United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3299
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Dwight Rhodes

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                              Submitted: April 9, 2013
                             Filed: September 13, 2013
                                     [Published]
                                  ____________

Before LOKEN and GRUENDER, Circuit Judges, and PHILLIPS*, District Judge.
                         ____________

PER CURIAM.

      A jury convicted Dwight Rhodes of using and maintaining a premises for the
purpose of distributing and using a controlled substance in violation of 21 U.S.C.


      *
      The Honorable Mary Elizabeth Phillips, United States District Judge for the
Western District of Missouri, sitting by designation.
§ 856(a)(1), and of three other drug and firearm offenses. He appeals, arguing only
that the district court1 erred in denying his motion for judgment of acquittal on the
§ 856(a)(1) count because the trial evidence was insufficient to prove that his purpose
in using or maintaining the premises in question was to distribute a controlled
substance.2 Reviewing this issue with the deference that must be afforded the jury’s
verdict, we affirm. See United States v. Miller, 

, 702 (8th Cir. 2012)
(standard of review), cert. denied, 

(2013).

                                          I.

       The government’s evidence at trial showed that, in the months leading up to
Rhodes’s arrest, drug task force officers and agents began investigating Rhodes and
the residence located at 4535 Evans Avenue in St. Louis, based on citizen complaints
and other sources. Conducting surveillance, Detectives Martin Garcia and Joseph
Steiger saw Rhodes meet three or four individuals in front of 4535 Evans on one
occasion. Another time, Rhodes’s car was seen parked in front of the residence. The
car was a 1977 Chevy with a black 8-ball well-known to pool players painted on the
driver’s side door. In drug parlance, an “eight ball” is one-eighth of an ounce of
an illegal drug, a common wholesale quantity. Officer Lindsay Sudnig testified that
during her patrols she often saw Rhodes and his car in the front yard of the residence.
Based on the investigation, Detective Garcia obtained a search warrant for 4535



      1
       The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
      2
       Neither counsel addresses how the § 856(a)(1) count impacted Rhodes’s
sentence, which was within the advisory guidelines range. The PSR grouped the
count with a firearm offense that had a higher offense level. See U.S.S.G. § 3D1.3(a).
Defense counsel argued to the district court that acquittal on this count “would also
necessitate the dismissal of Count IV,” a second firearm offense that carried a
mandatory, consecutive 60-month sentence. But this was not argued on appeal.

                                         -2-
Evans. On October 6, 2011, as a SWAT team prepared to execute a high-risk warrant
search, Detective Garcia and others once again conducted surveillance.

       Before the warrant search, a white Pontiac Grand Prix arrived, Rhodes entered
on the passenger side, and the Grand Prix drove off. A mobile surveillance team
including Detective Steiger followed. When the Grand Prix drove in what appeared
to be a common counter-surveillance pattern, a marked police car pulled it over at the
team’s request, and officers transported Rhodes back to 4535 Evans. During
transport, the officers smelled marijuana. Rhodes admitted he had marijuana in his
underwear. Upon arrival, a search of Rhodes’s underwear uncovered a plastic bag
containing six smaller baggies of marijuana but no paraphernalia for marijuana use.

       Detective Garcia advised Rhodes of the warrant search and his Miranda rights.
Rhodes told the detectives he had been living at 4535 Evans with his mother for
several months and had a key to the back door. He said his room was on the second
floor in the back of the house. During the ensuing search, officers found: (i) in the
middle room, a gun holster on a coffee table and a box of documents bearing
Rhodes’s name and address under a couch cushion, including his car title and a
receipt showing he paid over $600 to have the 8-ball painted on his car door; (ii) in
the kitchen, furnished as a small living room, Rhodes’s halfway house ID and a
loaded .40 caliber pistol matching the holster under a couch cushion; (iii) in the
second floor bedroom Rhodes identified as his, a pair of white tennis shoes holding
a digital scale containing cocaine base residue, plastic baggies commonly used for
drug distribution, a knotted plastic bag containing eight hydrocodone pills, and
additional plastic baggies in a different shoe in the closet. The officers found no
paraphernalia for using any of the controlled substances found at the residence.
Rhodes told Detective Garcia that he slept on the couches, including the couch in the
kitchen where the pistol was found. He said his deceased brother (in fact, his cousin)
owned the pistol. Detective Garcia explained why he suspected the gun belonged to
Rhodes. He responded, “You’re right, do what you have to do.” Detective Edward

                                         -3-
Clay testified as a government expert regarding the distribution of illegal drugs and
drug trafficking. After reviewing the evidence, Clay opined that the quantities and
packaging of the drugs, the presence of multiple drugs, the absence of drug use
paraphernalia, and the presence of a digital scale with drug residue and a .40 caliber
pistol, all indicated drug distribution.

        Rhodes’s stepfather, Stanley Burgess, testified for the defense that he
purchased 4535 Evans in 2008 and continues to repair it. While he occasionally
passes through the residence, he and Rhodes’s mother live several miles away, and
he did not know whether Rhodes would spend the night there. On cross-examination,
Burgess testified that neither he nor his wife kept a gun, a scale, or pills in a shoe at
4535 Evans. He conceded that the house serves no particular purpose for him while
it is being repaired. Rhodes mother, Cheryl Rhodes, also testified for the defense.
Contradicting Burgess, she testified they stayed at 4535 Evans three or four times
each week. When Dwight Rhodes stayed there, he slept on the couch in the middle
room where the box of his personal documents was found. However, she testified,
he was not living at 4535 Evans. She confirmed that neither she nor Burgess owned
a gun. She testified that the tennis shoes containing the digital scale, plastic baggies,
and hydrocodone pills belonged to her deceased nephew, claiming that she put them
in the second floor bedroom following the nephew’s death but conceding the shoes
did not then contain the scale, baggies, or pills. At the close of evidence, the district
court denied Rhodes’s renewed motion for a judgment of acquittal.

       Section 856(a)(1) makes it unlawful to “knowingly open, lease, rent, use, or
maintain any place, whether permanently or temporarily, for the purpose of
manufacturing, distributing, or using any controlled substance.” Without objection
by either party, and consistent with Eighth Circuit Model Criminal Jury Instruction
6.21.856A, the district court instructed the jury:




                                          -4-
      A defendant uses or maintains a place for the purpose of distributing a
      controlled substance if the defendant uses or maintains the place for the
      specific purpose of distributing the controlled substance. The specific
      purpose need not be the sole purpose for which the place is used, but
      must be one of the primary or principal uses to which the place is used.

       On appeal, Rhodes argues the evidence was insufficient because it established
that his primary purpose in using the premises at 4535 Evans was a residence, where
he slept regularly, not for the purpose of distributing drugs. Reviewing the evidence
relating to this issue under the instruction given, to which neither party objected, we
disagree. See United States v. Ausler, 

, 920 (8th Cir. 2005).

       Even if the jury found Rhodes lived at 4535 Evans, he may be convicted of
violating § 856(a)(1) if one of his primary uses of the residence was drug distribution.
See United States v. Miller, 

, 707 (8th Cir. 2012). Moreover, there was
evidence that Rhodes did not live at 4535 Evans but merely slept there occasionally.
And there was strong evidence that Rhodes regularly used the premises to store,
weigh, and package a variety of illegal drugs which he then distributed in a car that
prominently displayed a symbol advertising drug distribution. A digital scale with
cocaine residue, hydrocodone pills packaged for sale, additional packaging materials,
and a loaded pistol were all found in the room that Rhodes identified as his or under
a cushion where he slept, strong circumstantial evidence that he used 4535 Evans for
drug distribution. The testimony of Stanley Burgess suggested that the house had no
other purpose during the time in question. As circumstantial evidence alone may
support a conviction under § 856(a)(1), see United States v. Howell, 

, 741
(8th Cir. 1994), this evidence was plainly sufficient to support the jury’s verdict.
Compare United States v. Wood, 

, 919 (10th Cir. 1995); United States
v. Smith, 359 Fed. App’x 124, 127 (11th Cir. 2010) (unpublished); United States v.
Wadley, 185 Fed. App’x 137, 140, 142 (3d Cir. 2006) (unpublished).




                                          -5-
       Rhodes argues that the evidence was insufficient because there was no direct
evidence that he sold drugs or that police ever observed a drug transaction at 4535
Evans. But “neither the sale of narcotics nor the possession of such are elements of
the instant offense, so long as the premises were being maintained for one of the
forbidden purposes . . . .” United States v. Snow, 

, 71 (2d Cir. 2006), cert.
denied, 

(2007); see United States v. Verners, 

, 294, 297
(10th Cir. 1995). “Accordingly, the district court did not err in denying [Rhodes’s]
motion for judgment of acquittal, nor did it abuse its discretion in denying his motion
for a new trial.” United States v. Johnson, 

, 668 (8th Cir. 2013).

                                          II.

       Following counsel’s submission of the Brief of Defendant-Appellant, we
denied Rhodes’s pro se motion for leave to file a supplemental brief, as we
customarily do when a party is represented by counsel. One month later, Rhodes filed
a pro se Motion for Reconsideration of this order, arguing that Bailey v. United
States, 

(2013), decided after the filing of counsel’s brief, established
that the district court erred in denying Rhodes’s motion to suppress. We grant the
Motion for Reconsideration and reject this contention on the merits.

       In Bailey, interpreting and applying Michigan v. Summers, 

(1981), the Supreme Court held that, once an individual has left the immediate
vicinity of a premises that is being searched or is about to be searched pursuant to a
search warrant, his involuntary detention must be justified by some rationale other
than that it is incident to execution of the 

. Here,
Rhodes argues, the officers violated this principle when they detained him after
stopping a car that departed from 4535 Evans and transported him back to the
premises to be searched. We agree the rule in Bailey applies because it was decided
while Rhodes’s conviction was on direct appeal. However, we conclude that the
district court’s suppression order complied with this rule. The Magistrate Judge’s

                                          -6-
Report and Recommendation perfectly anticipated Bailey, noting that “Summers does
not apply to this case because Rhodes was not on the premises when he was
detained,” but concluding that the detention was lawful because the officers had
independent probable cause to detain Rhodes. We agree with this analysis. Because
the issue has been considered and rejected on the merits in this direct appeal, it may
not be raised in a motion for post-conviction relief under 28 U.S.C. § 2255 or § 2241.

      The judgment of the district court is affirmed.

LOKEN, Circuit Judge, concurring.

      I join the opinion of the court. I write separately to address an additional issue.

       In arguing that Rhodes’s conviction be affirmed, the government urged us to
review the sufficiency of the evidence under a “significant purpose” standard
allegedly articulated in United States v. Payton, 

, 1043 (8th Cir.), cert.
denied 

(2011). In my view, the court properly declines this misguided
invitation. In Payton, we held that the district court did not err in declining to give
a requested instruction defining the statutory “purpose” element of the offense,
explaining that the meaning of that term “lies within the common understanding of
jurors and needs no further elaboration.” 

discussing the issue, we
observed that § 856(a)(1) “does not require that drug distribution be the primary
purpose, but only a significant purpose” (emphasis in original). Here, the district
court did not instruct that drug distribution must be “the primary purpose,” merely
“one of the primary or principal uses.” Looking at the question from a juror’s
perspective, I discern no meaningful difference between “a significant purpose” and
“one of the primary or principal uses.” Thus, there was no abuse of the district
court’s substantial discretion in formulating jury instructions.




                                          -7-
       In Payton and in Rhodes, two district courts took different approaches to this
instruction issue after two different trials. One concluded the “purpose” element
needed no special definition; the other thought the Model Instruction would be
helpful to the jury. It does not confuse or corrupt this element of the statutory offense
if we conclude that neither approach abused the district court’s discretion to decide
how to better assist the jury in a particular case. Rather, the government’s argument
reflects a failure to comprehend our abuse-of-discretion standard of review.
                         ______________________________




                                          -8-