United States v. Jeffery Moore

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2733
___________________________
United States of America
Plaintiff - Appellee
v.
Jeffery Darnell Moore
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Southern
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Submitted: March 15, 2023
Filed: June 27, 2023
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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SHEPHERD, Circuit Judge.
Jeffery Darnell Moore was indicted on four drug-related charges stemming
from his involvement in a narcotics-distribution ring in Sioux Falls, South Dakota,
which culminated in the overdose deaths of Elizabeth Wehrkamp and James Savage.
Following a jury trial, Moore was convicted of one count of conspiracy to distribute
heroin, in violation of 21 U.S.C. §§ 841 and 846, and two counts of distribution of
fentanyl resulting in death, in violation of 21 U.S.C. § 841(a)(1). The district court1
sentenced Moore to 240 months’ imprisonment for conspiracy to distribute heroin
and 420 months’ imprisonment on each count of distribution of fentanyl resulting in
death, with all terms to run concurrently. On appeal, Moore argues (1) that the
district court erroneously admitted text messages between Wehrkamp and himself
and (2) that the evidence is insufficient to convict him on any of the three counts of
conviction. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
“We recount the relevant testimony and other evidence presented at trial in
the light most favorable to the jury’s verdict.” United States v. Shavers, 955 F.3d
685, 688 n.2 (8th Cir. 2020).
Law enforcement’s investigation of Moore began after Wehrkamp’s overdose
death on November 3, 2018. Wehrkamp had a history of substance abuse issues.
For a time during mid-2018, she appeared to have them under control. However,
around October 2018, her parents noticed signs that she was relapsing. On
November 2nd, her father, Eldon DeBoer, became concerned when he could not
reach her. The next day, DeBoer went to Wehrkamp’s residence to check on her.
When he arrived, he was met by Wehrkamp’s minor son, who informed him that
Wehrkamp was in the upstairs bathroom. DeBoer found her on the bathroom floor,
unresponsive, and he called 911. Officers with the Sioux Falls Police Department
(SFPD) arrived shortly thereafter. Despite their efforts, they were unable to revive
Wehrkamp.
That same afternoon, SFPD forensic specialist Erin McCaffrey arrived to
investigate. On the first floor, she found a cellphone, laptop, and a needleless
syringe. On the second-floor bathroom’s counter, she found several bags containing
1
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.
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syringes, an individual syringe, and a spoon with cotton in it. Subsequent testing
revealed the presence of fentanyl and acetylfentanyl on the spoon. McCaffrey also
searched Wehrkamp’s car in the garage and found an ATM receipt for a withdrawal
of $160 on November 2nd at 7:15 p.m. in Wehrkamp’s purse. After thoroughly
photographing the scene, McCaffrey took several items into evidence. Among these
items was the cellphone found on the first floor.
Just a few days later, on November 5th, narcotics detective Patrick Mertes
removed the cellphone from evidence to conduct a forensic extraction of it.
However, the cellphone was passcode-protected, and he was unable to bypass the
passcode. The next day, DeBoer picked up the cellphone and other electronic
devices from law enforcement. He took them home with him and tried to gain access
to the cellphone by guessing the passcode. He tried so many times that the cellphone
eventually reset and sent an email with a passcode to Wehrkamp’s email address.
DeBoer had access to Wehrkamp’s email, and he used the passcode to then gain
access to the cellphone.
Although the cellphone had reset, causing its call history and many
applications to be deleted, a partial backup of the cellphone resulted in text messages
being downloaded back onto the phone. DeBoer started reading the texts and, after
noticing a series of messages between Wehrkamp and a specific 605-area-code
number discussing a plethora of drug transactions, decided to return the cellphone
to the police. DeBoer did not download anything, put anything on the cellphone, or
manipulate it in any way.
On November 12th, DeBoer contacted Detective Mertes about the text
messages and delivered the cellphone to him. Detective Mertes gave the cellphone
to Anthony Buss, who at the time was a detective in the internet-crimes-against-
children and forensics divisions. The next day, Buss conducted a forensic extraction
on the cellphone, which essentially created an exact digital copy of it, and uploaded
it to a secure drive location. He noticed no abnormalities nor any indication that
information had been manipulated or added to the cellphone.
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Subsequently, narcotics detective Peter Blankenfeld was assigned to the case.
He began his investigation by analyzing the messages between Wehrkamp and the
605 number, a number which the police records system revealed to be a number
associated with Moore. These messages ran from early October—right around the
time DeBoer noticed Wehrkamp beginning to relapse—until the day after her death.
They are replete with Wehrkamp’s requests to purchase or exchange narcotics with
Moore and Moore obliging shortly thereafter. Typically, Wehrkamp would request
a specific amount, for example a “50 piece,” or a “100 piece,”—which Detective
Blankenfeld’s training and experience led him to understand meant $50 or $100
worth of a particular drug—and the pair would complete the transaction in Moore’s
backyard or a nearby gas station. Moore often referred to accomplices in these
messages, usually to explain his delays in getting drugs for Wehrkamp. Examples
include, “[h]e just called me he don’t get anymore tell next month,” “[m]y main
buddy was gone for a couple days,” and “I will let you know when to come I just
talked to my people.”
Detective Blankenfeld focused most intently on a series of messages the day
before Wehrkamp’s death. Indeed, text messages exchanged on the morning of
November 2nd showed that Wehrkamp met Moore at their usual meeting place, a
local gas station, to purchase narcotics. But Moore did not have much to supply her
with at that time, noting, “I only had a little bit am trying to get some more.” Later
that day, at 6:58 p.m., Wehrkamp texted Moore, “My son just picked up my shit and
spilt it EVERYWHERE!!! . . . I NEED MORE!! Can [I] please meet you at [the
gas station] with $150??? PLEASE!!??” The ATM receipt recovered from
Wehrkamp’s purse showed that roughly 20 minutes later, Wehrkamp withdrew
$160. At 7:45 p.m., she texted Moore, “Back yard?” Just three minutes later she
texted, “I’m in your back yard.” Detective Blankenfeld found no other messages on
the cellphone that indicated Wehrkamp was having similar conversations with
anyone besides Moore. Thus, Detective Blankenfeld began investigating him.
At the same time, narcotics detective Danijel Mihajlovic was conducting an
unrelated investigation into Moore, so the detectives joined forces. In the spring
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of 2019, they conducted a series of trash pulls at Moore’s residence. During the first,
the detectives found several small, corner-cut baggies, which through their training
and experience indicated not only the possession and usage of narcotics, but also its
sale and distribution. After the second, they not only found more small corner-cut
baggies, but they also found the larger portions of the bags with the corners missing.
In the detectives’ training and experience, the presence of the larger portions
indicated repackaging of the drugs. At least one of the bags field-tested positive for
cocaine. Not long after the second trash pull, the detectives executed a search
warrant at Moore’s house. During the search, they found .34 grams of heroin mixed
with tramadol and fentanyl.
Little more than a week after the detectives executed the search warrant at
Moore’s home, another Sioux Falls resident, James Savage, died of a fentanyl
overdose. On June 15, 2019, the day before his death, Savage and Hailey Cheever,
Savage’s long-distance girlfriend, exchanged numerous contentious text messages.
In one message, Savage begged Cheever to call him. When she did not respond as
quickly as he wanted, he warned, “I know what wont turn its back on me,” and “I
will do enough heroin to kill ten armys if you don’t call me tonight.” Cheever replied
only sporadically, to which Savage responded by saying, “I’m at the end of my rope
and could really use my ‘wife’ otherwise I’m go meet Greg.” Cheever interpreted
this as a reference to Greg Nordquist, a friend from Savage’s past with whom Savage
used to do heroin.
That same day, Nordquist—who had purchased heroin from Moore
“countless” times over the years, including “every day” during one period—started
his morning by purchasing a user amount of heroin from Moore. Later that evening,
Savage contacted Nordquist to ask if Nordquist knew where to get any heroin.
Nordquist responded that he did. Savage asked, “How much to get wrecked,” to
which Nordquist replied, “[It’s] fire white. Aint no trash.” “White,” according to
Detective Mihajlovic, is a reference to “China White,”—the purest form of heroin
available—which, at the time, was known to be commonly mixed with fentanyl.
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Ultimately, Savage requested $300 worth of heroin. Nordquist responded, “I
aint making anything on that so your helping me tho,” to which Savage replied,
“Yeah bro for sure you think I’m do it alone[?]” Nordquist then set up a deal with
Moore to purchase a gram for $300. Nordquist and Savage met at an ATM around
10:30 p.m., where Savage withdrew $300 and got in Nordquist’s car. The pair then
drove toward Moore’s house, but Nordquist decided to drop Savage off at a nearby
corner because he had “never brought no one to [Moore’s] house before.” Nordquist
then drove to the back of Moore’s house and exchanged Savage’s $300 for a gram
of narcotics. Nordquist afterward picked up Savage and drove the pair back to
Savage’s house.
At Savage’s house, the pair went down to the basement and “did up [their]
heroin.” Savage did his slightly before Nordquist, and Nordquist observed Savage
pass out before passing out himself. Hours later, Nordquist awoke to find Savage,
still in his chair, deceased. Nordquist then “panicked,” took evidence, and left.
The next morning, Cheever tried to call Savage multiple times. When he
failed to answer, she called her brother-in-law, Ryan Rezac, and asked him to go to
Savage’s house to check on him. Rezac arrived at the house, noticed that Savage’s
car was not there, and after no one answered the door, he left. Rezac’s wife
convinced him to check on Savage a second time, instructing him to go inside the
house. Rezac again got no response but was able to enter the house through an
unlocked basement window, where he found Savage stiff in a chair. Rezac called
911. Rezac noticed a spoon and a needle on the table right in front of Savage, and
because he was not sure whether Savage was dead and wanted to keep him out of
trouble, Rezac hid these items underneath Savage’s bed.
Law enforcement arrived and confirmed that Savage was deceased. They
spoke with Rezac who told them about his suspicions of Nordquist’s involvement
and the syringe and spoon which he had hidden. SFPD forensic specialist Brianna
Anderson later arrived on the scene to investigate. Among other items, she
documented a piece of plastic packaging with an unknown residue as well as the
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syringe and spoon Rezac had attempted to hide. Forensic testing confirmed that all
three of these items contained fentanyl. That same day, Cheever reported her
conversations with Savage to Detective Mihajlovic and informed him of her
suspicions of Nordquist’s involvement. As a result, Detective Mihajlovic expanded
his investigation to include Nordquist.
Over the next several weeks, Nordquist continued to purchase heroin and
other narcotics from Moore. Text messages between Nordquist and Moore reveal a
similar thread as presented in the text messages between Wehrkamp and Moore.
Nordquist similarly asked for specific amounts of drugs, and he sometimes met
Moore in Moore’s backyard to complete transactions. As was the case with
Wehrkamp, Moore often made references to his accomplices in these messages,
typically in explaining delays to Nordquist. Examples include, “just waiting for
him,” “waiting for them,” “we have it before then,” and “she not off yet.”
Then, on July 24, 2019, while conducting surveillance, Detective Mihajlovic
observed Nordquist leave his apartment, drive to an ATM machine, and return to his
apartment. Shortly after, Moore arrived at Nordquist’s apartment building.
Nordquist came out, the two met briefly—in what Detective Mihajlovic suspected
was a short-term stop, or drug transaction—and Nordquist went back inside. Based
on Detective Mihajlovic’s surveillance, officers obtained and executed a search
warrant on Nordquist’s apartment and found what they suspected to be heroin. Field
testing revealed that the substance was actually fentanyl.
Meanwhile, the detectives continued to investigate Moore. In January 2020,
they observed Moore leaving an apartment building where later cooperating witness,
C.D., resided—an address known for narcotics sales—and throw two trash bags in
the garbage. After searching the bags, the detectives found two small digital scales,
which are commonly used to weigh drugs. The scales were extremely clean, “as if
they’d been wiped down or cleaned prior to being thrown away.” As Moore drove
away from the residence with a woman, Shavetta Johnson, in the passenger seat, the
detectives pulled him over and placed him under arrest for outstanding warrants.
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II.
A federal grand jury returned an indictment on July 20, 2020, charging Moore
with conspiracy to distribute cocaine base, conspiracy to distribute heroin, and two
counts of distribution of fentanyl resulting in death. He pled not guilty and
proceeded to trial.
At trial, witnesses testified to all the facts outlined above. In addition to his
testimony about conducting the extraction of Wehrkamp’s cellphone, then-detective
Buss also testified as an expert regarding what happens to cellphones when they are
reset and go through a backup. Explaining the process, Buss ultimately testified that,
although call history and text messages may have been lost in the reset, those
messages that were properly backed up are accurate records of what existed on the
cellphone prior to the reset, and nothing could have been added that was not already
there.
When the government tried to introduce the text messages between
Wehrkamp and Moore, Moore objected, arguing that the messages were
inadmissible because the government did not provide adequate foundation of the
chain of custody. More specifically, he argued that the evidence was not in
“substantially the same condition” as when the police initially took the cellphone
into custody due to the reset. The government responded by pointing the district
court to the chain of custody from forensic specialist McCaffrey to Detective Mertes
to DeBoer back to Detective Mertes and finally to then-detective Buss. The
government emphasized Buss’s expert testimony that the cellphone information
retrieved from the backup was “an accurate record [and] that the times and the
information wouldn’t have been altered.” The government concluded that, “the
issues that [Moore] has addressed . . . go to the weight and not the admissibility of
the evidence.”
Ultimately, the district court agreed with the government and overruled
Moore’s objection. Because “[w]hat the government [was] offering . . . is
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information that was restored to the phone from the cloud through the backup
process,” the district court found that there was “a reasonable probability that the
information retrieved was substantially in the same state as when it was found at the
scene.” The district court concluded that “the objections of the defendant go to the
weight and not the admissibility.”
Later during the trial, several cooperating witnesses testified to Moore’s
involvement in narcotics trafficking. Nordquist testified that since he met Moore in
2017, he had purchased heroin from him “countless times,” at one point “every day.”
When the government asked Nordquist whether he could tell if Moore was working
with others that were helping him sell heroin, he responded that he often saw Moore
driving around with a woman, and on at least one occasion, the woman handed
Nordquist a bag of heroin he ordered from Moore.
J.U., an individual involved in selling heroin and fentanyl in Sioux Falls,
testified to similar interactions with Moore. J.U. testified that he purchased heroin
and fentanyl from Moore “maybe 50 times,” and that a woman named “Yvette or
Shavette” was sometimes with Moore during these transactions. During these
transactions, J.U. testified, “I would give the money, and she’d just give me the stuff;
or I’d give her the money, and [Moore would] give me the stuff.” J.U. described
Moore and the woman’s relationship as a “user relationship” in which the pair would
“pool their money together in order to buy a quantity to sell.” J.U. also testified
more broadly about the narcotics ring he and Moore were involved in. As to the
organization’s structure, J.U. testified that he and a few others, including Moore,
would get “stuff” from C.D., “[a]nd then [they] had [their] own little circles that
[they] distributed smaller quantities out to.”
C.D. corroborated much of J.U.’s testimony. C.D. testified that at the height
of his operation, he was selling 100 grams of heroin and fentanyl a week to various
distributors, one of whom was J.U. C.D. testified that he also sold heroin and
fentanyl to Moore. C.D. estimated that for a period of three or four months, he sold
“user amounts” to Moore three times a week. C.D. believed, based on rumors, that
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Moore was also purchasing from William Campbell, one of C.D.’s primary fentanyl
suppliers.
Finally, Dr. Kenneth Snell, a forensic pathologist and Minnehaha County
coroner, testified that “the cause of death for Elizabeth Wehrkamp [wa]s fentanyl
and acetylfentanyl toxicity.” Likewise, he testified that “[t]he cause of death of
James Savage [wa]s fentanyl and acetylfentanyl toxicity.”
After the government rested, Moore moved for judgment of acquittal on all
counts, arguing that the evidence was insufficient to sustain a conviction on any one
of them. The district court denied the motion. Ultimately, the jury found Moore
guilty of conspiracy to distribute heroin and guilty of both counts of distribution of
fentanyl resulting in death, but it acquitted him on the conspiracy-to-distribute-
cocaine-base count. Moore appeals, arguing that the district court erroneously
admitted his text messages with Wehrkamp and that the evidence is insufficient to
convict him on any of the three counts of conviction.
III.
We begin by analyzing the district court’s admission of the text messages
between Wehrkamp and Moore. “We review a district court’s rulings on the
admission of evidence on a clear abuse of discretion standard.” United States v.
Miller, 994 F.2d 441, 443 (8th Cir. 1993). “‘[O]nly when an improper evidentiary
ruling affected the defendant’s substantial rights or had more than a slight influence
on the verdict’ will we reverse.” United States v. Aungie, 4 F.4th 638, 644 (8th Cir.
2021) (citation omitted). “The admission of evidence can be affirmed on any basis
supported by the record.” United States v. Needham, 852 F.3d 830, 836 (8th Cir.
2017).
Moore’s primary argument is that the government did not establish an
adequate chain of custody since “the evidence was not in the same condition as it
was during its owner’s use and the government was not able to show that the
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condition of the phone was substantially unchanged.” Appellant Br. 11. However,
chain-of-custody objections are generally limited to real or physical evidence—
things like drugs, weapons, clothing, even cellphones—not text messages, which are
more akin to writings. See, e.g., Miller, 994 F.2d at 443 (describing chain-of-
custody framework in reference to propriety of admitting a match box containing
cocaine base into evidence); United States v. Wilson, 565 F.3d 1059, 1065-66 (8th
Cir. 2009) (entertaining chain-of-custody objection when lodged at admission of
actual cellphone into evidence); see also Fed. R. Evid. 1001(a) (defining “writing”
as “letters, words, numbers, or their equivalent set down in any form”). And here,
the district court admitted an extraction report of text messages on the cellphone—
not the actual cellphone—into evidence. Thus, we are not convinced that the chain-
of-custody framework applies.
Nonetheless, we acknowledge that the government would not have obtained
the text messages from the cellphone without the series of events leading to Moore’s
chain-of-custody objection. And the government fails to argue that the text
messages are distinct from the cellphone. However, even assuming that the chain-
of-custody framework applies here, Moore fails to demonstrate that the district court
abused its discretion in admitting the text messages.
“The criteria governing admission of exhibits into evidence is that there must
be a showing that the physical exhibit being offered is in substantially the same
condition as when the crime was committed.” United States v. Roberts, 503 F.2d
453, 456 (8th Cir. 1974). “The district court may admit a piece of physical evidence
if it is satisfied that there is a reasonable probability [that] such evidence has not
been changed or altered.” Miller, 994 F.2d at 443. “Factors to be considered in
making the determination of admissibility include the nature of the article, the
circumstances surrounding its preservation and custody, and the likelihood of others
tampering with it.” Roberts, 503 F.2d at 456. Generally, “any defect in the chain of
custody goes more to [the] weight [of the evidence rather] than its admissibility.”
United States v. Briley, 319 F.3d 360, 363 (8th Cir. 2003).
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During the trial, the government elicited testimony from all the individuals
involved in the handling of the cellphone and laid out a specific timeline. After
forensic specialist McCaffrey found the cellphone at the scene of Wehrkamp’s death,
she took it into evidence. It remained there until Detective Mertes returned it to
DeBoer. DeBoer then retained possession of the cellphone for a few days while he
attempted to gain access to it. When he finally did, he returned the phone to law
enforcement, at which time they conducted a forensic extraction of what remained
after the reset and backup.
Further, while testifying as an expert witness, then-detective Buss stated that,
although some data may have been lost in the reset, those text messages that were
properly backed up are accurate records of what existed on the cellphone prior to the
reset, and nothing could have been added that was not already there. In other words,
the text messages on the cellphone following the reset and backup were in exactly
the same state as they were at the time forensic specialist McCaffrey took the
cellphone from the scene of Wehrkamp’s death. Moreover, Moore makes no
allegations that any of these messages were added to the phone, changed, or
fabricated.
Under these circumstances, Moore’s objection goes more to the weight of the
evidence than its admissibility. See Briley, 319 F.3d at 363. Thus, we find no abuse
of discretion in the district court’s decision to admit the text messages between
Wehrkamp and Moore into evidence. Cf. Wilson, 565 F.3d at 1065-66 (finding no
abuse of discretion in district court’s decision to admit cellphone despite nine-day
period in which the cellphone was not in evidence and allegations that a police
officer showed a witness images on the cellphone during that period).
IV.
Next, we address Moore’s challenges to the sufficiency of the evidence. First,
he contends that there is insufficient evidence to convict him of conspiracy to
distribute heroin because “[w]hile some evidence of drug selling exists, the evidence
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is significant only for small buyer[-]seller agreements to fund his own addiction.”
Second, Moore argues that there is insufficient evidence to convict him of either
count of distribution of fentanyl resulting in death because, as to Wehrkamp, there
is a lack of “any information about the life that [she] lived during her last eighteen
hours before she overdosed,” and, as to Savage, Nordquist was not a credible witness
and Savage likely obtained fentanyl from another source.
Initially, the government argues that the standard of review for these
challenges is plain error, arguing that Moore did not “preserve a specific argument
regarding sufficiency of the evidence in [his] motion for judgment of acquittal,”
pointing to our decision in United States v. Two Hearts, 32 F.4th 659 (8th Cir. 2022).
Appellee Br. 27. But Two Hearts stands only for the proposition that when a new
ground for acquittal—one not raised in a previous motion for acquittal which lodged
other, specific grounds—is raised for the first time on appeal, we will review that
new ground for plain error. 32 F.4th at 664. Thus, here, where Moore raised a
blanket sufficiency challenge to all counts of conviction before the district court and
has done the same on appeal, Two Hearts is inapposite.
Thus, “[w]e review the denial of [Moore’s] motion for acquittal de novo.”
United States v. Samuels, 611 F.3d 914, 917 (8th Cir. 2010) (citation omitted).
We employ a strict standard of review regarding denials of motions for
acquittal, viewing the evidence in the light most favorable to the guilty
verdict, resolving all evidentiary conflicts in favor of the government,
and accepting all reasonable inferences supported by the evidence. A
jury verdict will not lightly be overturned and we will reverse only if
no reasonable jury could have found the defendant guilty beyond a
reasonable doubt.
United States v. Donnell, 596 F.3d 913, 924 (8th Cir. 2010) (citation omitted). “A
conviction may be based on circumstantial as well as direct evidence.” United States
v. Seals, 915 F.3d 1203, 1205 (8th Cir. 2019).
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A.
First, we consider whether there was sufficient evidence to sustain Moore’s
conviction for conspiracy to distribute heroin. “To establish that a defendant
conspired to distribute drugs, the government must show that there was an agreement
to distribute drugs, that the defendant knew of the conspiracy, and that the defendant
intentionally joined the conspiracy.” United States v. Ramirez, 21 F.4th 530, 532
(8th Cir. 2021) (citation omitted). “An agreement to join a conspiracy to distribute
a controlled substance need not be explicit and can be inferred from the facts of the
case.” United States v. Myers, 965 F.3d 933, 937 (8th Cir. 2020) (citation omitted).
The conspiracy “may rely on a loosely knit, non-hierarchical collection of persons
who engaged in a series of transactions involving distribution-quantities of drugs in
and around a particular city over a course of time.” Id. (citation omitted).
Importantly, in conspiracy-to-distribute cases, “we distinguish between a
conspiracy and a mere ‘buyer-seller’ relationship. Evidence of ‘a single
transaction . . . involving small quantities of drugs consistent with personal use’ is
consistent with a ‘mere buyer-seller relationship.’ However, evidence of multiple
transactions is evidence of a conspiracy.” United States v. Rodriguez, 984 F.3d 704,
708-09 (8th Cir. 2021) (alteration in original) (citations omitted); see also Donnell,
596 F.3d at 925 (“[A] reasonable jury can find that a defendant has more than a mere
buyer-seller relationship ‘if the evidence supports a finding that they shared a
conspiratorial purpose to advance other transfers,’” i.e., “where the drugs were
purchased for resale” (citations omitted)).
Here, there is more than enough evidence to support Moore’s conviction for
conspiracy to distribute heroin. At trial, J.U. and C.D. testified to their involvement
in a heroin-and-fentanyl distribution ring in which Moore both bought and sold the
drugs. Further, multiple witnesses testified about purchasing heroin from Moore for
years. Indeed, J.U. testified that he purchased heroin and fentanyl from Moore
“maybe 50 times.” Nordquist testified that after meeting Moore in 2017, he
purchased heroin from him “every day” for a period. Indeed, even after Savage’s
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overdose death, Nordquist continued to purchase heroin from Moore for another
month.
Additionally, both J.U. and Nordquist testified that Moore often had a woman
with him assisting in his operations, going so far as to cite specific experiences in
which she was directly involved in their transactions. J.U. further described Moore
and the woman’s relationship as one in which the pair would “pool their money
together in order to buy a quantity to sell.”
Moreover, the detectives saw the woman with Moore as he was leaving C.D.’s
house, after having deposited digital scales—commonly associated with drug
distribution—in the nearby dumpster. During this same investigation, the detectives,
after conducting trash pulls at Moore’s residence, found baggies—one of which
tested positive for cocaine—consistent with the repackaging of drugs for sale and
distribution. They also found heroin in Moore’s house after executing a search
warrant. And, of course, their investigation uncovered the messages between
Wehrkamp and Moore, which were replete with conversations concerning drug
transactions between October and November 2018. The messages also indicated
that Moore was working with others. Indeed, Moore frequently referred to
accomplices in these messages, as he similarly did throughout his messages with
Nordquist.
In sum, the evidence at trial established the following: (1) Moore was involved
in a heroin-and-fentanyl trafficking ring in Sioux Falls; (2) Moore sold heroin
regularly to multiple people for years; (3) Moore worked with several accomplices,
most importantly a woman, with whom he pooled his money together in order to buy
larger quantities to sell; and (4) during their investigation of Moore, detectives found
multiple pieces of evidence consistent with his distributing heroin. This is more than
sufficient evidence for a reasonable jury to find Moore guilty of conspiracy to
distribute heroin beyond a reasonable doubt. Cf. United States v. Harris, 966 F.3d
755, 761 (8th Cir. 2020) (holding that there was sufficient evidence to support
defendant’s conviction when “the facts showed (1) ongoing heroin sales, (2) over
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the course of many months, (3) with significant, and even daily frequency, and
(4) involving multiple individuals”). Contrary to Moore’s contention, “this is simply
not a case involving a ‘single transient sales agreement and small amounts of drugs
consistent with personal use.’” Id. (citation omitted).
B.
We now move to the two counts of distribution of fentanyl resulting in death.
“To sustain the guilty verdict, the [g]overnment must have proved that (1) the
defendant knowingly or intentionally distributed a drug; and (2) the victim died or
sustained a serious bodily injury caused by the use of the drug.” United States v.
Cathey, 997 F.3d 827, 832 (8th Cir. 2021). “[T]he government must offer ‘proof
that the harm would not have occurred in the absence of—that is, but for—the
defendant’s conduct.” United States v. Ross, 990 F.3d 636, 639 (8th Cir. 2021)
(citing Burrage v. United States, 571 U.S. 204, 211 (2014)). As to both Wehrkamp’s
and Savage’s deaths, Moore does not dispute Dr. Snell’s expert testimony that they
died of fentanyl and acetylfentanyl toxicity. Rather, Moore argues only that there is
insufficient evidence that he distributed the fentanyl that killed them.
i.
As to Wehrkamp’s death, Moore argues that no reasonable juror could have
convicted him on this count because “[t]he evidence shows that Wehrkamp spent
time with someone, drank alcohol, and received a batch of drugs from someone in
the early hours or morning of November 4th, 2018, and it was not Jeffrey [sic]
Moore.” But when reviewing the sufficiency of the evidence, the question is not
whether there is a plausible theory that the defendant was not the perpetrator—it is
whether a reasonable jury could have convicted the defendant based on the evidence
presented. See Harris, 966 F.3d at 762 (“Whether [Moore’s] or someone else’s
[fentanyl] caused [Wehrkamp’s] overdose ‘created a factual issue for the jury to
resolve . . . .’” (citation omitted)).
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A reasonable jury could convict Moore of distribution of fentanyl resulting in
Wehrkamp’s death. The text messages between Wehrkamp and Moore revealed
that, from at least October 22, 2018, to November 2, 2018, Wehrkamp purchased
what she believed to be heroin from Moore many times. Detective Blankenfeld
testified that he found no other messages on the cellphone that indicated Wehrkamp
was having similar conversations with anyone besides Moore. At trial, witness
testimony revealed that Moore purchased both heroin and fentanyl from various
individuals—often interchangeably—before reselling much of this product to feed
his own addiction. Following the execution of a search warrant at Moore’s home in
early 2019, investigators found .34 grams of heroin mixed with tramadol and
fentanyl. Further, “heroin” that Moore sold to Nordquist shortly after Savage’s
overdose death field tested positive for fentanyl.
As to the specific timeline leading up to Wehrkamp’s death, on the morning
of the day before her overdose, November 2nd, Wehrkamp met Moore at their usual
gas station to purchase narcotics. Later that day, at 6:58 p.m., Wehrkamp texted
Moore desperately seeking an additional $150 worth. Approximately 20 minutes
later, Wehrkamp went to the ATM and withdrew $160. At 7:45 p.m., she texted
Moore, “Back yard?” Just three minutes later she texted, “I’m in your back yard.”
Further, messages between Wehrkamp and her family about a quarter after
8:00 p.m. that night reveal that after she met Moore at his house, she went back home
and was playing with her minor son. The last message she sent was to Moore at 9:06
p.m., which was a question about a cryptic message he had sent. The very next day,
November 3rd, shortly after 12:30 p.m., DeBoer arrived at Wehrkamp’s house to
find her unresponsive and foaming at the mouth. First responders pronounced her
dead shortly thereafter. And, of course, subsequent testing of the spoon next to the
uncapped syringe on the bathroom counter revealed the presence of fentanyl and
acetylfentanyl.
A similar timeline was sufficient to support a defendant’s conviction for
distribution of fentanyl resulting in death in Ross. There, a drug customer traveled
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from Ohio to Iowa and called the defendant on the way, “presumably to make
arrangements to purchase heroin.” Ross, 990 F.3d at 639. The customer texted the
defendant the name of the motel and his room number, and when the defendant asked
him whether he wanted one or two, the customer responded, “If it[’]s good make it
two.” Id. at 638 (second alteration in original). Only thirty minutes later the
defendant texted the customer that he was on his way. Id. Hours later, the defendant
contacted a third party and asked her to check on the customer to “make sure he
didn’t overdose” at the motel. Id. Motel staff found the customer’s dead body the
next day. Id.
Although Moore did not call someone to check on Wehrkamp after selling her
$150 worth of narcotics, this case is otherwise very similar to Ross. Indeed, as in
Ross, the night before her overdose, Wehrkamp texted Moore—her primary if not
only supplier of narcotics—at 6:58 p.m. “presumably to make arrangements to
purchase heroin.” Id. at 639. Per their typical arrangement, Wehrkamp then
withdrew the necessary funds from an ATM and drove to Moore’s house, texting
him at 7:48 p.m. that she was in his backyard. Her subsequent text messages to
family members reveal that she then went home. And as in Ross, Wehrkamp’s body
was found the next day. Under these facts, a reasonable jury could conclude that
Moore distributed the fentanyl that resulted in Wehrkamp’s death.
ii.
Finally, we address Moore’s challenge to the sufficiency of the evidence for
his conviction for distribution of fentanyl resulting in Savage’s death. During trial,
Nordquist’s meticulous, step-by-step testimony established that he used Savage’s
money to purchase $300 of “fire white” from Moore, a drug which at the time was
commonly known to be mixed with fentanyl; Savage and Nordquist did the drug
together; and Savage died from it. Of course, later testing of several items left at the
scene, including the syringe and spoon which Rezac found lying on the table in front
of Savage, revealed the presence of fentanyl.
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“[A] jury verdict[ may be] based solely on the testimony of conspirators and
cooperating witnesses.” United States v. Lewis, 976 F.3d 787, 794 (8th Cir. 2020)
(citation omitted). Here, Nordquist’s testimony—which was corroborated by text
messages, the testimony of other witnesses, and video evidence of Nordquist and
Savage meeting at the ATM prior to heading to Moore’s house—directly tied the
narcotics he purchased from Moore to Savage’s death. Moore’s primary rebuttal is
that Nordquist’s testimony is not credible because Nordquist had a motive to lie: to
cover his own tracks. But when reviewing the sufficiency of the evidence, we “must
resolve credibility issues in favor of the verdict.” Id. (citation omitted). The jury
heard the testimony, and it chose to believe Nordquist and the corroborating
testimony of other witnesses. Thus, we will not disturb Moore’s conviction for
distribution of fentanyl resulting in Savage’s death.
V.
For the foregoing reasons, we affirm the judgment of the district court.
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