United States v. Wash, Kevin

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1217

United States of America,

Plaintiff-Appellee,

v.

Kevin Wash, a/k/a KeKe,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond

Division.

No. 2:99-CR-46--Rudy Lozano, Judge.

Argued September 25, 2000--Decided November 2,

2000

Before Flaum, Chief Judge, and Easterbrook

and Diane P. Wood, Circuit Judges.

Flaum, Chief Judge. Kevin Wash was

convicted of several counts related to

distributing cocaine base and carrying a

firearm during a drug trafficking

offense. Wash now appeals his conviction,

arguing that the district court erred in

admitting evidence of prior possessions

of crack cocaine under Fed.R.Evid.

404(b), in allowing his coconspirators to

testify about the identity of the drugs

that they dealt, and holding Wash

responsible for two ounces of crack

cocaine that an informant attempted to

buy from one of his coconspirators. For

the reasons stated herein, we affirm.

Background

Wash was indicted on the following four

counts: (1) conspiracy to possess with

intent to distribute 50 grams or more of

cocaine base, in violation of 21 U.S.C.

sec. 846 from at least December of 1998

until approximately February 19, 1999;

(2) knowingly and intentionally

possessing with the intent to distribute

in excess of 5 grams of cocaine base, in

violation of 21 U.S.C. sec. 841(a)(1);

(3) knowingly and intentionally

attempting to possess in excess of 50

grams of cocaine base, in violation of 18

U.S.C. sec. 2; and (4) knowingly

possessing a firearm during and in

relation to a drug trafficking offense,

in violation of 18 U.S.C. sec. 924(c). He

pled not guilty to all four counts.

Originally, the federal complaint was

filed against Wash and his codefendants

Trammell Washington, Consuela Jones, and

Antonio Jones. Washington’s trial was

severed and he invoked his Fifth

Amendment right when called as a witness

by Wash. Both Consuela Jones and Antonio

Jones pled guilty to Count 1 pursuant to

a plea agreement and testified as

government witnesses.

During December of 1998 until

approximately mid to late February of

1999, Wash and Consuela Jones were

involved in various drug transactions.

Initially, Wash supplied Consuela Jones

with crack cocaine from a house at 10th

and Harrison Street in Gary, Indiana.

When the supply dried up at this

location, Wash began to purchase his

crack through Consuela Jones at her

apartment. Consuela Jones’s cousin,

Antonio Jones, supplied Wash with the

crack. Wash’s involvement in drug

transactions also led him to assume a

broker role in a drug deal with Trammell

Washington. Unbeknownst to Wash,

Washington was an informant for the

police. Washington had been apprehended

by the police after fleeing a residence

in Gary, Indiana. There is some evidence

that Wash was at the residence because

his fingerprints were found at the scene.

The residence had, among other things,

crack cocaine, handguns, a revolver, a

semi-automatic pistol, cellular phones,

sandwich bags, beer bottles, and a razor

blade. One of the cellular phones had

Wash’s nickname, KeKe, stored in the

radio function of the phone.

The arrest of Washington impacted Wash

because Washington made several telephone

calls that were recorded in an effort to

set up a controlled drug buy. Washington

and FBI Agent Bradley Bookwalter placed a

call to a pager number, put in the number

"1600," which represented the price of

two ounces of crack, and received a

return call from Wash./1 Washington

informed Wash that he needed to see him

about getting some drugs and asked Wash

to put him in contact with Antonio Jones.

This led to an exchange between Wash,

Washington, and Consuela Jones. Wash

called Consuela Jones to tell her that a

friend wanted to get some crack cocaine

from her cousin Antonio Jones. Consuela

Jones proceeded to page her cousin and in

the meantime Washington once again paged

Wash. Wash called back Washington, told

him that he contacted Consuela Jones, and

that she was trying to get the crack

cocaine from Antonio Jones. He then gave

Washington Consuela Jones’s phone number.

Several more exchanges took place, until

finally an agreement was arrived at

whereby Washington would call Consuela

Jones and she would then page Antonio

Jones when Washington called her back in

ten minutes. The details at this point

are a bit unclear, but it seems as though

Antonio Jones was across the street from

Consuela Jones’s apartment and had

planned to bring the drugs over upon

Washington’s arrival. Wash set up the

deal and Consuela Jones acted as the

intermediary between Washington and

Antonio Jones. After calling Consuela

Jones, Washington was given 1600 dollars,

fitted with a transmitter, and

transported to the area of Ms. Jones’s

apartment. Washington was accompanied by

Gary Police Sergeant Reginald Harris in

an undercover role while police officers

acted in a surveillance capacity in the

vicinity of Consuela Jones’s residence at

1720 W. Fifth Avenue. The operation went

awry when Sergeant Harris was recognized

by a homicide suspect that the Sergeant

had previously interviewed. In the

meantime, a person fixing Consuela

Jones’s car also detected the police

surveillance of her apartment and told

her about their presence. Consuela Jones

left her apartment with her children as

Washington and Sergeant Harris

approached.

Before trial, Wash filed a motion in

limine to exclude from trial the

introduction of prior bad acts evidence

under Rule 404(b) and the introduction of

testimony by his coconspirators

concerning the identity of the drugs

which they dealt. The district court

denied Wash’s 404(b) claim and allowed

Consuela Jones and Antonio Jones to

testify during trial regarding the

identity of the drugs they sold. Wash’s

initial trial resulted in a mistrial and

his second trial ended in the jury

finding him guilty on all counts. He was

sentenced to a term of imprisonment of

240 months for Counts 1, 2, and 3 and a

consecutive term of imprisonment of 60

months for Count 4.

Discussion

A. 404(b) Challenge

Wash claims that the district court

improperly admitted evidence of his prior

bad acts under Fed.R.Evid. 404(b). The

district court allowed the introduction

of two prior occasions where Wash

possessed crack cocaine. In 1996, police

officers observed Wash and three other

individuals apparently conducting drug

sales with some motorists in Gary,

Indiana. The officers confronted Wash and

during a pat-down of Wash, he threw

something on the ground. What he had

thrown down was 23 packets containing a

total of 3.5 grams of crack. On June 5,

1997, a search of Wash was conducted at

the adult detention center in

Minneapolis, Minnesota, which revealed

5.4 grams of crack cocaine hidden in

Wash’s anus.

We review the district court’s decision

to admit evidence for an abuse of

discretion. United States v. Curry, 79

F.3d 1489, 1494 (7th Cir. 1996). "Under

Federal Rule of Evidence 404(b), evidence

of other misconduct is not admissible to

show that the defendant acted in

conformity therewith, but may be

admissible for other purposes, such as

proof of motive, opportunity, intent,

preparation, plan, knowledge, or

identity." United States v. Wilson, 31

F.3d 510, 514 (7th Cir. 1994). A four-

part test must be satisfied for evidence

of prior acts to be admitted under Rule

404(b):

(1) the evidence is directed toward

establishing a matter in issue other than

the defendant’s propensity to commit the

crime charged; (2) the evidence shows

that the other act is similar enough and

close in time to be relevant to the

matter in issue, (3) the evidence is

sufficient to support a jury finding that

the defendant committed the similar act,

and (4) the probative value of the

evidence is not substantially outweighed

by the danger of unfair prejudice. Id. at

514-15.

After considering, during a motion in

limine, the defendant’s and government’s

arguments concerning the prior bad acts

evidence, the district court concluded

that such evidence aided in proving

Wash’s knowledge of and/or intent to

distribute crack cocaine. The prior bad

acts, the district court found, were

similar enough and close enough in time

to be relevant and there was sufficient

evidence to support a finding by the jury

that Wash had committed the similar acts.

Finally, the district court said "the

probative value of the evidence is not

outweighed by the prejudicial effect." As

an additional precaution, the district

court offered to provide a limiting

instruction regarding the 404(b) evidence

while it was being presented and during

the final instructions to the jury.

The prior bad acts were admitted to

prove Wash’s intent to distribute crack

cocaine under Count 2. "Possession of

cocaine with intent to distribute under

21 U.S.C. sec. 841(a)(1) is a specific

intent crime." United States v. Long, 86

F.3d 81, 84 (7th Cir. 1996). The evidence

was introduced to prove Wash’s intent and

"[w]hen a defendant is charged with a

specific intent crime, the government may

present other acts evidence to prove

intent." Id. at 84 (citations and

internal quotation marks omitted).

Wash disagrees with the district court’s

determination that his prior acts were

relevant to the current charges against

him. According to Wash, the present case

against him centers around his intent to

distribute crack cocaine, which occurred

in a crack house that had within it tele

phones and firearms. In contrast, he

argues his 1996 stop and frisk happened

at a different location and with

different people. The setting in the 1996

incident was also distinguishable in

Wash’s view because there was no

completed transaction, Wash did not have

a gun, no telephones were employed, nor

was he inside a dwelling. Wash also

contends that the 1997 Minnesota incident

resulted from a search after Wash was

under arrest. In addition, during the

1997 occurrence the drugs were found in

Wash’s anus, no one else was involved,

and the search itself happened in

Minnesota and not in Indiana. Wash

suggests that because the 1996 and 1997

incidents occurred at least 2 or 3 years

prior to the conspiracy this makes them

too remote in time to be relevant.

Wash’s argument is not convincing. He

focuses upon the factual differences

between his two prior bad acts and his

current convictions and this does not

make for a strong case because "[s]imple

differences in the type of conduct or

charge at issue cannot defeat the

similarity requirement. This prong of our

Rule 404(b) analysis need not be unduly

rigid." Long, 86 F.3d at 84 (citations

and internal quotation marks omitted).

Although Wash would like us to believe

that there is no similarity between the

1996 and 1997 incidents and his current

charges, all of these situations

implicate him in possessing distribution

amounts of drugs. The 1996 incident

involved Wash throwing down 23 packets

containing a total of 3.5 grams of crack

cocaine. According to a government

expert, a "dime bag" contains one-tenth

of a gram of crack cocaine, which is sold

for 10 dollars, and a typical user would

only have 10 dollars to 30 dollars worth

of crack cocaine at a time. Similarly,

the government expert said that a person

possessing an excess of 5 grams of crack

cocaine typically would use this amount

of crack for distribution and not

personal use. The 1997 incident in Minne

sota showed that Wash had 5.4 grams of

crack cocaine. The 1996 and 1997

occurrences, like the current charges

Wash faces, involved more than a small

amount of crack cocaine--they involved

distribution amounts. In United States v.

Hernandez, 84 F.3d 931, 935 (7th Cir.

1996), we concluded that a prior

marijuana conviction was similar enough

to the charged crimes of distributing

cocaine and heroin. What convinced the

court that these prior acts were relevant

was that although "[d]ifferent drugs were

involved, . . . both incidents concerned

distribution amounts of drugs and illicit

transport." Id. at 935.

In this case, the common thread between

the prior bad acts and the current

charges is the distribution amounts

involved and this unifying element

overshadows any differences in location

and the number of individuals involved.

Furthermore, Wash’s argument concerning

the time lapse between his 1996 and 1997

incidents and his current charges is not

viable under this circuit’s precedent.

See, e.g., United States v. Kreiser, 15

F.3d 635, 640-41 (7th Cir. 1994) (seven

years is close enough in time); United

States v. Harrod, 856 F.2d 996, 1002 (7th

Cir. 1988) (five year lapse in time is

permissible); United States v. Tringali,

71 F.3d 1375, 1379 (7th Cir. 1995) (nine

years is not too long). We therefore

affirm the district court’s decision to

allow the prior bad acts evidence.

B. Objections to Testimony Regarding

the Use of the Term Crack Cocaine

Wash further objects to the district

court’s decision to allow Consuela Jones

and Antonio Jones to testify about the

identity of controlled substances at

trial. As part of a pre-trial motion in

limine Wash objected to this type of

testimony, but the district court decided

not to render a decision on the question

at that time. At trial, the district

court allowed Consuela Jones and Antonio

Jones to testify about what they believed

was crack cocaine.

We review a district court’s decision to

admit evidence for an abuse of

discretion. United States v. Johnson, 137

F.3d 970, 974 (7th Cir. 1998). A

determination made by a district court

judge regarding the admissibility of

evidence "’is treated with great

deference because of the trial judge’s

first-hand exposure to the witnesses and

the evidence as a whole, and because of

his familiarity with the case and ability

to gauge the likely impact of the

evidence in the context to the entire proceeding.’"

Id. at 974 (quoting United States v.

Torres, 977 F.2d 321, 329 (7th Cir.

1992)).

The record reveals that Wash’s attorney

objected several times to the testimony

given by Consuela Jones and Antonio Jones

when they used the term "crack cocaine."

The basic premise of the objection was

that "witness lay persons [were]

testifying as to the chemical composition

and the actual identity of something for

which they are not competent to testify."

Wash contends that neither Consuela Jones

nor Antonio Jones were qualified as

experts on the issue of controlled

substances and therefore the testimony

they presented was lay opinion. According

to Wash, lay opinion needs to be based

upon first-hand knowledge and Rule 701

states that non-expert testimony is

limited to opinions or inferences that

are "(a) rationally based on the

perception of the witness and (b) helpful

to a clear understanding of the witness’

testimony or the determination of a fact

in issue." Fed.R.Evid. 701. According to

Wash, Consuela Jones testified that she

had never used crack and relied upon her

customers’ satisfaction to identify her

product as crack. Likewise, Wash argues

Antonio Jones premised his identification

of his product as crack cocaine upon the

fact that none of the people whom he

supplied ever complained that it was not

crack cocaine.

Wash’s position is not persuasive.

Consuela Jones and Antonio Jones "were no

strangers to crack cocaine." United

States v. Earnest, 185 F.3d 808, 812 (7th

Cir. 1999). Consuela Jones testified that

she had been dealing "dime bags" of crack

cocaine for approximately two years.

Creating these dime bags was not a

haphazard affair, but rather involved a

definite methodology. She would purchase

3.5 grams of crack for 100 dollars and

break it down with a razor blade into

twenty dime bags, which she sold for 10

dollars apiece. She used small ziplock

bags to package the dime bags and when

she ran out of these she would use small

sandwich bags. According to Jones, she

sold to crack addicts, her customers were

satisfied with her product, and they

returned for additional purchases.

Antonio Jones also testified that for

approximately two years he dealt in what

he believed was crack cocaine, including

sales to Consuela Jones and Wash, and had

received no complaints. "[T]hose who

smoke, buy, or sell this stuff are the

real experts on what is crack." United

States v. Bradley, 165 F.3d 594, 596 (7th

Cir. 1999). Clearly, Consuela Jones and

Antonio Jones were in the business of

selling drugs. "[T]he people who

transport, cook, cut up, bag, and sell

crack are the sort of people who tend to

know what crack is." United States v.

Hardin, 209 F.3d 652, 661 (7th Cir.

2000). Wash additionally notes that

Consuela Jones testified that she had

never personally used crack cocaine; this

is an empty argument since "a cashier at

Jewel doesn’t have to bite off a piece of

the customer’s broccoli to know which

vegetable she is ringing up." Id. at 661-

62. Therefore, we affirm the district

court’s determination to allow Consuela

Jones’s and Antonio Jones’s testimony.

C. Sentencing Guidelines Challenge

Finally, Wash contends that the district

court’s inclusion of two ounces of crack

cocaine in determining his offense level

under the Sentencing Guidelines was

clearly erroneous. We review a district

court’s conclusions with deference and

"[t]he district court’s determination of

the quantity of drugs involved in an

offense is a factual finding which must

be supported by a preponderance of the

evidence. This court must uphold such

findings unless they are clearly

erroneous." Tringali, 71 F.3d at 1381

(citations omitted). We will overturn a

factual determination if we are left

"with the definite and firm conviction

that a mistake has been committed."

United States v. Garcia, 69 F.3d 810, 819

(7th Cir. 1995) (citations and internal

quotation marks omitted).

Wash argues that the attempted two ounce

deal between himself, Washington, and

Consuela Jones had no potential of being

completed. Consuela Jones never received

the two ounces nor did she know that the

number "1600" was a code for two ounces,

according to Wash. Furthermore, Consuela

Jones testified that Washington would not

deal with her cousin Antonio Jones and

that she never had dealt in as large an

amount as two ounces. Thus, Wash claims

that there was a lack of intention to

complete the drug deal and therefore the

two ounces should not have been

considered in calculating the quantity of

drugs he was responsible for under the

Sentencing Guidelines.

The Sentencing Guidelines are not silent

with respect to Wash’s contention.

"Application note 12 to U.S.S.G. sec.

2D1.1 . . . indicates that negotiated

quantities from an uncompleted drug

transaction should be included for

purposes of setting an offense level."

United States v. Bonilla-Comacho, 121

F.3d 287, 291 (7th Cir. 1997).

Nevertheless, if "the defendant

establishes that he or she did not intend

to provide, or was not reasonably capable

of providing, the agreed-upon quantity of

the controlled substance, the court shall

exclude from the offense level

determination the amount of controlled

substance that the defendant establishes

that he or she did not intend to provide

or was not reasonably capable of

providing." U.S.S.G. sec. 2D1.1, comment.

(n.12) (Nov. 1998). The burden is on the

defendant to show that he did not have

the intent or capability to provide the

negotiated amount of drugs. Bonilla-

Comacho, 121 F.3d at 292 n.2.

The district court’s determination that

Wash was involved in setting up the

attempted purchase of two ounces of crack

cocaine with the informant Washington

cannot be disturbed under our highly

deferential standard of review.

Washington had called Wash and expressed

his desire to buy some crack. Wash then

called Consuela Jones and informed her

that he needed to acquire some crack for

a friend. Consuela Jones in turn paged

her source, that is, Antonio Jones. Wash

called Washington and told him that he

had spoken to Consuela Jones, that she

was going to get the crack, and Wash

provided Washington with Consuela Jones’s

telephone number. Washington indicated

the amount of crack he desired by putting

in the number "1600" in the pager calls

that he made to Consuela Jones and Wash.

Consuela Jones testified that she did not

know what the number "1600" meant, but

she did speak with Washington directly,

and apparently they reached an

understanding about delivering the drugs

to Washington. This entire process

appears to indicate that "negotiations

and not idle talk" took place between the

parties. Garcia, 69 F.3d at 820. Each

person involved seemed intent about

supplying the drugs and the discussions

were not "mere puffery." Bonilla-Comacho,

121 F.3d at 292.

Additionally, Wash did not hesitate to

set up the deal and he had previously

purchased two ounces of crack from

Antonio Jones. Consuela Jones herself was

no stranger to setting up drug deals as

she had in the past arranged deals at her

apartment between Wash and Antonio Jones.

No one acted as if the deal would not

proceed as planned. The deal was

frustrated only by the discovery of the

police outside Consuela Jones’s apartment

rather than by a decision of the parties

themselves that the deal could not move

forward. The district court upon allowing

the two ounces to be considered said that

"the deal or the purchase of crack

cocaine . . . had proceeded substantially

and that the fact that the deal did not

go through is not necessarily relevant in

this case, due to the fact that there had

been prior deals. And the evidence in

this case showed that the drugs in

question could have been supplied." The

facts support the district court’s

reasoning. Wash has not provided us with

any persuasive evidence that establishes

that he lacked the intent or capability

to go through with the deal and the

burden to prove this is on him. The

district court appropriately included the

two ounces when it determined Wash’s

sentence. Therefore, we affirm the

district court’s decision to take into

account the two ounces of crack cocaine.

Conclusion

For the reasons stated herein, we AFFIRM

the decision of the district court.

/1 According to the record, Agent Bookwalter could

not recall if he or Washington placed the page.