*2 Miller, Mark A. Asst. Atty., Bob, Kansas outside with going he’s to take care of City, MO, argued, for plaintiff-appellee. you.” Ciarletta left Turney, Turney got the heroin from Smiley’s trunk. GIBSON, Before JOHN R. Circuit Judge, paid After Ciarletta Turney, Turney gave the BRIGHT, Senior Judge, Circuit *3 money to Smiley. time, Another Smiley ac- BOWMAN, Judge. Circuit cepted $7,750from Ciarletta payment as on a prior heroin sale that negotiat- Ciarletta had GIBSON, JOHN R. Judge. Circuit ed Turney. with Ciarletta Smiley and dis- Smiley Charles appeals from his conviction cussed purchases future heroin, and Smi- of conspiring to import hеroin in violation of ley told him that he having was a supply (1988), 21 U.S.C. arguing that there problem over which he had no control. He was insufficient evidence to support the con- explained that Customs had signifi- seized a viction. argues He also that the district cant amount heroin from his source of court1 erred in denying his motion in limine supply. Smiley and Ciarletta discussed the to conviction, prior exclude evidence of a and high purity heroin, of the Smiley and said by including kilogram one in heroin deter- that it could be cut or adulterated six-fold. mining his base offense level for sentencing. Smiley assured Ciarletta that he going was We affirm his conviction and sentence. to try get to the heroin the per- from same Ciarletta,2 In May 1990 Detective Jon a sons who supplied had it in past. the There police officer assigned to the Jackson Coun- was testimony that most in heroin Kansas Missouri, ty, Drug Task bought Force co- City purity had ranging levels from two to Jones, caine from David got who the cocaine percent, four and Smiley’s that heroin had Fabric, at Dealer’s Auto а car reupholstering purity levels of twenty-nine forty percent. to shop owned Smiley. Charles Jones ad- There was testimony also that the heroin vised Ciarletta he that get could also white contained traces of organic materials consis- heroin from the people same supplied who tent with originating that in Southeast Asia. cocaine, the people two he identified “Bob” and “his boss.” The placed a wiretap on Smi- ley’s phone, business and recorded conver- Ciarletta then bought heroin several times 6, 1991, sation on February Smiley in which from Jones. On a number of buys, these informed an unknown male that he had to Ciarletta went with Jones to Dealers Auto meet an in-law of his who arriving by was Fabric, where Jones obtained the heroin. plane. He stated that she was an air hostess color, heroin was white in the Airlines, for Thai coming and was to town for low, relatively and the purity high. level was four or five hours. Smiley said that he had Jones introduced Ciarletta to Bob Turney, pick to her up and take her home. He stated who worked at Fаbric, Dealer’s Auto and helping “[s]he’s me on a you deal if know began Ciarletta buying heroin from Turney. Iwhat mean.” day, Later that he met Son- Turney picked up also the heroin at Dealer’s Tumrongteppitux3 gruk at airport and Auto Turney Fabric. told Ciarletta that “his home, took her to his stayed where she about prices, boss” set the complained that six hours. “Chuck” was the person making profit. Ultimately, Ciarletta came in direct con- Ciarletta telephoned Smiley several times Smiley. tact with 24,1990, On October Ciar- to see Smiley whеther had obtained more arranged letta purchase heroin, heroin from 7, 1991, and on February Smiley Turney. Turney, Smiley, and Ciarletta met asked Ciarletta to meet with him. Ciarletta Applebee’s anat restaurant. The three Smiley sat met at Dealer’s Auto Fabric that bar, at and Smiley told “go Ciarletta to day. same many asked Ciarletta how Bartlett, 1. The Honorable D. Brook grand jury Tumrongteppitux 3.The indicted Judge District for the Western District of Mis- conspiracy import charge. to She remains in souri. Thailand, treaty which has no extraditiоn States. subsequently Detective Ciarletta Spe- became a Agent cial with the D.E.A. that he had stated He not there. see were “paid he because wanted he of heroin ounces in touch I’m that there people over “some exact amount cash,” wanted to done, things but gonna get ... are with that told Ciarletta “overpurchases.” avoid ... ... down and things way jus’ slows one-half it buy between wanted ... there sure over to be responded everybody needs kilogram of heroin. one He told Ciarletta suddenly protected.” re- [sic] whose supply had his source by a cer- territory controlled get the going tired, could about that he but he stated Sa, as the head identified whom tain Khun He told Ciarletta stuff.” “same Smi- “transcontinental,” explaining Ciarletta world. opium man heroin of the high purity levels seas.” ley across the about talked it “comes “good check that it was weekly stated him and Ciarletta contact Ciarletta-to told *4 right “stuff from Smiley could that news” status. the respond- Smiley there.” guy the over main Bangkok, week, Smiley to flew next The time, it think dоn’t last think it was ed: “I February on arrived there Thailand and He told Ciarletta than that.” gets any better under surveillance Smiley placed was 1991. business,” and that “big some “they” do that Nar- office of to the police assigned Thai by didn’t,” that was assured that he “he but working Board, with were who Control cotics “do together and get things “they” would Smiley Bangkok. in agents stationed D.E.A. him “we “they” that told something,” and Tumrongtep- home of days at the a spent few he ya,” and like forgot ya and we haven’t Sarote, his Mr. with then traveled pitux, and Smiley told good.” added, “their word’s region of brother-in-law, Chiang Rai to the real, to be real not going “it’s that Ciarletta Laos Burma and Thailand, near the is which Smiley asked soon,” place.” take it but “will and in this produced area is Heroin borders. wanted, Ciarletta he and how much Ciarletta Rai, Smi- Chiang in color. While is white in a half of he “handle Smiley could told that “mountain” village where to a ley traveled Smiley what asked whole case.” case aor in re- a village, located reside. This people case, responded Ciarletta and calling a was area, is and a tourist region, not mote “Oh, okay” and Smiley said point two.” “two heroin traf- and opium growing for its known (sic) high- a about “talkin that was testimony stated from was ficking There activities. give not Ciarlet- but could product,” price er that agents D.E.A and police officers Thai delivery date. a or in the ta reside people who “mountain” the distribu- and production the villages control met Ciarletta Smiley and April On people are heroin, that and these of tion in coup the that Smiley told Ciarletta again. clothing. distinctive their recognizable obtaining difficulty in causing was Thailand several having with lunch seen Smiley was Econo- read The to him and advised one “mountain” including at least people, explained the situation. magazine, which mist Salong. Mae town named person at a any to Ciarlet- heroin provided Smiley never February and on Bangkok to returned ta. Febru- States on the United Thailand left ary 24. im- conspiracy charged with and 21 U.S.C. of violation in February port heroin Smiley on telephoned Ciarletta (1988), heroin conspiracy to distribute § 963 day Dealer’s at the next met the two and (1988), five and 21 U.S.C. in violation that he Ciarletta Smiley told Fabric. Auto abetting the distribution aiding Thailand, counts “where from just returned had 841(a)(1) U.S.C. of 21 in violation heroin He Ciar- told that shit.” actually make they on both con- him jury convicted Burma, and comes heroin the that letta five distri- of the on four counts Triangle, spiracy a Golden to the gone he had arguing that Smiley appeals, Burma, counts. bution Laos, and Thai bor- the place where support his evidence insufficient there therе had been a He stated touch. ders import conspiracy on and, conviction government toppled that had coup its abused court district charge,4 he wanted to people therefore, some convictions. his sufficiency on other of evi- dence attack the does in allowing discretion evidence of prior he told Ciarletta about trip, his including his conviction and erred sentencing. in visit to the territory of the opium “head man world,” and assurances from certain I. people that he would be “taken care of.” Smiley argues this, that there was jury From insuffi could reasonably infer that cient evidence to support his conviction agreement had an with someone to the conspiracy to import charge. import He con heroin. United States Rodriguez, tends that government offered no evi Cir.1985) (defen dence that he agreement entered an dant may be convicted conspiracy with anyone to import heroin into the persons whose unknown). names are Fur States, therefore, failed ther, Smilеy told someone that his sister-in- prove an essential element of conspira law, Tumrongteppitux, a Thai national who cy charge. Smiley stresses that there was worked as an stewardess, airline was helping no evidence linking Tumrongteppitux to him “on a deal.” There was testimony that drugs and no showing any heroin was flight Thai attendants are often used as nar imported ever States, into the United and he cotics this, carriers. From jury could argues that this lack of evidence leads to a reasonably infer that Smiley had an agree *5 reasonable inference agreement that no to import to ment heroin with Tumrongteppi import was ever made. tux. See United Turpin, v. States 920 F.2d (8th 1377, Cir.1990) (evidence 1383-84 We must Smiley’s affirm conviction agreement denied, may “if, be circumstantial), viewing the cert. evidence in light the most - -, U.S. 111 1428, S.Ct. government favorable to the 113 giving the (1991). L.Ed.2d 480 addition, government In the the benefit of all heroin’s reasonable in high ferences, purity levels and ... relatively prices low a reasonable fact-finder could would allow jury have the to infer guilt beyond fоund that Smiley a reasonable doubt.” obtained his supply directly United Brown, States 782, v. from the 956 F.2d source 785 (8th country, Cir.1992) rather than purchasing it (quoting through United States v. an Foote, intermediary 659, (8th in 898 the F.2d United Cir.), States. 663 Par cert. denied, ticularly 838, telling is Smiley’s 498 U.S. 112, 111 S.Ct. conversation with 112 Ciarletta, 938, L.Ed.2d 81 after his trip Thailand, and 498 to 342, 111 S.Ct. describ ing 112 (1990)). people L.Ed.2d the 307 “in prove To a touch with” conspir acy stating import, to government they the going are get to must “things show done,” Smiley entered into agreement good,” an “their word’s import to and while it heroin with at “not going least one person. other to be soon, real real ... See it United Giunta, States v. will place.” take 758, 925 Smiley may presented F.2d have 764 (4th Cir.1991). defenses, Once a but the conspiracy proved, is evidence was sufficient for only slight jury a against evidence to guilt find a on the conspiracy defendant to which import connects him charge. to the conspiracy See is United need States v. Wainw ed support to a Brown, right, conviction. 921 Cir.1990) (“dis F.2d 956 835 F.2d at puted testimony can be considered credible by jury”). a
When the evidence we have outlined above
is in light considered most favorable to the government, we must conclude that sufficient II. evidence existed jury for the find guilty of a conspiracy import heroin. Smi- argues next that the district ley admitted to Ciarletta that court could abused its discretion in allowing heroin, it “transcontinental,” would be government impeach him admitting a come from “across the seas.” 1985 then for receiving conviction property. stolen remote, went to heroin-producing regions in The district court denied Smiley’s oral mo Thailand, where he met with a tion “mountain” in limine government to bar the from person known to be involved in heroin using traf- Smiley, however, evidence. dis ficking. When he Thailand, returned closed the evidence of conviction on direct
480 32 with a two- at level his base offense set examination, to “remove attempting managerial Smiley’s for level enhancement
sting.” months.5 See role, him to sentenced First, argument. Smi reject Smiley’s We Commission, Sentencing States United by introduc appeal ley the issue waived 2D1.1(c)(6) (Nov. Manual, § Guidelines on direct ing of his conviction the evidence 1991). appropriate that the contends objection to the admission examination. An 26, since level should be base offense preserved for is not prior of a conviction grams of only proved that 268.75 the evi introduces appeal when a defendant and that the actually purchased, heroin was Brown, during his direct examination. dence by including one kilo- court erred district 787; Vega, 776 States v. at United 956 F.2d sentencing in calculation. gram amount (8th Cir.1985); v. F.2d (8th Cir.1983), Johnson, F.2d requirement drugs no 1036, 104 There is S.Ct. 465 U.S. event, order to be count produced as evidence in аny cannot be In we L.Ed.2d 707 sentencing. States Estradar ed at its the district court abused conclude Cir.1991). (1st Molina, Al admitting this evidence. in discretion conspiracy a defendant is convicted not simi When receiving property is though stolen drugs, base offense level involving illegal down charges, this case boiled drug lar to object of determinations, the same as if the is to and the court be credibility completed. U.S.S.G. conspiracy had been admitting the in not abuse its discretion did 1991).6 (Nov. (no 2D1.4(a) If the is conviction Brown, F.2d at 787 evidence. See “invоlving negotiation to traffic offense prior burglary for an allowing in abuse of discretion substance,” case). “weight under in controlled conspiracy drug conviction uncompleted in an distribution” negotiation *6 III. applicable the to determine to be used drugs, the trial court of unless finds amount Smiley argues that the district Finally, produce intend to “the defendant did not offense that calculating his base erred in court reasonably capable producing of Smiley not found was court that level. The district 2D1.4, § U.S.S.G. 1,268.75 amount.”7 negotiated the grams of responsible for was reasonably capable producing of the Smiley's ed grouped court convictions 5. The district recently sentencing purposes. negotiated U.S.S.G. The Sixth Circuit together See amount. spe- § 3D1.2. court must make such held the district that Gessa, findings v. 971 F.2d in United States cific provision in banc). is now contained (6th Cir.1992) (en 6. A similar 1257, Accord 1265 comment, 1992). 2D1.1, (n. 12) (Nov. § 411, (2d Jacobo, U.S.S.G. 416 934 F.2d United States v. Cir.1991). argue court that to the district did not specifically addressed the has not This court capa- reasonably was not not intend and hе did rejected although question, implicitly we re- kilogram producing one amount. ble of the Brown, Cf. Adipietro, quirement 983 F.2d in United States v. 58, (8th 60 946 F.2d United States v. Cir.1993). 1468, (8th United States See also 1472 Rather, raised). (issues Cir.1991) specifically 417, (8th Cir.1993) Edwards, 423 994 F.2d v. that there was no argued court to the district (district specific required make find- court not actually attempted purchased or evidence that he quantities absent ing foreseeable of reasonable kilogram in Thailand. of one heroin defendants). challenge by specific In two other findings specific as made no The district court cases, findings specific the we discussed recent reasonably and was intended to whether ability the transac- to consummate of intent kilogram producing amount. capable the one of 2D1.4, in those but it was clear tion under appeal argue that district does the issues the defendants raised cases that failing findings. by to make these erred court Nichols, States v. 986 court. See United district argue generally is no does there Cir.1993); 1199, (8th 1204-06 F.2d reasonably capable pro- of that he evidence ducing Cir.1993). (8th 1349, Lewis, 1355 987 F.2d amount, argu- kilogram but his one disagreement among the circuits is also There court, appeal, in the district is that ment on as proving defen- the burden of who bears toas agreed import that he was no evidence there negotiat- ability produce the intent dant's kilogram amount. or distribute the one of times a number We have held ed amount. among the circuits as to There is conflict establishing of has the burden defendant requires that the § 2D 1.4 district court to whether reduce his that would findings of factor specific аpplicability defendant intend- make
481
comment, (n. 1) (Nov. 1991).8 See United
could handle half of a ease or a whole case.
Riascos,
States v.
442,
(8th
944 F.2d
I,
I’m confident
think ...
Cir.1991); United
Foley,
States v.
906 F.2d
Smiley:
you
What’re
callin’ a ease?
1261,
(8th Cir.1990).
point
Ciarletta: Two
two.
sentencing
The
guidelines and orn-
Oh,
Smiley:
okay.
ease law authorize the
judge
district
to deter
Smiley says this conversation only estab-
mine the quantity
drugs
based on reliable
lishes
agreed
that he
that “2.2” means a kilo.
evidence. United
Simmons,
States v.
He argues that he
agreed
never
to sell one
-
(8th Cir.),
F.2d
772-73
denied,
cert.
kilogram Ciarletta,
and he stresses that
-,
U.S.
113 S.Ct.
price you’re gonna
I,
charge,
I
but
know I
(1985)).
L.Ed.2d 518
The conversation must
See, e.g.,
sentence.
Morales,
United States v.
(1992);
923
Barnes,
L.Ed.2d 806
United
v.
States
621,
(8th Cir.1991).
F.2d
628-29
See also United
(9th
1993) (same).
F.2d 680
Cir.
See also United
Urrego-Linares,
1234,
States v.
879 F.2d
1238-39
Monroe,
1007,
Statеs v.
(9th
943 F.2d
Cir.
(4th Cir.) (defendant has burden
establishing
1991) (indicating that defendant bears burden of
sentence),
applicability of factor that would lower his
-
denied,
proof),
U.S. -,
1585,
cert.
112 S.Ct.
denied,
943,
346,
rt.
493 U.S.
ce
110 S.Ct.
(1992).
Gessa,
Ciarletta and sen- Smiley’s conviction affirm We “overpurchases.” any not want and he did tence. kilo to a a half wanted said that Ciarletta Ciarletta that his Although told kilo. dissenting. BRIGHT, Judge, Circuit Senior retired, heroin the two discussed had source Smiley told Ciarletta that trafficking, and in this sentencing decision I dissent. The “transcontinental,” and came heroin by the evidence and unsupported case is one week the seas.” About “across conjecture. In calculat- rests on surmise Thailand, later, Smiley and traveled went sentence, court the district ing Smiley’s produced. heroin is When where to an area of heroin which judge included a kilo Thailand, he told Ciar- Smiley returned from possessed and or produced, delivered never delays explained the trip, and about his letta observes, which, majority supra, at Nevertheless, military coup. caused 481-82, negotiated price a or deliv- he never in Thailand people he assured Ciarletta ery dаte. heroin, they could had told him also dis- place.” take The two that “it will kilo enter into How did the additional drug in- trafficking, including heroin cussed include the sentence? determination Smiley turned techniques, and terdiction following sentencing from the kilo in derives desires, quantity to Ciarletta’s conversation between conversation recorded heroin asking Ciarletta how much specifically Agent Ciarletta: DEA agreed Although the two never he wanted. uh, Humph. Yeah. Well CIARLETTA: date, Smiley stated that delivery price or woul-, guess you don’t know about how I prod- higher price about a “talking he was to, be able able to gonna You much? uct.” anything You don’t give me at time? bolstered at testimony was further This that, about huh. hearing Ciarletta Smiley’s sentencing when anything. I know SMILEY: don’t him Smiley agreed provide testified that Well, shoot, guess and that kilogram one CIARLETTA: Yeah. delivery an exact only problem was I ... Foley, that the defendant’s In we held date. (interrupts) single inqui- agent’s to an undercover answer right now what do As it stands SMILEY: price for ounces of cocaine
ry as to the two you you think want? “nеgotiation support finding did not place.” took 906 F.2d at for another sale *8 Well, uh, ya, I’ll tell I don’t CIARLETTA: than in is more evidence here 1264. There uh, just gonna guess what I was know kilogram up came Foley. The one amount you’re gonna on what kind occasions, and was in the context of two on I, I I could handle half charge, but know by Smiley. initiated quantity discussions I, case. I’m confi- case or a whole of a that he needed to know Smiley explained ... that I think dant heroin Ciarletta wanted to exactly how much conversation) (overlapping After Ciarletta stat- “overpurchases.” avoid a case? you callin’ SMILEY: What’re kilogram, told one ed that wanted delays, Ciarletta but assured him about two. point Two CIARLETTA: place.” take The one the deal “will Oh, okay. SMILEY: “offhand state- was not an kilogram amount uh, uh, I’m I uh an So Ruiz, simple CIARLETTA: ment,” at or a 932 F.2d uh, that, say like cus question ... about confidant of agent’s to the “response know, Cain Indeed, uh, business ya Foley, 906 F.2d at far as cost.” uh, normally that’s that’s goes, how much heroin mean Smiley asked Ciarletta I the, lots, we be doing case least or opinion, at one the district court lacked a reasonable two. my we, Between cousin and mine basis to find had an produce intent to try get we two to four and that’s how the additional kilo. you money, make gotta ‘em, you get ya The
know. effect of including the extra kilo in sentencing Smiley is substantial. Following Hell, SMILEY: the margin’s there’s a lot probation officer’s recommendation, the different I ya gotta understand that ... sentencing judge sentenced based know, CIARLETTA: Yeah. I I know 1,268.75 grams calculating a base it, four, can afford yа know. offense level plus of 32 2 for his role in the SMILEY: offense. You’re He talkin’ about sentenced higher to 168 price product you months, than are with ... at the bottom the 168 to 210 month sentencing range. If Smiley had been yeah. uh, CIARLETTA: Oh hell That’s sentenced based on grams, 268.75 base his uh, that’s I’m pretty confident I can do offense level would have been plus 2 for know, one ya you’ll you, have offense, his role in the for a me sentencing range and we’ll have to discuss exactly what, of 87 how to 108 much months. everything. Assuming But a new sen- I’m ... tence at the bottom of the range, Smiley would have received a sentence of eighty- SMILEY: I don’t know that either. seven months rather than months, or CIARLETTA: we’ll, Yeah. know, Well ya nearly half the time sentence he re- time, there’ll be ... so whenever. ceived. SMILEY: assuming, ya I’m know if every- This presents case another example of uh, thing, ya know, ... ahh I’m trying to what I perceive to be the unfairness that can guess, because nothing there’s I can do arise guideline sentencing which no it anyway. about rules of evidence apply and in which the CIARLETTA: Yeah. sentencing judge often summarily approves
the sentencing pro- recommendations of the bation officer. Addendum to Appellee’s (Govt. Br. at A20-21 40-A). Exhibit only agreement I can past, In the this writer suggested has decipher from garbled conversation is imposed sentences guidelines under the often that a “case” is point “two two.” seem to come from an Alice in Wonderland world “up where is down and down up.” To include the kilo in calculating Smiley’s United States v. Galloway, 976 F.2d sentence, the district court needed to deter (8th Cir.1992) J., (Bright, mine Smiley dissenting), prоduce intended to and could — produce -, “the weight negotiation under S.Ct. in an uncompleted distribution.” L.Ed.2d U.S.S.G. When it comes proof comment, 2D1.4, (n. 1) (Nov. 1991); see facts undergirding guideline sentences, the also Brown, United States v. 61 principle courts often apply is that “Anything (8th Cir.1991). Ciarletta’s statement that he Goes.”1 *9 thought Smiley agreed to supply one kilo
gram is In proof case, fact, instant particularly statement to when the actual words of the that a “case” conversation is “two point two” should not belie any subjective such my conclusion. imply In agreement an by .Smiley to supply that song 1. The title Broadway "Any- musical gone The world today has mad Goes,” thing lyrics Porter, music and by Cole good’s today, And bad observes, part: And today, black’s white clearly erro- it was my opinion, In quantity. find otherwise.
neous to sentence;2 I
Accordingly, dissent MANUFACTURING
SANBORN
COMPANY, INC.,
Appellant,
CAMPBELL HAUSFELD/SCOTT COMPANY,
FETZER
Appellee. 92-2559.
No. Appeals, Court of
Eighth Circuit. 15, 1993. March
Submitted July
Decided Neverthe- prosecutor. made today, claim not day’s night a less, And the issue because further discuss do not proven without a conspiracy conviction goes. Anything prison time no *10 will add additional quantity applicable the distribution conspiracy guideline sentence proof of a unless find no can count, unchallenged appeal. conspirator— which agent is an unindicted