United States of America v. Michael Grady

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2415
___________________________
United States of America
Plaintiff - Appellee
v.
Michael Grady
Defendant - Appellant
___________________________
No. 22-2447
___________________________
United States of America
Plaintiff - Appellee
v.
Oscar Dillon, III, also known as Ant, also known as Chest, also known as Muscles
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 21, 2023
Filed: December 19, 2023
____________

-- 1 of 23 --

-2-
Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Michael Grady and Oscar Dillon, III were convicted of (1) conspiracy to
distribute and possession with intent to distribute cocaine and heroin, in violation of
21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), (2) attempted obstruction of justice, in
violation of 18 U.S.C. § 1512(c)(2), and (3) conspiracy to commit money
laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), (h). Grady and Dillon
were sentenced to 226 and 187 months’ imprisonment, respectively, and each to 5
years of supervised release. On appeal, they challenge the district court’s1 denial of
their motion to dismiss the indictment on Speedy Trial Act grounds and admission
of prior criminal history at trial. They also assert that the evidence was insufficient
to support their convictions. Grady separately challenges the district court’s denial
of his motion to substitute counsel of his choice. Having jurisdiction under 28
U.S.C. § 1291, we affirm.
I.
This case is the product of an investigation into a large-scale drug operation
run by Derrick Terry that led to the indictment of 34 criminal defendants, including
Grady and Dillon. Terry’s organization bought and sold cocaine and heroin in St.
Louis, Missouri. Grady and Dillon, who worked at a paralegal and consulting
company, began aiding the organization in 2014 by drafting a motion for early
termination of Terry’s supervised release for a prior conviction. Thereafter, they
would conduct intelligence about potential government informants by attending
court proceedings and researching court and arrest records. This allowed them to
counsel Terry about whom he should trust, and Terry used this information to
enhance his relationships with other drug dealers.
1 The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.

-- 2 of 23 --

-3-
After Terry was indicted in January 2016, he met with Appellants at an
Applebee’s restaurant to discuss his best plan of action. Appellants encouraged
Terry to throw his phones away and flee for 18 months to 2 years. They reasoned
that by allowing the other defendants’ cases to play out, the Government would
likely have fewer cooperating witnesses against Terry for two reasons: his
codefendants’ plea deals would probably be solidified, and some defendants might
fear that cooperating against Terry may lead him to hurt their families. The three
men also discussed the possibility of retaining an attorney for Terry, which led to a
series of financial transactions between Appellants and Terry. Terry made multiple
payments to Appellants using drug proceeds with instructions that the money be
delivered to Beau Brindley, an attorney, as a retainer securing his representation.
Terry made one $50,000 payment to Grady shortly after Terry was indicted to
prevent its seizure by law enforcement should he be arrested. Shortly thereafter, he
directed his associate, Stanford Williams, to make another $10,000 payment through
Terry’s girlfriend, Charda Davis, to Appellants to give to Brindley.
Appellants, along with several others, were charged on December 1, 2016, in
the Fourth Superseding Indictment, and a witness-tampering charge was later added
against Grady in the Fifth Superseding Indictment on December 20, 2018. After
each indictment in this case, including the Fourth and Fifth Superseding Indictments,
the magistrate judge2 continued the trial, with no objections, beyond the limits
imposed by the Speedy Trial Act. She did so based on her finding that the case was
complex and therefore the ends of justice outweighed the interest in a speedy trial.
On October 6, 2017, Dillon filed a motion to sever his case from his
codefendants. The Government opposed the motion and recommended that a ruling
on the motion be reserved for a later time when it was clear which defendants would
be proceeding to trial. The magistrate judge took the motion under submission and
2 The Honorable Nannette A. Baker, United States Magistrate Judge for the
Eastern District of Missouri, now retired.

-- 3 of 23 --

-4-
reserved a ruling on it until after a ruling was issued on Dillon’s previously filed
motion to dismiss the indictment.
At Appellants’ arraignment on the Fifth Superseding Indictment on February
7, 2019, it became clear that the Government might seek to try Dillon and Grady
together. At the same arraignment, the magistrate judge acknowledged her prior
case complexity finding, and, in a subsequent order on February 11, 2019, reaffirmed
the case’s complexity, finding that the ends of justice necessitated continuing the
trial. Recognizing that a significant amount of time had passed since Dillon’s motion
to sever, the magistrate judge later ordered the Government to file a supplemental
brief on the severance motion by June 28, 2019, and ordered Dillon’s response by
July 5, 2019.
In its supplemental brief, the Government requested severance of Appellants’
trial from the other codefendants, and Appellants filed no response. Before any
ruling on the motion to sever, on November 26, 2019, Appellants jointly moved to
dismiss the indictment, claiming violations of the Speedy Trial Act. The district
court, adopting and incorporating the report and recommendation from the
magistrate judge, denied that motion and granted the motion to sever Appellants
from the remaining codefendants. In recommending denial of the motion to dismiss,
the magistrate judge emphasized that Appellants had never objected to any of the
prior complex-case designations, and the district court highlighted “[t]he volume of
motion practice and briefing” and “the need for numerous hearings” in affirming that
the case remained complex. In prior findings, the magistrate judge recognized
several factors contributing to case complexity, including voluminous discovery
with a “high volume of electronic data” from cell phones, evidence from a two-year
investigation into this drug trafficking organization, 34 defendants and 56 counts,
and the general nature of the conspiracy charges.
In December 2020, about three months before trial, Grady renewed a motion
he previously brought in 2017 to substitute Brindley as his counsel. The magistrate
judge had denied this motion in 2017, recognizing a serious potential conflict. In

-- 4 of 23 --

-5-
ruling on the renewed motion, the district court found the potential conflict of
interest unwaivable, despite Grady’s conflict waiver, as Brindley previously
represented Terry—the Government’s primary cooperating witness against Grady.
Moreover, the events surrounding Grady’s money laundering conspiracy charge
concerned a retainer that had been paid to Brindley on Terry’s behalf. The district
court also cited case management concerns with the trial date soon approaching.
Thus, the district court denied Grady’s motion.
During the trial in March 2021, the district court admitted evidence about
Dillon’s involvement with another drug organization that occurred after the conduct
alleged in this case but before he was indicted. Dillon was caught signing for a
package of cocaine on September 7, 2016, during an extensive investigation into a
wholly unrelated drug organization. Upon his arrest, officers seized two cell phones
that contained phone call records and text messages between individuals relevant to
this case, internet browser history, and downloaded court documents. The cell
phones and evidence of the investigation leading to the arrest and seizure of the
phones were admitted against Dillon at trial. Additionally, the district court admitted
under Federal Rule of Evidence 404(b) Grady’s prior heroin conspiracy conviction
where he purchased a large amount of heroin for a courier to transport from
California to Missouri.
Grady and Dillon were convicted by a jury, and they were sentenced to 226
and 187 months’ imprisonment, respectively. Appellants jointly moved for a
judgment of acquittal or a new trial, which the district court denied. This appeal
follows.
II.
We first address Appellants’ challenge to the district court’s denial of their
November 2019 motion to dismiss the indictment on Speedy Trial Act grounds.
They allege that over 120 nonexcludable days passed in violation of the Act’s time
limit. We review the “district court’s legal conclusions de novo, its factual findings

-- 5 of 23 --

-6-
for clear error, and its ultimate [Speedy Trial Act ruling] for an abuse of discretion.”
United States v. Porchay, 651 F.3d 930, 935 (8th Cir. 2011). Specifically, “[a]
judge’s finding that a continuance would best serve the ends of justice is a factual
determination” reviewed for clear error. United States v. Villarreal, 707 F.3d 942,
953 (8th Cir. 2013).
Under the Speedy Trial Act, a federal criminal trial must “begin within 70
days of the filing of an information or indictment or the defendant’s initial
appearance.” Zedner v. United States, 547 U.S. 489, 497 (2006); 18 U.S.C.
§ 3161(c)(1). However, the Act allows a district court to exclude certain periods of
delay from this time limit. Zedner, 547 U.S. at 497. If, after delay is properly
excluded under the Act, more than 70 days have passed without a trial, the district
court must dismiss the indictment on the defendant’s motion. United States v.
Herbst, 666 F.3d 504, 509 (8th Cir. 2012).
Three statutory exclusions are relevant to this appeal. The first exclusion is
18 U.S.C. § 3161(h)(1)(H), which allows for a maximum of 30 days’ delay to be
excluded where such delay is “reasonably attributable to any period . . . during which
any proceeding concerning the defendant is actually under advisement by the court.”
Next is § 3161(h)(6), which excludes “[a] reasonable period of delay” attributable
to “a codefendant as to whom the time for trial has not run and no motion for
severance has been granted.” The final relevant exclusion is § 3161(h)(7)(A), which
permits a district court to exclude:
Any period of delay resulting from a continuance granted by any judge
. . . if the judge granted such continuance on the basis of his findings
that the ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.
The Act provides a non-exhaustive list of factors for a district court to consider in
making its ends-of-justice finding, including:

-- 6 of 23 --

-7-
Whether the case is so unusual or so complex, due to the number of
defendants, the nature of the prosecution, or the existence of novel
questions of fact or law, that it is unreasonable to expect adequate
preparation for pretrial proceedings or for the trial itself within the time
limits . . . .
18 U.S.C. § 3161(h)(7)(B)(ii).
Appellants assert that a period of 120 nonexcludable days had passed between
the Government’s request to sever and Appellants’ motion to dismiss the indictment
based on Speedy Trial Act violations, after excluding 30 days under § 3161(h)(1)(H)
while the magistrate judge took the Government’s request under advisement. The
Government asserts that this 120-day period was excludable based on both the
then-extant ends-of-justice continuance granted under § 3161(h)(7) and the ongoing
pretrial motion practice of codefendants, excludable under § 3161(h)(6). Appellants
maintain, however, that neither § 3161(h)(6) nor § 3161(h)(7) could justify
excluding those days.
Regarding § 3161(h)(6), Appellants explain that when the Government
requested to sever Appellants’ cases from the remaining codefendants, delay could
not be excluded under § 3161(h)(6) because it was no longer reasonable to attribute
any delay caused by those codefendants to Grady and Dillon. We address only the
ends-of-justice continuance, as we find it dispositive, saving for another day the
issue raised by Appellants with respect to § 3161(h)(6). Their argument against
excluding time under § 3161(h)(7) is twofold: (1) when the Government requested
to sever, the case was no longer complex, and thus, any reliance on the prior
complexity of the case to justify excluding time under an ends-of-justice continuance
was clearly erroneous, and (2) even if it was not clearly erroneous, the Speedy Trial
Act does not permit the kind of open-ended ends-of-justice continuance issued by
the district court; rather, there must be a defined end date. Thus, they maintain that
120 nonexcludable days had passed, in violation of the statute’s 70-day limit.

-- 7 of 23 --

-8-
This Court has never addressed whether ends-of-justice continuances granted
under § 3161(h)(7) may be open ended, but we see no need to address the issue now.
The continuances, while accompanied by no express end date, were effectively
limited in time, as they were regularly reevaluated. Cf. United States v. Wasson,
679 F.3d 938, 948 (7th Cir. 2012) (finding no speedy trial violation for multiple
ends-of-justice continuances because district court reassessed complexity and the
need for a continuance throughout the case); United States v. Hill, No. 17CR310,
2020 WL 4819457, at *7 (E.D. Mo. July 27, 2020) (excluding delay from initial
complex-case finding through trial commencement because the court “continued to
evaluate whether the case continued to be appropriately designated as complex as
well as the propriety of continuing the exclusion of delays due to complexity”);
United States v. Lattany, 982 F.2d 866, 875-76, 880 (3d Cir. 1992) (finding no
Speedy Trial Act violation with an open-ended continuance that was “extended” six
months later with no additional explanation other than that given with the grant of
the original continuance). Throughout this case, the district court reaffirmed the
complexity, and thus the need for an ends-of-justice continuance, including two
months after the Fifth Superseding Indictment, and again in ruling on the motion to
dismiss.3 Cf. Wasson, 679 F.3d at 948 (rejecting Appellant’s argument that the
district court relied on prior complexity finding in granting additional continuance
and upholding multiple ends-of-justice continuances where the district court
“assured itself not only that the case remained complex, but that the complexity and
the changing nature of the case warranted the [additional] continuance”).
We disagree with Appellants’ contention that this was no longer a complex
case, and we find no clear error with the district court’s findings in this respect.
3 Moreover, the district court continued, after denying Appellants’ motion to
dismiss, to acknowledge the need for an ends-of-justice continuance. Indeed, just
one week after denying this motion, the district court set a trial date. The trial was
continued again because of the threat to public health posed by the COVID-19
pandemic. While the issuance of these later continuances was not objected to or
raised on appeal, they further highlight the district court’s continuing consideration
of whether ends-of-justice continuances were necessary and an understanding that
ends-of-justice continuances require on-the-record factual findings.

-- 8 of 23 --

-9-
While the district court certainly referenced its previous complexity findings, its
reasons for finding that the case remained complex in its denial of Appellants’
motion to dismiss—a high volume of discovery, motions, and hearings—reflect its
understanding that a complicated trial would likely ensue. Indeed, this prediction
was correct. Appellants’ trial lasted 12 days and involved around 400 exhibits
outlining Appellants’ multi-year involvement in Terry’s extensive drug
operation—evidenced by the several dozen individuals initially indicted in this case,
some with death-penalty eligibility—that sourced its drugs internationally. See, e.g.,
United States v. Fogarty, 692 F.2d 542, 546 (8th Cir. 1982) (agreeing with district
court that a case was complex because it included several codefendants, unindicted
coconspirators, and overt acts occurring in multiple states and countries); cf. United
States v. Cooke, 853 F.3d 464, 472 (8th Cir. 2017) (suggesting, in the Sixth
Amendment speedy trial context, that a case was complex where it involved “several
coconspirator defendants, voluminous discovery, several requests from defendants
for continuances, and motions for both [appellants’] counsel to withdraw”).
Accordingly, the district court did not clearly err in designating this case as complex,
and therefore its issuance of an ends-of-justice continuance was appropriate under
these unique circumstances. Thus, the period of delay with which Appellants take
issue was excludable under § 3161(h)(7). Finding no abuse of discretion, we affirm
the district court’s denial of the motion to dismiss on Speedy Trial Act grounds.
III.
Dillon and Grady both assert that the district court erred in admitting certain
“bad act” evidence at trial. We review the district court’s admission of this evidence
for an abuse of discretion, United States v. Dorsey, 523 F.3d 878, 879 (8th Cir.
2008), and “will 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,” United States v. Walker, 428 F.3d 1165, 1169 (8th Cir. 2005).

-- 9 of 23 --

-10-
A.
We turn first to Dillon’s challenge. On September 7, 2016—after the conduct
that led to his conviction in this case, but before he was indicted—Dillon was
arrested for receiving a package of cocaine during an investigation into an unrelated
drug operation. During a search incident to his arrest, officers found cell phones
containing information pertinent to this case: call records, internet search history,
and text messages to several individuals involved in the Terry organization,
including Grady and Terry. Before he was tried in the instant case, Dillon was
acquitted of the charges relating to his September 7 arrest.
The district court admitted exhibits and testimony about the investigation as
well as relevant information obtained from the cell phones as intrinsic evidence, or
alternatively under Federal Rule of Evidence 404(b) as probative of Dillon’s
knowledge and intent regarding drug conspiracies. Dillon argues that the evidence
from the September 7 arrest was neither intrinsic nor admissible under Federal Rule
of Evidence 404(b) because it was irrelevant, used for an improper propensity
argument, and was unfairly prejudicial under Federal Rule of Evidence 403. While
we agree that the evidence concerning the September 7 arrest is not intrinsic, we
disagree with Dillon’s Rule 404(b) and 403 arguments.
Other bad act evidence is generally admissible so long as it is intrinsic or being
offered for a non-propensity purpose under Federal Rule of Evidence 404(b). United
States v. Vaca, 38 F.4th 718, 720-21 (8th Cir. 2022). A bad act is intrinsic where
the “act itself is part of the ‘charged offense.’” Id. (citation omitted). Intrinsic
evidence is that which “completes the story” of the charged crime, “logically . . .
prove[s] any element,” or in some cases, “shows consciousness of guilt.” Id. at 721
(first alteration in original). Dillon’s September 7 arrest for his involvement with an
unrelated drug organization does not complete the story of the crime charged here,
and it is therefore not intrinsic evidence.

-- 10 of 23 --

-11-
Nevertheless, under Federal Rule of Evidence 404(b), extrinsic bad act
evidence is admissible for a non-propensity purpose—that is, for any reason other
than “to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). Rule
404(b) allows for admission of “other act” evidence “if it is (1) relevant to a material
issue; (2) similar in kind and close in time to the crime charged; (3) proven by a
preponderance of the evidence; and (4) if the potential prejudice does not
substantially outweigh its probative value.” United States v. Vega, 676 F.3d 708,
719 (8th Cir. 2012) (citation omitted). Dillon challenges only the first and fourth
elements.
Dillon briefly suggests that the September 7 cocaine delivery is irrelevant to
his knowledge and intent because the delivery occurred after the conduct charged
here. But the fact that Dillon’s September 7 arrest occurred later is of no
consequence because Rule 404(b) embraces not only prior acts but subsequent
conduct. See United States v. Thomas, 593 F.3d 752, 758-59 (8th Cir. 2010)
(permitting admission of subsequent drug activity occurring four years after the
charged conduct because “[c]onsidering the similarities . . . we cannot say the mere
passage of four years’ time renders the evidence irrelevant to show knowledge or
intent”); United States v. Johnson, 934 F.2d 936, 939-40 (8th Cir. 1991) (permitting
the admission under Rule 404(b) of two drug transactions that occurred weeks after
the charged conduct as probative of the defendant’s knowledge and intent).
Specifically, subsequent drug activity may be probative of an individual’s
knowledge or intent regarding a drug trafficking organization. Johnson, 934 F.2d at
940 (explaining that a subsequent drug deal could counter a defendant’s assertion
that he had no knowledge of drug distribution or did not possess the requisite intent).
Here, the evidence relating to Dillon’s September 7 arrest was relevant to his
knowledge of drug conspiracies and law enforcement investigations and his intent
to participate in these types of organizations. While Dillon claims that his
involvement in the unrelated organization was irrelevant because his roles were
entirely different (i.e., on September 7, he signed for a drug shipment, and in this

-- 11 of 23 --

-12-
case, he helped conduct intelligence operations), the evidence still largely reflects
his general knowledge of drug distribution schemes and intent to join these
organizations.
Indeed, the facts of this case show why. Dillon’s defense was that he was a
paralegal who assisted Terry but did not know about the drug operation itself. By
signing for a drug shipment, even though it was unconnected to Terry’s conspiracy,
he showed that he knew about drug dealing, was involved in it personally, and knew
that he was not assisting Terry with innocent activities. See United States v.
Croghan, 973 F.3d 809, 824 (8th Cir. 2020) (“The threshold for relevance is quite
minimal.” (citation omitted)). In other words, it went to his knowledge that he was
a participant in a drug conspiracy and he intended his actions to further it.
Finally, the prejudicial effect of the evidence surrounding Dillon’s September
7 arrest did not substantially outweigh its probative value.4 After a careful
articulation of the probative value of this evidence, the district court determined that
the potential prejudice did not outweigh the probative value. We agree, and “[t]he
district court was in the best position to make this determination, particularly in light
of its familiarity with the facts surrounding the subsequent transaction[].” Johnson,
934 F.2d at 941. Moreover, the district court’s recitation of a limiting instruction to
the jury “reduc[ed] the likelihood that such evidence would be improperly used.” Id.
(approving of a limiting instruction that “cautioned the jury to consider the
subsequent act evidence only to evaluate [defendant’s] state of mind or intent, not to
determine his innocence or guilt of the charged offense”). Accordingly, the district
4 We note that “[t]he same analysis applies to [Dillon’s] claim that the evidence
should be excluded under Federal Rule of Evidence 403 because its probative value
is substantially outweighed by the danger of unfair prejudice.” Johnson, 934 F.3d
at 941 n.7; see also United States v. Maxwell, 643 F.3d 1096, 1102 (8th Cir. 2011)
(“In cases in which a defendant argues that both rules prohibit the admission of
certain evidence, there is no practical difference whether we analyze the Rule
403 claim separately or instead as a subpart of Rule 404(b).”).

-- 12 of 23 --

-13-
court did not abuse its discretion in admitting evidence relating to Dillon’s
September 7 arrest.
B.
Grady also challenges the admission under Rule 404(b) of his heroin
conspiracy conviction in 2000, arguing that it was irrelevant, not similar in kind to
the charged conduct, and too remote in time. We disagree.
First, Grady’s prior conviction is relevant because “[i]t is settled in this circuit
that ‘a prior conviction for distributing drugs, and even the possession of
user-quantities of a controlled substance, are relevant under Rule 404(b) to show
knowledge and intent to commit a current charge of conspiracy to distribute
drugs.’” United States v. Robinson, 639 F.3d 489, 494 (8th Cir. 2011) (citation
omitted). Grady’s prior conviction is similar in kind to the current offense because
it also involved a cross-state drug conspiracy with participants of varying
responsibility. His argument at trial was that he innocently provided services to
Terry without appreciating the true nature of the business, which his prior drug
trafficking conviction made less believable. Cf. United States v. Cassiere, 4 F.3d
1006, 1022 (1st Cir. 1993) (holding that evidence of “mastermind[ing]” a land flip
was admissible under Rule 404(b) in a trial for fraudulent land flips in which the
defendant played a different role). Introducing it, in other words, had a non-
propensity purpose.
Regarding remoteness, while Grady was convicted 16 years before he was
charged in the instant case, he had been out of prison for less than seven years when
he began aiding Terry’s drug organization, and thus we find the prior offense was
not too remote in time to be admitted. See United States v. Walker, 470 F.3d 1271,
1275 (8th Cir. 2006) (finding that conduct occurring 18 years prior to the currently
charged conduct not too remote where, after discounting the time defendant spent in
prison, there were only eight years “separating the prior offense and the charged
offense”).

-- 13 of 23 --

-14-
Finally, while all Rule 404(b) evidence may, by its nature, be prejudicial,
United States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006), Grady’s prior conviction
is not so prejudicial as to substantially outweigh its probative value. See United
States v. Gaddy, 532 F.3d 783, 789-90 (8th Cir. 2008). Moreover, the district court
instructed the jury that it should only consider this prior conviction for the limited
purposes of intent, knowledge, or absence of mistake. United States v. Halk, 634
F.3d 482, 488 (8th Cir. 2011) (explaining that limiting instruction immediately
before introduction of 404(b) evidence minimized risk of unfair prejudice).
Accordingly, the district court did not abuse its discretion in admitting Grady’s prior
heroin conspiracy conviction in the instant case involving a drug conspiracy.
IV.
Appellants further argue that the district court erred in denying their joint
motion for a judgment of acquittal because the evidence was insufficient to support
their convictions. We address each of Appellants’ convictions separately, reviewing
the evidence de novo and “in the light most favorable to the verdict.” United States
v. Muhammad, 819 F.3d 1056, 1060 (8th Cir. 2016). Notably, though, we do not
review the credibility of witnesses on appeal from the denial of a judgment of
acquittal. Id.
A.
To be guilty of conspiracy to distribute drugs, the Government was required
to prove “(1) that there was a conspiracy, i.e., an agreement to distribute the drugs;
(2) that the [Appellants] knew of the conspiracy; and (3) that the [Appellants]
intentionally joined the conspiracy.” United States v. Polk, 715 F.3d 238, 246 (8th
Cir. 2013) (citation omitted). Conspiracies may be proven with wholly
circumstantial evidence or by inference from the parties’ actions. United States v.
Sparks, 949 F.2d 1023, 1027 (8th Cir. 1991).

-- 14 of 23 --

-15-
Appellants assert that there was insufficient evidence to support their
convictions for conspiracy to distribute cocaine and heroin. They specifically argue
that the Government failed to prove that they intentionally joined Terry’s conspiracy
because they had no stake in the drug organization; their provision of information to
Terry was merely a buyer-seller agreement insufficient to tie them to the conspiracy.
We disagree.
First, Appellants’ reliance on precedent regarding buyer-seller agreements is
misplaced. In those cases, we have specifically explained that evidence of a single
drug sale, “without more, is inadequate to tie the buyer to a larger conspiracy.”
United States v. Conway, 754 F.3d 580, 591 (8th Cir. 2014); see also United States
v. Shelledy, 961 F.3d 1014, 1019 (8th Cir. 2020) (“[W]e have emphasized that such
‘buyer-seller’ cases ‘involve[] only evidence of a single transient sales agreement
and small amounts of drugs consistent with personal use.’” (second alteration in
original) (citation omitted)). Appellants’ involvement with Terry was not a
buyer-seller relationship as contemplated in Conway because documents and
information were being exchanged for money, not drugs. Further, we disagree with
Appellants’ assertion that they had no stake in the drug organization because Terry
paid them for their services, which aided him in his relationships with other dealers.
Thus, Appellants had a pecuniary interest in the organization’s outcome. See United
States v. Bewig, 354 F.3d 731, 736 (8th Cir. 2003) (finding that defendant had a
stake in the organization’s outcome sufficient to tie him to the conspiracy where he
“made the supplying of a necessary ingredient to illegal drug production a continuing
part of his business”).
“[G]uilt may exist even when the defendant plays only a minor role and does
not know all the details of the conspiracy.” Polk, 715 F.3d at 246 (citation omitted).
Moreover, “[a] drug conspiracy may involve ancillary functions (e.g., accounting,
communications, strong-arm enforcement), and one who joined with drug dealers to
perform one of those functions could be deemed a drug conspirator.” Id. (citation
omitted). “[A] variety of conduct, apart from selling [drugs], can constitute
participation in a conspiracy sufficient to sustain a conviction.” Id. at 244, 246-47

-- 15 of 23 --

-16-
(alterations in original) (citation omitted) (finding sufficient evidence for
defendant’s marijuana-conspiracy conviction where he “obtained and rented homes
according to [the manufacturer’s] specifications to sustain the [drug] operations” and
assured the manufacturer that the owner of one of the homes “was cool” and could
be trusted). Here, the evidence showed that Appellants provided Terry with
information about individuals through various court documents and proceedings to
counsel Terry on which individuals he could trust. In turn, this helped Terry
cultivate important relationships to sustain the organization’s drug distribution.
Viewing this evidence in the light most favorable to the verdict, a reasonable jury
could conclude that Appellants intentionally joined the conspiracy in ancillary,
intelligence-gathering roles. Thus, there was sufficient evidence to support their
drug conspiracy convictions.
B.
We turn next to Appellants’ convictions for conspiracy to launder money. A
money laundering conspiracy conviction requires the Government to show that
Appellants “knowingly joined a conspiracy to launder money and that one of the
conspirators committed an overt act in furtherance of that conspiracy.” United States
v. Pizano, 421 F.3d 707, 725 (8th Cir. 2005) (citation omitted). This requires a
conspiratorial agreement that “need not be formal; a tacit understanding will
suffice.” Id. at 725-26 (citation omitted). Money laundering requires proof of four
elements:
(1) [D]efendant conducted, or attempted to conduct a financial
transaction which in any way or degree affected interstate commerce or
foreign commerce; (2) the financial transaction involved proceeds of
illegal activity; (3) defendant knew the property represented proceeds
of some form of unlawful activity; and (4) defendant conducted or
attempted to conduct the financial transaction knowing the transaction
was “designed in whole or in part [] to conceal or disguise the nature,
the location, the source, the ownership or the control of the proceeds of
specified unlawful activity.”

-- 16 of 23 --

-17-
United States v. Phythian, 529 F.3d 807, 813 (8th Cir. 2008) (second alteration in
original) (quoting 18 U.S.C. § 1956(a)(1)(B)(i)).
Appellants argue that there was insufficient evidence to prove part of the
fourth element—that the transaction’s purpose was to conceal an attribute of the
unlawful proceeds. See United States v. Slagg, 651 F.3d 832, 845 (8th Cir. 2011)
(“[T]he statute’s ‘design’ element ‘requires proof that the purpose—not merely
effect—of the [transaction] was to conceal or disguise a listed attribute’ of the
funds.” (quoting Cuellar v. United States, 553 U.S. 550, 567 (2008))). Specifically,
they allege that the Government’s case rested entirely on the fact that Terry gave
Appellants cash to pay Brindley’s retainer.
Appellants correctly acknowledge that the use of cash alone is insufficient to
establish the designed-to-conceal element and that the money laundering statute
risks becoming a “money spending statute” if construed too broadly. See id.
(citation omitted). Importantly, though, the statute explains that “concealment need
not be the sole purpose of the transaction.” Id. at 845 n.9 (citing 18 U.S.C.
§ 1956(a)(1)(B)). Our analysis in Slagg is helpful here. In Slagg, a bail-posting
transaction using illicit funds was at issue. Id. at 844. We found that there was
sufficient evidence for a reasonable jury to infer that the designed-to-conceal
element was met, and we rejected the defendant’s argument that the evidence only
allowed an inference that the “purpose of the agreement was to bail him out of jail.”
Id. at 845-46. Specifically, there was evidence of recorded phone calls during which
the defendant discussed the risks of the money disappearing, i.e., being seized as
drug proceeds, and the use of a bail bondsman to post bail. Id. We found this
evidence was sufficient to support an inference that the defendant “knew that his
cohorts planned to conduct the transaction in such a way as to ‘conceal or disguise
the nature, . . . the source, the ownership or the control’ of the money,” id. at 846
(alteration in original), citing a First Circuit case that held “the use of a third party
to disguise the true owner” was sufficient to prove intent to disguise or conceal,
United States v. Cruzado-Laureano, 404 F.3d 470, 483 (1st Cir. 2005).

-- 17 of 23 --

-18-
Here, Terry testified that the Government would seize drug money if it knew
of its illicit nature and that he wanted to give the cash to Appellants before it could
be seized. He also testified that he did not think Grady would tell police that the
money came from him. Appellants were aware of Terry’s indictment and need for
an attorney, evidenced by the Applebee’s meeting at which they discussed methods
for Terry to evade law enforcement. Appellants then accepted multiple cash
advances from Terry to pay Brindley, the chosen attorney. This evidence is
sufficient for a reasonable jury to infer that Appellants knew that the purpose of their
receipt of cash sums from Terry to be paid to the attorney was to conceal.
Accordingly, we uphold their money laundering conspiracy convictions.
C.
Appellants were also convicted of attempting to obstruct an official
proceeding, in violation of 18 U.S.C. § 1512(c)(2). This statute “makes it a crime to
corruptly ‘obstruct[], influence[], or impede[] any official proceeding, or attempt[]
to do so.’” United States v. Petruk, 781 F.3d 438, 444 (8th Cir. 2015) (alterations in
original) (quoting 18 U.S.C. § 1512(c)(2)).
Section 1512(c)(2) requires that Appellants knew their conduct would likely
affect an official proceeding. See id. at 445; cf. United States v. White Horse, 35
F.4th 1119, 1122-23 (8th Cir. 2022) (holding that under § 1512(c)(1), which is
analogous to § 1512(c)(2), a defendant must “know[] that he is likely to accomplish
his intention to ‘impair [an] object’s integrity or availability for use in an official
proceeding’” (second alteration in original) (citation omitted)). Implicit in this mens
rea requirement is that their conduct would have the “natural and probable effect” of
“obstruct[ing], influenc[ing], or imped[ing] any official proceeding.” See Petruk,
781 F.3d at 444-45 (citing United States v. Aguilar, 515 U.S. 593, 599 (1995));
White Horse, 35 F.4th at 1122-23 (“[A] person cannot know that his action is likely
to affect an official proceeding unless his action is, in fact, likely to affect an official
proceeding.”).

-- 18 of 23 --

-19-
Appellants allege that the evidence was insufficient to prove that their conduct
would impact an official proceeding. Specifically, they claim that because Terry
was a sophisticated drug dealer with independent knowledge of methods to evade
his criminal indictment, Appellants’ advice to flee St. Louis could not have had the
probable effect of causing Terry to flee. We disagree, as we have upheld a jury
conviction under § 1512(c)(2) in circumstances analogous to those here. See United
States v. Mink, 9 F.4th 590, 610 (8th Cir. 2021) (finding sufficient evidence for jury
conviction where defendant instructed his father to destroy evidence in his home
after a law enforcement search and to sign a false affidavit, and defendant “expressly
acknowledged that the government was building a case against him . . . [and]
explained how the affidavit would detrimentally affect the Government’s case”).
Terry testified that he learned about his indictment shortly before meeting
Appellants at Applebee’s. Prior to the meeting, Terry explained, he was so
distraught by the charges that he planned to avoid criminal prosecution by engaging
in gunfire with officers, hoping that he might be killed. At the Applebee’s meeting,
though, Appellants explained to Terry that he could fight the charges in court. They
advised that it would be advantageous for Terry to leave town for 18 to 24 months
to allow time for his numerous codefendants to enter into plea agreements with the
Government. Moreover, Appellants advised that if Terry was not in the
Government’s custody, fewer witnesses might cooperate against him for fear that
Terry might harm their families. Terry testified that upon Appellants’ advice, he left
town. Appellants also met with Stanford Williams, a close associate of Terry, and
discussed this plan.
With this testimony in mind, Appellants’ advice to Terry was not only likely
to affect an official proceeding, but it ultimately did impact an official proceeding:
the advice caused Terry flee St. Louis, which allowed him to initially evade arrest.
Moreover, Appellants showed up to the meeting with Terry’s indictment and
explained in detail the rationale for why Terry should leave St. Louis. Just as the
defendant in Mink explained how signing a false affidavit would negatively impact
the Government’s case, Appellants explained how Terry absconding would

-- 19 of 23 --

-20-
negatively impact the Government’s case. Thus, we are persuaded that when viewed
in the light most favorable to the verdict, Appellants’ advice to Terry to abscond
indicated that they knew their actions were likely to affect an official proceeding.
Accordingly, there was sufficient evidence for the jury to convict Grady and Dillon.
V.
Finally, Grady asserts that the district court impermissibly denied him his
constitutional right to counsel of his choice in denying his renewed motion to
substitute counsel because of a serious potential conflict. We disagree and find that
the district court did not abuse its discretion. See Wheat v. United States, 486 U.S.
153, 163-64 (1988) (suggesting deferential, abuse-of-discretion standard on review
of a district court’s denial of a substitution motion because of a conflict of interest).
While the Sixth Amendment guarantees a defendant the right to counsel of his
choice, this right “is circumscribed in several important respects.” Id. at 159. One
such limitation arises with conflicts of interest. Id. at 159-60, 164 (“District
[c]ourt[s] must recognize a presumption in favor of [defendant’s] counsel of choice,
but that presumption may be overcome . . . by a showing of a serious potential for
conflict.”). Where there are possible conflicts of interest, a court “must take
adequate steps to ascertain whether the conflicts warrant separate counsel.” Id. at
160. While a defendant may waive his right to conflict-free counsel, United States
v. Edelmann, 458 F.3d 791, 807 (8th Cir. 2006), district courts are afforded
“substantial latitude” to refuse a waiver when faced with a serious potential conflict,
Wheat, 486 U.S. at 163-64 (finding that the district court did not abuse its discretion
in refusing representation by counsel who represented or previously represented two
coconspirators and would have likely needed to cross-examine a former client and
noting that district courts must pass on the waiver issue without the “wisdom of
hindsight after the trial has taken place”). This evaluation is “left primarily to the
informed judgment of the trial court.” Id. at 163-64 (concluding that the district
court acted within its discretion to deny substitution of counsel where it “was
confronted not simply with an attorney who wished to represent two coequal

-- 20 of 23 --

-21-
defendants in a straightforward criminal prosecution” but instead “proposed to
defend three conspirators of varying stature in a complex drug distribution scheme”).
In evaluating the particular circumstances, a district court should “carefully balance”
the right to counsel of choice with the “interest in ‘the orderly administration of
justice.’” United States v. Cordy, 560 F.3d 808, 815 (8th Cir. 2009) (citation
omitted). Importantly, “[f]ederal courts have an independent interest in ensuring
that criminal trials are conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe them.” Wheat, 486 U.S. at
160.
After previously being denied counsel of his choice, Grady renewed his
motion to substitute Brindley as his counsel. In denying his motion, the district court
recounted much of the magistrate judge’s initial denial because several important
facts remained relevant. Specifically, the nature of the money laundering conspiracy
charges directly related to the payments Appellants made to Brindley as a retainer
to represent Terry. Indeed, Brindley had represented Terry in the instant case for
several months before Grady was indicted. Naturally, then, Terry’s testimony at trial
about the money-laundering charge repeatedly referenced Brindley by name.
Brindley was eventually disqualified from representing Terry because of an
unwaivable, serious potential conflict—namely, his and Grady’s “long-standing
professional relationship” in which Grady would refer clients to Brindley and
Brindley would outsource investigative work to Grady. Shortly after that
disqualification and Grady’s eventual indictment, Brindley sought to represent
Grady. He maintained that, despite representing Terry for several months and never
returning his substantial retainer, he learned no confidential information that would
impact his ability to represent Grady. Exactly one week after the hearing on the
motion to represent Grady, Brindley entered his appearance in a separate case in
which Grady was indicted, but this time for a different codefendant. Noting this
“tangled web,” the magistrate judge disqualified Brindley from representing Grady,
despite Grady’s conflict waiver.

-- 21 of 23 --

-22-
In addition to the ongoing potential conflict, the district court also
acknowledged the practical difficulties with counsel substitution so close to trial
where Grady had been appointed counsel. Because the trial was near and the case
involved numerous defendants, some of whom might testify, and due to the need to
expeditiously resolve the case because of the COVID-19 pandemic, substitution
would interfere with the “orderly administration of this case.” Grady makes much
of the district court’s discussion about the possibility of this attorney being called as
a witness, explaining that the Government clarified that it had no intention to call
him. But, as the Second Circuit noted:
Even if the attorney is not called, however, he can still be disqualified,
since his performance as an advocate can be impaired by his
relationship to the events in question. . . . Moreover, his role as
advocate may give his client an unfair advantage, because the attorney
can subtly impart to the jury his first-hand knowledge of the events
without having to swear an oath or be subject to cross-examination.
United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993). We see no abuse of
discretion with the district court’s refusal to allow Grady to substitute counsel for
Brindley, an attorney who was involved in the events leading to Grady’s criminal
charge. Evidence at trial suggested that Brindley accepted money that was proceeds
of a drug trafficking organization. It appeared, therefore, that Brindley’s loyalties
were divided: his plan was to defend Grady at trial, yet he also needed to protect
himself from accusations that might, at a minimum, affect his license to practice law.
We echo the sentiments of the district court that “[a]n outsider looking at the
proceedings thus far may query why [the attorney] so strenuously seeks to continue
representation of [Grady].”
Relatedly, Grady argues that the district court could have alleviated any
concern about attorney conflict by allowing the attorney to represent him, but
accepting independent, conflict-free counsel to cross-examine Terry. But the district
court was well within its discretion to deny this alleged “prophylactic” measure.
While Grady is correct that we have previously held that “the chosen method for

-- 22 of 23 --

-23-
dealing with a potential conflict . . . is the one which will alleviate the effects of the
conflict while interfering the least with defendant’s choice of counsel,” United States
v. Agosto, 675 F.2d 965, 970 (8th Cir. 1982), we are skeptical that his proposed
solution would truly alleviate all effects of the serious potential conflict. Indeed,
given the potential conflict with Terry, the Government’s primary cooperating
witness, multiple phases of the trial could be impacted, not simply
cross-examination. See, e.g., United States v. Bikundi, 80 F. Supp. 3d 9, 20-21
(D.D.C. 2015) (rejecting the proposition to employ independent co-counsel for cross
examination because the “conflict extend[ed] beyond just the cross-examination . . .
and infect[ed] every aspect of the trial presentation”). Brindley would likely have
had to factor Terry’s anticipated testimony into the overall defense, and it is
implausible that he could have walled himself off from all trial strategy involving
Terry. In sum, because of the attorney’s myriad entanglements in this case, the
district court was within its discretion to deny Grady’s motion for substitution of
counsel.
VI.
For the foregoing reasons, we affirm.
_____________________________

-- 23 of 23 --