United States v. Owusu ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0003P (6th Cir.)
File Name: 00a0003p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,


Nos. 98-3356/
v.

3847/3850
>
BENJAMIN Y. OWUSU 


(98-3356), LARRY LATHAM

(98-3847), and ANTHONY
Defendants-Appellants. 
LATHAM (98-3850),

1
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00030—James L. Graham, District Judge.
Argued and Submitted: October 26, 1999
Decided and Filed: January 5, 2000
Before: JONES, MOORE, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Stephen E. Maher, Columbus, Ohio, Keith E.
Golden, GOLDEN & MEIZLISH, Columbus, Ohio, for
Appellants. Gary L. Spartis, OFFICE OF THE U.S.
1
2 United States v. Nos. 98-3356/3847/3850
Owusu, et al.
ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF:
Paul R. Hensley, FEDERAL PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant in 98-3356. Terry
K. Sherman, Columbus, Ohio, for Appellant in 98-3847.
Keith E. Golden, GOLDEN & MEIZLISH, Columbus, Ohio,
for Appellant in 98-3850. Gary L. Spartis, David J. Bosley,
OFFICE OF THE U.S. ATTORNEY, Columbus, Ohio, for
Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. This appeal
involves three individuals who were part of a conspiracy to
distribute drugs in Columbus, Ohio. Larry Latham and
Benjamin Owusu were the primary participants in the
conspiracy, and Anthony Latham was involved in the chain of
distribution. Owusu pleaded guilty to conspiracy to distribute
and cooperated with the government. After a jury trial,
Anthony and Larry Latham were convicted of several federal
drug violations.1 Anthony appeals: (1) the district court’s
refusal to grant him a mitigating role adjustment to his
offense level under U.S. SENTENCING GUIDELINES MANUAL
(U.S.S.G.) § 3B1.2; (2) the district court’s calculation of the
amount of drugs attributable to him; (3) the district court’s
application of an enhanced sentencing penalty for the
distribution of “crack” cocaine pursuant to U.S.S.G. § 2D1.1;
and (4) the district court’s denial of his motion for a new trial
based on the government’s alleged violations of 18 U.S.C.
§ 201(c)(2). We AFFIRM each of these district court
decisions.
Larry’s counsel raises the following issues on appeal: (1)
the district court’s denial of his motion for judgment of
1
To avoid any confusion between Anthony and Larry Latham, we
depart from our general practice and refer to each by his first name.
Nos. 98-3356/3847/3850 United States v. 3
Owusu, et al.
acquittal of Counts 1, 2, 3, and 11 of the indictment; (2) the
district court’s calculation of the quantity of drugs attributable
to him; (3) the district court’s enhancement of his sentence for
his leadership role in the conspiracy under U.S.S.G.
§ 3B1.1(a); and (4) the district court’s enhancement of his
sentence for possession of a firearm pursuant to U.S.S.G.
§ 2D1.1(b)(1). In addition, Larry makes several pro se
arguments. We REVERSE the district court’s denial of
Larry’s motion for judgment of acquittal of Count 2 and
AFFIRM the rest of the district court’s decisions.
Finally, Owusu, who has AIDS, appeals the district court’s
refusal to grant a downward departure in his sentence for “an
extraordinary physical impairment” under U.S.S.G. § 5H1.4.
We DISMISS the appeal of this determination because the
district court was aware of its authority to grant such a
departure and thus its decision is nonreviewable.
I. FACTS AND PROCEDURE
In 1988, Owusu and Larry decided to pool their money
together to purchase cocaine from a supplier Owusu knew in
New York City. They would travel to New York to buy the
drugs, split the drugs evenly, and then independently
distribute them in Columbus, Ohio. They were both arrested
on September 5, 1988, by a New Jersey state trooper who
discovered two kilograms of cocaine and two guns in the car
in which they were traveling. Owusu and Larry were
convicted of drug and weapons charges in New Jersey state
court, sentenced to five years of imprisonment, and placed on
bond pending the appeal of their convictions. They then left
the state of New Jersey without ever serving their sentences;
New Jersey has outstanding warrants for their arrest. Owusu
and Larry were able to begin purchasing from Owusu’s
connection and distributing again in 1989, when Larry
received a disability check for approximately $5,000. The
amounts of cocaine they bought grew larger and larger over
time. This arrangement continued until 1992 or 1993, when
Larry and Owusu had a falling out. Larry then developed his
4 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 29
Owusu, et al. Owusu, et al.
own connection for cocaine but still continued to receive The district court’s questions and analysis were based on
some cocaine through Owusu. this court’s analysis and holding in Thomas and show that it
knew it had the authority to grant Owusu a downward
Anthony also was involved in the conspiracy. He received departure under U.S.S.G. § 5H1.4. The district court also was
powder and crack cocaine from his brother Larry and then aware of Owusu’s medical condition, but decided in its
distributed it to street-level dealers. Anthony Peoples was discretion that the condition was not sufficiently severe to
Larry’s right-hand man in distributing drugs. Velma warrant a downward departure for an extraordinary physical
Broomfield was Owusu’s girlfriend. She sometimes acted as impairment. Therefore, the district court’s determination is
a courier to transport the drugs from New York to Ohio, and not reviewable. See United States v. Coleman, 188 F.3d 354,
also helped test, store, and distribute the drugs. Sonyini 357 (6th Cir. 1999) (en banc).
McGraw and Larry Walton were street-level distributors who
received their cocaine from Larry and Anthony Latham. III. CONCLUSION
Owusu, Peoples, Broomfield, McGraw, and Walton For the reasons stated above, we AFFIRM the district
cooperated with the government and testified against Larry court’s decisions with respect to Anthony Latham. We
and Anthony at trial. A jury convicted both of them of Count REVERSE the district court’s denial of Larry Latham’s
1, conspiracy to distribute and to possess with the intent to motion for judgment of acquittal of Count 2 and REMAND
distribute over five kilograms of cocaine, over 50 grams of to the district court solely for the purpose of correction of the
crack cocaine, and heroin in violation of 21 U.S.C. judgment to eliminate conviction of Count 2. We AFFIRM
§§ 841(a)(1), 841(b)(1)(A)(ii) & (iii), and 21 U.S.C. § 846. the rest of the district court’s decisions with respect to Larry
The jury also found Anthony guilty of Counts 4, 5, 7, 8, and Latham. Finally, we DISMISS Owusu’s appeal of the district
9, charging him with distribution of and possession with court’s refusal to grant a downward departure in calculating
intent to distribute crack cocaine in violation of 21 U.S.C. his sentence.
§§ 841(a)(1) and 841(b)(1)(B)(iii). The jury concluded that
Larry also was guilty of Counts 2, 3, and 11, charging him
with distribution of and possession with intent to distribute
heroin and crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(iii). The district court sentenced
Anthony to 168 months of imprisonment followed by five
years of supervised release. It sentenced Larry to life
imprisonment on Counts 1 and 11 and to 240 months of
imprisonment on Counts 2 and 3, to run concurrently with his
life sentence.
Owusu pleaded guilty to Count 1 of the indictment,
conspiracy to distribute and to possess with the intent to
distribute over five kilograms of cocaine, over 50 grams of
crack cocaine, and heroin in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(ii) & (iii), and 21 U.S.C. § 846.
28 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 5
Owusu, et al. Owusu, et al.
49 F.3d at 260-61 (quoting United States v. DePew, 751 F. He was sentenced to 144 months of imprisonment, followed
Supp. 1195, 1199 (E.D. Va. 1990), aff’d on other grounds, by five years of supervised release.
932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991)).
In Thomas, the court concluded that a defendant was not II. ANALYSIS
entitled to a downward departure for an extraordinary
physical impairment because his HIV had not progressed into A. Anthony Latham
advanced AIDS. See 49 F.3d at 261. In this case, the district
court judge asked Owusu and his attorney to describe Anthony’s appeal involves four different issues: (1) the
Owusu’s current physical limitations. Owusu complained of district court’s refusal to grant him a mitigating role
a skin condition, lack of energy, and confusion, while his adjustment to his offense level; (2) the district court’s
attorney focused on his reduced life expectancy. The district calculation of the quantity of drugs attributable to him; (3) the
court then decided that Owusu did not qualify for a downward district court’s application of an enhanced sentencing penalty
departure based on the following reasoning: for the distribution of “crack” cocaine; and (4) the district
court’s denial of his motion for a new trial based on the
I’m not sure that Mr. Owusu’s condition has progressed government’s promises of more lenient sentences in exchange
to the point where a downward departure would be for witnesses’ testimony in alleged violation of 18 U.S.C.
legally justifiable. He does suffer from AIDS, but he is § 201(c)(2).
able to function in the normal prison population. He
appears to be in fairly good health as he stands before the 1. Mitigating Role Adjustment
Court today. But even if his condition should constitute
an extraordinary physical impairment, the Court does not We review a district court’s denial of a mitigating role
feel that a departure downward would be appropriate in adjustment to a defendant’s offense level under the
this case, considering the seriousness of his offense and Sentencing Guidelines for clear error. See United States v.
also considering his current physical condition, which Latouf, 132 F.3d 320, 332 (6th Cir. 1997), cert. denied, 118
while he may have a significantly reduced life S. Ct. 1542 (1998).2 Under U.S.S.G. § 3B1.2, a defendant’s
expectancy, is not one of debilitation or extreme offense level may be decreased by two levels if he was a
disability at this point. He is not in the terminal stages of
his disease as he stands before the Court today. 2
We have frequently stated that we review denials of mitigating role
J.A. at 79-80. adjustments for clear error. See, e.g., United States v. Miller, 56 F.3d
719, 720 (6th Cir. 1995); United States v. DeFranco, 30 F.3d 664, 669
(6th Cir.), cert. denied, 513 U.S. 942 (1994); United States v. White, 985
In the district court’s written imposition of Owusu’s F.2d 271, 274 (6th Cir. 1993). Recently, however, in United States v.
sentence, it again explained that Owusu’s motion for this Gort-DiDonato, 109 F.3d 318, 320 (6th Cir. 1997), we announced a two-
downward departure was denied because he had not yet part standard of review in the context of aggravating role adjustments.
reached a terminal stage of the disease and “there is no Under this standard, a district court’s factual findings are reviewed for
evidence that he is currently experiencing any significant clear error, while a district court’s legal conclusions regarding the
application of U.S.S.G. § 3B1.1 to the facts are reviewed de novo. The
health problems.” J.A. at 46. Gort-DiDonato standard seems equally appropriate for mitigating role
adjustments as it is for aggravating role adjustments. Since we would
affirm the district court under either standard, we need not resolve this
matter today.
6 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 27
Owusu, et al. Owusu, et al.
“minor participant in any criminal activity.” To qualify for C. Benjamin Owusu
this reduction, a defendant must be “‘less culpable than most
other participants’” and “‘substantially less culpable than the Owusu appeals the district court’s denial of his motion for
average participant.’” United States v. Lloyd, 10 F.3d 1197, a downward departure of his sentence for “an extraordinary
1220 (6th Cir. 1993) (quoting U.S.S.G. § 3B1.2 commentary, physical impairment” under U.S.S.G. § 5H1.4. A defendant
applic. note 3 & background), cert. denied, 511 U.S. 1043 may appeal his sentence if it was “imposed in violation of
(1994). This determination is “‘heavily dependent upon the law” or “imposed as a result of an incorrect application of the
facts,’” and the defendant must prove a mitigating role by a sentencing guidelines.” 18 U.S.C. § 3742(a)(1)-(2).
preponderance of the evidence. Id. Ordinarily, however, a court’s refusal to exercise its discretion
and grant a downward departure is not reviewable. See
Anthony argues that he is substantially less culpable than United States v. Landers, 39 F.3d 643, 649 (6th Cir. 1994).
the other participants in the conspiracy because he was only We may review a denial of a downward departure only if the
an end user of drugs who occasionally supplemented his district court incorrectly believed it lacked the authority to
income by selling drugs to others and was no more culpable grant such a departure as a matter of law. See United States
than the unindicted street-level dealers involved in the v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999) (en banc). A
conspiracy. The sentencing court agreed that Anthony was district court judge has no duty “to state affirmatively that he
less culpable than the primary coconspirators, Larry and knows he possesses the power to make a downward
Owusu. Comparing his activities to all of the people who departure, but declines to do so.” United States v. Byrd, 53
participated in the conspiracy’s illegal activity, however, the F.3d 144, 145 (6th Cir. 1995). Moreover, “an appellate court
court concluded that Anthony was more culpable than the should be reluctant to ‘treat as ambiguous’ a ruling which
street-level dealers because he was at a higher level in the does not affirmatively state that the judge knew he could
chain of distribution. Sonyini McGraw testified that Larry depart downward but failed to do so.” Id. (quoting United
supplied drugs to Anthony, who then distributed them to States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert.
McGraw to sell at a crack house in 1988 and 1989. McGraw denied, 510 U.S. 937 (1993)). We should therefore assume
also testified that after he was released from jail in 1993 and that a district court is exercising its proper discretion when it
wanted to begin selling drugs on the street again, Anthony concludes that a downward departure is unwarranted. See id.
“fronted” him for several months by supplying him with
approximately an ounce of crack per week, which Anthony Based on the record, the district court understood that it had
had obtained from Larry. the authority to grant Owusu a downward departure under
U.S.S.G. § 5H1.4. Owusu filed a sentencing memorandum
Anthony argues that he was in jail in 1988 and 1989 and with the district court requesting a departure under this
thus could not have been selling drugs to McGraw at that provision, citing to the most relevant and controlling Sixth
time. Anthony testified before the sentencing court, however, Circuit case, United States v. Thomas, 49 F.3d 253 (6th Cir.
that he was out of jail for over two months in 1988 and nine 1995), and attaching a letter from a physician describing
months in 1989. Anthony also argues that McGraw’s entire Owusu’s medical condition. During the sentencing hearing,
testimony is suspect because the sentencing court concluded the district court judge discussed the Thomas decision and its
that part of McGraw’s testimony -- where he saw Larry give adoption of a Virginia district court’s analysis and conclusion
Anthony approximately 500 grams of cocaine in a pizza box that AIDS alone is not an extraordinary physical impairment
in the pizza store located next door to Anthony’s barbershop under U.S.S.G. § 5H1.4. J.A. at 78-79 (discussing Thomas,
26 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 7
Owusu, et al. Owusu, et al.
guns were found in the car along with the cocaine, and a in 1993 -- was not a sufficient basis to attribute drugs to
rational fact finder could conclude that Larry was aware of Anthony. The district court reasoned that McGraw’s
their presence. Therefore, Owusu’s possession would be testimony was unclear as to the exact amount of drugs
reasonably foreseeable to Larry and could be imputed to him. involved and whether the transaction involved powder or
Under these circumstances, the district court did not clearly crack cocaine. The court did not, however, conclude that
err in adding two points to Larry’s base offense level for McGraw was lying about the events. Rather, the district court
possession of a firearm under U.S.S.G. § 2D1.1(b)(1). determined that McGraw was a “very significant witness.”
J.A. at 663. It found his testimony credible, noting that
5. Pro Se Arguments
McGraw identified various people that he purchased
Finally, Larry filed a supplemental pro se brief claiming: (1) drugs from. He didn’t lay all of the blame on Tony
his due process right to a fair trial was violated by the district Latham by any means. I can’t see any reason why he
court’s treatment of his counsel and its denial of his motion would have made up the part about Tony. It’s consistent
for mistrial; (2) the prosecution improperly vouched for the with the testimony of other witnesses about Tony’s
credibility of its witnesses in its closing statement; (3) the involvement in distributing drugs for Larry. It’s
district court’s jury instructions regarding conspiracy were consistent with what we know about the facts that Tony
erroneous; and (4) the government did not prove that Larry Latham did distribute drugs from the barbershop or from
distributed “crack” cocaine in Count 11 under U.S.S.G. the pizza shop next door.
§ 2D1.1. We have carefully reviewed the record and
conclude that Larry’s due process right to a fair trial was not J.A. at 708-09. McGraw’s testimony is consistent with other
violated because he did not identify any district court errors testimony describing Anthony’s role in the conspiracy. Larry
that prejudiced his substantial rights. In addition, we find that Walton testified that from 1993 to 1995 he would buy a
the government did not commit reversible prosecutorial quarter or half an ounce of crack two or three times a week
misconduct because any comments which could be construed from Anthony, which Walton then would sell on the street.
as improper vouching for a witness were not flagrant, the In addition, Anthony Peoples testified that Larry gave him
government provided significant evidence of Larry’s guilt, powder and crack cocaine to give to Anthony Latham on
and Larry failed to object to the comments at trial. We also several different occasions.
hold that the district court properly gave a multiple-
conspiracy jury instruction because a jury could have decided Although Anthony was less culpable than the primary
that more than one conspiracy existed since Larry worked coconspirators, Larry and Owusu, he was not less culpable
with Owusu and also developed his own drug connection in than the other participants or substantially less culpable than
1992 and 1993 after he had a falling out with Owusu. Finally, the average participant in the conspiracy. The evidence
Larry’s argument that the government did not prove that he shows that he was more than an end user and occasional
was involved in the distribution of “crack” in accordance with street-level seller of drugs. Anthony obtained powder and
the Sentencing Guidelines must fail because the district court crack cocaine from his brother Larry and then actively sold it
did not hold Larry accountable for any crack cocaine in to McGraw and Walton, street-level suppliers, on a regular
calculating his sentence. basis. Therefore, the sentencing court did not err in refusing
to apply a mitigating role adjustment to his offense level
under U.S.S.G. § 3B1.2.
8 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 25
Owusu, et al. Owusu, et al.
2. Quantity of Drugs Involved weapon in a gym bag in the trunk. Larry claims this
enhancement was improper because Owusu was in exclusive
We review for clear error a sentencing court’s calculation possession and control of the .32 caliber gun found under his
of the quantity of drugs for which a defendant is accountable. seat. The gun was registered to Owusu’s sister, and Larry
See United States v. Berry, 90 F.3d 148, 152 (6th Cir.), cert. asserts that Owusu had secreted himself on the floor of the
denied, 519 U.S. 999 (1996). A sentencing court may hold a back seat to have access to the gun while Larry was sitting
defendant accountable for a specific amount of drugs only if passively in the front passenger seat during the stop. The
the defendant is more likely than not responsible for a New Jersey state trooper testified, however, that he saw the
quantity greater than or equal to that amount. See United front seat passenger, Larry, make a furtive movement as the
States v. Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, car was pulling over, in which he appeared to be leaning back
498 U.S. 906 (1990). If the exact amount of drugs involved and then forward and then back as if he was reaching into the
is uncertain, the court may make an estimate supported by back seat and “either hiding something or retrieving
competent evidence in the record. See United States v. Ward, something.” J.A. at 110. This evidence strongly suggests
68 F.3d 146, 149 (6th Cir. 1995), cert. denied, 516 U.S. 1151 Larry placed or helped place the gun beneath his seat and thus
(1996). The evidence “‘must have a minimal level of had control and constructive possession over the gun.
reliability beyond mere allegation,’” and the court should err
on the side of caution in making its estimate. See United In addition, in United States v. Duncan, 918 F.2d 647, 651
States v. Baro, 15 F.3d 563, 569 (6th Cir.) (quoting United (6th Cir. 1990), cert. denied, 500 U.S. 933 (1991), the court
States v. West, 948 F.2d 1042, 1045 (6th Cir. 1991)), cert. reviewed the case law in this and other circuits and
denied, 513 U.S. 912 (1994). Testimonial evidence from a concluded, “The cases are all consistent in that they recognize
coconspirator may be sufficient to determine the amount of that enhancement is appropriate if a weapon is found . . . in
drugs for which another coconspirator should be held the automobile that facilitated the drug transaction.” In that
accountable. See United States v. Pruitt, 156 F.3d 638, 647 case, possession was found when a gun was located on the
(6th Cir. 1998), cert. denied, 119 S. Ct. 846 (1999). We defer front passenger seat of the defendant’s car during drug sales
to a district court’s credibility determinations unless they have carried out in and about the car. When Larry and Owusu were
no foundation. See id. stopped by the state troopers, they were returning to Ohio
from New York where they had purchased two kilograms of
The district court held Anthony accountable for 195 grams cocaine they were planning to sell in Columbus as part of
of crack cocaine, resulting in a base offense level of 34. their conspiracy to distribute drugs. Because the guns were
Anthony argues that the district court should not have found in the car facilitating their conspiracy, the district court
included 56.7 grams of crack cocaine in that total amount could have found Larry had constructive possession of the
because it was based on unreliable testimony from McGraw. guns during this offense. Moreover, even if the weapons were
McGraw testified that Anthony sold him an “eighth of a key, in Owusu’s exclusive possession, this possession occurred in
2 ounces” of crack cocaine to sell at a crack house several connection with the conspiracy between Larry and Owusu to
different times in 1988 and 1989. J.A. at 326. McGraw also distribute drugs. We have held that where a defendant knew
testified that Anthony “fronted” him by supplying him with an his coconspirator was trafficking drugs with a gun in the car,
ounce of crack “every week or so” for two to three months in possession was reasonably foreseeable and could be imputed
1993. J.A. at 335-36. Anthony makes the same arguments to him. See United States v. Perkins, 994 F.2d 1184, 1192
here as in the previous section challenging the credibility of (6th Cir.), cert. denied, 510 U.S. 903 (1993). Here, the two
24 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 9
Owusu, et al. Owusu, et al.
than five individuals, the district court did not err in McGraw’s testimony. As discussed in Part II.A.1 supra, these
concluding that Larry’s offense level should be increased by arguments must be rejected. Moreover, the district court’s
four levels under U.S.S.G. § 3B1.1(a). determination that McGraw’s testimony was credible is not
without foundation because McGraw had no reason to single
4. Possession of a Firearm Anthony out for these transactions and because his testimony
regarding Anthony’s activities was consistent with other
We review a district court’s factual finding of possession of testimony in the record. Based on this specific evidence, the
a firearm for enhancement of a defendant’s sentence under sentencing court properly erred on the side of caution and
U.S.S.G. § 2D1.1(b)(1) for clear error. See United States v. estimated that Anthony should be held accountable for only
Elder, 90 F.3d 1110, 1133 (6th Cir.), cert. denied, 519 U.S. two ounces of crack cocaine, or 56.7 grams. Therefore, it was
1016 (1996). The Sentencing Guidelines provide that the not clear error to include the 56.7 grams of crack cocaine in
base offense level of a defendant convicted of a drug offense his total attributed amount of 195 grams.
should be increased by two levels “[i]f a dangerous weapon
(including a firearm) was possessed.” U.S.S.G. 3. Determination that Drugs Were Crack Cocaine
§ 2D1.1(b)(1). This enhancement “should be applied if the
weapon was present, unless it is clearly improbable that the Anthony also argues that the district court incorrectly
weapon was connected with the offense.” U.S.S.G. § 2D1.1 determined that the drugs attributable to him were “crack”
commentary, applic. note 3. The government must prove by when it applied the enhanced penalty associated with this
a preponderance of the evidence that “(1) the defendant form of cocaine base under the Sentencing Guidelines. At
actually or constructively ‘possessed’ the weapon, and (2) sentencing, the government has the burden of proving by a
such possession was during the commission of the offense.” preponderance of the evidence that the drugs involved were
United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert. the “crack” form of cocaine base, as defined under U.S.S.G.
denied, 519 U.S. 858 (1996). Constructive possession may be § 2D1.1. See United States v. Jones, 159 F.3d 969, 981-82
established if the defendant has ownership, dominion, or (6th Cir. 1998). Whether a drug is crack or another form of
control over the weapon. See id. If the offense committed is cocaine base is a question of fact for the sentencing court to
part of a conspiracy, however, the government does not have determine, which we review for clear error. See id. at 982.
to prove that the defendant actually possessed the weapon, but Although neither party has addressed this issue, it appears that
instead may establish that a member of the conspiracy Anthony did not specifically contest the type of drugs
possessed the firearm and that the member’s possession was attributed to him before the district court. Therefore, this
reasonably foreseeable by other members in the conspiracy. argument is reviewed for plain error. See FED. R. CRIM. P. 52
See United States v. Sanchez, 928 F.2d 1450, 1459 (6th Cir. (b). The plain error analysis has four steps:
1991).
First, we are to consider whether an error occurred in the
The district court enhanced Larry’s sentence under this district court. Absent any error, our inquiry is at an end.
provision because Larry, Owusu, and Kevin Ardister were However, if an error occurred, we then consider if the
arrested on September 5, 1988, in connection with a traffic error was plain. If it is, then we proceed to inquire
stop by a New Jersey state trooper who found a .32 caliber whether the plain error affects substantial rights. Finally,
semi-automatic pistol under the front passenger seat of their even if all three factors exist, we must then consider
car and two kilograms of cocaine and another semi-automatic whether to exercise our discretionary power under Rule
10 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 23
Owusu, et al. Owusu, et al.
52(b), or in other words, we must decide whether the began receiving anywhere from ten to twenty-five kilograms
plain error affecting substantial rights seriously affected of cocaine per month from this new source.
the fairness, integrity or public reputation of judicial
proceedings. This evidence shows that Larry and Owusu were both
leaders of this drug conspiracy. Although Owusu initially had
United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993), the drug connection, they shared decisionmaking authority.
cert. denied, 511 U.S. 1043 (1994). In 1988, they jointly decided to pool their money together to
purchase the cocaine in New York. Larry supplied the entire
According to § 2D1.1, “‘Cocaine base,’ for the purposes of amount of money in 1989 to start up the distribution again
this guideline, means ‘crack.’ ‘Crack’ is the street name for after they were arrested in New Jersey in 1988. They jointly
a form of cocaine base, usually prepared by processing arranged the trips to New York to obtain the drugs, and Larry
cocaine hydrochloride and sodium bicarbonate, and usually had his car customized to have secret compartments in which
appearing in a lumpy, rocklike form.” U.S.S.G. § 2D1.1(c) the drugs could be hidden for these trips. Once Larry and
note D. Anthony argues that because the government did not Owusu obtained the cocaine, they would split it evenly and
prove that the drugs attributable to him were actually each would distribute his half independently. Larry directed
processed with sodium bicarbonate, they should not be Peoples and McGraw in distributing his share of the cocaine.
considered “crack” under this provision. We have expressly In a similar factual situation, we upheld a district court’s
held, however, that the use of sodium bicarbonate is not a finding that a defendant was a leader or organizer where he
necessary prerequisite for a district court’s factual had an equal role with two other individuals in providing
determination that a particular drug is “crack.” See Jones, drugs to several dealers and a gang, where the defendant’s
159 F.3d at 982-83. This provision “does not attempt to activities included determining when to order the drugs,
define crack as being manufactured in any particular way. contacting a supplier in New York, negotiating a price, and
The definition, through the use of the word ‘usually,’ serves arranging couriers to transport the drugs from New York back
merely to illustrate a common method of conversion.” Id. at to Ohio. See United States v. Bingham, 81 F.3d 617, 629-30
982. Thus, the government was not required to prove that the (6th Cir.), cert. denied, 519 U.S. 900 (1996). Like the
crack cocaine for which Anthony was held accountable was coconspirators in Bingham, Larry was an organizer or leader
manufactured with sodium bicarbonate. of the conspiracy.
A preponderance of the evidence supports the district Larry argues that because Peoples was the only individual
court’s finding that the drugs attributed to Anthony were the he could have arguably led or directed, he was not leading
crack form of cocaine base. Part of the attributed drugs came five individuals. It is not necessary, however, for a defendant
from purchases an undercover police agent and informant to have led or directed five individuals to receive this
made from Anthony on several different occasions in June, sentencing enhancement. It may apply “[i]f the defendant
July, and October 1994 and from seizures made in connection organized or led at least one participant, and if the activity
with Anthony’s arrest in October 1994. A police analyst involved five or more people or was otherwise extensive.”
testified that she performed laboratory tests on the drugs Ward, 68 F.3d at 151. In this case, the drug conspiracy
purchased and seized from Anthony and concluded that they involved more than five participants, including Owusu, Larry,
were cocaine base. It is important to note that this testimony Anthony, McGraw, Peoples, and Broomfield. Because Larry
did not establish that these drugs were in fact the crack form was an organizer or leader of a conspiracy involving more
22 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 11
Owusu, et al. Owusu, et al.
seized in New Jersey in September 1988, Larry and Owusu of cocaine base as required by Jones. The government,
were out of money and drugs and had to start all over again. however, provided additional evidence that the drugs were
In 1989, Larry received a disability check for approximately crack. The police agents who had purchased and seized the
$5,000, which he gave to Owusu, who traveled to New York drugs from Anthony testified that they had performed field
to purchase a quarter of a kilogram of cocaine. Starting in tests on the drugs which revealed that they were crack
1989, they would use Velma Broomfield as a courier. Up cocaine. In addition, the drugs were admitted into evidence
until 1992, they would pool their money and split the cocaine at trial and a police agent described them as having an
from New York, never disclosing to each other to whom they opaque, 3 rock-like appearance, a characteristic of crack
were distributing their share. As discussed in Part II.B.2 cocaine. The government may rely on police laboratory
supra, Larry and Owusu purchased and distributed a results and testimony from field agents to establish that seized
minimum of 150 kilograms of cocaine. cocaine is crack cocaine. See Jones, 159 F.3d at 982
(affirming the district court’s determination that the drugs
The government presented evidence that Larry had involved were crack cocaine based on testimony from a
individuals distributing cocaine for him. McGraw testified forensic scientist, a police field agent, and taped
that Larry supplied him with crack cocaine to sell on the street conversations referring to crack). In addition, evidence that
and then arranged for him to sell the drugs out of a crack the cocaine is in rock form indicates that the substance is in
house in which Larry’s mother had once lived. Larry also fact crack cocaine. See Wright v. United States, 182 F.3d 458,
supplied crack to the other sellers working out of the crack 468 (6th Cir. 1999) (affirming district court’s conclusion that
house every day or every other day. McGraw would receive drugs were crack based in part on testimony that the seized
drugs from Larry through Anthony and through Peoples. He drugs were a “‘chunky hard substance,’” a characteristic of
testified that for approximately five years, Larry and Peoples crack cocaine). Therefore, the district court did not err in
were together all of the time and that Peoples was Larry’s concluding the drugs purchased and seized from Anthony by
right-hand man. During this time period, when McGraw the police were crack cocaine.
wanted to purchase drugs, he would talk to Larry and then
would obtain the drugs from Peoples. Anthony alleges that the rest of the crack cocaine, which is
attributed to him based on transactions described in
Peoples also testified that he was Larry’s right-hand man. McGraw’s testimony, cannot conclusively be determined to
He and Larry would cook cocaine into crack for distribution. be crack. The government may establish the identity of a drug
Peoples would do the actual distributing, based on who Larry by circumstantial evidence. See United States v. Wright, 16
told him to go and see. They sold to low-level dealers in their F.3d 1429, 1439 (6th Cir.), cert. denied, 512 U.S. 1243
public housing project and in other places. On several (1994). Expert testimony is not necessary, and a lay witness
different occasions, Larry asked Peoples to deliver drugs to who has personal experience with crack cocaine can establish
Anthony. Peoples also testified that to assist in the that a substance is crack. See id. at 1439-40 (affirming the
conspiracy’s efforts, Larry built hidden compartments into his district court’s finding that the substance involved was crack
car to hide the drugs from New York, bought a vacuum-seal
machine to seal the drugs they packaged, and bought a
money-counting machine. He also stated that in 1993, Larry
3
developed another connection, in addition to Owusu, and The drugs from one purchase, executed on July 14, 1994, were
accidentally destroyed. The police agent testified, however, that he had
examined them and concluded that they were in fact crack cocaine.
12 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 21
Owusu, et al. Owusu, et al.
cocaine based on testimony from several government review. See United States v. Gort-DiDonato, 109 F.3d 318,
witnesses who had seen the defendant “cutting” crack or had 320 (6th Cir. 1997). Under the Sentencing Guidelines, a
seen the substance and knew it was crack based on their defendant’s offense level may be increased by four levels if he
personal experience). In this case, McGraw specifically “was an organizer or leader of a criminal activity that
testified that Anthony sold him the crack form of cocaine base involved five or more participants or was otherwise
in 1988 and 1989. He also testified that Anthony supplied extensive.” U.S.S.G. § 3B1.1(a). If the court concludes that
him with crack cocaine for several months in 1993. McGraw “the defendant was a manager or supervisor (but not an
appears to have based his conclusions that these transactions organizer or leader) and the criminal activity involved five or
involved crack on his personal experience. He had observed more participants or was otherwise extensive,” it may
Larry cook crack cocaine on several different occasions in increase his offense level by three levels. U.S.S.G.
1989, 1990, and 1994, and therefore could differentiate crack § 3B1.1(b). A court should consider the following factors in
from other forms of cocaine base. Because McGraw had making its determination:
sufficient experience to make this determination, the district
court did not err in relying on this testimony to conclude that the exercise of decision making authority, the nature of
the drugs Anthony sold McGraw were crack under U.S.S.G. participation in the commission of the offense, the
§ 2D1.1. recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
4. 18 U.S.C. § 201(c)(2) participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of
Finally, Anthony argues that the district court should have control and authority exercised over others. There can,
granted him a new trial because the government allegedly of course, be more than one person who qualifies as a
violated 18 U.S.C. § 201(c)(2). He relies on United States v. leader or organizer of a criminal association or
Singleton, 144 F.3d 1343, 1350-51 (10th Cir. 1998), which conspiracy.
held that the government violates this provision when it
impermissibly promises witnesses something of value, such U.S.S.G. § 3B1.1 commentary, applic. note 4. The
as a more lenient sentence, in exchange for testimony. This government must prove this finding by a preponderance of the
decision, however, was vacated and reversed by the Tenth evidence. See United States v. Ward, 68 F.3d 146, 151 (6th
Circuit in an en banc decision. See United States v. Singleton, Cir. 1995), cert. denied, 516 U.S. 1151 (1996).
165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 119 S. Ct.
2371 (1999). Moreover, we expressly rejected this analysis The district court concluded that Larry was the organizer or
and holding in United States v. Ware, 161 F.3d 414, 419-24 leader of this conspiracy, which involved over five people and
(6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999) (holding was extensive. The conspiracy began in 1988 when Owusu
that this provision does not apply to the government based on told Larry that he had a cocaine supplier in New York and
a thorough examination of canons of statutory construction, they agreed to pool together $150 to purchase cocaine. In the
historical practice, the prosecutor’s established prerogatives, beginning, they traveled together to New York to obtain the
and legislative history). Because 18 U.S.C. § 201(c)(2) does drugs and then each took half to sell on their own once they
not apply to the government, Anthony’s argument must be were back in Ohio. With their profits, they continued to pool
rejected. their money together to purchase increasing amounts of
cocaine. After they were arrested and their cocaine was
20 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 13
Owusu, et al. Owusu, et al.
two kilograms of cocaine. In 1989, they began purchasing in B. Larry Latham
New York again starting with a quarter of a kilogram of
cocaine. They worked up to five to seven kilograms of Larry’s counsel raises the following issues on appeal: (1)
cocaine within approximately six months. For approximately the district court’s denial of his motion for judgment of
one year they purchased five to seven kilograms in New York acquittal of Counts 1, 2, 3, and 11 of the indictment; (2) the
twice a month. In 1991 and 1992, they were buying five to district court’s calculation of the quantity of drugs attributable
ten kilograms of cocaine twice a month. Owusu also testified to him; (3) the district court’s enhancement of his sentence for
that Larry would receive one to three kilograms of cocaine per his leadership role in the conspiracy under U.S.S.G.
week in 1993 and 1994. Based on this testimony, 150 § 3B1.1(a); and (4) the district court’s enhancement of his
kilograms is a conservative estimate for the amount of sentence for possession of a firearm pursuant to U.S.S.G.
cocaine distributed through this conspiracy. § 2D1.1(b)(1). Larry makes several additional arguments in
his supplemental pro se brief.
Larry argues that this testimony is not credible because it is
vague. Testimony from Peoples, McGraw, Velma 1. Motion for Judgment of Acquittal of Counts 1, 2, 3,
Broomfield, and Derrick Russell, however, provided similar and 11
evidence of large amounts of cocaine attributable to Larry
through the conspiracy. Peoples, for instance, testified that in Larry claims the district court improperly denied his motion
1988 Larry and Owusu had worked up to purchasing five to for judgment of acquittal of Counts 1, 2, 3, and 11 pursuant to
ten kilograms every couple of weeks and they were Rule 29(c) of the Federal Rules of Criminal Procedure.4 We
purchasing ten to fifteen kilograms three to four times a review a district court’s denial of a motion for judgment of
month in 1989 and 1990. This testimony also establishes acquittal on the basis of insufficient evidence by examining
more than 150 kilograms of cocaine for which Larry could be “whether, after viewing the evidence in the light most
held accountable. Larry also argues that this testimony is favorable to the prosecution, any rational trier of fact could
tainted because the witnesses expected to receive more lenient have found the essential elements of the crime beyond a
sentences in exchange for their cooperation in violation of 18 reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
U.S.C. § 201(c)(2). As already discussed in Parts II.A.4, (1979); United States v. Gorman, 807 F.2d 1299, 1303 (6th
II.B.1.a, and II.B.1.d supra, this argument must be rejected. Cir. 1986), cert. denied, 484 U.S. 815 (1987). This review is
Larry has not identified any other reason to find that the “quite limited.” United States v. Morrow, 977 F.2d 222, 230
sentencing court lacked foundation in concluding Owusu’s
testimony was credible. Therefore, the district court did not
clearly err in holding Larry accountable for 150 kilograms of 4
Larry’s attorney properly made a Rule 29 motion following the close
cocaine. of all evidence with respect to Counts 1, 2, 3, and 11, which the district
court denied. This motion was not renewed within seven days of the jury
3. Leadership Role verdict as allowed under Rule 29. See FED. R. CRIM. P. 29(c). Before
sentencing, Larry filed a motion for leave to file a motion for judgment of
We review a sentencing court’s factual findings regarding acquittal based on the Tenth Circuit’s Singleton decision. The district
court denied the motion for leave because grounds existed upon which
a defendant’s role in a conspiracy for clear error. Whether Larry could have renewed his motion within the proper time frame.
these facts warrant a sentence enhancement pursuant to Assuming arguendo that the court did grant leave, it still would have
U.S.S.G. § 3B1.1(a) is a legal conclusion subject to de novo dismissed a Rule 29 motion based on Singleton because it concluded that
the decision was contrary to existing Sixth Circuit law.
14 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 19
Owusu, et al. Owusu, et al.
(6th Cir. 1992) (en banc), cert. denied, 508 U.S. 975 (1993). properly denied Larry’s motion for judgment of acquittal of
This court does not weigh evidence, make credibility Count 11.
determinations, or substitute its judgment for that of the jury.
See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 2. Quantity of Drugs Involved
1993), cert. denied, 510 U.S. 1130 (1994).
We review a sentencing court’s calculation of the quantity
a. Count 1 of drugs for which a defendant is accountable for clear error.
See United States v. Berry, 90 F.3d 148, 152 (6th Cir.), cert.
Larry claims the government did not submit sufficient denied, 519 U.S. 999 (1996). Under the Sentencing
evidence that he was involved in a conspiracy to possess with Guidelines, “a defendant is accountable for all quantities of
intent to distribute over five kilograms of cocaine, 50 grams drugs with which he was directly involved and, in the case of
of crack cocaine, and heroin under 21 U.S.C. §§ 841(a)(1), joint criminal activity, all reasonably foreseeable quantities.”
841(b)(1)(A)(ii) & (iii), and 21 U.S.C. § 846. The United States v. Ledezma, 26 F.3d 636, 646 (6th Cir.), cert.
government’s only evidence of conspiracy, he asserts, was denied, 513 U.S. 942 (1994). See also U.S.S.G.
provided by individuals who had been charged with or § 1B1.3(a)(1). The government must prove the quantity by a
convicted of federal drug offenses and who testified in preponderance of the evidence. See United States v. Walton,
expectation of a more lenient sentence. Larry argues that 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. 906
because the government’s actions violate 18 U.S.C. (1990). As we explained in Part II.A.2 supra, if the exact
§ 201(c)(2), this testimony should be excluded under United amount of drugs involved is uncertain, the court may make an
States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). As estimate supported by competent evidence in the record.
discussed in Part II.A.4 supra in response to a similar
argument by Anthony, the Singleton decision was vacated and Larry argues that the district court erred in relying
reversed by the Tenth Circuit, and we have expressly rejected exclusively on Owusu’s testimony in holding him accountable
its analysis and holding. See United States v. Ware, 161 F.3d for over 150 kilograms of cocaine. At sentencing, the district
414, 419-24 (6th Cir. 1998), cert. denied, 119 S. Ct. 1348 court reviewed all of the evidence, including the amount of
(1999); see also United States v. Singleton, 165 F.3d 1297 drugs attributable from the testimony provided by the various
(10th Cir.) (en banc), cert. denied, 119 S. Ct. 2371 (1999). witnesses. In actually calculating Larry’s offense level, the
Therefore, the district court properly denied Larry’s motion court only considered the drugs referred to in Owusu’s
for judgment of acquittal of Count 1 on this basis. testimony because that quantity already exceeded 150
kilograms of cocaine, which corresponds to the highest base
b. Count 2 offense level in the Sentencing Guidelines. The sentencing
court concluded that Owusu was “a very credible witness”
Larry asserts that the government failed to present sufficient before relying on his testimony for this purpose. J.A. at 654.
evidence to support Count 2, that he was involved in a sale of Owusu testified that he and Larry began in early 1988 by
heroin on April 17, 1992, in violation of 21 U.S.C. purchasing a quarter of a kilogram of cocaine in New York
§ 841(a)(1). Police Detective Enoch White testified that he and then bringing it back to Ohio for distribution. They
was working undercover with an informant at that time, and continued by purchasing a half of a kilogram, then one
they went to a house on Miami Avenue to buy drugs from kilogram, and quickly moved up to two kilograms. On
Larry. They were waiting in a front room of the house for September 5, 1988, they were arrested in New Jersey with
18 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 15
Owusu, et al. Owusu, et al.
eventually met up with him at Peoples’s grandmother’s house. Larry to arrive for approximately twenty minutes when a
Once they arrived at the house, Peoples went directly to the white automobile pulled up to the front of the house. Larry
kitchen where Larry was sitting at the kitchen table. Wilson and another man, Charles Smith, stepped out of the car and
followed him, but Larry and Peoples told him not to come walked directly to the kitchen area located in the back of the
into the kitchen. Wilson stood in the adjoining living room house. The informant then went to the back of the house,
but could see part of the kitchen through a reflection from a while White remained in the front room. The informant
mirror and observed Peoples walking toward Larry. Peoples returned to the front room with Smith, who was holding one
then left the kitchen and asked Wilson to go out to the front gram of heroin. Smith gave the heroin to the informant, who
porch of the house with him. Peoples told Wilson how much gave it to White. White paid Smith $500 in cash, talked
money Larry wanted for the crack cocaine, they haggled over about possible future deals, and then Smith returned to the
the price, Peoples took the money inside the house, and then back area of the house. White admits that Larry never came
Peoples returned to the porch with 57 grams of crack. to the front of the house and that he only dealt with Smith and
the informant during this transaction.
Larry argues that Wilson’s testimony does not establish that
Larry was involved in this transaction because the crack Larry argues that this evidence is not sufficient to establish
cocaine was purchased from Peoples on the porch of the that he was involved in this sale of heroin because White
house without Larry present. Although Wilson saw Peoples never saw Larry with any drugs and did not have any direct
walking toward Larry, he did not see any drugs being contact with him. The applicable statute states, “it shall be
exchanged between them. In addition, Larry also questions unlawful for any person knowingly or intentionally — (1) to
the credibility of Wilson’s testimony. However, we do not manufacture, distribute, or dispense, or possess with intent to
make credibility determinations in evaluating the sufficiency manufacture, distribute, or dispense, a controlled substance.”
of evidence. See Hilliard, 11 F.3d at 620. Moreover, 21 U.S.C. § 841(a)(1). The government appears to argue that
Wilson’s testimony was corroborated and supplemented by Larry remained in the kitchen while Smith carried out the
Peoples’s testimony. Peoples testified that on the night of transaction on his behalf by bringing the drugs from the
October 27, 1994, he met with Larry in the kitchen of his kitchen and then taking the money back to him, and,
grandmother’s house, and Larry gave him a couple of ounces therefore, Larry knowingly and intentionally distributed drugs
of crack cocaine. Peoples then sold the crack to Wilson on to White. The government did not, however, submit any
the front porch of the house and gave the money to Larry. additional evidence to support this argument, to prove that
Larry argues that Peoples’s testimony should be excluded Larry was actually involved in this deal, or to show that he
because it was provided in expectation of a more lenient routinely had Smith carry out his transactions. Because
sentence in violation of 18 U.S.C. § 201(c)(2). As discussed sufficient evidence did not exist from which a rational juror
in Parts II.A.4 and II.B.1.a supra, this is not a valid argument. could conclude beyond a reasonable doubt that Larry was
guilty of this offense, the district court erred in denying his
Taken together, the testimony from Wilson and Peoples motion for judgment of acquittal of Count 2. Therefore, we
provides sufficient evidence upon which a rational juror could reverse the district court’s denial of Larry’s motion for
conclude beyond a reasonable doubt that Larry was directly judgment of acquittal of Count 2.
involved in the sale of 57 grams of crack cocaine to White on
October 27, 1994, satisfying the elements of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(iii). The district court thus
16 United States v. Nos. 98-3356/3847/3850 Nos. 98-3356/3847/3850 United States v. 17
Owusu, et al. Owusu, et al.
c. Count 3 and intentionally distributed the heroin to White. With
respect to the “fronted” heroin, the informant gave it to White
Larry also claims the government presented insufficient when they were alone upstairs, out of Larry’s presence.
evidence to find him guilty of Count 3, distribution of heroin White did not have any further contact with Larry after that
on May 7, 1992, in violation of 21 U.S.C. § 841(a)(1). night, and Larry never accepted payment for this heroin
Detective White testified that he went to the informant’s because he claims he was not involved in that transaction.
house at 62 North Waverly on that date to purchase drugs. He White testified that the heroin was fronted by Larry, but
arrived at the house at the same time as Larry and two other White did not explain this assertion any further, and the
individuals. White went inside to the front area of the house, government did not produce any other evidence to support it.
while Larry and the informant went to the kitchen area for Because Larry cannot be tied to this heroin, there was
approximately three or four minutes. White was then called insufficient evidence for any rational fact finder to conclude
to the kitchen area and asked to show that he had $1,000 cash that Larry knowingly and intentionally distributed this
to purchase two grams of heroin. After displaying the money, “fronted” heroin. Therefore, the district court should have
Larry told White that he did not have the drugs on him and granted Larry’s motion for judgment of acquittal regarding the
had to go get them. Larry left the house and was gone for “fronted” heroin in Count 3. Because there was sufficient
approximately ten minutes. When Larry returned, he went to evidence for the first transaction, this is harmless error and
the kitchen area while White remained in the front room. Larry’s conviction of this count is not vacated. See FED. R.
White was able to see what was happening in the kitchen CRIM. P. 52(a). In addition, no heroin was included in Larry’s
through a reflection from the front of the microwave, and he base offense level for sentencing purposes because he had
observed Larry pulling something out of his pocket. Five already reached the highest offense level under the Sentencing
minutes later, White was called into the kitchen and a package Guidelines on the basis of cocaine attributable to him through
containing two grams of heroin was on the kitchen table. the conspiracy offense. Therefore, it is unnecessary to
White picked it up and put the money on the table, as remand the case for resentencing for any heroin improperly
instructed by Larry. He did not see Larry pick up the money. attributed to him under Counts 2 and 3.
White then went upstairs with the informant, who gave him
an ounce of heroin which was to be “fronted” to him by Larry. d. Count 11
White never ended up paying Larry for this “fronted” heroin,
even though he attempted to do so on several occasions. Larry also argues that the government submitted
insufficient evidence of Count 11, that he distributed more
Larry argues that White’s testimony is not sufficient for a than 50 grams of crack cocaine on October 27, 1994, in
rational fact finder to conclude that he sold the heroin to violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).
White because White only saw a package of heroin on the Federal agent Paris Wilson testified that he went undercover
table and never actually saw Larry with the drugs. However, and befriended a man named Hyman Dixon, who helped
Larry told White he could get heroin for him and departed for make arrangements for him to purchase drugs from different
ten minutes. White saw Larry pull something out of his individuals, including Anthony Peoples. On October 27,
pocket, and then a package of heroin was on the table, which 1994, Dixon told Peoples that Wilson wanted to purchase an
Larry allowed White to take once he put his money on the eighth of a kilogram of crack cocaine, and Peoples said he
table. This is sufficient evidence upon which a rational juror would have to obtain that amount from Larry. Wilson and
could find beyond a reasonable doubt that Larry knowingly Peoples made several attempts to get in touch with Larry and