United States v. Crawford ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 23 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-7045
(D.C. No. CR-97-24-3-S)
MARK CRAWFORD, (E.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK , BARRETT , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In this direct criminal appeal, defendant challenges his convictions on
seven drug trafficking charges, and his resulting concurrent sentences of 240 and
262 months’ imprisonment. Regarding his convictions, defendant argues that the
trial court 1) violated Fed. R. Crim. P. 11; 2) should have granted a judgment of
acquittal on the conspiracy charge due to a lack of evidence; 3) erred in allowing
an in-court identification of defendant that was based upon an impermissibly
suggestive out-of-court photographic identification; and 4) should have precluded
the testimony of the government’s cooperating witness. In challenging his
sentences, defendant argues that the district court 1) erred in classifying him as a
career offender; and 2) permitted the government to increase his sentences
improperly by making multiple controlled purchases of crack cocaine from
defendant, for no other reason that to increase the amount of crack cocaine for
which he could be sentenced. We affirm.
I. CONVICTIONS
Defendant contends that the trial court violated Fed. R. Crim. P. 11 by
allowing a government witness to identify defendant’s recorded voice, based upon
the witness’s having heard defendant speak during plea negotiations. This court
interprets federal rules de novo. See United States v. Roman-Zarate , 115 F.3d
778, 781 (10th Cir. 1997).
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Rule 11(e)(6) generally precludes the admission against a defendant of
statements made during plea discussions. See also Fed. R. Evid. 410. Because
the trial court did not admit any substantive statements made during the plea
negotiations, however, the court did not violate Rule 11(e)(6) by allowing the
government witness to identify defendant’s voice based upon his observations
made during the plea discussions. See United States v. Oriakhi , 57 F.3d 1290,
1299-1300 (4th Cir. 1995).
Defendant next argues that there was insufficient evidence to support his
conspiracy conviction. Because defendant failed to renew his motion for acquittal
after he presented evidence on his behalf, this court will review this claim only
for manifest error. See United States v. Walker , 915 F.2d 1463, 1466 (10th Cir.
1990). Nonetheless, the legal question for de novo review remains the same –
whether “on the basis of the whole record, [t]he evidence . . . is sufficient, . . .
when taken in the light most favorable to the government, [that] a reasonable
[trier of fact] could find the defendant guilty beyond a reasonable doubt.” United
States v. Cox , 929 F.2d 1511, 1514 (10th Cir. 1991) (further quotation omitted).
The record does contain sufficient evidence to support defendant’s
conspiracy conviction. Among other things, the evidence established a direct
connection between an ongoing drug trafficking conspiracy headed by Gregory
Gordon and the house from which defendant sold crack to the government’s
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cooperating witness. Further, the cooperating witness had previously purchased
crack from Mr. Gordon and another of his conspirators at the same house.
Defendant stated to the cooperating witness that Mr. Gordon was defendant’s
uncle, and that defendant got his “stuff” from Mr. Gordon. This evidence was
sufficient to support defendant’s conspiracy conviction. See generally United
States v. Vaziri , 164 F.3d 556, 565 (10th Cir. 1999) (setting forth necessary
elements of conspiracy).
Defendant argues that his convictions resulted from an improperly
suggestive out-of-court photographic identification, asserting that law
enforcement agents showed the cooperating witness a single photograph, from
which she identified defendant as the individual from whom she had purchased
crack cocaine on six previous occasions. Because he did not raise this issue
before the district court, we review this argument only for plain error. See
Haskins v. United States , 433 F.2d 836, 838 (10th Cir. 1970) (citing
Fed. R. Crim. P. 52(b)).
Even assuming that the out-of-court photographic identification was unduly
suggestive, the subsequent in-court identification was, nevertheless, reliable when
viewed under the totality of the circumstances. See United States v. Smith , 156
F.3d 1046, 1050 (10th Cir. 1998), cert. denied , 119 S. Ct. 844 (1999); United
States v. Flores , 149 F.3d 1272, 1278-79 (10th Cir. 1998), cert. denied , 119 S. Ct.
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849 (1999). The cooperating witness had met with, and attempted to purchase
crack from, defendant on seven or eight separate occasions. See United States v.
Klein , 93 F.3d 698, 702 (10th Cir. 1996) (in-court identification was sufficiently
reliable, despite suggestive pretrial photo identification, where witness met with
defendant on three occasions to negotiate or conduct controlled substance
transactions). On one of these occasions, the cooperating witness was able to
identify defendant at a car wash, rather than at the crack house where she usually
purchased drugs from him. Additionally, she was able accurately to describe
defendant to law enforcement officials. See id. (in-court identification was
sufficiently reliable where, among other things, witness was able to describe
defendant accurately, except for height). In light of the totality of these
circumstances, there is not a substantial likelihood that the cooperating witness
misidentified defendant. See Smith , 156 F.3d at 1051 (describing five factors to
be weighed against corruptive effect of suggestive pretrial identification).
Defendant further contends that the trial court should have precluded the
testimony of the government’s cooperating witness in light of United States v.
Singleton , 144 F.3d 1343 (10th Cir. 1998). This court, however, has
subsequently overturned that decision. See United States v. Singleton , 165 F.3d
1297 (10th Cir. 1999) (en banc).
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II. SENTENCING
Defendant challenges his sentences, arguing that the district court erred in
classifying him as a career offender based upon the court’s determination that his
prior Oklahoma felony conviction for throwing rocks at an occupied moving
school bus was a crime of violence. See U.S.S.G. § 4B1.1. We review de novo
the district court’s determination that defendant was a career offender. See
United States v. Mitchell , 113 F.3d 1528, 1532 (10th Cir. 1997), cert. denied , 118
S. Ct. 726 (1998).
For purposes of determining whether a defendant is a career offender, the
Sentencing Guidelines define a crime of violence, in pertinent part, as a state or
federal offense, punishable by imprisonment for a term exceeding one year, that
“has as an element the use, attempted use, or threatened use of physical force
against the person of another, . . . or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).
Defendant pled guilty to “unlawfully, wilfully, knowingly . . . throw[ing] or
drop[ping] a rock on or at . . . a [s]chool bus, while [it] was travelling East on
Highway 270, . . . and being driven occupied by one Bobby Walker,” R. vol. VI,
Government’s Amended Objection to Presentence Report, ex. 87, a felony under
Oklahoma law punishable by up to ten years’ imprisonment, see Okla. Stat. Ann.
tit. 47, § 11-1111. Because the conduct to which he pled guilty, “by its nature
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presented a serious potential risk of injury,” United States v. Coronado-Cervantes ,
154 F.3d 1242, 1244-45 (10th Cir. 1998), the district court did not err in
classifying defendant as a career offender under § 4B1.1.
Lastly, defendant argues that the government improperly increased the
amount of controlled substances for which he was sentenced by continuing to
make controlled buys after it had gathered sufficient evidence against him.
While, absent a legitimate investigatory purpose, the government “could not
continue to conduct these transactions ad infinitum thereby constantly increasing
the charges,” United States v. Harris , 997 F.2d 812, 818-19 (10th Cir. 1993), the
district court found that the government had a legitimate investigatory purpose for
the number of controlled buys it made from defendant. That factual finding was
not clearly erroneous. See United States v. Baker , 63 F.3d 1478, 1499 (9th Cir.
1995). “Police must be given leeway to probe the depth and extent of a criminal
enterprise to determine whether coconspirators exist, and to trace the drug deeper
into the distribution hierarchy.” Harris , 997 F.2d at 819 (further quotation
omitted). The government’s conduct in this case, therefore, was not sufficiently
outrageous to violate due process. See id. ; see also, e.g. , Baker , 63 F.3d at 1500;
United States v. Barth , 990 F.2d 422, 425 (8th Cir. 1993).
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The judgment of the United States District Court for the Eastern District of
Oklahoma is, therefore, AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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