United States v. Wright

UNITED STATES COURT OF APPEALS
Filed 8/8/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No.95-3162
v. (D.C. Kansas)
(D.C. No. 93-10083-03)
KENNETH RAY WRIGHT,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before PORFILIO, HOLLOWAY, and MURPHY, Circuit Judges.

Kenneth Ray Wright appeals his convictions, after a jury trial, of

conspiracy to distribute and distribution of cocaine base (“crack”) in violation of

21 U.S.C. §§ 841(a)(1) and 846. On appeal, Wright contends as follows: (1) the

evidence was insufficient to support the jury’s guilty verdicts as to both the

conspiracy and distribution counts; (2) the district court abused its discretion in

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
allowing the government to introduce evidence of Wright’s alleged prior bad acts;

and (3) the disparate treatment of powder and crack cocaine for sentencing

purposes violates the Equal Protection and Due Process Clauses. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

BACKGROUND

The facts, stated briefly and taken in a light most favorable to the

government, are as follows. In September of 1993, members of the Drug

Enforcement Agency Task Force (the “Task Force”) in Wichita, Kansas, began an

investigation of Joyce Davis. Confidential informants had indicated to Officer

Daniel Walton that Davis was selling drugs out of her apartment. The Task Force

originated a plan whereby the two confidential informants, known as “Steve” and

“Janet,” would make controlled purchases of drugs at Davis’s apartment.

Members of the Task Force filmed the area around Davis’s apartment during the

transactions and listened to the transactions via transmitters worn by Steve and

Janet.

The first two controlled buys took place on September 8, 1993. Janet

called Davis from the police station and asked if Davis could get her a quarter

ounce of crack. Steve and Janet then went to the apartment to purchase the crack.

The first purchase was made from two individuals identified as Jamal and Jay.

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When Jamal and Jay arrived at the apartment, Davis asked Steve and Janet to go

to the bedroom. Shortly thereafter, Davis told them they could come out and

indicated that Jamal and Jay were relatives who stopped to visit. Steve eventually

purchased $100 worth of crack from Jamal and Jay.

The second purchase on September 8th took place soon after the departure

of Jamal and Jay. The Task Force members who were listening could hear a

knock on Davis’s door. Davis then asked Steve and Janet to go to the bedroom.

Soon thereafter, Davis brought a package containing crack to the bedroom and

was given $350 by Steve. Davis then left the bedroom. After a short while,

Davis escorted them out of the bedroom and indicated that “Carl” had left.

Although Carl was not observed by the members of the Task Force, he was later

identified as Carlton J. Watkins.

Several additional purchases, each following a similar pattern, took place

during September of 1993. Either Janet or Steve would place a call to Davis;

both would then proceed to her apartment. Soon Watkins would appear and Davis

would have Steve and Janet go into the bedroom. Davis would then bring the

crack to them and Steve would give Davis the money for the purchase. After

Davis would leave the bedroom, Watkins would leave the apartment.

On October 5, 1993, arrangements were made for Steve and Janet to again

purchase crack from Davis. This time, however, the officers planned to arrest

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Watkins when he arrived. When Watkins arrived, he became suspicious and

drove away. Task Force officers pursued and arrested Watkins.

When Watkins did not show up at Davis’s apartment, Davis indicated that

she might be able to obtain crack from someone named “Ken.” Janet was able to

observe Davis dial the phone to activate a pager. When Ken failed to return the

page, Steve and Janet left Davis’s apartment. Steve and Janet informed Davis

that they were going to talk to another source of crack. After leaving the

apartment Janet wrote down the number that Davis had dialed and gave it to the

Task Force. A member of the Task Force recognized it as belonging to Kenneth

Ray Wright. Members of the DEA surveillance team observed and identified

Wright as he entered Davis’s apartment after Steve and Janet left.

Sometime later that day, either Steve or Janet telephoned Davis and advised

her, “that the stuff that they had gone to look at wasn’t any good, and if she had a

supplier, they were still interested in trying to make a purchase, could they hook

up.” Davis said that “Kenny” had been there right after they left and she would

be able to make the three-ounce deal they wanted. Davis advised that they were

to call back later that afternoon to set up a meeting.

After making a second call to confirm the deal, Janet and Steve returned to

Davis’s apartment. Task Force members observed Wright as he arrived at Davis’s

apartment. Wright met with Davis’s boyfriend, Andre Bencent, outside of the

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apartment. After a brief discussion with Wright, Bencent went into the apartment.

Minutes later, Wright got out of his car and began walking toward the apartment.

Bencent exited the apartment and met Wright on the stairs outside the apartment.

After speaking briefly with Bencent, Wright left the area.

Immediately after Davis delivered to Steve and Janet the crack that Wright

had provided, Steve indicated that he had left part of the money for the purchase

at his motel because he was nervous about dealing with a new source of supply.

Steve left the apartment, telling Davis he would return with the remainder of the

money shortly. Steve then met with a member of the Task Force and turned over

the one-half ounce of crack he had just purchased from Wright, Davis, and

Bencent. After meeting with the officers, Steve returned to Davis’s apartment

with the remainder of the money.

Shortly after Steve returned to Davis’s apartment, Wright again appeared at

the apartment and again met with Bencent. Members of the Task Force observed

Bencent going up to the apartment, then going to Wright’s car and back to the

apartment. When Bencent got out of Wright’s car, Wright left the area. Steve

and Janet then left the apartment. They then met with members of the Task Force

and turned over a brown paper sack which contained three knotted baggies. Steve

and Janet had been told that the baggies contained powder cocaine. A field test

indicated the substance was not cocaine.

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 Wright was arrested later that same day. During a search incident to his

arrest, officers discovered that Wright was carrying $1,200 in one pocket and

$600 in another. The money found on Wright was the same money given to Steve

and Janet earlier that day to make the cocaine purchases. When questioned about

the money, Wright explained that $600 of the money belonged to a girlfriend and

$1200 had come from the sale of a car.

When officers explained that they knew the source of the bills, that he had

been videotaped at the Davis apartment, and that his arrest was for the cocaine

and baking soda he had sold, Wright admitted that he had delivered the half ounce

of crack cocaine to the apartment. He asserted, however, that he had merely

delivered the drugs for someone else. Wright further asserted that after the

delivery, he had realized there was money to be made. Thus, according to Wright,

he created the baking soda packets to get the rest of the money.

A pager was also taken from Wright at the time of his arrest. Officers

discovered that the pager’s memory listed two calls from the telephone in Davis’s

apartment. The pages contained Davis’s telephone number and the following

numerical sequences, 28-911-9 and 099-911-911. At trial, the Task Force

member who found the pager opined that these numerical sequences communicate

Davis’s desire to quickly purchase an ounce of crack.

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 Wright was eventually indicted on distribution and conspiracy charges. At

trial, members of the Task Force testified to the basic facts set out above. Davis

testified that on October 5th she contacted Watkins for the purpose of supplying

cocaine to Steve and Janet. When Watkins failed to show up, she contacted

Wright for a delivery. When Wright first came to her apartment on October 5th,

he did not have any crack. Davis contacted Wright a second time that day and

Wright indicated he could get some crack. Wright then came to the apartment

complex with approximately one-half ounce of crack, which was to serve as a

sample. If Janet and Steve liked the quality of the initial delivery, Wright was to

deliver an additional two and one-half ounces. Wright informed Davis that he

was nervous about entering her apartment. Accordingly, Bencent acted as a drug

and money courier, traveling back and forth between Davis’s apartment and

Wright’s car.

At the conclusion of the trial, the jury convicted Wright of distribution and

conspiracy to distribute crack cocaine.

ANALYSIS

Wright asserts that the evidence presented at trial was insufficient to

support his distribution and conspiracy convictions. When faced with a

sufficiency of the evidence challenge, we review the record de novo. United

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States v. Chavez-Palacios, 30 F.3d 1290, 1293-94 (10th Cir. 1994). “Evidence is

sufficient to support a criminal conviction if a reasonable jury could find the

defendant guilty beyond a reasonable doubt, given the direct and circumstantial

evidence, along with reasonable inferences therefrom, taken in a light most

favorable to the government.” United States v. Mains, 33 F.3d 1222, 1227 (10th

Cir. 1994). This court has repeatedly noted the limited and deferential nature of

appellate review of claims challenging the sufficiency of the evidence. Applying

this deferential standard, we will overturn a jury’s conclusion of fact only if we

find that no reasonable juror could have reached the disputed verdict. Chavez-

Palacios, 30 F.3d at 1294; United States v. Hoenscheidt, 7 F.3d 1528, 1530 (10th

Cir. 1993).

We first address Wright’s challenge to his conviction for possession with

intent to distribute. In order to sustain a conviction for possession with intent to

distribute under 21 U.S.C. § 841(a)(1), the government must prove that the

defendant: (1) possessed a controlled substance; (2) knew he possessed a

controlled substance; and (3) intended to distribute the controlled substance.

Mains, 33 F.3d at 1228. Upon review of the record, we find an abundance of

evidence from which a reasonable jury could have found Wright guilty beyond a

reasonable doubt of possession with intent to distribute.

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 In challenging his conviction on the distribution claim, Wright contends

that there was no proof of communication with Davis indicating a buyer-seller

relationship. This contention is without merit. Davis testified that she paged

Wright to inquire about a crack delivery for Janet and Steve. Wright arrived at

Davis’s apartment and informed her that he did not have any crack. Davis paged

Wright a second time that day and again asked if he could supply crack cocaine.

According to Davis’s testimony, Wright responded to her call and informed her

that he could get the crack. Wright then drove to Davis’s apartment and delivered

a one-half ounce sample of crack to Davis’s boyfriend, Andre Bencent. Because

Wright did not want to go up to Davis’s apartment, Bencent acted as a go-

between, shuttling between the apartment and Wright’s car. In light of Davis’s

testimony, Wright’s claim that there was no evidence of communication between

he and Davis is simply wrong. In fact, the record demonstrates active

negotiations between Davis and Wright over the course of much of the day. The

evidence adduced at trial was sufficient to support Wright’s conviction of

possession of cocaine with intent to distribute.

Having addressed his conviction for possession with intent to distribute, we

move on to address Wright’s conspiracy conviction. To prove a conspiracy, the

government must show the following: (1) two or more persons agreed to violate

the law; (2) the defendant knew at least the essential objectives of the conspiracy;

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(3) the defendant knowingly and voluntarily became a part of it; and (4) the

alleged coconspirators were interdependent. United States v. Owens, 70 F.3d

1118, 1126 (10th Cir. 1995). Viewed in the light most favorable to the

government, there was sufficient evidence from which a reasonable jury could

conclude that Wright conspired with Davis and Bencent to distribute cocaine.

Wright argues that he was merely trying to defraud his purported

coconspirators by selling them baking soda rather than cocaine. According to

Wright, he was thus acting contrary to the interests of the conspiracy and did not

have the common purpose or design necessary to show participation in the

conspiracy. See United States v. Slater, 971 F.2d 626, 630 (10th Cir. 1992). We

find Wright’s argument unconvincing. During cross-examination of Davis and

Agent Michael Crawford, Wright’s attorney developed at trial this same theory of

the case. The jury rejected Wright’s theory. In light of the evidence presented by

the government, we cannot say that a reasonable juror was obligated to accept

Wright’s theory of the case or that his theory must necessarily create reasonable

doubt. 1

We note that the jury could have reasonably concluded Wright never intended
to defraud his coconspirators and delivered the baking soda simply because he
was unable to obtain enough cocaine to complete the transaction. Similarly, the
jury could have reasonably concluded that Wright formulated the intent to defraud
only after he had become a member of the conspiracy and completed the first
transaction.

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 The government produced evidence demonstrating that Wright, Davis, and

Bencent, agreed to provide cocaine to Steve and Janet under circumstances where

none of them were able and willing to do so alone. The evidence demonstrated

that Davis and Wright engaged in extensive negotiations throughout the day

before agreeing on a plan to distribute cocaine to Steve and Janet. Wright agreed

to provide three ounces of cocaine to Steve and Janet through and with the

cooperation of Davis and Bencent. Wright needed Davis and Bencent to complete

the transaction and act as go-betweens because he was unwilling to meet face to

face with Steve and Janet. Wright arrived at the apartment and delivered a half

ounce of crack to Bencent, who then ferried the drugs and money back and forth

between the apartment and the car. The same arrangement was used when Wright

arrived later in the day to complete the transaction. Under these facts, the

government proved all that was required: (1) two or more persons, Wright, Davis,

and Bencent, agreed to violate the law; (2) Wright knew the essential objective of

the conspiracy was to deliver drugs to Steve and Janet; (3) Wright became part of

the conspiracy knowingly and of his own free will; and (4) Wright, Davis and

Bencent were interdependent. The evidence was thus sufficient to support the

conspiracy conviction.

Wright next claims that the district court erred in admitting evidence of

Wright’s alleged prior narcotics transactions. At trial, Wright’s counsel made a

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strategic decision to cross-examine Agent Crawford about a conversation that

took place between Wright and Crawford after Wright’s arrest. On redirect, the

government sought to examine Crawford about additional aspects of the

conversation, specifically about whether Wright had admitted to involvement in

other drug transactions. When Wright objected, the government asserted that

Wright had “opened the door” to this area of questioning. According to the

government, Wright’s questions of Crawford left the impression that the incident

in question was nothing more than a solitary transaction where Wright acted as no

more than an unpaid drug courier. The district court agreed that Wright had

opened the door by leaving the jury with a false impression about the

conversation between Wright and Crawford and that the government was entitled

to correct that false impression.

This court reviews the district court’s decision to admit or exclude evidence

for an abuse of discretion. United States v. Conway, 73 F.3d 975, 980-81 (10th

Cir. 1995). Under this standard, we will reverse the trial court only when its

decision is “‘arbitrary, capricious, whimsical, or manifestly unreasonable.’”

United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991) (quoting

United States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir.), cert. denied, 491

U.S. 909 (1989)); see also FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir.

1994). We have carefully reviewed the trial transcript and conclude that the

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district court did not abuse its discretion in allowing the government to more fully

develop the nature of the conversation between Wright and Crawford, including

the fact that Wright had admitted to being involved in other drug transactions.

See United States v. Catano, 65 F.3d 219, 226 (1st Cir. 1995) (“A district court

may allow testimony on redirect which clarifies an issue which the defense

opened up on cross-examination even when this evidence is otherwise

inadmissible.”). Certainly, the district judge is the person in the best position to

assess the import of Wright’s cross-examination of Crawford and the possibility

that the cross-examination might have misled the jury. See Oldenburg, 34 F.3d at

1555-56 (noting district court’s superior position for viewing the evidence and

assessing its probative value). Accordingly, we are unwilling to conclude that the

district court’s decision to allow the government to further explore the

conversation between Wright and Crawford was manifestly unreasonable. See

Hernandez-Herrera, 952 F.2d at 343.

Finally, Wright asserts that section 2D1.1 of the Sentencing Guidelines,

which equates one gram of crack cocaine to one hundred grams of powder

cocaine, violates the constitutional guarantee of equal protection because it

imposes harsher sentences on African-Americans than on Caucasians.

This court recently rejected an identical equal protection challenge to

section 2D1.1. United States v. Williamson, 53 F.3d 1500, 1530 (10th Cir.), cert.

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denied, 116 S. Ct. 218 (1995). The Williamson court noted this Circuit has

consistently rejected the argument that disparate treatment of crack and powder

cocaine necessarily implies a finding of intentional discrimination. Id.

(collecting cases). 2 Similarly, this Circuit has consistently rejected the claim that

the distinction between crack and powder cocaine is not a rational distinction. Id.

(collecting cases). Accordingly, under the authority of Williamson, we conclude

that the distinction between crack and powder cocaine set out in section 2D1.1

does not violate the Equal Protection Clause.

AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy
Circuit Judge

Wright seems to contend that a special report of the Sentencing Commission to
Congress regarding Cocaine and Federal Sentencing Policy somehow supports his
claim that Congress adopted the distinction between crack and powder cocaine to
specifically disadvantage African-Americans. We can find nothing in the special
report to support this contention. See United States v. Moore , 54 F.3d 92, 99 (2d
Cir. 1995) (noting that special report does not support claim of intentional
discrimination), cert. denied , 116 S. Ct. 793 (1996).

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