*1 Bornfield, crime.” 1129 Mans that he didn’t know if of the someone omitted). (internal ellipses would meet him at the quotations train station or phone him at All home. this indicates in most to the light Viewed favorable “high probability” existed that Defendant Government, case, in this con- the evidence drugs despite knew his suitcase contained the infer- entirety, supports sidered its attempt Defendant’s deliberate refrain to deliberately that Defendant acted to ence acquiring knowledge from affirmative knowledge methamphetamine avoid Francisco-Lopez, that fact. See de in his the three men first suitcase. When F.2d at 1418. they going place Defendant were to told suitcase, detergent box in which he his The facts of this case the infer before, just purchased day had Defen- drug ence that Defendant knew he was a they challenged dant said no. When De- courier, yet intentionally eyes he closed his fendant, acquiesced. Certainly, he to it. The district court’s igno deliberate supports the inference that Defendant be- properly rance instruction informed the engaged in criminal lieved the men were jury that it could “look at the charade of shower, activity. Defendant While ignorance proof as circumstantial knowl pack men to his suitcase with allowed the edge.” United v. Manriquez Arbi dirty his and lock it. Given the (10th Cir.1987) (not clothes zo, contents, of a personal nature suitcase’s ing ignorance that a deliberate instruction failure his own pack Defendant’s suit- “nothing more that a circum refined open case and it after his shower infers properly stantial evidence instruction tai deliberately avoiding that he was knowl- case”). lored to the facts of [the] edge about the contents of his suitcase. instruction did not authorize Defendant’s fact, open Defendant didn’t his suitcase jury conviction unless concluded he departed Angeles until he had on the Los knowledge satisfy had sufficient finally opened train. When he his suit- 841(a)(l)’s scienter element. Based on case, he “all detergent spilling saw over” evidence, jury was entitled to so Still, kept of it. Defendant the inside Accordingly, judgment conclude. suitcase, dispose in his than box rather the district court is it. This an supports too inference De- AFFIRMED. Barbee, “guilty knowledge.” fendant’s See foregoing,
clear to do Defendant more
“purposely” declined to learn about Hanzlicek, suitcase’s contents. his See America, UNITED STATES of F.3d at 1233-34. Plaintiff-Appellee, during Defendant’s statements his inter- Mans, Agent light view with viewed Government, most favorable to the JACKSON; Dwight Iris Collette Dean rise an give guilty inference of knowl- Jackson, Defendants-Appellants.
edge. implied Defendant first some- 98-6487, Nos. 99-6090. may key one on the train have used his Appeals, place in his United States Court drugs suitcase while it was Tenth Circuit. luggage the common area. He then provided conflicting statements about June men, where he had first met the three first Angeles, he said in Los then he said in
Dodge City. Finally, when about the asked destination,
drugs’ Agent Defendant told *7 (Patrick Ryan, M. Farber
Jay M. briefs; him on Attorney, with States Richmond, Assistant Sue Tuck on the brief in Attorney, him with States Heaton, 98-6487; Assistant Joe No. Case him on the Attorney, with United States 99-6090), Unit- Assistant in No. Case brief Oklahoma, for Plain- Attorney, ed tiff-Appellee. Wells, City, Okla- L. Oklahoma
Joseph Col- Iris homa, Defendant-Appellant for lette Jackson. Federal Earley, P. Assistant
William Defender, City, Okla- Oklahoma Public Dwight homa, Defendant-Appellant Dean Jackson. BALDOCK, and ing
Before McKAY Ms. Bromlow after her on arrest BRORBY, Judges. charges possession Circuit of cocaine. Elk The City FBI Agent Police contacted Nicholas
BRORBY, Judge. Circuit Manns after Ms. expressed Bromlow her Jackson and desire talk to FBI Dwight Iris Collette Dean about her knowl- edge of the appeal arising drug Jackson their convictions distribution in network Elk City. agreed a crack cocaine Ms. Bromlow in from distribution endeavor assist City, investigation by Elk making based in Oklahoma. Ms. Jack- controlled buys issues on of crack cocaine son raises six and Mr. for the FBI and appeal three. record her thorough Jackson raises After conversations with the dealers. arguments exchange assistance, for her study appeal, Agent of their we on merit, none have Manns to call promised determine affirm. the district attor- Texas,
ney where Ms. Bromlow also Background I. faced charges, and tell the attorney district had been helpful Bromlow to their and federal law Local enforcement offi- investigation. Investigators paid Ms. began investigating cials distribution for her Bromlow assistance and reim- City crack cocaine in Elk part 1997. As expenses bursed her for the she incurred investigation, of this agents of the Federal investigation. connection with the (FBI) Investigation Bureau of and the Elk City Department Police up decided to set 17, 1997, On November Ms. Bromlow they video surveillance at two residences purchased crack cocaine from Defendant were at suspected the center of a crack Dwight Jackson, Ms. Jackson’s uncle. system. Agents distribution had identified During transaction, which was record- numerous individuals and two ed, dominant Bromlow, Mr. Jackson told Ms. “Iris organizations Wilson and the Jackson you will up.” hook Mr. Jackson stat- —the organizations being responsible ap- ed, “Iris, she got quarters,” meaning Ms. —as proximately ninety-five percent sale, Jackson quarter would sell a ounce of transportation and distribution crack co- crack or an amount valued at Be- $250.00. City caine the Elk area. agents cause Jackson did not have the crack organizations the two suspected had loose cocaine inquired when Ms. Bromlow about ties to one another and utilized the same making purchase, Mr. Jackson and his local individuals to distribute the crack girlfriend, Warren, Sheree went to Ms. The FBI cocaine. installed video cameras get Jackson’s house to the crack. When tops telephone on poles overlooking they returned, Ms. Bromlow bought an the residences of Ms. Regina amount crack worth $100.00. suspected
Evans—the orga- leaders of the day, Later that FBI agents gave Ms. Although nizations. both of these cameras Bromlow pick $300.00 directed her adjusted by could be police officers up Regina buy Evans and to crack from station, and could zoom in enough close to Vicky Edmondson or Ms. Jackson. Ms. *8 plate, read license neither capac- had the picked up Bromlow Ms. Evans and drove ity sound, record to and neither could view to Ms. Jackson’s house in the FBI “video the inside of the houses. The officers also car.” speaking After to Ms. Bromlow for utilized a “video car” equipped with three while, a short Ms. Evans left the car and cameras, two hidden VCRs and a transmit- entered Ms. Jackson’s house obtain to ter that allowed officers to record and crack cocaine. Ms. Evans returned with listen to conversations in and around the gave of crack and $300.00 worth it to Ms. they car as occurring. were Ms. explained Bromlow. Evans Ms. Jack-
During investigation, their home, the FBI en- son was not at Boy” but “Old had help listed the crack, Gina Bromlow an given her the referring to Ms. Jack- informant. City The Elk Police were hold- son’s father. The FBI recorded the con- handed later, and Ms. Leonard returned and Ms. Bromlow Ms. between' versation of crack cocaine. worth Bromlow $300.00 Evans. January pur- Ms. Bromlow On place buy took controlled The next crack co- worth of another $300.00 chased Agent Manns when early December of the FBI. The under the direction caine and directed Bromlow gave $100.00 Ms. in the car revealed camera installed video Mr. from crack cocaine purchase her to Ms. Jackson’s car sitting in Mr. Jackson The FBI Ms. Warren. Jackson and/or di- Ms. Mr. Jackson talking to Bromlow. tape. on video transaction captured this go to to Ms. Jackson’s Ms. Bromlow rected acquiring Bromlow Ms. tape showed Ms. Jack- they arrived at When house. Ms. War- and Mr. Jackson drugs from house, upon Bromlow insisted Ms. son’s transaction, Mr. Jackson this During ren. Jackson because served before Mr. being Ms. Warren he and Ms. Bromlow told crack money spend to on had more she Jackson money for Ms. a lot of made (Id. 311.) Mr. at did Mr. Jackson. than selling crack for her. only worth buy wanted to $10.00 Jackson later, on December week One Ms. cocaine from Ms. Jackson. of crack controlled made another Bromlow then Ms. bedroom and went into her Jackson from Ms. Jack- crack cocaine crack living area with the purchase to the returned Jackson, Dwight Jack- Ms. and Leonard it Bromlow. son handed to Ms. and uncle. and Ms. Jackson’s Ms. Jackson. brother to Bromlow handed cash son’s gave Ms. Bromlow $320.00 Manns Agent 10, 1998, FBI instruct- February On Bromlow drove Ms. transaction. Ms. Jackson Bromlow to contact Ms. ed where Ms. Jackson house to Ms. Jackson’s of crack. of one ounce price and discuss working if she was Ms. Bromlow asked Agent reported to Ms. Bromlow After working denied Ms. Bromlow the police. with concerning her conversation Manns wanted she explained and police for the Jackson, with her gave he $900.00 Ms. and the extra of crack worth $800.00 Bromlow crack. Ms. purchase which previous for a payment was $20.00 with residence Ms. Jackson’s returned gave Leonard Ms. Bromlow transaction. $900.00, one purchasing discussed and re- Jackson Ms. $320.00. Jackson Ms. from Jackson. of crack cocaine ounce crack from her bedroom trieved not have a full However, did Ms. Jackson Leonard, gave then it who it to handed time, asked Ms. so she that ounce asked Ms. Ms. Bromlow Bromlow. Ms. Mr. Jackson return later. Bromlow to co- more crack if would have she Jackson negotiations. When during these present later, indicated she Ms. Jackson caine day, Ms. later returned Bromlow Ms. would. discussed but she present, was not Jackson Jackson, urged who with purchase Bromlow Ms. December On Jackson from Ms. buy the one ounce her Although buy. controlled made another to be claimed Mr. Jackson himself. or this transaction tape of is no video there Ms. Jack- while “holding] down fort” malfunctioned, Ms. equipment because was out. son went to Ms. at trial she testified Bromlow Jackson, Judy Wise- day, Ms. That same saw Leonard Jackson house Jackson’s Hicks, Randall man, Nequita and Wanitha stated Bromlow porch. front Ms. on the house. at Ms. Jackson’s into Ms. Jack- were and Leonard walked she house, and re- left the $300.00, page, a- and received house, gave Leonard she son’s *9 Shortly there- while a short later. Ms. bedroom. turned into the back went Leonard go” to the “Let’s after, said Ms. Jackson Ms. tell could hear Leonard Bromlow car. they got Ms. Jackson’s and into group, worth of she wanted $300.00 Jackson Oklahoma, Hobart, drove to Jackson Ms. heard Ms. Jackson Bromlow crack. Ms. store, pulled then stopped she minutes A few where the crack. had say she road, parked, over to the side of the and or to being strip station, searched at the asked Ms. Wiseman to large remove a sum pulled Ms. Wiseman out the crack she had money glove compartment. from the hidden between legs her and claimed it gave After Ms. Wiseman her the money, was hers. When Ms. Jackson was asked got Ms. Jackson out of the car and walked to consent to a person, search of her she to a Perry, vehicle driven Charles who “you might stated something find you and stopped had behind them. When she re- might not.” drugs No during were found car, turned to her Jackson had a large Ms. However, the search. the officers did not cocaine, amount of crack longer but no had body cavity conduct a search. The officers the money. Ms. examined the Jackson released Ms. search, Jackson after the gave crack and it to Ms. Wiseman to cut in she bragged later about her method half. Ms. Jackson put then the crack be- concealing drugs from the police. legs. tween her day, The next as Ms. Bromlow was driv- Upon City, their return to Elk Officer ing in City, Elk she encountered Ms. Jack- Joey Elk City Bales Police Depart- son, who was in her vehicle along with Mr. stopped ment Officer car. Bales had Jackson person and a known to Ms. Brom- received a tip anonymous from an caller only low as “Anita.” Ms. Jackson accused who told him Ms. Jackson was bringing Ms. “setting Bromlow of up” her and being back a large of crack amount cocaine from responsible stop for the that occurred the Lawton, Oklahoma. Before stopped she night before. Ms. Bromlow any denied car, gave Ms. Jackson Ms. Wiseman involvement. Ms. Jackson claimed Regina half the crack and her told to hide it. Ms. Evans told Ms. Jackson that Ms: Bromlow put Wiseman the crack between her legs. knew stop. about the Ms. Ms. Jackson hid half of Bromlow her the crack denied suggested they it inserting vagina. go into her ask Officer Ms. Bales Evans interviewed each of the women about it. Ms. Jackson separately. then told Ms. Ms. Jackson told Bales Officer she Bromlow to had follow her to Ms. Evans’ resi- Clinton, Oklahoma, been to play bingo. dence, and that Mr. Jackson would ride Ms. Wiseman told they Officer Bales had with Ms. Bromlow. When Ms. Bromlow been driving through Holbert, the towns of arrived at residence, Ms. Evans’ Ms. Ev- Clinton, and Cordell. talking While to Ms. ans room, was in a back but would not Wiseman, Officer Bales noticed Ms. Jack- come out speak to Ms. Bromlow. Ms. son turning around in the car to talk to the Bromlow, Mr. Jackson Ms. Jackson passengers in the Ms. back. Hicks and then went to Ms. Jackson’s house. Mr. Ms. Randall told they Officer Bales had again once rode with Ms. Brom- been playing bingo. Officer Bales called low. Ms. was Bromlow scared and felt she assistance, and when other officers ar- could not leave. Ms. Jackson told Ms. rived, they dog sniff conducted of the Bromlow to strip so that she could if see vehicle. dog The alerted to the ashtray Ms. Bromlow wearing was a wire. Mr. which contained in cash. The $275.00 dog Jackson left the room while Ms. Bromlow purses, alerted to two one in the front being finding searched. After no evi- seat and one in the back seat of the car. wire, dence of a Ms. Jackson allowed Ms. Officer Bales found a pipe used crack get Bromlow to dressed. Ms. Jackson told one of purses. Officer Bales then took Ms. Bromlow if she had “set up,” her the occupants of car to the Elk City Ms. Bromlow would not live to see the police station, Agent where Manns was next day.
waiting. Because he knew Ms. Bromlow negotiated
had the purchase of one May On ounce a search of Ms. Jack- of crack Jackson, from Agent residence, son’s Manns pursuant conducted ato expected Ms. Jackson warrant, to return to Elk revealed an address book bearing City with the ounce of crack cocaine. Pri- Ms. Jackson’s name. address book *10 base); cocaine to distribute (conspiracy and Judy of Wiseman names contained of 21 violation U.S.C. a por- found Count Officers also Johnson. Maxine base); (distribution 841(a)(1) of cocaine § in the purse in a book an address tions of of U.S.C. a violation contained pages Count These bedroom. base) 841(a)(1) (distribution of Judy § Wise- cocaine Perry and of Charles names abetting); search, (aiding § found and police and 18 U.S.C. During the man. kitchen, 9, a of 21 U.S.C. violation in Ms. Jackson’s and scanner Count a police 841(a)(1) listing Charles to dis- order with intent money (possession § a transfer and base) § 2 Ms. Jack- and 18 in a U.S.C. briefcase cocaine Perry payee tribute However, no Mr. illegal jury found closet. (aiding abetting).The and son’s bedroom 2, violation a guilty found. on Count drugs were Jackson place for (maintaining § a of 21 U.S.C. a executed day, same officers On of a controlled and use distribution Perry’s apart- Charles on warrant search § (aiding and substance), and U.S.C. The search Lawton, Oklahoma. ment hearing contested Id. After abetting). awith covered plate a dinner revealed issues, court sen- district sentencing substance, razor blades two powdery white to a total of tenced Jackson telephone address and a plate, lying on prison. months name and Ms. Jackson’s containing book Ms. arrested Officers numbers. phone her based on 28 jurisdiction exercise partic- their for and Mr. Jackson Jackson 3742(a) § and § and 18 U.S.C. U.S.C. the crack of in the distribution ipation of district judgments affirm all the ultimately re- investigation The cocaine. cases. court in both buys of seventy-two controlled sulted thirty-four cocaine, of the arrest and crack Appeal II. Jackson’s Ms. two Jacksons. to the in addition people erred trial court asserts the Ms. Jackson were tried Mr. Jackson and Ms. Jackson 1) suppress motion to denying her by: of Ms. Jackson juryA convicted together. and video through audio obtained evidence multi-count counts on a following six 2) in li- surveillance; her denying motion Count violation indictment: testimony given suppress mine to distribute co- (conspiracy § U.S.C. 3) Bromlow; her motion denying Ms. base); a violation caine Count based on insufficien- acquittal judgment place (maintaining § 856 U.S.C. conviction; sustain cy of the evidence a controlled sub- use of and distribution presen- 4) objections to the overruling her (aiding § 2 stance), U.S.C. and 18 amounts drug regarding report tence of 21 violations 5 and abetting); Counts 5) role; denying her leadership and her 841(a)(1) (distribution of cocaine § U.S.C. 6) form; and verdict special motion for base) § 2 and abet- (aiding and 18 U.S.C. Brain- Ms. suppress motion to her denying U.S.C. a violation ting); Count unlawfully was it testimony because low’s base); (distribution 841(a)(1) cocaine § of 18 in violation induced 21 U.S.C. violation and Count 201(c)(2). § 841(a)(1) intent to with dis- (possession base). district The cocaine tribute Informa- Suppress Motion A. The impris- terms Jackson to Ms. sentenced Through Video Obtained tion 5,1, 7, 8 months on of 360 Counts onment n (cid:127) Surveillance Audio 2, all to run on Count months & concurrently. district contends first Ms. Jackson sup- motion her by denying court erred in five counts charged Mr. Jackson through the obtained information press the jury found Mr. indictment. n telephone on the installed cameras counts: video following on the guilty Evans’ and her residence poles outside of 21 U.S.C. 1, a violation Count
1280 house, and the information obtained Koyomejian, 1438. See also 970 F.2d at through recording the video and audio de- 541-42. in the FBI
vices installed
“video car.” Ms.
Ms. Jackson states the use of the
argues
tape
the video
recordings
telephone
video cameras installed on the
recordings
and audio
were made
viola-
poles violated the Fourth Amendment be
tion
I
of Title of the Electronic Communi-
they
cause
were installed
without war
(Title I),
Privacy
cation
Act of 1986
codi-
rant. The Fourth
protects
Amendment
2510-22,1
§§
fied at 18 U.S.C.
and the
persons against unreasonable searches and
Fourth
Amendment
the United States
Const,
seizures. U.S.
amend.
IV. Wheth
Constitution.
er Ms. Jackson can claim the FBI violated
her Fourth
by
Amendment rights
using
We review the district court’s
these
activity
video cameras to
observe
findings supporting
factual
denial
its
occurring outside the houses depends on
Ms. Jackson’s motion to
suppress
clear
whether Ms. Jackson had a reasonable
error, viewing
light
the evidence
expectation
privacy
in the area viewed
government.
most favorable to the
See
by the cameras. See United States v.
Lambert,
1064,
United States
46 F.3d
Gordon,
(10th
1222,
168 F.3d
1225-26
(10th Cir.1995). However,
1067
we review
Cir.),
denied,
1030,
cert.
527 U.S.
119 S.Ct.
de novo the district court’s conclusions as
2384,
(1999)
144 L.Ed.2d
(quoting
786
to the ultimate reasonableness of a search
Carter,
83, 87,
Minnesota v.
525 U.S.
119
or seizure. Id.
469,
(1998)).
S.Ct.
L.Ed.2d 373
See
States,
347,
Katz v. United
389 U.S.
Title I prohibits the intentional
353,
507,
(1967).
88 S.Ct.
ject
hearsay
to the
repeated
statements
by pression of Ms.
*13
testimony
Bromlow’s
was
Agent
hearing.
Manns
the
There is
inappropriate under these circumstances.
in
nothing
the record to indicate Ms. The primary purpose of the exclusionary
Bromlow’s consent
was
voluntary.
police
rule is to deter
See
misconduct.
Thus,
the
was not required Williams,
431,
Nix v.
442-43,
467 U.S.
provide further evidence of Ms. Bromlow’s
2501,
(1984);
S.Ct.
B. Motion in Limine Concerning Ms. S.Ct. case, 2501. In the present the al Bromlow’s Testimony leged illegality failure to withhold —the Ms. Jackson contends the dis taxes money from paid to Ms. Bromlow— by trict erred denying her motion was too far attenuated from the procure suppress limine to Ms. Bromlow’s tes ment of the against evidence Ms. timony. Specifically, Ms. Jackson claims to justify application of exclusionary the because Ms. paid Bromlow was fact, her rule. In we see no connection what informant,5 services as a confidential soever, she nor do we believe Ms. Jackson’s an “employee,” such, was and as rights any were in way violated FBI required to withhold alleged taxes from illegal conduct. Consequently, any pay her pursuant 26 U.S.C. deterrence that would arise from suppress 3402(a)(1) Okla. Stat. Ann. tit. ing Ms. testimony Bromlow’s be far would Thus, 2385.2. argues she Ms. Brom outweighed by society’s interest bring testimony low’s should have sup- been ing the guilty justice. See United given Of the amount to Ms. designated rendered,” $2,000 Bromlow in as for "services services, $1,866.63 exchange for her was for was used to assist Ms. Bromlow in reloca- her rent, expenses consisting costs, pager tele- tion from Western Oklahoma. Ms. Bromlow phone calling expenses cards "and other ac- paid by was also the Oklahoma Second Dis- during crued investigation.” course of the Drug trict Task Force. The record does not balance paid amount Ms. Bromlow disclose paid amount she was Okla- was for services conducting rendered in homa authorities. purchases controlled crack. Of the funds jury could find a reasonable government, n. Payner, States (not- (1980) beyond a reasonable guilty the defendant 65 L.Ed.2d and citation (quotation marks did not vio- Id. illegal conduct doubt.” ing “where omitted). this conducting In review we the interest rights, respondent’s late the conflicting evidence weigh in deter- integrity “may neither judicial preserving outweighed by credibility of witnesses.” consider the conduct nor ring such presenting probative v. Pappert, interest societal fact.”) short, (10th Cir.1997) marks (quotation trier of to the evidence omitted). statutory jury, violation type It is for the this is not citations finder, suppression conflicting mandate testi would fact to resolve affirm testimony.6 we and draw Bromlow’s infer mony, weigh evidence determination on court’s presented. the district the facts See Unit ences from Nieto, 1464, 1469 issue. ed States v. Cir.1995), Sufficiency of the Evidence C. L.Ed.2d 742 When *14 judg a motion for argues reviewing the district the denial of also Ms. Jackson motion for a on insufficient evi by denying acquittal her of based ment court erred dence, analy the evidence the same acquittal because this court conducts judgment of of sis, conviction of the district reviewing judgment to sustain her the was insufficient crack cocaine Ails to distribute States v. conspiracy de novo. See United (10th Cir.), Specifically, worth, § 843, 21 846. violation of U.S.C. 846 138 F.3d 1) 221, was insuffi- denied, evidence 142 asserts: the 119 she 525 S.Ct. U.S. finding Ms. Jackson support (1998); v. cient to United States U.Ed.2d (10th others to agreement with Hooks, into an entered 1531 & n. 780 F.2d 2) cocaine, govern- the crack and distribute Cir.), that to introduce evidence
ment failed 90 L.Ed.2d type of cocaine base. was a crack cocaine Jackson is unclear It is whether on all the her convictions challenging to Sufficiency of the evidence challenging her conviction only or counts is legal is a issue jury’s verdict support § 846. of 21 U.S.C. Nev- for the violation United de novo. See reviewed ertheless, reviewing the carefully Hanzlicek, after F.3d v. there was we conclude Cir.1999). appeal, record on (10th only we “ask appeal, On support to Ms. Jackson’s ample evidence direct taking evidence—both whether We find her all counts. on circumstantial, the rea together with convictions and of sufficiency concerning the arguments drawn there inferences be sonable merit, and af- to be without to the the evidence light most favorable from—in Bromlow to make Agenl Manns directed Ms. was question Bromlow whether Ms. 6. equipment gave “employee," buys and therefore her FBI even an controlled provisions so, subject to the the FBI was in the record is no evidence whether to do there requiring law and Oklahoma specified Agent federal support Manns an assertion wages. As a confi- withholding of taxes from per- buys were to be how these controlled informant, appear Ms. it dential does States, Slagle 612 F.2d v. United formed. C.f. sufficiently control of was under Bromlow the FBI Cir.1980) (where plaintiff sued employee qualify as an in order to Act, U.S.C. Claims under the Federal Tort incorporat- common law standards under when ac- injuries he sustained § 31.3121(d) 1(c) § and as im- ed 26 C.F.R. — informant, drug companying federal tit. language Okla. Stat. Ann. plied by not an was informant court determined the (listing Rui. 87-41 § See also Rev. 2385.1. (Sec- employee the Restatement as defined law rules twenty under the common factors 220(2) (1958) ond) and noted Agency, § the nature of the determining when consider employment details of [the over the extent of control ‘‘[t]he relationship emphasizing the special agent] FBI work [the informant’s] putative em- by the degree control exerted 1160-61.) extremely small.” Id. Although employee). putative ployer over the reliability.” mo- cient indicia of United States court’s denial her firm the district Ruiz-Castro, acquittal. judgment tion for a Cir.1996) (quotation marks and citations Sentencing D. comment, (n.12). omitted); 2D1.1, USSG may be sentenced defendant next contends the
Ms. Jackson upon drugs the total amount of she based by failing to court erred sustain district or which fell within “reasonably foresaw objections presentence report. to the her scope particular agreement objected [her] the amount of Ms. Jackson conspirators.” her with the court attributed to drugs the district (10th Cir.) (quota Ivy, was a leader of the finding and to its she omitted), cert. de “We review tion marks and citations drug operation. distribution nied, findings factual the district court’s (1996); ap interpretation error and its L.Ed.2d USSG clear comment, (n.2). lB1.3(a)(l)(B), sentencing guidelines de In mak
plication of the determinations, sentencing Gigley, ing its factual novo.” United States Cir.2000). 1212, 1221(10th may the district court consider relevant regard to its information without admissi Quantity Drug bility applica under the of evidence rules at trial long ble “so the information argues the court in Ms. Jackson upon relied has some basis of 6,243.86 correctly grams attributed of co particular the facts of the case and bears (crack) in determining caine base to her reliability.” indicia of sufficient her base offense level of 38. Ms. Jackson *15 (10th Wacker, 1453, 72 F.3d States only contends the court should have con Cir.1995) (quotation marks and citations in grams sidered 451.59 of crack calculat omitted). ing her base offense level. The balance of (5896.8 grams) the crack attributed to her of argu The thrust Ms. Jackson’s testimony Judy based on the of Wise- is that testimony ment Ms. Wiseman’s man. Ms. Jackson states Ms. Wiseman’s credibility simply lacked because she was testimony lacked a “sufficient indicia of coconspirator testifying anticipation the reliability support probable to its accura However, leniency. credibility of the of a cy” not have been and thus should consid at sentencing witness is for the district by ered the district court its calculation Sloan, court to evaluate. United States quantity of the of crack to Ms. attributable (10th 861, Cir.1995), 65 F.3d cert. de Jackson. nied, 1097, 824, 516 U.S. S.Ct. The district court’s calculation (1996); L.Ed.2d 767 States v. United drug is a of fact quantity finding that we (10th 752, Browning, 61 F.3d 754-55 Cir. only. review for clear error See United 1995). defer to the district court’s Vaziri, (10th 556, States v. 164 F.3d credibility determination of as the district Cir.1999). government prove “The must position court is in a judge better to the quantities drugs sentencing pur credibility witness’ than are we. We con evidence, poses by preponderance the- by clude the district court did not err upon possess and the evidence relied must holding Ms. Jackson accountable for a to reliability.” a minimum indicia of grams tal of 6243.86 crack cocaine. Camacho, 1220, 137 F.3d Cruz (10th Cir.1998). When actual Leadership Role drugs underlying drug quantity determi seized,
nation may rely are not the court Ms. Jackson next finds fault upon guideline an finding estimate establish with the district court’s she was level, if ring offense the estimate is the leader of a crack supported distribution by the by facts in the suffi- applying case and “bears a four-level enhancement pursuant operation. her base offense level to USSG tion The by cases cited 3Bl.l(a). § the district We review court’s Jackson in of her argument on this a point distinguishable. determination Ms. Jackson was are we con- drug or of the organizer leader distribu clude the district by court did not err 3Bl.l(a) § operation tion under .USSG increasing Ms. Jackson’s base offense 3Bl.l(a). Tagore, clear error. United States v. pursuant § See four levels to USSG (10th Cir.1998). 158 F.3d The
Sentencing
provide
Guidelines
for a four-
E.
Jury Instructions
level increase
the offense level
“[i]f
Ms. Jackson claims the court
was an
or leader
organizer
defendant
of a
erred
denying
requesting
her motion
activity
criminal
that involved five or more
special
submission of a
verdict form to
participants or was otherwise extensive.”
jury.
jury
the event the
found her
3Bl.l(a).
USSG
bears
crimes,
guilty
drug
Ms. Jackson
of proving by preponderance
the burden
require
jury
wanted to
to determine
applicability
of the evidence the
of this
whether
the controlled substance was
enhancement.
v. Tor
See
“crack” cocaine or some other form of
res,
Cir.),
53 F.3d
cocaine, and to determine
quantity
516 U.S.
the substance
attributable Ms. Jackson.
S.Ct.
S.Ct.
L.Ed.2d
Because verdict
in
essentially
forms are
(1995).
examples of
exercising
Ms. Jackson
control
an
been the court. left-to Whoever— § (setting See USSG forth the rele 1B1.3
vant by may factors which used be our argument, offers or Jackson draws atten- directly indirectly, gives, or any per- to anything following language Singleton of value tion to the of promises testimony son, or because of II: given to affirmation or be
under oath or way permits in no an Our conclusion upon person as witness given such government step beyond agent trial, proceeding, or be- hearing, other the limits his or her office to make an by the any court ... authorized fore to a witness other than one offer tradi- to hear evi- of the laws tionally A sovereign. exercised testimony ... dence or take prosecutor something who offers other normally granted by
than
concession
in
government
exchange
for testimo-
impris-
this title or
be fined under
shall
ny
longer
ego
is no
the alter
of the
or
years,
than two
oned for not more
sovereign
protec-
and is divested of the
both.
government.
tive mantle of the
201(c)(2).
panel
§
deter-
The
permit
our decision would
improp-
fears
attorney had violat-
prosecuting
mined the
abuse of prosecutorial
er use or
authori-
201(c)(2) by promising
§
ed U.S.C.
ty simply have
foundation.
It
is
no
leniency
exchange
for his testi-
witness
then,
noteworthy,
that
defendant’s
1350-51,
I,
Singleton
144 F.3d at
mony.
upon the
“the
premise relies
shibboleth
concluded the codefend-
panel
1358.
government
is not above the law.”
sup-
have been
testimony
ant’s
should
notion,
with
we
agree
While we
that
to do so was not
pressed and
failure
particular
statute
simply believe this
pan-
Id. at 1359-61. The
harmless error.
government.
not exist for the
does
accordingly reversed the defendant’s
el
this issue re
ed States — concurrence, denied, U.S. -, messy conceptually 120 “creates a Cir.1999), cert. — (1999), of the 432, 145 legal regime handling for the case L.Ed.2d 338 U.S. S.Ct. 842, Attorney ‘who offers -, L.Ed.2d 708 errant United States 145 120 S.Ct. (2000); something other than a concession normal- Ramsey, v. 165 F.3d United States ” 986-87, (D.C.Cir.), by government.’ Id. at 980, ly granted cert. de 990 — (Lucero, J., -, 223, concurring) (quoting ma- nied, 145 1307 U.S. 120 S.Ct. 1302). argument (1999); jority v. Ms. Jackson’s United States L.Ed.2d 187 (5th Cir.1998), Haese, 359, squarely messy us into that area brings 162 F.3d 366 1795, denied, 1138, interesting ques-' raises a number of 119 S.Ct. and 526 U.S. tions, (1999); v. as who bears the burden 1022 United States such L.Ed.2d 143 Cir.1998), (6th 414, 418, Ware, proof government 421 to show the committed 161 F.3d 201(c)(2), 1045, 119 § 526 violation 18 U.S.C. rt. U.S. ce (1999); 1348, paying a witness for her testimo- 511 see also whether 143 L.Ed.2d 86, ny may a violation of 18 U.S.C. Bidloff, F.Supp.2d constitute (W.D.N.Y.2000). 201(c)(2) § 93-94, a matter of law. None of our whether out sister circuits has addressed First, we conclude the defen gov testimony by right payment showing prima dant the burden of bears may considered a violation of ernment be facie of a violation of 18 U.S.C. case v. the statute. But see United States 201(c)(2). § suppress, In motions to (D.Mass. Medina, F.Supp.2d 51-52 usually defendant bears the burden of 1999) pay (holding there is no tradition of Madrid, proof. v. See United States testimony, ment of a witness for (10th Cir.) (“The propo F.3d could a violation payment of witnesses be suppress nent of a motion bears facts). 201(c)(2)depending § on the proof.”), cert. de burden urges Although government us nied, Singleton R foreclosed
hold our decision
(1994);
v.
L.Ed.2d 431
United States
arguments concerning a violation of 18 Moore,
(10th Cir.)
all
(same),
22 F.3d
201(c)(2) by
government
§
attor-
130 L.Ed.2d
ney,
Singleton
Crocker,
R. As
(1994);
we did
so hold
United States
out,
(10th Cir.1975) (“It
points
Ms. Jackson
we held the stat-
fun
ute
not exist for
attor-
does
suppress
damental
on a motion to
they
traditionally
are
neys
exercising
when
must
a foundation in
for the
there
be
fact
sovereign,
recognized prerogatives
legal
Logic
pre-trial
result.
dictates that a
leniency
specifically
they
offer
in Motion to
an
Suppress
when
filed
accused
testimony.
in fact
exchange
upon
165.F.3d at 1302 does
cast
the burden
attorneys may
present
necessary
n. 2.
come movant to
facts
to sus
&
Government
201(c)(2)
(Quotation
§
they
position.”
under the
if
tain his
marks and
auspices
omitted.)).7
“step beyond the limits of
to citations
see no reason
[their office]
defendant,
why
claiming
make
offer to a witness other than one
a violation of
an
201(c)(2),
traditionally
sovereign.”
exercised
18 U.S.C.
should not be re-
Maestas,
affiant, supported by
proof.”);
7. See
2 F.3d
an offer of
Ax
also United States
selle,
1993) ("We
("The
prov
604 F.2d at
Cir.
believe that
burden of
proving
ing
interception
'willfully’
the defendant bears the burden of
that the
done
2511(l)(a)]
legally
that a
basis asserted as a
violation of 18 U.S.C.
rested
[in
sufficient
justification
party seeking
sup
pre-
on the defendant as the
for a search or seizure was
evidence.”);
textual.”);
press
no,
v. One Hundred For
United States v. Villa
(10th Cir.) ("The
ty-Nine
Forty-Two
Thousand Four Hundred
Currency,
Dollars in U.S.
initial burden to show that an unlawful sur
43/ioo
defendants.”),
("[T]he
1992)
burden is on
veillance occurred rested on the
Cir.
*19
falsity
the
U.S.
movants to demonstrate deliberate
t.
cer
by
or
disregard
reckless
for
truth
the
8. Rather
Bromlow,
informant,
payment
argument
Gina
and should
her
that the
tial
testimony.
suppressed
infor-
cash
manpwitness
the services of a confidential
have
her
for
scope
beyond
of tradition-
statement is insufficient
We conclude this
merely
prosecutorial practice, Ms. Jackson
al
of the brib-
substantiate a claim of violation
Furthermore,
asserts:
reason
ery
there is no
statute.
narrowly
opinion
Singleton
II
to read
payment
of a witness in cash and other
above,
suggests. As discussed
as Ms. Jackson
practice
is not the traditional
of the
benefits
prosecu-
bribery
apply to
statute does not
sovereign
court,
by the
as delineated
en banc
acting
ego”
they
as the "alter
tors when
are
specifically
which
addressed
Moreover,
sovereign.
criti-
Ms. Jackson
exchange
granting leniency
practice sup-
for its failure to
cizes the district court
precepts
testimony.
Those
set forth
testimony
our
press
based on
Ms. Bromlow’s
Singleton opinions
only to the
both
relate
However,
opinion
Singleton II.
testimony
leniency and do
trade off of
pending our
did
for a continuance
not move
address the trade off of cash for testi-
not
thus,
II,
such[,]
Singleton
did
urge
en banc decision in
Appellant
mony.
would
As
arguments before the trial
present these
application
court erred in its
that the trial
Singleton opinions to the facts con-
court.
*20
merely
per-
crack for
Appeal
cocaine
obtain
his
III. Mr. Jackson’s
use, and therefore could not form the
sonal
following
on
asserts
Mr. Jackson
specific intent
to commit
the crimes.10
1)
by denying
trial court erred
appeal:
have
argues
he
the court should
on dimin-
jury instructions
requested
his
given
requested
his
instruction for Counts
included of-
capacity and the lesser
ished
1, 3, 4 and 9.
2) the evidence
simple possession;
fense of
finding
a
support
was insufficient
review of the denial of
Our
crack
had the intent to distribute
Jackson
jury
is as follows:
requested
instructions
with the intent to
possessed
cocaine and
3)
cocaine; and
the evi-
distribute crack
We
a
court’s decision
review
district
support
was insufficient to
the addi-
dence
in-
give
particular
whether or not to
a
crack cocaine to the
grams
tion of
for an abuse of discretion.
struction
sentencing guidelines
drug
calculation of
However,
conduct a de novo
we
review
amounts.
whether,
whole,
a
to determine
correctly
govern-
instructions
stated the
Capacity/Voluntary In-
A. Diminished
ing
provided
jury
law and
with an
toxication Instruction
ample understanding of the issues and
requested an instruction
Mr. Jackson
A
applicable standards.
defendant
jury to
have allowed the
deter-
that'would
not entitled to an instruction which lacks
specific
mine he lacked the
intent to com-
legal
reasonable
and factual basis.
charged
mit the crimes with which he was
Beers,
1297, 1300
United States
F.3d
if
jury
found Mr. Jackson was under
(10th Cir.1999)
cita
(quotation marks and
the influence of a controlled substance
—
omitted),
U.S. -,
tions
when he committed the crimes.9 The dis-
was involved in the crack distribution of L.Ed.2d 87 Mr. Jackson was requested following only 9. Mr. instruc- 10. The case Mr. Jackson cites in argument tion: Sounding of his is United States v. sides, (10th Cir.1987). may You consider evidence of the defen- 16.) (Apt. Although Soundingsides, Br. at deciding dant's mental condition in wheth- recognized this Court an instruction on di proved beyond er the has may appropriate capacity minished be where Dwight reasonable doubt that Jackson act- the evidence indicates the defendant was so ed with the intent to commit the act incapable charged intoxicated the defendant was in the indictment. forming required by specific Voluntary the mens rea intoxication and use of con- crime, provide trolled substances alone will intent 820 F.2d at we do not find never legal particularly helpful excuse this case for the commission of a to Mr. Jackson’s However, person argument. crime. Soundingsides, the fact that a we determined properly under the influence jury of controlled sub- the court instructed the voluntary stances at the time of the commission of the was not a intoxication defense for may negate specific general degree crime the existence of a intent crimes of second voluntary manslaughter. intent. murder and
1291 crime capaci general to the diminished a intent is one which an only entitled if the ty/voluntary voluntarily intoxication instruction act and was done intentional- theory the facts in supported law his and ly, not because of and mistake or acci- jury to find sufficient a short, evidence were In specific dent. a intent crime is See United States Mr. Jackson’s favor. only one in which the defendant acts (10th Martinez, 1424, 979 F.2d 1432 v. knowledge doing, with of what he is but denied, 1022, Cir.1992), 507 509 cert. U.S. objective does so with the of completing 3019, 913, 1824, 113 S.Ct. 113 S.Ct. U.S. some unlawful act. (1993). 454, L.Ed.2d 708 123 L.Ed.2d 125 Blair, 639, United v. 54 States F.3d 642 issues, examining keep In these we (10th Cir.) marks, (quotation citations and capacity mind test for diminished “[t]he omitted), parenthetical information cert. ... whether the defendant had defense denied, 883, 220, 516 U.S. 116 133 S.Ct. capacity specific the mental form (1995). Thus, L.Ed.2d in “specific 151 at to commit the crime issue.” intent “unique tent” refers to the state of mind Vazquez-Pulido, v. 155 F.3d United States beyond any mental required state with (10th denied, 1213, Cir.), 525 1218 n. 8 cert. respect to the actus reus of the crime.” 978, 437, 142 L.Ed.2d U.S. Rodriguez, Admissibility Vivian M. (1998). of Crimes, Wrongs or Acts Under the Other 1 and 9 Counts Intent Provision Rule Federal Evi guilty spe A defendant is not of a k0h(b): The Weighing dence Incremen voluntary offense if intoxication intent cific Prejudice, Probity tal and 48 U. Unfair forming the prevented the defendant from (1993).11 Miami L.Rev. required rea for that crime. specific mens begin analysis by our fo Sands, 968 F.2d See United (10th cusing on and 9 because the Counts Cir.1992), charged “specif crimes in these counts are L.Ed.2d 139 1242; (1993); charged ic intent crimes.” Soundingsides, Count 820 F.2d “knowingly intentionally pos and Boyles, also United States v. see (7th Cir.1995); quanti intent sessed] United States with to distribute (crack), Echeverry, ty Cir. of cocaine base a schedule II 1985). ... controlled substance violation of Code, Title United States Section
A
intent crime is one in which an
specific
841(a)(1)
Code,
States
and Title
voluntarily
pur-
act was committed
and
[aiding
abetting].”
Posses
to do Section
and
posely
specific
with the
intent
contrast,
specific
with
to distribute is a
something the law forbids.
sion
intent
(footnotes
specific intent
Id. at 460-61
and citations omit-
11. The distinction between
Comment,
ted).
general
fully
Layton,
crimes and
intent crimes is more
See
Chad J.
No
explained
Closing
as follows:
Door on the Volun-
More Excuses:
Defense,
tary
J. Marshall
Intoxication
requires proof
specific
Where a crime
(1997)
(noting
L.Rev.
the distinc-
553-54
intent,
prosecution
prove
must
that the
general
specific
and
tion between
intent
in-
(or
knowingly
failed to
accused
commit)
committed
by
crimes was created
the common law
tent
act,
purposely intend-
an unlawful
specifically
with the- mens
courts
to contend
Court,
Burger
ing to violate the law. The
by
problem
criminal
rea
created
intoxicated
attempt
defining
in an
to set a standard for
actors,
defining general intent crimes as
crimes,
intent element of
stated that
"those crimes where the definition describes
sense,
corresponds
general
‘purpose’
"[i]n
particular
referring
act without
to an intent
loosely
concept
with the common-law
consequence”
spe-
intent,
and a
to achieve a further
‘knowledge’
specific
while
corre-
requiring
than a
intent crime as
"more
loosely
concept
general
cific
sponds
with the
perform an
The actor
mere intention to
act.
view
intent.” Consistent
is that a
with
mind intend-
charge
knowingly
intentionally
must have an additional state of
or
com-
ing
consequences
his
alleged
that further
result from
mitting
acts does not
unlawful
omitted.)).
(Footnotes and
specific
intent crime.
act.”
citations
create
of the offense
the commission
gov
both
“requires
it
crime because
intent
aiding
abetting
defendants
and the
to establish
someone
ernment
with the
drug
defendant.”),
knowingly possessed
it.” to distribute
intent
specific
2306,
they been had effects concerning the and testified contends the dis Mr. Jackson processes, mental their give on by failing crack cocaine erred trict court Mr. Jack for Counts testimony indicated instruction capacity diminished none of 4, Mr. Jackson 3 and Counts specific intent 3 and form the was unable son crack co distributing charged with was crack intent to distribute possess with 841(a)(1). § 21of caine in violation of the distribution cocaine, in the to aid 841(a)(1) shall be provides: “[I]t 21 USC Ms. Jackson crack, to assist agree or to knomngly or in any person unlawful it is drugs. While the distribution distribute, manufacture, ... tentionally heavy user was clear to man intent possess or with dispense, or conspiracies during the crack cocaine distribute, a con ufacture, dispense, or likely highly and it is charged Count added.) (Emphasis substance.” trolled co influence of crack was under he above, of a controlled possession As noted un of the transactions during some caine distribute it the intent to with substance 9, none of in Count charges derlying 841(a)(1) specific 21 USC under men Mr. Jackson’s witnesses testified mens of two requiring proof crime intent he was impaired that so capacity tal 1) pos intent to knowledge or rea: either *24 assist agree to Jackson unable to 2) sess; distribute. the to and intent to was unable or criminal endeavors her However, simple distribution charge a Mr. transactions. While facilitate the prove to only requires par intentionally to dis motivated or may knowingly have been Jackson defendant See substance. the controlled to distribute tributed conspiracy in the ticipate (“ Torres, essential ‘[T]he at 1135 53 F.3d for to crack in order obtain crack cocaine case of distribu of a facie prima elements to of his addiction because personal his use (1) are: substance tion of a controlled a cocaine, Mr. status crack Jackson’s (2) distribution; intentional; or knowing his put is not sufficient drug addict (3) (Quoting a controlled substance.’” at issue. See capacity mental Santistevan, 250, 39 F.3d v. States 960, F.2d Coffman, 567 Cir.1994).). also United See Cir.1977) (“[A]n reasoned element 1420, Johnson, 130 F.3d States knowingly an addict yet when choice exists (10th Cir.1997), using acquiring in and law violates the 142 L.Ed.2d offending for is. not excused drugs. One Therefore, possession charge unlike a very, very he wanted simply because distribute, charge of sim with intent to States, (Quoting Bailey v. United badly.”) intent crime. general is a ple distribution (5th Cir.1967), 386 F.2d Manganellis, See United L.Ed.2d (7th Cir.1988). Volun F.2d 533-39 (1968).). evi Because there was no a defense to tary intoxication is not ca Mr. Jackson’s mental suggesting dence Hatatley, general intent crime. See voluntary impaired his pacity was so Sands, (citing at 1405 that was un cocaine he ingestion of crack 1064)). Therefore, proposed instruc necessary specific intent able to form the to the crimes inapplicable tion was Counts charge crimes in to commit the court did not err and the district charged, did the district court jury and we conclude on dimin declining to instruct the voluntary intoxi proffered due to by declining give capacity not err ished and 4.13 for Counts 3 cation instruction. princi- abetted the he had aided or if it found
13. also asserts the diminished Mr. Jackson For the perpetration the crimes. pal given capacity have been instruction should above, argu- reject this we set forth it reasons jury for Count instructed because guilty on counts ment. could find those Included Offense Instruction a controlled 3. Lesser substance includes at least one element, possession, required proof Mr. Jackson next contends the distribution, conspiracy or the offenses by failing court erred to instruct district charged Counts jury simple possession of a con (21 844) trolled substance was a We first address the govern charges
lesser included offense of
argument
ment’s
that an instruction on
In
Counts
3 and 4.
order
a defendant
simple possession would have been incor
to be entitled to a lesser included offense
rect
instruction,
because it is not a lesser included
present:
four factors must be
offense of conspiracy
possess
(1)
(2)
with intent
proper request;
there was a
to distribute
possession
or the offense of
lesser included offense includes some
with intent to
A
distribute.16
criminal de
but not all of the elements of the offense
(3)
fendant is entitled to an instruction on a
charged;
differentiating
the elements
(4)
lesser
purported
included offense if the
dispute;
the two offenses are in
jury
rationally
lesser included offense is “an
could
convict the defen
offense nec
essarily
acquit
dant
the lesser offense and
him
included in the
charged.”
offense
31(c).
greater
offense.
Fed.R.Crim.P.
Interpreting
language,
Supreme
Court has set forth
Moore,
United States v.
an “elements” test to determine whether
(10th Cir.1997).
denying
Mr. Jackson’s
“necessarily
an offense is
included”
an
1, 3,
request for the instruction on Counts
test,
other. Under the elements
“one of
the district court focused on the
fense is not ‘necessarily included’ in anoth
final element described in Moore and con-
er unless the elements of the lesser offense
cluded
evidence could not
are
subset of the elements of
charged
determination that
guilty
Mr. Jackson was
*25
possession,
of mere
offense. Where the lesser
guilty
but not
of distri-
offense re
quires
bution of crack cocaine.14
an element
required
not
for the
greater offense, no instruction is to be
appeal, Mr.
On
Jackson contends the
31(c).”
given under Rule
Schmuck v.
evidence
was sufficient to
a find-
States,
705, 716,
United
489 U.S.
ing
only guilty
simple pos-
that he was
(1989).
the district court
determined the
conspiracy
possess
with
to
with intent to
evidence was not sufficient to warrant the
instruction.
distribute and to distribute crack cocaine.
government
The
further as-
Horn,
serts the instruction
United States v.
was not warranted
738
(10th Cir.1991),
applied
because the second factor
we
set forth under
elements
present.
Moore was not
simple
test outlined
Schmuck and held
argues
simple possession
the offense of
of possession is not a lesser included offense
gave
16.Although
specifi
14. The district court
a lesser included
the district court did not
9, possession
issue,
instruction on Count
with intent
cally
may
this
we
address
affirm
to distribute.
any
sup
district court’s decision on
basis
record,
ported by
upon
even if not relied
provides
pertinent part:
§
15. 21 U.S.C. 844
by the district court. United States v. Win
any person knowing-
"It
be
shall
unlawful for
ningham, 140 F.3d
Cir.
ly
intentionally
possess
or
to
a controlled sub-
1998).
stance.”
it.
haveWe
intent to distribute
sub- with the
a controlled
possess
conspiracy
is a
simple possession
held
previously
con-
or of
to distribute
with intent
stance
of a
possession
offense
included
lesser
sub-
a controlled
to distribute
spiracy
intent
substance with
controlled
reached
at 744. We
Id.
stance.
841(a)(1).
§
21 U.S.C.
under
distribute
of a con-
possession
because
conclusion
Lacey, 86 F.3d
See
an element
includes
substance
trolled
(10th Cir.),
offenses—
conspiracy
by these
required
(1996).
L.Ed.2d
.
at 744^15.
Id.
possession.
element
simple
However,
follow that
it does not
way,
possible
it
is
another
“Stated
offense of
included
possession is a lesser
offenses
these drug
conspire to commit
841(a)(1).
§
under
U.S.C.
distribution
to dis-
with intent
possession
[possession,
(other than
means “to deliver
Distribution
actually
without
distribution]
tribute
dispensing) a con-
administering or
themselves;
offenses
committing
a listed chemical.”
or
(cid:127)
substance
trolled
thus,
to commit
impossible
it is not
802(11).
“deliver”
§
The term
21 .U.S.C.
com-
without
(conspiracy)
greater offense
constructive,
actual,
or
“the
defined
offenses.”
suggested lesser
mitting the
sub-
a controlled
attempted
transfer
Therefore,
we conclude
Id. at 745.
chemical,
or
whether
a listed
or
stance
refusing to
err
did not
district
relationship.”
agency
exists an
not there
instruction
simple possession
give the
added).
802(8)
Al-
§
(emphasis
21 U.S.C.
to Count
regards
with
actual
may involve the
though distribution
applicability
to the
turn
nowWe
of a controlled
possession
or constructive
instruction to
included
the lesser
substance,
the term
courts have construed
charged
3 and
and 4. Counts
Counts
“include other
broadly to
“distribution”
“knowingly
inten
with
of a
in furtherance
perpetrated
acts
quantity
of co
distributing]
tionally
sale,
arranging or su
or
such as
transfer
(crack),
II con
a Schedule
base
caine
delivery,
negotiating
pervising
or
substance,” in
violation
trolled
receiving
price.” United
purchase
or
earlier,
841(a)(1).
As stated
U.S.C.
Brunty,
States
841(a)(1)
shall be
provides:
“[I]t
cases),
Cir.) (collecting
knowingly or in
any person
unlawful
155, 78
L.Ed.2d
distribute,
manufacture,
or
tentionally
Se
See
*26
manu
with intent to
possess
dispense,
(1st
or
1313, 1317
Cir.
102 F.3d
pulveda,
distribute,
a con
facture,
dispense,
or
1996);
Pungitore, 910
States v.
added.)
(Emphasis
(defen
(3d Cir.1990)
trolled substance.”
1084,
F.2d
1133-34
21
clear,
reading of
plain
It
is
from
arrange
authorizes another
dant who
841(a)(1),
Congress
intend
distribution),
cert.
guilty
is
drug deal
separate
2010,
crimes with
915,
create
denied,
ed to
several
114
S.Ct.
500 U.S.
111
States v. Go
See United
(1991);
in the statute.
States v.
L.Ed.2d 98
(3d Cir.),
210,
mez,
Cir.)
(4th
213 & n. 5
Crockett,
1310,
593 F.2d
1316
813 F.2d
2172,
948,
denied,
(“distribution!
99
physical
cert.
U.S.
S.Ct.
requires
441
either
]
(1979). See also United
60 L.Ed.2d
acts
fur
drug
1052
or other
transfer
(4th
Randall,
195,
denied,
transfer.”),
171 F.3d
206
v.
cert.
therance of the
Cir.1999) (“
112,
834,
ute’ contained in the statute is
(6th
broad
Cir.1975) (“[T]he
337 n. 2
F.2
to include acts that-
enough
traditionally
charge
distribution
can conceivably be
perhaps would have been defined as mere
proved
proof
without
of possession.”).
aiding
abetting.”).
may
it
Although
Therefore, simple possession is not a less
unusual for
person
be
to distribute
er included offense of distribution under
controlled substance without at least mo
the “elements test” outlined in Schmuck.
mentarily
possessing
controlled sub
Randall,
See
171 F.3d at
(“possession
stance,
impossible.
it is not
See United with intent to
requires
distribute
an ele
Gore,
(2d
States v.
154 F.3d
Cir.
ment that is
necessarily
not
an element of
1998) (noting other circuits have held
possession.”); United States
distribution —
“proof
necessarily
of distribution does not
(1st
Cir.1989)
Tejada,
886 F.2d
possession”
include the element of
and a
(holding possession with intent to distrib
charge
“distribution
can conceivably be
ute was not a lesser included offense of
proved
proof
possession”
without
(quo
distribution because distribution
does
omitted));
tation marks and citations
Se
necessarily include the element of posses
(in
pulveda, 102
discussing
F.3d
sion);
Barrientos,
United States v.
whether the offense of simple possession
(7th Cir.1985)
F.2d
(©holding
distribution,
merges with offense of
possession is not a necessary element of
“It
possible
stated:
un
—albeit
distribution),
usual—to
guilty
be
of distribution of a
(1986).17
tion.20 reliable may consider sentencing court suffi- was the evidence hold and argument Roach, at 576. The F.2d hearsay. 978 committed Mr. Jackson to establish cient drug of upon estimates may rely also court of distribution intentional knowing the information are based on they “if quantity cocaine. crack ” reliability.’ indicia of a ‘minimum that has Shewmaker, 936 F.2d Sentencing v. States C. United Cir.1991) (10th (quoting United 1130 finally contends Mr. Jackson (10th 1210, 1214 Davis, 912 F.2d v. States the erroneously included court district the omitted), (further cert. Cir.1990)) citations ob allegedly of crack cocaine grams 224 116 112 denied, 502 U.S. Oklahoma, Lawton, during trips to tained (1992). Mr. Jackson Because 788 L.Ed.2d of his calculation the with Ms. Jackson court was conspiracy, the of was convicted the dis review sentence.21 guidelines only on not its sentence to base allowed quantities drug of calculation court’s trict handled, personally he of crack amount the clear sentencing for of purpose the “any to consider was also allowed but Vaziri, F.3d v. error. reasonably foresaw or he which amounts Cir.1999). (10th re will “[We] 556, 568 scope particular of his the which fell within finding court’s the only if district verse Vaziri, conspirators.” the with agreement record the factual was without and cita (quotation at 568 marks F.3d firm definite the left with or we are omitted). tion made.” has been a mistake conviction Roach, F.2d v. hearing, Agent sentencing United States At the Cir.1992). bears (10th The fre the regarding both testified Manns necessary establishing the took to trips Mr. Jackson burden quency hearing by sentencing at with Jackson and factors cocaine Ms. crack obtain they procured of the evidence. preponderance cocaine amount crack 1177, 1182 n. Beaulieu, sup F.2d they Ms. Jackson’s time visited each (10th Cir.), testimony was based Agent Manns’ plier. L.Ed.2d and Mr. of Ms. Warren on the statements com need not sentencing Manns interviewed Ms. Agent Nunn. The evidence John crack co Rules Evidence. times about the Federal several ply with Warren Jimenez, Agent operation. distribution caine United States to be found Ms. Warren Cir.), testified he Manns (1991); Ms. remembered L.Ed.2d The truthful. trials and 1101(d)(3). require testimony previous only Warren’s Fed.R.Evid. Manns’ Agent hearings with upon agreed relied ment is information credibility. of Ms. Warren’s indicia sufficient assessment sentencing court “has Manns that Mr. Agent Warren told Cody, reliability.” United States to ob- Cir.1993). accompanied Ms. Jackson Thus, in deter- Jackson 1523, 1527 did twenty years. he brief, Jackson admits Mr. Count includes Mr. Jackson In his 20. object the 21 U.S.C. 851 enhancement maintaining place the distribution substances, argument con- felony. prior in his Mr. was on controlled cerning based ultimately on sufficiency of the evidence guidelines under sentenced acquitted Counts 3 and 4. Mr. Jackson (twenty-one years and ten months regard his inclusion of and we Count count months). guidelines sentence is When concerning the dis- argument his under sentence, statutory than minimum greater typographical er- a mere counts as tribution imposed. See guidelines sentence ror. 5Gl.l(b). variety of rea- for a USSG sons, argu- we do not address Jackson’s argues, apparently for the Mr. Jackson also statutory sen- concerning minimum ment attributing the full appeal, that first on time tence. result- him grams crack cocaine to statutory higher minimum sentence— ed in *30 . supplier tain crack from her four least be dicta I write separately only to em times during relevant time frame. phasize that the question of cash payment Agent Manns also interviewed Mr. Nunn by government for testimony remains concerning the distribution scheme. Ac- open Singleton. Also, under question Nunn, cording to Mr. Mr. Jackson claimed of who has the burden that show such accompanied have often Ms. Jackson payments are “traditional” remains open. weekly she trip procure when made her Medina, F.Supp.2d supplier. crack cocaine her Agent from (D.Mass.1999). 51-52 in Medina fact Manns testified he believed Mr. Nunn to holds that they are I not. would follow a credible nothing be witness. There is in Medina, including its burden-shifting the record to indicate the statements of government, The mechanism. unlike an these witnesses were unreliable. we person, accused inis a unique position to conclude the by court did not err finding prove its if “tradition” one exists. The responsible for the crack co- always “we have done it way” re caine in trips obtained four to Ms. Jack- sponse to what is a violation of the plain supplier. son’s language of the statute is a confession and avoidance response-in words, other an af testimony The concerning the amount of firmative defense. crack cocaine obtained each of the four
trips conflicting. was Ms. Wiseman told I began. end where I These issues re- Agent Manns the amount of crack cocaine main open, and these any comments and Jackson acquired as a result each suggestion in the opinion' court’s which trip supplier to her varied from one two appear to foreclose them remain dicta. hand, ounces. On other Mr. Nunn told Agent Manns that Mr. Jackson had
claimed Ms. Jackson obtained two ounces crack cocaine each time she went to her addition,
supplier. Agent Manns testi- he
fied was told Ms. by Warren had she
seen in possession Ms. Jackson of two of crack ounces cocaine. Ms. Edmondson MORGANROTH, MORGANROTH & Agent told Manns she saw Ms. Jack- Michigan partnership, Mayer with multiple son Keep- ounces of crack. Morganroth, Plaintiffs-Appellees. ing review, mind our standard of we conclude district court did not err estimating the amount of crack cocaine DeLOREAN, Zachary John Z. T. DeLo attributable to Mr. Jackson. The evidence rean, Kathryn DeLorean, Zachary A. offered was not without Kathryn T. DeLorean as custodian for support. factual The court did not err DeLorean, A. 9:10-11-12, Ecclesiastes concluding Agent Manns’ testimony, al- (formerly Logan INC. known as Man though based on the out of court state- ufacturing Logan Manufacturing or others, ments of reliable. For the Company), Defendants-Appellants. reasons, foregoing affirm all we the district No. 98-4125. rulings court’s Mr. Jackson’s case. Appeals, States Court of judgments district court in Tenth Circuit.
cases 98-6487 99-6090 are AF- FIRMED. June
McKAY, Judge, Circuit concurring: join
I opinion result and its court’s
except for a brief which I consider to part