United States v. Collins ( 1999 )


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  •                                                                                F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    AUG 24 1999
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                           No. 98-3111
    BERNARD J. COLLINS,                                   (D.C. No. 97-CR-20047)
    (D. Kan.)
    Defendant-Appellant.
    ORDER AND JUDGMENT*
    Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
    A jury convicted Defendant-Appellant Bernard J. Collins of possessing with intent
    to distribute approximately 262 grams of cocaine base and 882 grams of cocaine powder
    in violation of 
    21 U.S.C. § 841
    (a)(1) (Count I); attempting to distribute approximately
    28.6 grams (one ounce) of cocaine base in violation of 
    21 U.S.C. § 846
     (Count II);
    and carrying a firearm during a drug trafficking crime in violation of 
    18 U.S.C. § 924
    (c)
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    **
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
    ordered submitted without oral argument.
    (Count III). The district court sentenced Defendant to 322 months imprisonment,
    consisting of 262 months on the first two counts, to run concurrently, and 60 months on
    the third count, to run consecutively. On appeal, Defendant argues that (1) the first two
    counts of the indictment were multiplicitous; (2) the court improperly admitted Rule
    404(b) evidence at trial; (3) the evidence was insufficient for sentencing purposes to
    prove the presence of cocaine base; and (4) the cocaine base/cocaine powder sentencing
    differential violates due process. Our jurisdiction arises under 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    . We affirm.
    The historical facts are largely undisputed. A police informant set up a purchase
    of one ounce of cocaine base from Defendant. Upon Defendant’s arrival at the
    informant’s home, authorities arrested him. During Defendant’s apprehension, a police
    officer observed Defendant drop a plastic bag containing an off-white rock substance.
    The bag contained approximately one ounce of cocaine base. Officers also recovered a
    gun, a pager, and over $70,000 in cash from Defendant. A search of Defendant’s vehicle
    revealed an additional 262 grams of cocaine base and 882 grams of cocaine powder. The
    indictment against Defendant followed.
    Defendant first argues that Counts I and II of the indictment were multiplicitous,
    and thus he was subjected to multiple punishments arising from the same criminal
    behavior in violation of the Double Jeopardy Clause. See U.S. Const. amend. V. We
    review claims of multiplicity de novo. United States v. Segien, 
    114 F.3d 1014
    , 1022
    2
    (10th Cir. 1997). Multiplicity refers to multiple counts of an indictment which cover the
    same criminal behavior. The threat of multiple convictions and sentences for the same
    offense raises double jeopardy concerns. United States v. Johnson, 
    130 F.3d 1420
    ,
    1424 (10th Cir. 1997).
    Defendant’s claim that the two instances of criminal conduct charged in Counts I
    and II of the indictment constitute only one crime has little merit. Count I of the
    indictment charged Defendant with possessing with an intent to distribute a large quantity
    of cocaine base and cocaine powder which authorities located inside his vehicle following
    his arrest, in violation of 
    21 U.S.C. § 841
    (a)(1). Count II charged Defendant with
    attempting to distribute a smaller quantity of cocaine base which Defendant dropped from
    his person upon his arrest, in violation of 
    21 U.S.C. § 846
    . The one ounce of cocaine
    base which Defendant dropped was the type and amount Defendant had previously agreed
    to distribute to the informant.
    The facts of this case clearly indicate that on the date of his arrest, Defendant
    attempted to distribute one ounce of cocaine base to the informant. Defendant meanwhile
    possessed the much larger quantity of cocaine base and cocaine powder located in his
    vehicle for distribution at a later time. Thus, despite the temporal proximity of
    Defendant’s criminal conduct, his attempt to immediately distribute one ounce of cocaine
    base to the informant, and his possession with the intent to distribute the much larger
    quantity of cocaine base and powder at a later time, constitute separate crimes
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    chargeable under separate criminal statutes. Compare United States v. Palafox, 
    764 F.2d 558
    , 560 (9th Cir. 1985) (en banc) (where defendant distributed a sample of drugs and
    retained the remainder for the purpose of making a further immediate distribution to the
    same recipient at the same place and time, defendant could be punished for only one
    criminal act). Accordingly, we reject Defendant’s argument that Counts I and II of the
    indictment were multiplicitous.
    Defendant next argues that the district court erred when pursuant to Fed. R. Evid.
    404(b), it allowed the government to introduce evidence of his 1989 conviction for
    conspiracy to possess crack cocaine. We review admission of evidence under Rule
    404(b) for an abuse of discretion. United States v. Lazcano-Villalobos, 
    175 F.3d 838
    ,
    846 (10th Cir. 1999). Four requirements must be met before evidence of other crimes is
    admissible: (1) the evidence must be introduced for a proper purpose; (2) the evidence
    must be relevant; (3) the unfair prejudice to defendant must not substantially outweigh the
    evidence’s probative value; and (4) upon request, a limiting instruction must be tendered.
    Huddleston v. United States, 
    485 U.S. 681
    , 691-92 (1988). Defendant challenges the
    district court’s determination that evidence of his conviction was relevant and its
    probative value was not substantially outweighed by its prejudicial impact.
    At trial, Defendant claimed he was a pawn in the informant’s operation and all the
    cocaine in his vehicle belonged to the informant. The district court ruled that evidence of
    Defendant’s prior conviction was relevant for the purpose of showing opportunity. See
    4
    Fed R. Evid. 404(b) (evidence of other crimes may be admissible to show opportunity).
    The district court reasoned that Defendant’s prior conviction proved he had other sources
    from which he could obtain cocaine. The court concluded: “It isn’t an opportunity to
    distribute that we’re talking about. We’re talking about the source issue.” Consistent
    with Huddleston, the district court also applied Fed. R. Evid. 403 and ruled that the
    potential prejudice to Defendant did not substantially outweigh the evidence’s probative
    value. Finally, the court tendered an appropriate limiting instruction to the jury. Given its
    careful application of Huddleston, we cannot say on the record before us that the district
    court abused it’s discretion in allowing the Rule 404(b) evidence.
    Thirdly, Defendant argues that because the government failed to present evidence
    regarding the presence of baking soda within the cocaine base, the evidence was
    insufficient to establish that he possessed cocaine base as opposed to cocaine powder.
    Thus, Defendant claims we should vacate his sentence on Counts I and II and remand for
    application of the less harsh cocaine powder guideline. See U.S.S.G § 2D1.1(c) (equating
    one gram of cocaine base to 100 grams of cocaine powder). At sentencing, the
    government need only prove by a preponderance of the evidence that cocaine within a
    defendant’s possession constitutes cocaine base. United States v. Brooks, 
    161 F.3d 1240
    ,
    1248 (10th Cir. 1998) (where the evidence at trial demonstrated by a preponderance of the
    evidence that the substance was “street-form crack,” the district court properly calculated
    defendant’s base offense level premised on the distribution of cocaine base). We review
    5
    the district court’s factual finding that a challenged substance constitutes cocaine base
    only for clear error. United States v. Bencomo-Castillo, 
    176 F.3d 1300
    , 1303 (10th Cir.
    1999).
    In Brooks, 
    161 F.3d at 1247-49
    , we squarely rejected the proposition that before
    the district court may properly find a substance constitutes cocaine base, the government
    must present evidence that the substance contains sodium bicarbonate or baking soda.
    Brooks controls here. In this case, the government presented the testimony of a DEA
    chemist who conducted a series of tests on the cocaine. Based upon those tests, the
    chemist concluded that the challenged substance was cocaine base. The district court
    did not err in its finding that the evidence was sufficient to establish the substance as
    cocaine base. See 
    id. at 1247
    .
    Finally, Defendant argues that the cocaine base/cocaine powder sentencing
    differential violates the due process guarantees of the Fifth Amendment. See U.S.
    Const. amend. V; U.S.S.G. § 2D1.1(a). This argument has long been foreclosed by
    circuit precedent. E.g., United States v. Turner, 
    928 F.2d 956
    , 959-60 (10th Cir. 1991)
    (holding that different penalties for cocaine base and cocaine in other forms do not violate
    due process). Absent en banc review, we are not empowered to alter that precedent. See
    United States v. Nichols, 
    169 F.3d 1255
    , 1261 (10th Cir. 1999) (one
    6
    panel cannot overrule the judgment of a prior panel of the court).
    AFFIRMED.
    Entered for the Court,
    Bobby R. Baldock
    Circuit Judge
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