Submitted: October 17, 2016
from United States District Court for the District of
Nebraska - Omaha
LOKEN, SMITH  , and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
convicted Breac Stewart of three offenses for his
participation in a marijuana trafficking scheme. Stewart
appeals the district court's denial of his motion for
judgment of acquittal. Because Stewart's convictions are
supported by sufficient evidence, we affirm.
jury charged Stewart and his cousin, Hans Schroeder, in
August 2014 with three offenses: conspiracy to distribute and
possession with intent to distribute 50 kilograms or more of
marijuana under 18 U.S.C. §§ 841(a)(1) and 846,
conspiracy to launder money under 18 U.S.C. §
1956(a)(1)(B)(i), and racketeering under 18 U.S.C. §
1952. The indictment also included a forfeiture allegation
seeking a money judgment for proceeds of the distribution
scheme. We recount the pertinent evidence in the light most
favorable to the verdict.
trial, Schroeder testified that he and Stewart had an
agreement to traffic marijuana. Stewart would send marijuana
from California to Schroeder in Nebraska, and Schroeder would
distribute it. According to Schroeder, Stewart sent him
one-pound heat-sealed packages through the mail. Stewart
mailed Schroeder these packages with increasing frequency
from early 2011 through November 2013, sometimes sending two
and Stewart also paid two couriers, Christopher Gude and
Jordyn Hermsen, to drive money and larger quantities of
marijuana from California to Nebraska. Gude testified that he
made five or six trips between the fall of 2012 and the
spring of 2013, carrying eight to ten pounds of marijuana on
the first journey, and approximately twenty pounds on the
later trips. Hermsen testified that she made six to eight
trips between April and November 2013, carrying at least two
or three large duffel bags full of marijuana packages.
Schroeder testified that Hermsen and Gude transported
approximately the same amount on their respective trips. Gude
and Hermsen said that they brought money on two to four trips
and gave it to Stewart. After Stewart moved to Omaha in the
summer of 2013, he traveled back to California and supplied
marijuana that Hermsen drove to Nebraska.
testified that he gave Stewart his portion of the profits by
various means-through the mail, by driving it or flying with
it to California, by wiring it, or by depositing it in a
jointly-held bank account. The bank account was in the name
of "We Be Lions, " a band that Schroeder had
managed. Schroeder testified that to conceal the illegal
activity, he commingled the marijuana profits with funds from
his legitimate sales of glass pipes. Stewart withdrew $103,
400 from the We Be Lions account during the relevant period,
and he received twenty-nine MoneyGram transfers totaling $64,
the close of evidence, Stewart moved for a judgment of
acquittal, arguing that the government presented insufficient
evidence for a jury to convict him of any charged offense.
The district court denied the motion, and the jury found
Stewart guilty on all three counts. The court then entered a
preliminary forfeiture order in the amount of $168, 294, the
combined total amount of drug sale proceeds that appeared in
the We Be Lions bank account and the wire transfer records.
The court decided to rely on the financial records, rather
than extrapolate a forfeiture amount from the quantity and
price of the drugs involved, because it determined that the
testimony did not provide a "reasonable estimate of the
quantity [of marijuana] involved in the conspiracy." At
sentencing, the district court adopted its preliminary
forfeiture order as the final order and sentenced Stewart to
48 months' imprisonment.
challenges the sufficiency of the evidence to support the
convictions. We review the denial of a motion for judgment of
acquittal de novo, viewing the evidence in the light
most favorable to the verdict. The question is whether any
reasonable jury could have found Stewart guilty beyond a
reasonable doubt. Musacchio v. United States, 136
S.Ct. 709, 715 (2016).
drug conspiracy count, Stewart contends that there was
insufficient proof that he joined a conspiracy to distribute
50 kilograms or more of marijuana. Several witnesses,
however, testified about Stewart's role in procuring,
packaging, and sending marijuana to Nebraska for
distribution. Travel records and business records
corroborated the testimony of the couriers. The government
presented evidence of the MoneyGram wire transfers sent by
Schroeder and other conspirators to Stewart. Schroeder
testified that he mailed Stewart money from the marijuana
sales via FedEx, and the government corroborated this
testimony with evidence of a FedEx shipping label, addressed
to Stewart, found during a search of Schroeder's car.
Stewart also withdrew funds from the bank account into which
Schroeder deposited profits from the marijuana scheme. The
evidence here is materially stronger than the proof ...