Submitted April 17, 2015.
Appeal from United States District Court for the Northern District of Iowa - Sioux City.
For United States of America, Plaintiff - Appellee: Forde Fairchild, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Iowa, Sioux City, IA.
Trey Michael Boykin, Defendant - Appellant, Pro se, Leavenworth, KS.
For Trey Michael Boykin, Defendant - Appellant: Alan Stoler, Omaha, NE.
Before BYE and SMITH, Circuit Judges, and SCHILTZ, District Judge. BYE, Circuit Judge, dissenting in part.
SMITH, Circuit Judge.
Trey Michael Boykin was convicted of one count of kidnapping, in violation of 18 U.S.C. § 1201, and one count of conspiracy to distribute marijuana, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(D), and 846. On appeal, Boykin argues that the superseding indictment was missing an essential element on the kidnapping charge, rendering the indictment fatally flawed and entitling him to a judgment of acquittal. As to the conspiracy conviction, Boykin asserts that there was insufficient evidence of a conspiracy to distribute marijuana and that the district court erred in failing to give his requested buyer-seller instruction. Having reviewed the record, we affirm Boykin's kidnapping conviction but reverse his conspiracy conviction for insufficient evidence. We remand for further proceedings consistent with this opinion.
" We recount the evidence in the light most favorable to the jury's verdict." United States v. Battle, 774 F.3d 504, 508 (8th Cir. 2014) (citation omitted). R.W., a football player and student at Briar Cliff University (" Briar Cliff" ) in Sioux City, Iowa, occasionally smoked marijuana. In the summer of 2012, R.W. learned of Boykin after receiving his phone number from another individual from whom R.W. was purchasing marijuana. The individual informed R.W. that Boykin would deliver the marijuana to R.W. on campus because R.W. did not have a vehicle at the time.
R.W. first purchased marijuana from Boykin after he texted Boykin and asked if he had any marijuana. After Boykin texted a response back to R.W., Boykin drove to the Briar Cliff campus where he met R.W. in the parking lot. R.W. got inside of Boykin's vehicle and paid him $15 for one gram of marijuana, which R.W. smoked. According to R.W., when he smoked marijuana, he typically smoked " one or two" grams at a time and smoked " occasionally" or on " weekends."
During Briar Cliff's Thanksgiving or Christmas break in 2012, Boykin called R.W. to tell R.W. that Boykin had marijuana. R.W. took little notice of the phone call because he was in St. Louis, Missouri, for the break. R.W. told Boykin that R.W.
would call Boykin when R.W. got back into town.
A few days prior to February 25, 2013, Boykin " bumped into" Gerry Patterson in Sioux City. Boykin and Patterson knew of each other through acquaintances. Boykin asked Patterson if Patterson had any marijuana. Patterson replied that he did not have any at the time. The two men then exchanged phone numbers in the event that Patterson obtained some marijuana later.
On February 24, 2013, after football practice, R.W. texted people--including Boykin--looking for marijuana. R.W. wanted to get " [a]n ounce" of marijuana. According to R.W., who was a " gram user" of marijuana, an " [o]unce is a lot of marijuana." He was going to pay $170 for the ounce of marijuana. R.W. was going to " [s]hare [the marijuana] with friends on campus, share it with other teammates." R.W. testified that he " would smoke marijuana with other teammates and on the reassurance that they would either pay me back or smoke back with me." When asked whether he was " going to sell it," R.W. replied, " I was going to share it I would say, yes." When asked whether " [p]eople were going to give [R.W.] money" for the marijuana, R.W. replied, " Yes." R.W. did not testify that he disclosed to Boykin that R.W. was planning on sharing the marijuana with others or receiving money for the marijuana that he wanted to purchase from Boykin.
Boykin texted Patterson and asked him if he had a " [h]alf ounce" of marijuana. Boykin then asked for a " full ounce" of marijuana. Patterson informed Boykin that he did not have any marijuana. Boykin and Patterson then started discussing a plan to rob R.W., whom Patterson did not know. They planned to rob R.W. at a bar but changed their plan after Boykin discovered police officers there. Instead, they decided to meet at the intersection of West Third and George in Sioux City.
Boykin texted R.W. and told him that he had the marijuana. R.W. told Boykin the amount of money that R.W. had to spend on the marijuana. Through the exchange of text messages, R.W. agreed to buy one ounce of marijuana from Boykin for $170. R.W. indicated to Boykin that he had more money and could buy more marijuana if the deal worked out. Boykin first suggested taking R.W. to an off-campus location to obtain the marijuana, but R.W. responded that he did not want to leave campus because it was late. Boykin replied that he would meet R.W. on campus.
Patterson met Boykin at West Third and George and got into Boykin's vehicle. Patterson was carrying a handgun in his waistband, which he placed on his lap once he got into the car. Boykin then drove to Briar Cliff so that he and Patterson could rob R.W. When Patterson expressed his concern that R.W. would call the police, Boykin replied that R.W. would not call the police " [b]ecause it was a drug deal." Once Boykin and Patterson arrived on the Briar Cliff campus, Boykin parked and texted R.W. to let R.W. know that Boykin had arrived.
Early in the morning of February 25, 2013, R.W. saw Boykin on campus and entered Boykin's car at his direction. Upon entering the back seat of the car behind the driver's seat, R.W. noticed a stranger in front seat. R.W. entered the car thinking that he was going to purchase marijuana from Boykin.
According to R.W., Boykin then drove the car in reverse even though R.W. had told Boykin that he did not want to leave campus. As Boykin drove the car in reverse, the front-seat passenger--which was Patterson--pulled a gun on R.W. R.W. testified that the first comments that Boykin and Patterson made to him were
that they had just talked with the Briar Cliff security guards, as those security guards had approached them while they were parked on campus and asked them to park the vehicle within the lines or be ticketed. Patterson held the gun to R.W. and giggled, " basically saying that he had just talked to [R.W.'s] security guards." Boykin also giggled. R.W. did not exit the vehicle because Patterson was holding him at gunpoint. R.W. was scared and did not know where they were going. Patterson told R.W. that he had to " give up everything that [he] had." In response, R.W. " started emptying [his] pockets and giving up everything that [he] had." R.W. had an iPhone, a wallet, a " gar card,"  his dorm room key, and $310 in cash. Patterson took the $310 and everything else but the iPhone and dorm key.
After they traveled a short distance from campus, Patterson told Boykin to stop the car and release R.W. Once Boykin stopped the car, Patterson pointed the gun at R.W. and told R.W. not to " try anything stupid" or he would " get shot." Boykin opened the back car door--because there was a child safety lock on that door--and let R.W. out. R.W. exited the car and started walking. As soon as R.W. saw Boykin's vehicle drive away, he called Briar Cliff security and reported that he had just been robbed at gunpoint. R.W. spoke very quickly and was very excited, which made him difficult to understand. After calling security, R.W. walked back to campus. He then called security again because Patterson had taken his gar card. A security guard met R.W. at the entrance of Noonan Hall and let him in. According to the security guard, R.W. " was very nervous, and he was very shaky, and he wanted to call his mom" because he had just been robbed.
After releasing R.W., Boykin drove to a gas station where Patterson gave Boykin $155 of the $310 taken from R.W. They divided the money evenly because the robbery was both of their ideas and they had both participated. Boykin then drove Patterson to a convenience store where they made purchases. Boykin then drove Patterson to another location where Patterson bought marijuana from " a home girl." Then, Boykin drove to the intersection of Eighth and Court for Patterson to " pay a marijuana debt." Patterson then asked Boykin to take him on another errand. While on that errand, an officer stopped Boykin and Patterson. Officers seized a handgun from Boykin's car and discovered R.W.'s gar card in the backseat. At the time of their arrest, Boykin had $145, and Patterson had $40 and a .22 caliber round in his pocket.
A grand jury returned a six-count superseding indictment against Boykin and Patterson. Count 1 charged Boykin with conspiring to distribute marijuana, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(D) and 846. Count 2 charged Boykin with willfully and unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, and carrying away and holding R.W. by a means, facility, and instrumentality of interstate commerce, in violation of 18 U.S.C. § 1201. Count 3 charged Boykin with possessing and brandishing and aiding and abetting the possession and brandishing of a firearm in furtherance of the kidnapping, in violation of 18 U.S.C. § § 2 and 924(c)(1)(A). Count 6 charged Boykin with ...