United States of America v. Larry K. Hayward

United States Court of Appeals
For the Eighth Circuit
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No. 23-3251
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United States of America
Plaintiff - Appellee
v.
Larry K. Hayward
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 27, 2024
Filed: January 3, 2025
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Before COLLOTON, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
A jury convicted Larry Hayward of five counts of heroin-related offenses. He
then made an unsuccessful motion for acquittal or a new trial. On appeal, Hayward
argues that the district court1 abused its discretion during trial by admitting evidence
1 The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.

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of an uncharged controlled buy involving both heroin and fentanyl. He further
argues that the evidence was insufficient to support his conviction of one count of
conspiracy to distribute drugs and two counts of aiding and abetting distribution of
drugs. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
“We recite the facts in the light most favorable to the jury’s verdict.” United
States v. Brandon, 64 F.4th 1009, 1013 (8th Cir. 2023) (citation omitted).
Hayward was in the business of selling heroin with his romantic partner,
Jasmine Steed. Hayward and Steed had a system. One of them would accept calls
from customers who were placing orders. That person would then direct the
customer to contact the other person to obtain the heroin. Sometimes Steed would
take the phone call and Hayward would make the physical sale, and other times
Hayward would handle the initial call or text and direct the customer to Steed to
finalize details and meet.
The operation appeared to fund their lifestyle. Though neither Hayward nor
Steed had a legitimate job,2 the couple seemed financially comfortable. At one point
they had two large rental homes with basements, leather couches, and televisions.
They also drove rental vehicles from time to time as well as a minivan that had been
partially paid for in cash. They owned multiple items from luxury fashion brand
Gucci. One of their homes contained more than $5,000 in cash. In addition, they
provided for several children.
In early 2018, Hayward and Steed’s operation caught the attention of law
enforcement. After hearing Hayward and Steed’s names frequently mentioned in
interviews, Drug Enforcement Administration Special Agent John Stuart began
investigating the couple. One of the tactics he deployed was the use of controlled
2 Hayward claimed to be a rap promoter, but said that he didn’t get paid.

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buys, a technique in which law enforcement uses an undercover officer or a
cooperating witness to purchase drugs from a target suspect to gain information
about or evidence against that person.
The first relevant controlled buy took place on May 10, 2018. Stuart
conscripted a confidential civilian source to make a controlled purchase from Steed.
The source first called Hayward, who told the source to call Steed. The source then
called Steed and told Steed the source had “two,” meaning $200 to buy heroin. Steed
and the source arranged a meeting site, where the source purchased a gram of heroin
from Steed.
The second relevant controlled buy took place on May 15, 2018. This time,
Steed was not involved. Once again, a confidential source called Hayward.
Hayward gave the source a number to call, one that was later connected to a man
named Demario Brown. Brown and the source arranged a meeting spot, where
Brown sold the source a bag of heroin. Brown later admitted that Hayward had at
times—including around May 2018—asked Brown to sell drugs while Hayward was
out of town. Hayward would tell Brown how to package the drugs, who to meet,
and where to go. After making a sale, Brown would take the money to Hayward’s
house.
The third relevant controlled buy took place on June 13, 2018. That afternoon,
a confidential source tried to make contact with both Hayward and Steed.
Eventually, Steed sent a message to the source directing the source to meet at
“Sunshine and [G]rant” for the sale. The source went to that area and then texted
with Hayward to say the source was at the Taco Bell in a Green Ford Escape.
Hayward parked nearby, walked over to the source’s car, got in for a short period,
sold the source a bag of heroin, then returned to his own car.
The final relevant investigative efforts occurred on October 17, 2018.
Pursuant to an arrest warrant, officers arrested Hayward during a traffic stop. They
found a bag containing 7.622 grams of heroin on Hayward and a digital scale, an LG

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cell phone, and various records in Hayward’s vehicle. Additionally, investigators
executed search warrants for both of Hayward and Steed’s joint rental homes. At
one house, investigators found more than $5,000 in cash in the master bedroom, a
digital scale on the living room couch, and a toolbox in the laundry room containing
two digital scales, a blender, and a handgun. At the other house, Steed was present.
Officers found more than 70 grams of heroin in one of her pairs of pants, as well as
a gun.
In June 2019, a grand jury returned a nine-count indictment naming Hayward,
Steed, Brown, and others as defendants.3 The government proceeded to trial on five
counts against Hayward.4 Count 1 charged Hayward and others with conspiracy to
distribute heroin. Counts 2 and 3 charged him with aiding and abetting heroin
distribution based on heroin sales with Steed on May 10, 2018 and Brown on May
15, 2018 respectively. Count 6 charged him with heroin distribution for the June 13,
2018 exchange. Finally, Count 9 charged him with possession with intent to
distribute heroin based on his heroin possession on October 17, 2018.
Prior to trial, the government provided notice that it intended to present
evidence of an uncharged August 2019 (post-indictment) controlled buy involving
fentanyl. The government argued the evidence should come in under Federal Rule
of Evidence 404(b) because it was relevant to showing the defendant’s intent to
distribute heroin. In both the charged instances and the uncharged instance, a
confidential informant contacted one person to make a heroin purchase, then met
with a different person to finish the purchase, and in all relevant instances, heroin
was identified as part of the controlled substance. In the August 2019 purchase, lab
3 Count 1 charged Hayward, Steed, Brown, and others with conspiracy in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). Counts 2-4 and 6-9
charged Hayward and others with various drug offenses under 21 USC §§ 841(a)(1)
and 841(b)(1)(C). Count 5 charged Hayward with money laundering under 18 U.S.C
§ 1957(a).
4 Both Steed and Brown pled guilty to charges in their respective cases.

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reports later showed the substance contained fentanyl as well. Hayward argued that
the controlled buy involving heroin and fentanyl was much different than the
heroin-only buys—it occurred nine months after the conspiracy ended, it took place
in a different state, it involved different co-conspirators, and it involved a different
drug—and should thus be excluded as irrelevant and unfairly prejudicial under Rules
404(b) and 403. The district court disagreed, and at trial the court admitted the
evidence over Hayward’s objection.5 However, the court gave a limiting instruction
regarding the use of the evidence and, at the request of Hayward, referred to the
substance purchased as a “controlled substance” rather than as fentanyl.
Hayward was convicted on all five counts. Following the trial and conviction,
he moved for acquittal or a new trial on Counts 1, 2, 3, and 9, arguing in relevant
part that the evidence was insufficient to support conviction and that evidence of the
uncharged controlled buy which involved both heroin and fentanyl should not have
been admitted. The court denied the motion. Hayward was sentenced to 240
months’ imprisonment.
He now appeals. He argues that the district court abused its discretion in
admitting evidence of the controlled buy involving fentanyl. He further argues that
there was insufficient evidence for the jury to find him guilty of conspiracy to
distribute heroin (Count 1) and aiding and abetting Steed (Count 2) and Brown
(Count 3) in distributing heroin.6
5 While fentanyl was referenced once during witness testimony, its presence
was not highlighted. Immediately after the witness testified, the government read a
stipulation into the record noting that “[t]he chemical analysis revealed that the
multiple individual substances tested totaled approximately 1.88 grams of heroin.”
The stipulation said nothing about fentanyl.
6 Though Hayward moved for a judgement of acquittal or a new trial on Count
9 as well, he is not now contesting the sufficiency of the evidence supporting that
conviction.

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II.
Hayward first argues that the district court erred in admitting evidence
concerning the uncharged August 2019 controlled buy, which involved both heroin
and fentanyl, alleging this error violated Federal Rules of Evidence 404(b) and 403.
We review evidentiary rulings for abuse of discretion, with deference afforded to the
district judge who conducted the trial. United States v. Johnson, 860 F.3d 1133,
1139 (8th Cir. 2017). Reversal is proper “only when an improper evidentiary ruling
affected the defendant’s substantial rights or had more than a slight influence on the
verdict.” United States v. Picardi, 739 F.3d 1118, 1124 (8th Cir. 2014) (citation
omitted).
Federal Rule of Evidence 403 authorizes the court to exclude relevant
evidence “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. Unfair prejudice means “an undue tendency to
suggest decision on an improper basis.” United States v. Loveless, 139 F.3d 587,
592 (8th Cir. 1998) (citation omitted). Rule 404(b) provides that “[e]vidence of any
other crime, wrong, or act” is inadmissible for propensity purposes, but admissible
for other purposes, including “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).
We apply “a four-part test to determine whether a district court abused its discretion
in admitting 404(b) evidence.” Brandon, 64 F.4th at 1020 (citation omitted). Under
the test, evidence is properly admitted if “(1) it is relevant to a material issue; (2) it
is similar in kind and not overly remote in time to the crime charged; (3) it is
supported by sufficient evidence; and (4) its potential prejudice does not
substantially outweigh its probative value.” Id. at 1020-21 (citation omitted). We
apply this test with the recognition that Rule 404(b) is a “rule of inclusion,” meaning
we reverse “only when the evidence clearly had no bearing on the case and was
introduced solely to show defendant’s propensity to engage in criminal misconduct.”
Id. (citation omitted).

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Here, applying the first prong of the four-part test, the evidence is relevant to
a material issue: intent. “By pleading not guilty, [Hayward] placed every element
of the charges brought against him at issue.” See Johnson, 860 F.3d at 1142. We
have previously allowed evidence of other acts to establish knowledge and intent in
narcotic distribution cases. See United States v. Thomas, 593 F.3d 752, 758 (8th
Cir. 2010). Additionally, “the mere subsequency of an act to that charged in an
indictment does not on that ground alone make it incompetent to establish intent or
motive.” Id. (citation omitted). As in other cases where this Court has found
evidence of other acts relevant to a defendant’s intent, here the controlled buy at
issue was evidence of Hayward’s intent, knowledge, and absence of mistake.
Second, the uncharged August 2019 controlled buy—which involved
fentanyl—was sufficiently similar to the charged heroin distribution crimes. In all
instances, the transaction involved heroin and the confidential informant contacted
one person to make a purchase, then met with a different person to finish the
purchase. The uncharged August 2019 controlled buy also occurred within the same
year and was thus not remote in time. See United States v. Benitez, 531 F.3d 711,
716 (8th Cir. 2008) (“Benitez’s prior drug offense had occurred less than one year
prior to the present offense and thus was not remote in time.”).
Hayward points out several differences between the crimes charged and the
uncharged August 2019 controlled buy, but none of them are significant enough to
establish that the judge abused his discretion. Hayward notes that the uncharged buy
occurred in a different state, with different co-conspirators, with different drug
quantities, and with different drugs. While these differences make this prong a closer
call, other bad acts “‘need not be duplicates’ of the charged crime” for them to be
admissible under Rule 404(b). United States v. Green-Bowman, 816 F.3d 958, 963
(8th Cir. 2016) (citation omitted). Rather, they only need be sufficiently similar “to
support whatever permissible inference makes the evidence relevant.” Id. Here, the
similarity between the transactions helped establish that Hayward had knowledge of
and intent to commit the crimes he was ultimately charged with and that his role in
the operation was not a mistake.

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Third, the uncharged August 2019 transaction was supported by sufficient
evidence. For evidence to be admissible under Rule 404(b), “the district court need
only determine that a reasonable jury could find by a preponderance of the evidence
that the defendant committed the prior act.” United States v. Winn, 628 F.3d 432,
436 (8th Cir. 2010). We have upheld “testimony from even a single witness” as
sufficient to support a 404(b) ruling. See Brandon, 64 F.4th at 1022. Here, the
uncharged transaction was supported by the testimony of a police sergeant, a video
of the controlled buy, physical evidence of the drugs, and a stipulation to the lab
report, among other evidence. This evidence is ample to satisfy the prong.
Finally, the probative value was not substantially outweighed by the risk of
unfair prejudice. “In the Rule 404(b) context, we will not reverse on this ground ‘if
we can discern from the record that the trial court performed the requisite balancing’
under Rule 403.” Id. at 1021-22 (citation omitted). Here, the record shows the
district court both performed the balancing test and included a limiting instruction
to diminish the risk of any unfair prejudice.
Hayward argues that the introduction of the evidence was particularly
prejudicial because it showed the jury that Hayward’s drug activities were not
limited to the sale of heroin. Given the “extensive media coverage on the dangers
and pervasiveness of fentanyl,” Hayward argues in his brief, the prejudicial effect of
this evidence far exceeded its probative value. However, there is no indication in
the record that any evidence was introduced highlighting the dangerousness of
fentanyl or its danger in comparison to heroin. Furthermore, the district court gave
a limiting instruction that referred to a “controlled substance” rather than referencing
fentanyl specifically. As we have previously recognized, “[w]e ‘normally defer’ to
the district court’s judgment in balancing between the probative value of evidence
and the risk it poses of unfair prejudice.” Green-Bowman, 816 F.3d at 964 (citation
omitted). Hayward’s argument does not overcome the substantial deference we pay
to the district court here. Thus, the district court did not abuse its discretion in
admitting the evidence at issue.

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III.
Hayward next challenges the sufficiency of the evidence as to three counts:
Count 1 (conspiracy), Count 2 (aiding and abetting Steed in distributing heroin), and
Count 3 (aiding and abetting Brown in distributing heroin). “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. Thompson, 881
F.3d 629, 632 (8th Cir. 2018) (citation omitted). We take each challenge in turn.
A.
Hayward argues there was insufficient evidence to support his conviction for
conspiracy to distribute 100 grams or more of heroin. A defendant is guilty of
conspiracy if the government proves “[(1)] that there was an agreement to achieve
an illegal purpose, [(2)] that the defendant knew of this agreement, and [(3)] that the
defendant intentionally joined the conspiracy.” United States v. Agofsky, 20 F.3d
866, 870 (8th Cir. 1994). Because of the “highly secretive nature of conspiracies,”
agreements may be inferred entirely from circumstantial evidence. Id.
Here, sufficient evidence was presented at trial to convict Hayward. Several
witnesses testified to a working relationship between Hayward and Steed to sell
heroin. Multiple witnesses also testified that they regularly purchased heroin from
Hayward and Steed, which allowed the jury to infer Hayward was a supplier and
was thus involved in a conspiracy. See United States v. Mendoza-Gonzalez, 363
F.3d 788, 796 (8th Cir. 2004) (“The jury could have found it unlikely that [the
defendant] grew, processed, packaged, and loaded such large amounts of marijuana
and highly pure methamphetamine without assistance from any other person . . . .”).
Additionally, when investigators searched Hayward and Steed’s shared home and
Steed’s car, they found distribution amounts of heroin, multiple phones, a large
amount of cash, a digital scale, and other indicia of drug trafficking. A reasonable

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jury could thus infer that Hayward and Steed had an agreement to sell heroin and
that Hayward knew about and intended the agreement.
Hayward further briefly argues that the evidence is not sufficient to support
his 240-month sentence,7 asserting that he did not know the extent of the conspiracy
and could not reasonably have foreseen Steed’s acts in furtherance of the conspiracy.
Hayward claims that at most, the evidence showed he possessed 7.88 grams of
heroin, and that the evidence connecting him to Steed—who had significantly
greater quantities of heroin seized—is insufficient to convict him of conspiracy to
distribute 100 grams or more of heroin. A defendant “may be convicted based on
‘all reasonably foreseeable drug quantities that were in the scope of the criminal
activity that he jointly undertook.’” Johnson, 70 F.4th at 1120 (citation omitted).
As discussed above, ample evidence established that Hayward and Steed were
knowingly and intentionally working to distribute drugs. Additionally, as laboratory
reports analyzing the substances recovered showed, the government seized more
than 111 grams of heroin during the investigation. Thus, the evidence was sufficient
as to this count.
B.
Hayward also argues there was insufficient evidence to support his conviction
for aiding and abetting Steed in the distribution of heroin on May 10, 2018. A
defendant is guilty of distribution if he (1) intentionally transfers a controlled
substance and (2) at the time of the transfer, knows that the substance is controlled.
United States v. Dimarco, 125 F. App’x 87, 89 (8th Cir. 2005) (unpublished per
curiam). A defendant aids and abets a crime if “(1) the defendant associated
[himself] with the unlawful venture; (2) the defendant participated in it as something
7 Hayward presents and argues this as a challenge to the sufficiency of the
evidence, not to his sentence. To the extent Hayward challenges the reasonableness
of his 240-month sentence, he fails to explain how the sentence itself is improper.
“Because the brief does not support this assertion with any argument, [we] deem[]
the issue abandoned.” United States v. Aldridge, 561 F.3d 759, 765 (8th Cir. 2009).

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[he] wished to bring about; and (3) the defendant sought by [his] actions to make it
succeed.” United States v. Taylor, 813 F.3d 1139, 1147-48 (8th Cir. 2016)
(alterations in original) (citation omitted).
The evidence presented at trial on this Count was sufficient. As described in
Part III.A supra, several witnesses at trial testified to Hayward and Steed’s working
relationship. Hayward does not dispute that Steed sold a controlled substance on
May 10, 2018. Furthermore, Hayward associated himself with the unlawful venture
by directing the buyer to call Steed. While Hayward correctly points out that this
direction to call Steed was the only direct evidence presented of his involvement in
the May 10, 2018 transaction, circumstantial evidence of intent can be sufficient to
support a conviction for distribution of controlled substances. See United States v.
Cowley, 34 F.4th 636, 640 (8th Cir. 2022) (“Intent to distribute controlled substances
may be proved by either direct evidence or circumstantial evidence.” (citation
omitted)). Here, given the plentiful evidence elsewhere in the record establishing
that Steed and Hayward used a system of directing buyers to each other to make
heroin sales, a reasonable juror could infer that Hayward directed the confidential
source to call Steed because he wished to bring about and make successful the
unlawful venture of heroin distribution. Thus, the evidence was sufficient as to
Count 2.
C.
Finally, Hayward argues there was insufficient evidence to support his
conviction for aiding and abetting Brown in the distribution of heroin on May 15,
2018. Once again, there is plenty of evidence incriminating Hayward in this
transaction. Brown testified that Hayward asked him to sell heroin for him while
Hayward was traveling, and that Hayward left heroin with Brown and instructed
Brown on how to package it, who to sell to, and where to go. Brown also testified
that he took the money he collected back to Hayward’s home. He said he followed
this procedure during the May 15, 2018 transaction. The government further

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presented testimony and phone call transcripts showing that Hayward directed the
confidential source to call Brown on May 15, 2018.
Hayward argues that Brown was too self-interested and his testimony too
inconsistent to be credible, but he fails to support this argument with precedent. This
Court has repeatedly held that “it is the function of the jury, not an appellate court,
to resolve conflicts in testimony or judge the credibility of witnesses.” See, e.g.,
United States v. LaRoche, 83 F.4th 682, 690 (8th Cir. 2023) (citation omitted).
Furthermore, this Court has consistently upheld verdicts that were based solely on
the testimony of cooperating witnesses. See, e.g., United States v. Dickson, 70 F.4th
1099, 1103 (8th Cir. 2023). Thus, the jury’s verdict on Count 3 was supported by
sufficient evidence.
IV.
For the foregoing reasons, we affirm.
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