86 F.3d 956 (10th Cir. 1996), 94-3317, United States v. Lacey

Docket Nº:94-3317.
Citation:86 F.3d 956
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard Ray LACEY, Defendant-Appellant.
Case Date:June 11, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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86 F.3d 956 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard Ray LACEY, Defendant-Appellant.

No. 94-3317.

United States Court of Appeals, Tenth Circuit

June 11, 1996

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James E. Flory, Assistant United States Attorney, Topeka, Kansas (Randall K. Rathbun, United States Attorney, Topeka, Kansas, with him on the brief), for Plaintiff/Appellee.

Marilyn M. Trubey, Assistant Federal Public Defender, Topeka, Kansas (David J. Phillips, Federal Public Defender, Topeka, Kansas, with her on the brief), for Defendant/Appellant.

Before EBEL, LOGAN, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Appellant Richard Ray Lacey ("Lacey") appeals from his convictions and sentence on various drug-related offenses. On appeal, Lacey complains that: (1) the district court erred in not granting a downward departure from the Sentencing Guidelines based on the government's alleged "sentencing factor manipulation"; (2) the court erroneously enhanced Lacey's offense level based on his role in the offense; (3) the court abused its discretion in refusing to grant a mistrial based on improper statements made during voir dire; (4) the court erred in refusing to instruct the jury on the lesser included offense of simple possession; (5) the court erred in admitting certain items of evidence seized during a warrantless search of Lacey's vehicle; (6) the court abused its discretion in denying Lacey's motion to dismiss based on his compelled testimony before the grand jury; and (7) evidence of flight was improperly admitted at trial. We have jurisdiction under 28 U.S.C. § 1291 and we now affirm.

BACKGROUND

Lacey was convicted after a jury trial of six counts of a seven count indictment, including one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, three counts of distribution of approximately 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (aiding and abetting), one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (aiding and abetting), and one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (aiding and abetting).

Lacey was previously tried and convicted of the same charges in absentia after failing to appear at the first day of his jury trial in February 1990. Lacey was later apprehended

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in Florida and brought back to Wichita, Kansas, where he pleaded guilty to a charge of failure to appear. 18 U.S.C. § 3146(a)(1). After sentencing, Lacey appealed his drug convictions and the resulting sentence. This Court rejected Lacey's appeal as to his convictions, but remanded the case for resentencing. United States v. Lacey, 969 F.2d 926 (10th Cir.1992). Lacey then filed a Petition for Certiorari in the United States Supreme Court challenging the in absentia convictions. The Supreme Court granted the writ and vacated the judgment, remanding the case to this Court for further consideration in light of Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), a case decided earlier that term. 1 Lacey v. United States, 507 U.S. 901, 113 S.Ct. 1233, 122 L.Ed.2d 640 (1993). The panel, in turn, remanded Lacey's case to the district court with instructions to vacate the judgment and proceed in accordance with Crosby. United States v. Lacey, 990 F.2d 586 (10th Cir.1993).

The evidence adduced at Lacey's second trial included the following: In February 1989, F.B.I. agents in Wichita, Kansas arrested an individual named Kelly Coley on federal drug charges. Following his arrest, Coley entered into a cooperation agreement with the government whereby he agreed to make drug purchases from certain individuals suspected of trafficking narcotics in the Wichita area. Specifically, Coley was enlisted to attempt drug purchases from Lee Ray Harper, Mary Friesen, and their suspected supplier, Appellant Richard Ray Lacey.

Beginning in April 1989, Coley made several contacts with Harper and Friesen. On April 4, 1989, Coley visited Harper at his home and inquired about making a 500 gram purchase of cocaine from Lacey. Harper told Coley that Lacey would not sell the drugs personally, but advised him to contact Friesen in order to make arrangements for the sale, which Coley did later that day. On the evening of April 6, 1989, Coley met with Friesen at her residence and purchased 500 grams of cocaine. Earlier that evening, F.B.I. surveillance units had observed both Lacey and Friesen in the parking lot of a local shopping center.

Coley made similar half-kilogram purchases from Friesen on May 17 and May 23, 1989. Prior to the first transaction on May 17, 1989, F.B.I. agents conducting surveillance followed Friesen to the home of Lacey's girlfriend, Laura Klobuchar. Less than an hour later, Lacey arrived at Klobuchar's house carrying a brown paper sack. After a few minutes inside, Lacey and Friesen both emerged from the house. Friesen was carrying a dark shoulder bag, and Lacey was no longer carrying the paper sack. Friesen then left Klobuchar's house and drove directly to the Airport Hilton in Wichita, where she met Coley and sold him 500 grams of cocaine.

On May 22, 1989, Coley again contacted Friesen for the purpose of purchasing a half-kilogram of cocaine. After several conversations, Coley and Friesen agreed to meet at the Marriott Hotel in Wichita to carry out the deal. On May 23, 1989, shortly before the agreed upon meeting between Coley and Friesen, surveillance agents observed Lacey drive to a farm near Udall, Kansas. After approximately one hour at the farm, Lacey left the area. After departing the farm, Lacey traveled down several gravel roads before briefly meeting up with another vehicle. Lacey then proceeded to a convenience store, where he was met by Friesen. Surveillance agents saw Lacey enter Friesen's car, where he remained for several minutes. After Lacey exited Friesen's car, Friesen drove directly to the Marriott hotel in Wichita, where she sold 500 grams of cocaine to Coley.

After the May 23, 1989 cocaine buy from Friesen, Coley was instructed by the F.B.I. to attempt to make a larger multi-kilogram purchase of the drug. Pursuant to this instruction, Coley contacted Friesen on June 14, 1989, to arrange a purchase of six kilograms of cocaine. After several face-to-face meetings and telephone conversations, Coley and Friesen made an agreement for the purchase of approximately four to six kilograms of cocaine. On July 5, 1989, Friesen told

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Coley that she had spoken with Lacey and that Lacey had the cocaine. Friesen then told Coley that the deal could be completed later that day.

Shortly after this conversation, F.B.I. surveillance agents observed Lacey drive his van to a parking lot in Wichita. Several minutes later, Friesen arrived in another car, exited her vehicle, and stepped into Lacey's van. Friesen exited the van six minutes later and drove away. Lacey was later seen driving to the same farm near Udall, Kansas. While at the farm, Lacey drove his van to a clearing and parked at the edge of a wooded area. The van remained there for about ten minutes before leaving the farm and heading back in the direction of Wichita. The van was next seen heading north on a country road, where it met up with the car driven by Friesen. At this point, the F.B.I. agents arrested Lacey and Friesen. A search of Friesen's car yielded a black bag containing approximately five kilograms of cocaine. The agents also found a small quantity of cocaine, a pager, and a few thousand dollars cash in Lacey's van.

A search warrant later was obtained for the farm house in Udall, now identified as belonging to an individual named Mitcheal Edmonson. The agents executing the warrant followed a trail from the farmhouse to the clearing where Lacey earlier had parked his van. The agents located an area of the ground which appeared to have recently been excavated and discovered a ten gallon cooler filled with cocaine about 12 inches below the ground. Another cooler containing approximately seven kilograms of marijuana was also found buried nearby. Based on this evidence, Lacey was found guilty of conspiracy to distribute cocaine, three counts of distribution of cocaine, possession with intent to distribute cocaine, and possession with intent to distribute marijuana. Lacey was sentenced to 240 months on the conspiracy charge. Lacey was also sentenced to terms of 240 months each on the cocaine charges, and 120 months on the marijuana charge, all to be served concurrently with one another.

DISCUSSION

I. Departure Below the Sentencing Guidelines

We first address Lacey's argument that the district court erred in failing to depart downward from the guideline range based on the government's "sentence factor manipulation." Legal conclusions under the sentencing guidelines are reviewed under the de novo standard, while factual determinations made by the district court are reviewed for clear error. United States v. Diggs, 8 F.3d 1520, 1526 (10th Cir.1993). 2

Lacey maintains that the district court improperly included in its base offense level calculation ten additional kilograms of cocaine (consisting of the five kilograms seized from Mary Friesen's vehicle the night of Lacey's arrest and five additional kilograms found during the subsequent search of the Edmonson Farm). 3 Specifically, Lacey asserts that these amounts should have been excluded from the sentencing calculus because the government unnecessarily continued its undercover investigation after it already possessed sufficient evidence to secure...

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