United States v. Martin Perkins ( 1996 )


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  •                                _____________
    No. 95-3880
    _____________
    United States of America,              *
    *
    Plaintiff-Appellee,        *      Appeal from the United States
    *      District Court for the
    v.                                *      Southern District of Iowa.
    *
    Martin Perkins,                        *
    *
    Defendant-Appellant.       *
    _____________
    Submitted:    March 12, 1996
    Filed:   August 23, 1996
    _____________
    Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
    _____________
    HANSEN, Circuit Judge.
    Martin Perkins was charged by grand jury indictment with one count
    of possession of cocaine base with intent to distribute in violation of 21
    U.S.C. § 841(a)(1), and using and carrying a firearm during and in relation
    to a drug trafficking offense in violation of 18 U.S.C. § 924(c).        His
    first trial ended in a hung jury.     At his second trial, the jury found him
    guilty of the possession with intent to distribute charge but could not
    reach a verdict on the firearms charge.        The district court1 sentenced
    Perkins   to 135 months' confinement on the drug conviction, and the
    government elected to dismiss the firearms charge with prejudice.    Perkins
    appeals both his conviction and sentence.      We affirm.
    1
    The Honorable Charles R. Wolle, Chief Judge, United States
    District Court for the Southern District of Iowa.
    I.
    When viewed in the light most favorable to the verdict, the evidence
    at trial established that on the evening of December 4, 1994, a woman who
    identified herself as Keisha Bateman telephoned the Burlington, Iowa,
    police department to report that she was involved in a domestic dispute
    with the defendant at his apartment and that he had pointed a gun at her
    and assaulted her.    She also told the police that the defendant was cutting
    up a quantity of crack cocaine and that he had a large stack of cash beside
    him as he did so.
    Later that evening, police officers obtained and executed a state
    court search warrant for Perkins' apartment.       Officers observed Perkins
    entering the living room from the bedroom.    There were no other persons in
    the apartment, Perkins told the officers he was the only person living
    there, and there was but a single bed.          Perkins was arrested on an
    outstanding Illinois warrant.    A pager device, which Perkins said he wore
    because his sick grandmother often paged him, was taken from his person
    when it beeped.      Stored in its memory and displayed on its readout were
    several telephone numbers, one of which was followed by the numbers 911.
    Testimony indicated those three numbers were a code used by crack addicts
    to indicate to a supplier that the addict needed drugs as soon as possible.
    In the bedroom, officers seized $5,723 in cash found in two socks in a
    footlocker; several pieces of crack individually wrapped in torn off
    corners of plastic sandwich bags, which were found in two sandwich bags
    within a plastic shopping bag located between the footlocker and the wall;
    and two razor blades in the pocket of a pair of pants.        Officers found
    several plastic bags with the corners cut out in the kitchen and a razor
    blade with crack residue in the kitchen garbage.    Also seized were various
    bills and letters addressed to the residence in the names of Martin
    Perkins, Clint Coleman, and Edward Perkins.     A leather wallet with
    -2-
    two photo identification cards of the defendant (one of them a Michigan
    driver's license) was found in the same footlocker in the bedroom which
    held the cash, and a fully loaded Colt Delta Elite 10 mm pistol was found
    in a shoe in the closet of the bedroom.      A quantity of ammunition for the
    weapon was also located and seized.     While the search was being conducted,
    two men, one who identified himself as Edward Perkins and who said he lived
    there, and the other who would not identify himself, came to the door and
    wanted to enter.   Entry was denied.
    Keisha Bateman turned out to be Kela Cooper who had used a false name
    when making the call to the police department.         She testified about the
    events which preceded her telephone call to the police including her
    observations of the defendant cutting up crack cocaine in his living room
    with a substantial amount of cash at hand.
    II.
    Perkins appeals his conviction, contending that there is insufficient
    evidence to support the jury's verdict, that the government knowingly
    presented perjured testimony, that the district court erred in admitting
    evidence of his prior conviction for possession of crack cocaine, and that
    he received ineffective assistance of counsel at trial in violation of his
    Sixth Amendment right.   He appeals his sentence, challenging the enhanced
    statutory   penalties    for   crack   cocaine   and   the   district   court's
    determination of the quantity of drugs for which he should be held
    accountable.
    A.
    The defendant's claim that the government knowingly presented false
    testimony at the defendant's second trial, if true, would violate the Due
    Process Clause.    United States v. Bagley, 473 U.S.
    -3-
    667, 678 (1985); Napue v. Illinois, 
    360 U.S. 264
    , 269 (1959); United States
    v. Martin, 
    59 F.3d 767
    , 770-71 (8th Cir. 1995).
    The allegedly false testimony in this case involves the location
    where the defendant's Michigan driver's license was found during the
    search.     At   the    defendant's   first    trial,     Deputy   Sheriff   Salsberry
    identified a photograph as being taken during the search and as depicting
    a pair of white jeans with two razor blades and a photo ID laying on top
    of them.   He testified that the razor blades and the ID had been found in
    the pockets of the jeans and placed on top of the jeans for photographing,
    that the ID was not the Michigan driver's license found in the wallet in
    the footlocker, and that neither the jeans nor the ID depicted in the photo
    had been seized.       From his testimony, a fact finder could have concluded
    that   three IDs of the defendant were found during the search, two
    (including the Michigan driver's license) in the wallet in the footlocker
    and one in the pocket of the jeans, but only the two in the wallet were
    seized.    Defense      counsel,   working    from   an   enlargement   of   the   same
    photograph, clearly demonstrated in the cross-examination of the deputy
    that the photo ID depicted in the photograph on top of the jeans was in
    fact the same Michigan driver's license that the deputy's testimony
    indicated had been found in the defendant's wallet in the footlocker.               The
    prosecutor so stipulated.      The jury was unable to reach a verdict on the
    drug count.
    At the second trial, Deputy Salsberry testified that from his
    recollection alone, he was unable to recall what type of ID he had found
    in the jeans but he was sure that it was not seized.           He further testified
    that he "now knows" that the ID in the photograph is in fact the Michigan
    driver's license he found in the defendant's wallet and that he does not
    know how it came to be photographed with the jeans.                The photograph was
    admitted with a stipulation by the parties that "[t]he government agrees
    that the
    -4-
    pants were not in the position originally located.         The government further
    agrees that the Michigan driver's license photographed with the pants was
    not found in those pants.       It was originally found in the wallet."         (Tr.
    of second trial at 72.)
    All of this conflicting evidence and the inferences to be drawn from
    it, was put before the second jury, and nothing was withheld from it
    concerning the Michigan driver's license.             The same conflicting and
    impeaching evidence was before the jury as it determined the credibility
    of Deputy Salsberry and the weight to give to his other testimony.               The
    second jury convicted the defendant on the drug charge.
    To prove prosecutorial use of false testimony that violates due
    process, Perkins must show:       (1) use of perjured testimony (2) that the
    prosecution knew or should have known was perjured, and (3) "a ``reasonable
    likelihood' that the perjured testimony could have affected the jury's
    judgment."   
    Martin, 59 F.3d at 770
    (quoting United States v. Nelson, 
    970 F.2d 439
    , 443 (8th Cir.), cert. denied, 
    506 U.S. 903
    (1992)).           Our review
    of the facts convinces us that there was no attempt by the government to
    mislead the second jury through the use of false or perjured testimony.
    The government held nothing back and laid all of the evidence about the
    Michigan   driver's   license    before    the   second   jury,   including   Deputy
    Salsberry's prior conflicting testimony.         The officer's testimony at both
    trials was that the Michigan driver's license was found in the wallet in
    the footlocker and that a third ID was found in the pants but not seized.
    It is his testimony at the first trial that the ID in the photograph was
    the one taken from the pants and that it was not the Michigan driver's
    license found in the footlocker which was directly impeached and disproved
    by the enlarged photograph.      The government candidly informed the second
    jury that the Michigan license shown in the photograph was not found in the
    pants.   The government did not advance at the second
    -5-
    trial the impeached testimony given by the officer at the first trial that
    the ID card in the photograph was not the Michigan 
    ID. Moreover, the
    officer's testimony at the second trial about the Michigan driver's license
    was consistent with the officer's contemporaneous written report and the
    search warrant inventory.     While the officer's impeached first trial
    testimony would also tend to impeach his other testimony that the Michigan
    driver's license was initially found in the footlocker, we are unable to
    say on this record that his testimony at both trials about finding the
    Michigan ID in the wallet in the footlocker was in fact perjured, and that
    the government knew or should have known it.   Indeed, at the second trial
    the stipulation between the parties included the sentence:          "It was
    originally found in the wallet."   No objection was made to that part of the
    stipulation by the defendant, and the stipulation was specifically agreed
    to in front of the jury.
    The jury was fully informed about the discrepancies, contradictions,
    and inconsistencies in the officer's testimony and was free to determine
    whether the officer's testimony about where he found the Michigan ID was
    in fact true.    While the inconsistency in the officer's testimony was
    serious and constituted excellent impeachment material for the defense, we
    are not convinced that the government was precluded from presenting his
    testimony as it did during the second trial.     We agree with the district
    court's conclusion that no due process violation occurred.   While no party
    is permitted to put on testimony that it knows or should know to be untrue,
    it is not improper to put on a witness whose testimony may be impeached.
    Truth determination is still the traditional jury function.          As the
    experienced district court judge said, "what we have is a classic case of
    questions for the jury concerning credibility of witnesses."        (Tr. of
    second trial at 12.)
    -6-
    B.
    In a ruling on a motion in limine before the first trial, the
    district court granted the government's request pursuant to Federal Rule
    of Evidence 404(b) to introduce evidence that the defendant had possessed
    crack cocaine on June 2, 1994, about six months before his arrest on the
    charges in the indictment.    The district court indicated that because of
    the way defense counsel had conducted voir dire, the evidence of the
    defendant's prior possession of crack cocaine would be admissible "to show
    knowledge of what crack cocaine is and knowledge that it is unlawful to
    have crack cocaine in one's possession."     The district court further stated
    that the government had the burden of proving that the defendant knew he
    was in possession of a controlled substance and that the defendant knew it
    was unlawful to have crack cocaine.       (Tr. of first trial at 11-13.)   The
    district court further indicated that before the testimony about the prior
    possession would be received, the government would be required to state the
    purpose for which it was offered to the jury, and "the court will instruct
    the jury that it is received only for a limited purpose."        (Id. at 12.)
    When the evidence about the prior possession was offered at the first
    trial, the defendant's Rule 404(b) objection was overruled, and the court
    specifically instructed the jury concerning the limited purposes for which
    they could use the evidence.      (Id. at 120.)      The instruction was not
    reiterated in the court's final instructions to the first jury because the
    defense specifically agreed that it not be given. (Id. at 211-12.)         The
    first trial ended in a hung jury.
    Before the start of the second trial, the court indicated that the
    limine ruling was the same.   At the second trial, and over a specific Rule
    404(b) objection, the government presented testimony from a police officer
    that on June 2, 1994, the defendant had been found in possession of eleven
    rocks of crack cocaine and that he
    -7-
    had been charged with possession of cocaine with intent to deliver as a
    result of that incident.          (Tr. of second trial at 203.)            The parties
    stipulated that the defendant pled guilty to simple possession as a result
    of the June 2, 1994, incident.            (Id. at 299-300.)            The second jury
    convicted the defendant of the possession of cocaine with intent to
    distribute charge.        Perkins contends that the district court erred by
    admitting the evidence of his other crime and by failing to give the jury
    an instruction limiting the purposes for which the evidence could properly
    be considered.
    In this circuit, "the trial court has broad discretion under [Rule
    404(b)], and will be reversed only when the evidence ``clearly has no
    bearing upon any of the issues involved.'"           United States v. DeLuna, 
    763 F.2d 897
    , 913 (8th Cir.) (quoting United States v. Wagoner, 
    713 F.2d 1371
    ,
    1375 (8th Cir. 1983); internal citation omitted), cert. denied, 
    474 U.S. 980
    (1985).   Rule 404(b) clearly states that evidence of other acts or
    wrongs "is not admissible to prove the character of a person in order to
    show action in conformity therewith."         Fed. R. Evid. 404(b).       Such evidence
    is admissible for the limited and specific purposes listed in the Rule.
    In order to be admissible for any one of the specific purposes set forth
    in Rule 404(b) (i.e., motive, opportunity, intent, preparation, plan,
    knowledge, identity, or absence of mistake), the evidence of the prior
    wrong must be "(1) relevant to a material issue raised at trial, (2)
    similar in kind and close in time to the crime charged, (3) supported by
    sufficient evidence to support a finding by a jury that the defendant
    committed   the   other    act,   and   (4)   not   the   cause   of    prejudice   that
    substantially outweighs its probative value."         United States v. Rogers, No.
    95-3660, 
    1996 WL 416721
    , at *2 (8th Cir. July 26, 1996).               In this circuit,
    "Rule 404(b) is a rule of inclusion, prohibiting only that evidence that
    tends solely to prove the defendant's criminal disposition."              United States
    v. Shoffner, 
    71 F.3d 1429
    , 1432 (8th Cir. 1995).
    -8-
    Our cases hold that generally the court should give the jury a
    limiting instruction informing them of the narrow purpose(s) for which the
    evidence was admitted.   United States v. Williams, 
    994 F.2d 1287
    , 1290 (8th
    Cir. 1993); United States v. Marion, 
    977 F.2d 1284
    , 1288 (8th Cir. 1992);
    Llach v. United States, 
    739 F.2d 1322
    , 1327 (8th Cir. 1984); United States
    v. Miller, 
    725 F.2d 462
    , 466 (8th Cir. 1984).          "Such an instruction
    diminishes the danger of any unfair prejudice arising from the admission
    of other acts."   United States v. Mays, 
    822 F.2d 793
    , 797 (8th Cir. 1987).
    As indicated above, when the district court decided the motion in
    limine before the first trial, it said the prior act was admissible "to
    show knowledge of what crack cocaine is and knowledge that it is unlawful
    to have crack cocaine in one's possession."     Defendant makes much of the
    fact that the government has no burden of proving that the defendant knew
    that it is unlawful to possess crack cocaine, and argues that the court
    erred in admitting the prior act for that purpose.    While the defendant is
    correct in asserting that the government had no burden to prove that he
    actually knew it was unlawful to possess crack cocaine, the court admitted
    the prior act for other reasons as well.    The court correctly admitted the
    prior act as tending to show the defendant knew he was in possession of a
    controlled substance.    The court's marshaling instruction required the jury
    to find "[t]hat defendant Martin Perkins knew he was in possession of a
    controlled substance."      (Instr. No. 12.)     Knowledge acquired by the
    defendant as a result of the previous offense (i.e., what the controlled
    substance crack cocaine is) was probative of his knowing possession of
    crack cocaine at the time charged in the Indictment.       Additionally, the
    prior offense was admissible to show intent.      The defendant was charged
    with possession of cocaine with the intent to distribute.      Consequently,
    the government had to prove that he had the intent to distribute.
    -9-
    Both knowledge and intent are specific purposes for which prior acts
    can be admitted under Rule 404(b).    Hence, evidence concerning the June 2,
    1994, possession conviction was relevant to issues raised at trial (i.e.,
    the defendant's knowing possession of a controlled substance and his intent
    at the time of the present offense).    It was similar in kind and within six
    months' time of the charged conduct.     See United States v. Wiley, 
    29 F.3d 345
    , 351 (8th Cir.) (evidence of prior possession of cocaine base less than
    20 months earlier admissible in prosecution for possession of cocaine base
    with intent to distribute), cert. denied, 
    115 S. Ct. 522
    (1994); United
    States   v. Sykes, 
    977 F.2d 1242
    , 1246 (8th Cir. 1992) (evidence of
    possession of controlled substance (PCP) in California admissible in
    prosecution in Minnesota for conspiracy to distribute PCP); United States
    v. Wint, 
    974 F.2d 961
    , 967 (8th Cir. 1992) ("evidence of an offense
    committed within the previous five years is reasonably close in time"),
    cert. denied, 
    506 U.S. 1062
    (1993).    The defendant stipulated to the prior
    guilty plea so there certainly was sufficient evidence to permit the jury
    to find that the defendant committed the prior bad act.
    Balancing the probative value of the prior conviction against any
    prejudicial impact it may have is within the broad discretion of the
    district court.   Here, the court minimized any such prejudice by carefully
    instructing the jury about when in their deliberations they could consider
    the prior act, if at all, and the limited purposes for which it could be
    considered.       Contrary to the impressions left with the court by the
    briefs and at oral argument that no limiting instruction of any kind with
    respect to the Rule 404(b) evidence had ever been given to the second jury,
    the district court did in fact give the jury a limiting instruction
    concerning the purposes for which the jury could consider the
    -10-
    evidence of the defendant's prior possession.2   Instruction No. 10A, "Prior
    Similar Acts," was given to the jury by the court before final arguments
    at the specific request of the defendant's trial counsel.    (Tr. of second
    trial at 250.)   It told the jury that they could not use the prior act as
    proof that the defendant did the acts charged in the indictment.    It also
    told them that the prior act could only be considered by them after they
    had determined from the other evidence in the case beyond a reasonable
    doubt that the defendant did the act or acts alleged in the count under
    consideration, and then they could only consider it in determining "the
    2
    Neither the defendant's appellate counsel nor the attorney
    for the government who argued before us was counsel at trial.
    The appellant's brief contained the following statements:
    Although the district court had
    stated it would give a limiting
    instruction and have the government
    inform the jury what purpose the
    prior conviction was being presented
    for, it failed to do either. (TT2 p.
    198). The court's failure to give a
    limiting instruction improperly
    prejudiced the jury requiring that
    Defendant receive a new trial.
    (Appellant's Br. at 21.)
    At no place in the appellant's brief is mention made that
    the district court included a Rule 404(b) limiting instruction in
    its formal final written instructions to the jury. At no place
    in the government's brief (which was authored by the government's
    trial counsel) are we informed that such a limiting instruction
    was in fact given. The instructions given by the district court
    were not contained in the clerk's record on appeal, and neither
    side filed an appendix. The tape recording of the oral argument
    demonstrates that the questions asked of counsel by the court all
    assumed that no limiting instruction of any kind was ever given
    to the jury, and that neither advocate told us a limiting
    instruction was in fact given. After reading the entire
    transcript, however, we believed the district court had given a
    limiting instruction. (See Tr. of second trial at 250, 301,
    304.) On our own motion, we obtained the district court's
    instructions from the district court and found that a limiting
    instruction had in fact been given to the jury.
    -11-
    state of mind or intent with which the defendant actually did the act or
    acts charged in the counts of the
    -12-
    Indictment."    (Instr. No. 10A.)        We do not believe the district court
    abused its broad discretion by admitting the very recent prior bad act for
    the limited purposes it explained to the jury.               See United States v.
    Escobar, 
    50 F.3d 1414
    , 1421-22 (8th Cir. 1995); United States v. Gustafson,
    
    728 F.2d 1078
    , 1084 (8th Cir.), cert. denied, 
    469 U.S. 979
    (1984).
    The defendant seems to argue that the district court should have, sua
    sponte, given the jury a limiting instruction at the point in the trial
    when the Rule 404(b) evidence was admitted, and that it was prejudicial
    error not to do so.      (Appellant's Br. at 22.)      We have never required a
    district court to do so.     In fact, we have never found it to be plain error
    when a court does not give a limiting instruction of any kind sua sponte
    with respect to Rule    404(b) type evidence.      United States v. McGuire, 
    45 F.3d 1177
    , 1188 (8th Cir.) ("The trial court need not issue a prior crimes
    limiting instruction sua sponte."), cert. denied, 
    115 S. Ct. 2558
    (1995);
    
    Williams, 994 F.2d at 1290
    ; United States v. Milham, 
    590 F.2d 717
    , 722 (8th
    Cir. 1979); United States v. Conley, 
    523 F.2d 650
    , 654 n.7 (8th Cir. 1975)
    ("In the absence of a specific defense request, however, no limiting
    instruction is required where the evidence was relevant to an issue in the
    case."   (citations omitted)).         In this case, the court gave a limiting
    instruction    after   the   defense   counsel   requested   it.   The   defendant
    complains that the district court did not follow exactly the procedure that
    it indicated it would when ruling on the motion in limine before the first
    trial.   We see no prejudice to the defendant in this respect.           When the
    district court did not give a limiting instruction at the precise time the
    defendant may have expected it, counsel could surely have asked for one or
    reminded the district judge of what he said he would do.                  What is
    significant is that the jury was, in fact, properly instructed about the
    limitations imposed on the evidence of the defendant's prior act.          Exactly
    when to so instruct is surely a matter within the district court's broad
    discretion, and
    -13-
    we respectfully decline to micro-manage how that discretion should be
    exercised.
    C.
    The appellant contends that the evidence considered by the jury was
    insufficient to support his conviction for possessing cocaine with the
    intent to distribute it.   "The standard of review of an appeal concerning
    sufficiency of the evidence is very strict, and the verdict of the jury
    should not be overturned lightly."    United States v. Burks, 
    934 F.2d 148
    ,
    151 (8th Cir. 1991).    In assessing this argument, we are required to view
    the evidence in the light most favorable to the verdict and to give the
    government all reasonable inferences to be drawn therefrom.   United States
    v. Suppenbach, 
    1 F.3d 679
    , 681-82 (8th Cir. 1993).
    In order to prove the possession of cocaine with the intent to
    distribute charge against the defendant, the government had to prove that
    he knowingly possessed cocaine with the intent to distribute.        United
    States v. Matra, 
    841 F.2d 837
    , 840 (8th Cir. 1988).       Possession may be
    either actual or constructive.    United States v. Townley, 
    942 F.2d 1324
    ,
    1325 (8th Cir. 1991).    "The jury's verdict must be upheld if there is an
    interpretation of the evidence that would allow a reasonable-minded jury
    to conclude guilt beyond a reasonable doubt."   United States v. Erdman, 
    953 F.2d 387
    , 389 (8th Cir.), cert. denied, 
    505 U.S. 1211
    (1992).
    The defendant argues that the discrepancies in and impeachment of
    Deputy Salsberry's testimony, coupled with the alleged incredibility of
    Kela Cooper's testimony, together with the mishandling of the Michigan
    driver's license at the scene of the crime, all add up to an insufficiency
    of the evidence.   Kela Cooper, who testified that she was the person who
    called the police and gave them a false name and false social security
    number, testified that she observed the defendant in the living room of the
    -14-
    apartment cutting up crack cocaine for sale and that he had what she
    estimated to be $1,000 in cash in front of him as he did so.              Kela Cooper
    is herself a convicted cocaine dealer and burglar who had been romantically
    spurned by the defendant, and who had expressed a desire to get revenge on
    him for his involvement with another woman.         All of the reasons Kela Cooper
    had for not telling the truth and for "setting up" the defendant were laid
    in front of the jury.        Whether or not her testimony was credible was an
    issue for the jury to decide.       Rogers, 
    1996 WL 416721
    , at *2 (citing United
    States v. Jenkins, 
    78 F.3d 1283
    , 1287 (8th Cir. 1996)); United States v.
    Hudson, 
    717 F.2d 1211
    , 1213 (8th Cir. 1983) ("It is for the jury, not a
    reviewing court, to evaluate the credibility of witnesses and to weigh
    their testimony.").    Her testimony was corroborated by the incriminating
    items (cash, plastic bags, crack, loaded weapon, razorblade with cocaine
    residue, pager with 911 coding) found by the officers during the search at
    a time when the defendant was physically in the apartment and when both
    direct and circumstantial evidence (including a listing of the apartment
    as his address in the local telephone book) showed he resided there.             After
    a careful reading of the transcript, we conclude that the evidence is more
    than sufficient to support the jury's verdict that the defendant knowingly
    possessed   cocaine   with    the   intent    to   distribute    it   under   either   a
    constructive or actual possession theory.
    D.
    At oral argument the appellant conceded that his claim of ineffective
    assistance of counsel should be made in a later proceeding pursuant to 28
    U.S.C. § 2255.   We agree the claim is premature.               See United States v.
    Thomas, 
    992 F.2d 201
    , 204 (8th
    Cir. 1993).
    -15-
    E.
    Perkins attacks 21 U.S.C. § 841(a) as being void for vagueness
    because it fails to distinguish between cocaine and cocaine base.                    This
    argument is foreclosed by this court's decisions in United States v. House,
    
    939 F.2d 659
    , 664 (8th Cir. 1991), and United States v. Jackson, 
    64 F.3d 1213
    , 1219 (8th Cir. 1995), cert. denied, 
    116 S. Ct. 966
    (1996).                      His
    argument that the rule of lenity should apply to equalize the penalties
    imposed for cocaine and cocaine base is likewise foreclosed by Jackson.
    
    See 64 F.3d at 1219-20
    .     We reject his request that this panel "review and
    reverse its prior decision in United States v. Jackson. . ."               (Appellant's
    Br. at 6.)     The suggestion for rehearing by the court en banc was denied
    in Jackson, 
    see 64 F.3d at 1213
    , and one panel of the court cannot reverse
    another panel.      Brown v. First Nat'l Bank in Lenox, 
    844 F.2d 580
    , 582 (8th
    Cir. 1988).
    F.
    Finally, the appellant asserts that the district court committed
    error when it converted one-third of the $5,723 in cash seized from the two
    socks ($4,000 in mostly $20 bills in one sock, and $1,723 in the second
    sock)    in   the   footlocker    into    a    quantity   of   cocaine   for   sentencing
    determination purposes.          We review the sentencing judge's drug quantity
    determination for clear error.           United States v. Newton, 
    31 F.3d 611
    , 614
    (8th Cir. 1994).      The presentence investigation report (PSIR) attributed
    the 32.05 grams of cocaine base seized at the apartment to the defendant.
    In addition, relying on information provided by the Burlington, Iowa,
    police department that crack cocaine was sold in that community for about
    $1,400 per ounce, the PSIR converted all of the $5,723 seized into its
    crack cocaine equivalent of 115.89 grams ($1,400 per ounce = $49.25 per
    gram.    $5,723 divided by $49.25 = 115.89 grams of cocaine base.).                Adding
    this calculated equivalent quantity and the
    -16-
    actual quantity seized together gave a total quantity for sentencing
    guideline purposes of 147.94 grams, which resulted in a recommended offense
    level of 32.    See United States Sentencing Commission, Guidelines Manual,
    § 2D1.1(c)(4) (Nov. 1994) (50-150 grams of cocaine base = level 32).      The
    defendant objected to using the cash seized from the footlocker to
    determine the quantity of cocaine base he should be held accountable for,
    arguing that the evidence linking the money to him rested on the impeached
    testimony of Deputy Salsberry that he found the defendant's wallet in the
    same footlocker.     The district court, after hearing argument from both
    sides, concluded that the government had not proved that all of the 115.89
    grams calculated from the $5,723 were attributable to the defendant.      The
    district court reasoned that because the money and the crack were "in the
    same vicinity, I find that at least a third of the money can reasonably be
    attributed to crack cocaine."    (Sent. Tr. at 10-11.)    The court reasoned
    further that a third of the money represented approximately 40 grams of
    cocaine base which, when added to the 32.05 grams seized, totaled at least
    72 grams attributable to the defendant.    Seventy-two grams falls within the
    offense level 32 range for 50-150 grams of cocaine base.     The defendant's
    criminal history score was 3, placing him in Criminal History Category II,
    resulting in a guideline range of 135-168 months of confinement.   The court
    imposed a sentence of 135 months' confinement, no fine, 5 years of
    supervised release, and a $50 special assessment.
    Defendant contends that the district court's use of one-third of the
    money as representing crack cocaine proceeds was error.    We have said that
    we will reverse a determination of drug quantity only if the entire record
    definitely and firmly convinces us that a mistake has been made.      United
    States v. Simmons, 
    964 F.2d 763
    , 773 (8th Cir.), cert. denied, 
    506 U.S. 1011
    (1992).    Here the PSIR disclosed that Perkins was unemployed and had
    been so for a year before his arrest.      He claimed he had no assets.   The
    PSIR revealed
    -17-
    some $2,400 in debt.      His adjusted gross income for 1991 was $1,559, for
    1992 was $2,209, and for 1993 was $2,767.          The seized cocaine base was
    located between the footlocker containing the cash and the wall.                 The
    defendant was observed with a sizable amount of cash (estimated at $1,000)
    at the time he was cutting up crack cocaine just a few hours before his
    arrest.
    Here,     the   district   court   approximated   the   quantity   of   cocaine
    attributable to the defendant pursuant to application note 12 to USSG
    § 2D1.1 ("where . . . the amount seized does not reflect the scale of the
    offense, the court shall approximate the quantity of the controlled
    substance.   In making this determination, the court may consider . . . the
    price generally obtained for the controlled substance . . .").           Given the
    defendant's lack of employment for the year before the offense and his
    minimal income in the three years before that, and the fact he was observed
    with both cash and crack shortly before the search, we cannot say that the
    district court was clearly erroneous when it held that only one-third of
    the seized cash would be converted to its cocaine equivalency.           Some line
    drawing is necessary when approximations are made.       Even if only 20 percent
    of the money was drug proceeds, it would still result in an additional 23
    grams which, when added to the 32.05 grams actually seized, would still put
    the defendant at a base offense level of 32.            We believe the district
    court's conservative approach was correct, and its quantity determination
    is affirmed.
    III.
    Accordingly, for the reasons stated, the judgment of the district
    court is affirmed.
    -18-
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -19-
    

Document Info

Docket Number: 95-3880

Filed Date: 8/23/1996

Precedential Status: Precedential

Modified Date: 10/13/2015

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