United States v. Frank Roy Marsalla ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1938WM
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United States of America, *
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Appellee, *
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v. *
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Frank Roy Marsalla, *
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Appellant. *
______________ Appeals from the United States
District Court for the Western
No. 98-1984WM District of Missouri.
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United States of America, *
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Appellee, *
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v. *
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Letti K. Rivera, also known as Letti K. *
Wright, *
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Appellant. *
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Submitted: December 15, 1998
Filed: January 19, 1999
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Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
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FAGG, Circuit Judge.
Frank Roy Marsalla and Letti K. Rivera were involved in a large-scale drug
conspiracy. Following their arrests, Marsalla pleaded guilty to several conspiracy and
substantive drug-related offenses, and Rivera elected to go to trial where a jury
convicted her of conspiracy to distribute Schedule II controlled substances. Marsalla
appeals his sentence and Rivera appeals her conviction and sentence. We affirm.
Marsalla contends the Government failed to prove he purchased crack cocaine
instead of another type of cocaine in December of 1995, and thus the district court
improperly sentenced him under the crack cocaine guidelines. At sentencing, Urena
Lowe, one of Marsalla’s codefendents, testified she sold Marsalla crack cocaine in
November and December of 1995. For the November sale, Lowe purchased cocaine
in powder form and processed it into crack cocaine herself, which turned the substance
into “little stones” with a “creamy milky color.” Marsalla does not challenge the
district court’s finding that the substance involved in this transaction was crack
cocaine.
Instead of making the crack cocaine for the December transaction, Lowe
purchased the substance from a known supplier who made crack cocaine with
“ammonia and baking soda.” The supplier sent the substance to Lowe’s residence in
a clear plastic bag. Although Lowe did not remove the substance from the bag, she
saw it was a “more solid piece of rock. . . . The same substance, creamy, milky white.”
Besides making the crack cocaine sold to Marsalla in November, Lowe observed and
dealt with crack cocaine “three or four times a month” from May to November of
1995. Because of her familiarity with the drug, Lowe testified she had “no doubt” the
rock-like substance sold to Marsalla in the December transaction was crack cocaine.
Marsalla called a chemist who vigorously challenged Lowe’s ability to identify the
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disputed substance as crack cocaine. Although the chemist testified that crack cocaine
could not be made with ammonia, he acknowledged that mixing cocaine with ammonia
and baking soda would produce crack cocaine. Based on Lowe’s experience with
crack cocaine as a maker, buyer, handler, observer, and seller, the district court found
that Marsalla purchased crack cocaine in December.
Crack cocaine “usually has a distinctive appearance and form” that makes it
easily recognizable to a person who is experienced with the drug. United States v.
Brown, 156 F.3d 813, 816 (8th Cir. 1998). Although the record presented the district
court with conflicting views about Lowe’s ability to identify the challenged substance,
the Government’s evidence showed that Lowe’s real-life experiences enabled her to
recognize crack cocaine when she saw it. See United States v. Paiva, 892 F.2d 148,
155-57 (1st Cir. 1989). Thus, the district court justifiably relied on Lowe’s well-
grounded opinion that the substance was crack cocaine. See id. at 157; see also
Brown, 156 F.3d at 816 (district court relied on lay witnesses’ experience in
identifying crack cocaine); United States v. Cantley, 130 F.3d 1371, 1378-79 (10th Cir.
1997) (same), cert. denied, 118 S. Ct. 1098 (1998); United States v. Taylor, 116 F.3d
269, 273-74 (7th Cir. 1997) (same). Additionally, Marsalla’s failure to offer evidence
that he complained about the quality of the substance he received from Lowe “is strong
confirmation that [Lowe] was selling genuine crack.” Brown, 156 F.3d at 816.
Finally, relying on the preponderance of the evidence standard, Marsalla contends “the
Government [failed] to prove at sentencing the type of drug attributable to [him].” We
disagree. Having carefully considered the record, we can neither say the Government
failed to satisfy this burden, see United States v. Monroe, 978 F.2d 433, 435 (8th Cir.
1992), nor the district court committed clear error when it chose between two
permissible views of the evidence, see United States v. Rice, 49 F.3d 378, 385 (8th Cir.
1995).
We also reject Rivera’s contentions. First, Rivera contends the Government
failed to prove she conspired with Marsalla to distribute various illegal drugs. After
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reviewing the record in a light most favorable to the verdict, we believe sufficient
evidence exists from which a reasonable jury could find beyond a reasonable doubt that
Rivera was guilty of conspiring to distribute Schedule II controlled substances. See
United States v. Ortiz, 125 F.3d 630, 633 (8th Cir. 1997), cert. denied, 118 S. Ct. 1087(1998). The Government offered recordings of telephone conversations between
Rivera and Marsalla that contained coded references to drug-distribution activity,
information on drug sources, and discussions on how to process cocaine into crack
form. Next, Rivera contends the Government proved the existence of multiple
conspiracies rather than a single conspiracy to distribute a number of different drugs.
We disagree. The Government proved the existence of a single conspiracy by
presenting abundant evidence that showed Rivera participated with other coconspirators
sharing a common purpose and objective under one overall agreement. See United
States v. Summers, 137 F.3d 597, 602 (8th Cir. 1998). Finally, having only considered
the amount of drugs directly attributable to Rivera rather than the entire amount
chargeable to the conspiracy, the district court properly refused Rivera’s request for a
minimal participant reduction to her sentence. See United States v. McCarthy, 97 F.3d
1562, 1573-74 (8th Cir. 1996), cert. denied, 117 S. Ct. 1011 (1997), and 117 S. Ct.
1284 (1997).
We affirm Marsalla’s sentence and Rivera’s conviction and sentence.
HEANEY, Circuit Judge, concurring in part and dissenting in part.
While I concur in the result reached by the majority with respect to Rivera, the
facts of Marsalla’s case do not warrant application of the visual identification doctrine.
I respectfully dissent.
There can be no doubt that the visual identification of a controlled substance is
virtually impossible, even for a chemist. Accordingly, in the vast majority of cases, the
prosecution should introduce into evidence expert testimony identifying the chemical
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composition of the substance at issue. In instances, like this case, where the substance
is either destroyed or unavailable, other methods of proving the identity of the
substance are necessary. Our court has therefore allowed drug agents to testify as to
their visual identification of controlled substances. See United States v. Covington, 133
F.3d 639, 644 (8th Cir. 1998); United States v. Williams, 982 F.2d 1209, 1212 (8th Cir.
1992). There may even be times when it is appropriate to allow lay witnesses who have
direct experience with a substance to testify as to its identity. See United States v.
Westbrook, 896 F.2d 330, 335 (8th Cir. 1990) (two witnesses used substance at issue
and had extensive previous use); United States v. Meeks, 857 F.2d 1201, 1204 (8th Cir.
1988) (co-conspirators used substance and called it “cocaine”); see also United States
v. Cantley, 130 F.3d 1371, 1378-79 (10th Cir. 1997) (multiple police officers and lay
witnesses who purchased substance from, or sold substance to, defendant testified that
substance was “crack”), cert. denied, 118 S. Ct. 1098 (1998); United States v. Taylor,
116 F.3d 269, 273-74 (7th Cir. 1997) (drug supplier, purchasers, and users testified that
substance was “crack”); United States v. Paiva, 892 F.2d 148, 155-57 (1st Cir. 1989)
(witness with seven-year cocaine habit who had used and tasted cocaine many times
testified that the substance at issue tasted like cocaine). There must also, however, be
a limit to the capability of lay witnesses to identify substances.
Extending the visual identification doctrine to the facts of this case is
inappropriate. Lowe was the only witness who testified that the December 1995
substance was crack. She testified pursuant to a plea agreement and admitted to her
lack of experience with crack. (See Appellant’s App. at 117.) As the majority notes,
Lowe had only seen what she assumed to be crack between three to four times a month
for seven months. While she “cooked” the November 1995 cocaine into crack herself,
she did not smoke, taste, or obtain the December 1995 substance. In this regard, the
majority’s reliance on United States v. Brown, 156 F.3d 813 (8th Cir. 1998), is
inapposite. In that case, a chemist and users and distributors of the substance in
question testified as to its identity. See id. at 816. Here, we have a single witness with
limited experience testifying pursuant to a plea agreement. Moreover, even though the
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“marketplace” may be relevant in determining the identity of drugs at sentencing, Lowe
admitted that in order to identify the December 1995 substance “[y]ou probably would
have to taste it to know that it was crack. Smoke it.” (Appellant’s App. at 118.) She
admittedly did neither and thus had no “direct experience” with the substance in
question. In my view, Lowe’s experience is not a sufficient foundation for her ability
visually to identify the December 1995 substance as crack. Considering the relative
inexperience of the only witness, the great sentencing disparity between powder and
crack cocaine, and the fact that the government bears the burden of proof,1 it is wholly
inappropriate to extend the visual identification doctrine to the facts of this case.
For the reasons discussed above, I respectfully dissent.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
With respect to the government’s burden of proof, the majority points out that
Marsalla relied on a preponderance-of-the-evidence standard. I note that our court has
expressly left open the question of whether the government must prove non-garden
variety sentencing facts by a preponderance of the evidence or by clear and convincing
evidence. See Brown, 156 F.3d at 817. Because the issue of the appropriate standard
is not before us, however, there is no need to address the question.
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