding that sufficient evidence existed to prove beyond a
reasonable doubt that the defendants joined a conspiracy to distribute drugs where
the defendants robbed a known drug dealer’s house and a witness testified to other
incidents of the defendants selling drugs obtained through robberies of drug dealers);
United States v. Campbell, 963 F.3d 309, 317 (4th Cir. 2020) (“[T]he robbery of a
drug dealer by members of an active drug conspiracy—who then sell the stolen
heroin and split the proceeds—is evidence of the charged drug conspiracy.”).
The Government also presented evidence of an agreement to distribute
cocaine and marijuana beyond the robberies themselves. That evidence
included: that Burkhalter purchased cocaine and marijuana from sources known as
“6-0” and “Mike the weed man”; that Lee observed Burkhalter distributing cocaine
and marijuana to friends and acquaintances; that Burkhalter told Lee he sold
marijuana; that Nesbitt accompanied Burkhalter to drug buys; that witnesses testified
that Burkhalter had tried to sell them cocaine (or that they had purchased cocaine
from Burkhalter); that Nesbitt acknowledged possessing “pills, powder, and coke”
during his time living in Kansas City, and stated on a recorded jail call that he was
“a thug” and that “[e]verything [he] do[es] is illegal, sell dope and all type[s of]
shit”; and that, after crashing his car, Burkhalter dispatched an associate to the tow
lot to retrieve contraband from under the wrecked vehicle’s steering wheel—an area
to which a drug dog later alerted.
Nesbitt and Burkhalter nevertheless argue that this evidence is thinner than
that sometimes supporting drug-distribution conspiracy convictions. They point out
that there were no controlled buys and no large-scale drug seizures. But there did
not have to be. See United States v. Wiley, 122 F.4th 725, 729 (8th Cir. 2024)
(recognizing that participation in a drug-distribution conspiracy may be proved
circumstantially); United States v. Edwards, 834 F.3d 180, 199 (2d Cir. 2016)
(“[P]roof of a narcotics trafficking conspiracy—even proof beyond a reasonable
doubt—does not demand a seizure of drugs.”). Nesbitt also argues that there is no
direct evidence that he sold any drugs. But again, there did not have to be. Salinas
v. United States, 522 U.S. 52, 63 (1997) (“A conspiracy may exist even if a

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conspirator does not agree to commit or facilitate each and every part of the
substantive offense.”); United States v. Bynum, 669 F.3d 880, 887 (8th Cir. 2012)
(“[F]ederal drug distribution charges do not require an exchange for value.”).
Moreover, Nesbitt admitted on a recorded jail call to selling drugs; the jury could
have inferred that he himself engaged in drug distribution on that basis.
Nesbitt and Burkhalter also argue that, to the extent the evidence proves any
conspiracy, it proves multiple conspiracies rather than the single conspiracy charged
in the indictment. They contend that there is thus a fatal variance between the
indictment and the evidence from trial. “A variance results where a single
conspiracy is charged but the evidence at trial shows multiple conspiracies.” United
States v. Morales, 113 F.3d 116, 119 (8th Cir. 1997). “Whether the government’s
proof established a single conspiracy or multiple conspiracies is a question of fact
for the jury.” Id. In addressing a challenge to that finding, “we consider the totality
of the circumstances, including the nature of the activities, the location and time
frame in which the activities were performed, and the participants involved.” Id.
Here, while Nesbitt and Burkhalter contend that a variance may have existed,
they do not identify what the multiple conspiracies proven were. Presumably, they
view one or more of the drug-dealer robberies as implicating a separate conspiracy
or conspiracies. But the robberies all followed the same pattern (using a firearm to
rip off a known drug dealer), occurred close in time, included a highly overlapping
cast of characters, and involved the same obvious objective: stealing drugs. The jury
could have easily inferred that a single drug-distribution conspiracy existed. See
United States v. Gilbert, 721 F.3d 1000, 1005 (8th Cir. 2013) (“A single conspiracy
may be found when the defendants share a common overall goal and the same
method is used to achieve that goal, even if the actors are not always the same.”
(citation omitted)). Under the totality of the circumstances, and viewing the
evidence in the light most favorable to the jury’s verdict, we conclude that the jury
reasonably found that the single conspiracy charged in the indictment existed.

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Accordingly, we reject Nesbitt’s and Burkhalter’s challenges to their
convictions under Count 1 of the Third Superseding indictment.
B.
Nesbitt and Burkhalter next contend that the district court erred in withholding
judgments of acquittal on the witness and evidence tampering charges alleged in
Counts 8, 9, and 10 of the Third Superseding Indictment.3 According to Nesbitt and
Burkhalter, the Government did not present sufficient evidence that Nesbitt’s and
Burkhalter’s tampering offenses had a federal nexus.
The federal witness tampering statute requires a federal nexus, which is
present if a defendant tampers with a witness either (1) to prevent testimony or
evidence from being presented in an “official proceeding” or (2) to prevent the
witness from communicating with a “law enforcement officer.” See 18 U.S.C.
§ 1512; see also Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08 (2005)
(discussing proof requirements for the official proceeding theory); Fowler v. United
States, 563 U.S. 668, 671-78 (2011) (discussing proof requirements for the law
enforcement officer theory). The parties dispute whether the evidence sufficiently
supported the law enforcement officer and official proceeding theories on Counts 8
and 9 (a tampering conspiracy charge and the tampering charge relating to the
Johnson murder). They also dispute whether the evidence supports the official
proceeding theory as to Count 10 (the tampering charge dealing with Nesbitt’s and
Burkhalter’s efforts to intimidate Williams).
The evidence presented at trial sufficiently supports applying the federal
proceeding theory, and thus Burkhalter’s and Nesbitt’s convictions of all the
tampering counts. We thus do not reach the parties’ arguments about the sufficiency
of the evidence as to the federal officer theory.
3 They also challenge their convictions under Count 5, for which the
substantive witness tampering offense alleged in Count 9 served as a predicate. Our
analysis below resolves this challenge.

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The term “official proceeding” as used in § 1512 includes federal grand jury
and federal court proceedings. See 18 U.S.C. § 1515(a)(1)(A). It does not include
a state proceeding. United States v. Petruk, 781 F.3d 438, 444 (8th Cir. 2015). To
prove the federal nexus for tampering on an official-proceeding theory, the
Government does not have to prove that “an official proceeding [is] pending or about
to be instituted at the time of the offense.” 18 U.S.C. § 1512(f). Moreover, “no state
of mind need be proved with respect to the circumstance . . . that the official
proceeding . . . is before a judge or court of the United States.” Id. § 1512(g)(1).
That is, “the government need not prove that the defendant was aware the proceeding
was federal in nature.” Petruk, 781 F.3d at 444. Ultimately, the Government must
prove “beyond a reasonable doubt that the defendant contemplated a foreseeable
proceeding, and that the contemplated proceeding constituted an ‘official
proceeding.’” Id. at 445.
Here, Nesbitt and Burkhalter argue that the evidence does not show they
anticipated being haled into federal court. But they did not have to. See 18 U.S.C.
§ 1512(g)(1); United States v. Abdullahi, 144 F.4th 1034, 1042 (8th Cir. 2025)
(“What the Government had to prove was that Abdullahi ‘ha[d] in contemplation a[]
particular’ federal proceeding, not that he knew the proceeding was federal.”
(alterations in original) (citations omitted)). The evidence shows that Nesbitt and
Burkhalter plainly foresaw the possibility that they would be prosecuted for robbing
and murdering Dean. As it happened, that prosecution turned out to be a federal one.
That is enough. See United States v. Mink, 9 F.4th 590, 610 (8th Cir. 2021) (finding
the evidence sufficient to support a jury verdict on a tampering charge where the
defendant, pre-indictment, sought his father’s assistance in destroying evidence and
creating a false alibi with regard to crimes that were not inherently federal). When
the evidence is viewed in the light most favorable to the jury’s verdict, it was
sufficient to establish that Nesbitt and Burkhalter contemplated a particular,
foreseeable proceeding when they murdered Johnson and threatened Williams.
Nesbitt and Burkhalter contend that our decisions in Petruk and Abdullahi
compel a contrary result. These decisions do not. In both cases, we held that the

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evidence was insufficient to show that the defendants contemplated particular,
foreseeable proceedings that constituted “official proceedings.” Petruk, 781 F.3d at
444-46; Abdullahi,144 F.4th at 1041-44. But critically, the defendants were already
facing state charges, and there was no evidence that they anticipated additional
proceedings when they tampered—i.e., the evidence showed that they were
concerned with thwarting their ongoing state cases, as opposed to future potential
federal ones. Petruk, 781 F.3d at 444-46; Abdullahi,144 F.4th at 1041-44. While
these cases hold that a defendant must contemplate a particular proceeding, they do
not support Nesbitt’s and Burkhalter’s arguments that a defendant must foresee such
a proceeding’s federal status.4
In sum, adequate evidence supports Nesbitt’s and Burkhalter’s convictions of
Counts 8, 9, and 10 of the Third Superseding Indictment.
C.
Nesbitt next argues that insufficient evidence supports his convictions under
Counts 2 and 3 of the Third Superseding Indictment (which charged cocaine
possession and firearm discharge offenses in connection with the Mama China
4 Burkhalter filed a letter pursuant to Federal Rule of Appellate Procedure 28(j)
contending that the reasoning of another case, United States v. Goodlow, 171 F.4th
1106 (8th Cir. 2026), “applies . . . to the facts of this case.” In Goodlow, we held
that the Government failed to establish the federal nexus requirement under the
official proceeding theory where the Government’s evidence did not show that the
defendant contemplated any particular proceeding. Id. at 1112. We emphasized that
at the time of the alleged tampering, “no criminal investigation was underway.” Id.
Here, in contrast, Burkhalter had already been arrested and interrogated about the
Mama China murder, and communicated to Nesbitt that the police were interested
in Nesbitt’s involvement in that homicide, before the two committed the charged
tampering offenses. Goodlow does not require us to conclude that the Government
failed to prove Nesbitt and Burkhalter contemplated a particular proceeding, where
they clearly understood that they were under investigation for the Mama China
killing.

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murder). He contends that a reasonable jury could not have found that he was
involved with the Mama China murder. We disagree.
After killing Dean, Nesbitt and Burkhalter were not exactly discreet about
what they had done. They bragged about their involvement to multiple witnesses.
For instance, Burkhalter told one such witness, Marcus Johnson, that he had gone to
Mama China to conduct a drug deal “and it went bad, [so] his home boy had to get
rid of the person.” Burkhalter also told Marcus Johnson that he was trying to get rid
of an AR-15 that was connected with the murder. Jones overheard Nesbitt and
Burkhalter discussing how Nesbitt had “caught his first body” at Mama China. And
Nesbitt told Jones that he was looking for the women with whom he had ridden in
the car that day because he wanted to kill them. Nesbitt also told Lee that he had
met Dean to buy pills and had shot Dean because he thought Dean was reaching for
a gun.
Eyewitness testimony also directly implicates Nesbitt in the Mama China
murder. In portions of her grand jury testimony that were admitted at trial, a witness
named Jazmine Hill stated that she had ridden in a car with Burkhalter, Nesbitt, and
Tiara Cook to Mama China, where she had witnessed Nesbitt shoot Dean. Text
messages support this account. After the murder, Cook text messaged Nesbitt that
she was “not a rat period point blank”; that she was “not no snitch” and “wo[uld]n’t
snitch” and that she would “never rat” because Nesbitt and Burkhalter “could kill
[her] dead.”
Further, forensic evidence points to Nesbitt’s guilt. A ballistics analysis
confirms that the AR-15 he used during the Fast Stop robbery—and that he later
used to murder Johnson—was the same weapon that killed Dean. The jury saw
photographs and video footage of Nesbitt holding that gun.
Significant evidence also reflects Nesbitt’s consciousness of guilt. Before
Nesbitt murdered him, Johnson overheard Nesbitt and Burkhalter discussing the
Mama China murder and tipped off the police about their involvement. Nesbitt and

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Burkhalter discussed Johnson’s tip on a recorded jail call before Nesbitt killed
Johnson. The fact that Nesbitt killed Johnson—whom he knew was communicating
with police about the Mama China murder—is circumstantial evidence that Nesbitt
also murdered Dean. Further, Nesbitt and Burkhalter went to great lengths to get the
murder weapon back after it went missing—a fact also reflective of guilt. Burkhalter
became distressed when he learned the gun was gone. And he pointed out that the
stakes were high for Nesbitt too: he noted that Nesbitt had “two tons” on the missing
AR-15, which the jury could have taken as a reference to the Mama China and
Johnson murders. The two discussed killing Hines and taking “everybody’s memory
card.” In an attempt to locate the weapon, Nesbitt visited Williams, Hines’s
girlfriend, at her place of work to threaten her. Nesbitt’s and Burkhalter’s evident
concern about the murder weapon’s whereabouts supports an inference that they
killed Dean.
In the face of this evidence, Nesbitt contends that the Government’s witnesses
are not credible. He points out that some of its witnesses did not implicate Nesbitt
in their initial contacts with law enforcement. He also argues that Hill’s grand jury
testimony about the details of the Mama China shooting is inconsistent with the
forensic evidence law enforcement obtained at the scene. But witness credibility is
“for the jury to evaluate” and “virtually unassailable on appeal.” United States v.
Nosley, 62 F.4th 1120, 1130 (8th Cir. 2023) (citation omitted); see also United States
v. Denson, 138 F.4th 1091, 1094 (8th Cir. 2025) (“[I]n reviewing the sufficiency of
the evidence, ‘[i]t is axiomatic that we do not pass upon the credibility of witnesses
or the weight to be given their testimony.’” (second alteration in original) (citation
omitted)). We note only in passing that there are good reasons the jury could have
rejected Nesbitt’s inconsistency concerns. In this case about the murder of a
government witness, it requires no great stretch of the imagination to understand the
initial reticence of other witnesses to speak with law enforcement. Moreover, as
noted above, significant evidence corroborates the broad strokes of Hill’s grand jury
testimony: Nesbitt was present at Mama China, and he pulled the trigger. We thus
hold that sufficient evidence supports Nesbitt’s convictions of the offenses charged
in Counts 2 and 3 of the Third Superseding Indictment.

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D.
Nesbitt next asserts that insufficient evidence supports his conviction under
Count 5 of the Indictment, which charged him with discharge of a firearm in
furtherance of various predicate offenses in connection with the Johnson murder.
One of the predicate offenses for that charge was Hobbs Act robbery, which requires
among other things, robbery that “obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce.” 18 U.S.C. § 1951(a).
According to Nesbitt, the Government did not prove that he affected commerce
when he used a firearm to rob Johnson.
As an initial matter, the Government argues that Nesbitt failed to preserve any
sufficiency challenge on this issue, such that we should review only for plain error.
See United States v. Garbacz, 33 F.4th 459, 466 (8th Cir. 2022)
(“Sufficiency-of-the-evidence arguments raised for the first time on appeal . . . are
reviewed for plain error.”). Nesbitt responds that he preserved his sufficiency
challenge by objecting to the jury instructions for Hobbs Act robbery. But we need
not reach the error-preservation issue. Even if we assume that Nesbitt preserved his
sufficiency challenge, that challenge fails because the Government presented
sufficient evidence that the robbery affected commerce.
In Taylor v. United States, the Supreme Court held that “if the Government
proves beyond a reasonable doubt that a robber targeted a marijuana dealer’s drugs
or illegal proceeds, the Government has proved beyond a reasonable doubt that
commerce over which the United States has jurisdiction was affected,” because “as
a matter of law, the market for illegal drugs is ‘commerce over which the United
States has jurisdiction.’” 579 U.S. 301, 308-09 (2016). Here, despite Nesbitt’s
claims to the contrary, the Government adequately proved that Johnson was a
marijuana dealer and that Nesbitt targeted his drugs.
Johnson was a marijuana dealer by his own admission. The day before Nesbitt
murdered him, while sharing marijuana with Lee, Jones, and Ryce in Lee’s

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apartment, Johnson told them he was “a little spoiled rich kid that sells weed.” And
the day of the murder, when Ryce asked Johnson for more marijuana, he said he
wanted her to pay for it. On a recorded jail call, Lee informed Burkhalter that
Johnson had “weed and money.” And Nesbitt told Burkhalter that Johnson had
money and “a pound of shit,” which the jury could have taken as a reference to
marijuana. Finally, when Nesbitt robbed Johnson, he obtained enough marijuana to
divide among himself and at least three of his coconspirators. Taken together and
construed in the light most favorable to the verdict, this evidence supports a finding
that Nesbitt’s robbery of Johnson affected commerce within the meaning of the
Hobbs Act robbery statute.
E.
Next, Burkhalter asserts that insufficient evidence supports his conviction of
witness tampering as alleged in Count 11 of the Third Superseding indictment,
which related to his efforts to intimidate Lee post indictment. Again, the
Government disputes the applicable standard of review. It contends that Burkhalter
did not preserve any sufficiency challenge on this issue; Burkhalter argues he did.
And again, the standard of review ultimately does not matter: even if we assume
Burkhalter preserved his sufficiency challenge, that challenge is meritless.
Burkhalter contends that the Government failed to prove the identity element
of the charged offense—that is, that it was he who threatened Lee. In support of this
argument, Burkhalter observes that Terron Maples, who conveyed Burkhalter’s
threats to Lee, did not identify Burkhalter in court. But there was no requirement
that Maples do so. Indeed, the Government may meet its burden of proving identity
“through circumstantial evidence,” and “[c]ourtroom identification is not necessary
when the evidence is sufficient to permit the inference that the defendant on trial is
the person who committed the acts charged.” United States v. Perry, 61 F.4th 603,
607 (8th Cir. 2023) (alteration in original) (citation omitted).

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The Government adequately proved identity through circumstantial evidence
here. At trial, Maples testified that he had a conversation with a man known as
“Deuce” in the holding area of the federal courthouse. Deuce told Maples, who was
incarcerated at the same facility as Lee, that he wanted Lee “fucked up” because she
was testifying against him. He instructed Maples to pass on a message about
something that had happened at a baseball field. Maples did so.
Lee testified as to what this threat meant. She explained to the jury that at one
point, Burkhalter suspected that she was cheating on him with another man. So
Burkhalter lured that man to Lee’s apartment and ordered her and the man to have
sex. When they refused, Burkhalter beat the man, took Lee to a baseball field, and
raped her while holding a gun to her head.
Significant evidence shows that Burkhalter went by the pseudonym “Deuce.”
That is how others referred to him. And that is how he referred to himself. For
instance, his Facebook profile identified him as “TwoMuch Duece [sic].”
Burkhalter also had a strong motive to threaten Lee: she was an important witness
to the conduct he was then charged with, so it would be unsurprising that he wished
to keep her from testifying. When this evidence is considered along with the
extremely personal nature of the threat, it adequately supports a finding that
Burkhalter—and not some other “Deuce”—was the person with whom Maples
spoke. We hold that the evidence from trial is sufficient to support Burkhalter’s
conviction of Count 11 of the Third Superseding Indictment.
IV.
Next, Nesbitt and Burkhalter challenge the district court’s decision to admit
Hill’s and Cook’s grand jury testimony. “We review a district court’s ruling on the
admissibility of evidence . . . for an abuse of discretion.” United States v. Euring,
112 F.4th 545, 551 (8th Cir. 2024).

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In their grand jury testimony, Hill and Cook implicated Nesbitt and Burkhalter
in the murder at Mama China. Hill testified that she was in the car while Burkhalter
conducted the drug deal with Dean and Nesbitt shot Dean. And Cook testified about
learning of the Mama China robbery from Burkhalter and Nesbitt and seeing
Burkhalter with Xanax and cocaine and Nesbitt with a long gun shortly after the
incident. She also testified that Burkhalter threatened to kill her, and told Nesbitt to
kill a man who said he heard Nesbitt and Burkhalter committed a murder that was
on the news. But at trial, Hill and Cook generally claimed not to remember anything
about the Mama China murder or their grand jury testimony. The district court
ultimately admitted the portions of that testimony inconsistent with their trial
testimony under Federal Rule of Evidence 801(d)(1)(a).
The district court did not abuse its discretion in doing so. Rule 801(d)(1)(a)
permits a prior statement to be admitted as substantive evidence—i.e., not simply
for impeachment purposes—if “[t]he declarant testifies and is subject to
cross-examination about a prior statement, and the statement is inconsistent with the
declarant’s testimony and was given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition.” Hill’s and Cook’s grand jury testimony
satisfies these requirements.
First, it was inconsistent with their trial testimony. For instance, at trial, Hill
claimed she did not remember seeing Burkhalter or Nesbitt with a firearm and that
she did not remember going to Mama China in 2015. And when confronted with
her grand jury testimony to the contrary, she claimed the Government was “putting
shit” in the transcript and “lying” and that she did not remember giving that
testimony. Cook also generally claimed not to remember the substance of her grand
jury testimony and the events she had testified to before the grand jury. As she put
it when asked on cross-examination if there was any truth to what she had told the
grand jury, she could not “testify to nothing.”
Though Nesbitt and Burkhalter argue, at least as to Hill, that claimed lack of
memory does not qualify as inconsistency, they are wrong. See United States v.

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Dean, 823 F.3d 422, 427 (8th Cir. 2016) (“In applying Rule 801(d)(1)(A),
‘inconsistency is not limited to diametrically opposed answers but may be found in
evasive answers, inability to recall, silence, or changes of position.’” (citation
omitted)); United States v. Dennis, 625 F.2d 782, 796 (8th Cir. 1980) (“The trial
judge correctly determined that Miller’s denials of and inability to recall grand jury
testimony were ‘inconsistent’ with his trial testimony.”). We hold that the district
court did not abuse its “considerable discretion in determining” that Hill’s and
Cook’s grand jury testimony was “inconsistent with [their] trial testimony” for
purposes of Rule 801(d)(1)(a). United States v. Matlock, 109 F.3d 1313, 1319 (8th
Cir. 1997).
Second, grand jury proceedings constitute an “other proceeding” within the
meaning of Rule 801(d)(1)(a). See Dennis, 625 F.2d at 795 (“Statements made
before a grand jury are within the Rule 801(d)(1)(A) exception for statements given
under oath and subject to the penalty of perjury.”). Nesbitt and Burkhalter do not
argue otherwise.
Third, both Hill and Cook testified in court and were subject to cross
examination. Nesbitt and Burkhalter’s strategic choice not to cross examine Hill and
Hill’s and Cook’s claimed lack of memory do not change that fact. See United States
v. Owens, 484 U.S. 554, 561-62 (1988) (recognizing that “[o]rdinarily a witness is
regarded as ‘subject to cross-examination’ when he is placed on the stand, under
oath, and responds willingly to questions,” and that asserted memory loss does not
render a witness not subject to cross examination (citation omitted)).
Because Hill’s and Cook’s admitted grand jury testimony meets the
requirements of Rule 801(d)(1)(a), we hold that the district court did not abuse its
discretion in admitting it into evidence under that Rule. Further, any foundational
shortcomings in the way some of the grand jury testimony was admitted into
evidence would not change the result. Nesbitt and Burkhalter contend that the grand
jury testimony was the only direct evidence placing them at the Mama China

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location, but a sufficient portion of Hill’s grand jury testimony on that issue was
properly admitted.
Nesbitt and Burkhalter assert various arguments grounded on Federal Rule of
Evidence 613(b)—which governs impeachment—against the district court’s
decision to admit Hill’s and Cook’s grand jury testimony. Because the district court
admitted this testimony as substantive evidence under Rule 801(d)(1)(a), we do not
reach these arguments. See United States v. Lashmett, 965 F.2d 179, 181 (7th Cir.
1992) (recognizing that Rules 801(d)(1)(a) and 613(b) are distinct bases for
admitting inconsistent statements and have different requirements). The prior sworn
statements Hill and Cook made before the grand jury meet the requirements of Rule
801(d)(1)(a). That is enough.
V.
Next, Burkhalter argues that the district court erred in formulating the jury
instructions as to the interstate-commerce element of Hobbs Act robbery, which
served as a predicate offense to the firearm discharge offenses charged in Counts 3
and 5 of the Third Superseding Indictment. “[W]e review a district court’s
formulation of jury instructions for an abuse of discretion and its interpretation of
law de novo.” United States v. Wilson, 142 F.4th 1045, 1049 (8th Cir. 2025)
(citation omitted).
Hobbs Act robbery requires, among other things, that the defendant’s activity
had an effect on interstate commerce. 18 U.S.C. § 1951(a), (b)(3). Here, the district
court instructed the jury “that a robbery of cocaine [or marijuana] from a drug dealer
affects commerce as a matter of law.” This language tracks the Supreme Court’s
holding in Taylor: “if the Government proves beyond a reasonable doubt that a
robber targeted a marijuana dealer’s drugs or illegal proceeds, the Government has
proved beyond a reasonable doubt that commerce over which the United States has
jurisdiction was affected,” because “as a matter of law, the market for illegal drugs
is ‘commerce over which the United States has jurisdiction.’” 579 U.S. at 308-09.

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Jury “instructions that closely track on-point Supreme Court precedent fairly and
accurately describe the law.” United States v. Wright, No. 22-1194, 2023 WL
3163268, at *2 (8th Cir. May 1, 2023) (per curiam).
Burkhalter does not seriously dispute that the district court’s instructions
correctly state Taylor’s holding. Rather, he says that the instructions compelled the
jury to find that Dean and Johnson were drug dealers and that the robberies targeted
cocaine and marijuana. But the instructions simply do not tell the jury to do
that—they say that robberies of drugs from drug dealers affect commerce as a matter
of law—which is a true statement of the law. They do not say that the jury must find
that Dean and Johnson were drug dealers, or that Burkhalter targeted their drugs.
Read as a whole, the jury instructions dictate that the jury had to find beyond a
reasonable doubt that Burkhalter’s firearm discharge offenses as charged in Counts
3 and 5 affected interstate commerce, and that one way the Government could meet
this burden was by proving that Dean and Johnson were drug dealers. The district
court did not misinterpret or misstate the law, and we discern no error in the
challenged instructions.
VI.
Finally, Nesbitt and Burkhalter contend that the district court imposed
procedurally unsound and substantively unreasonable sentences for their convictions
of the offense charged in Count 14 of the Third Superseding
indictment—brandishing a firearm in connection with the Fast Stop robbery.
According to Nesbitt and Burkhalter, the district court did not adequately explain its
reasoning for imposing consecutive life sentences for their convictions of this
charge, where the Guidelines sentencing range was only 84 months’ imprisonment.
Moreover, in Nesbitt and Burkhalter’s view, the upward variance the district court
imposed resulted in an extreme sentence for a convenience store robbery in which
nobody was killed or physically injured.

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We decline to reach the merits of Nesbitt and Burkhalter’s sentencing
challenges. Under the concurrent sentence doctrine our cases recognize, we may
“decline to review the validity of a concurrent conviction or sentence when a ruling
in the defendant’s favor ‘would not reduce the time he is required to serve’ or
otherwise” prevent prejudice to the defendant. Eason v. United States, 912 F.3d
1122, 1123 (8th Cir. 2019) (citation omitted). The logic underlying the concurrent
sentence doctrine applies with equal force in the context of consecutive life
sentences. See Oslund v. United States, 944 F.3d 743, 748, 748 n.3 (8th Cir. 2019)
(affirming district court’s application of the concurrent sentence doctrine and
agreeing with “the district court’s determination that [the defendant’s] consecutive
life sentences are the functional equivalent of concurrent life sentences”). Because
a favorable ruling on Nesbitt and Burkhalter’s challenge to their sentence for Count
14 would not benefit them in any way at this time (seeing as Nesbitt is serving three
other consecutive life sentences, and Burkhalter is serving four), we need not and do
not reach the validity of their sentences associated with their convictions of the
offense charged in Count 14.
VII.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________

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