896 F.2d 1122 (8th Cir. 1990), 89-1767, United States v. Luster

Docket Nº:89-1767, 89-1768.
Citation:896 F.2d 1122
Party Name:UNITED STATES of America, Appellee, v. Jackie L. LUSTER, Appellant. UNITED STATES of America, Appellee, v. Sue LUSTER, Appellant.
Case Date:February 22, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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896 F.2d 1122 (8th Cir. 1990)

UNITED STATES of America, Appellee,

v.

Jackie L. LUSTER, Appellant.

UNITED STATES of America, Appellee,

v.

Sue LUSTER, Appellant.

Nos. 89-1767, 89-1768.

United States Court of Appeals, Eighth Circuit

February 22, 1990

Submitted Nov. 13, 1989.

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[Copyrighted Material Omitted]

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David H. Johnson, and Raymond C. Conrad, Kansas City, Mo., for appellant.

David DeTar Newbert, Kansas City, Mo., for appellee.

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.

HENLEY, Senior Circuit Judge.

Jackie and Sue Luster, a married couple, appeal the judgments entered upon their convictions of distributing cocaine base ("crack cocaine"), contending that the district court erred in denying their motions for judgments of acquittal as to one of the counts. Jackie Luster also argues that the district court 1 erroneously admitted into evidence exhibits of crack cocaine mixture allegedly distributed by him and expert testimony regarding those exhibits, incorrectly added two points to his offense level under the Federal Sentencing Guidelines ("Guidelines") for possessing a firearm during the charged criminal activity, and violated his due process rights by using the Guidelines to determine his sentence. We affirm the district court judgments but remand for resentencing of Mr. Luster because of an error made in computing the amount of crack cocaine mixture he distributed.

I.

The indictment charged Jackie Luster with three counts of "knowingly and intentionally distribut[ing] a mixture and substance containing cocaine base" in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C) (1982 & Supp. V 1987) (Counts I-III); two counts of "knowingly and intentionally distribut[ing] a mixture and substance containing cocaine base ... in an amount of 5 grams or more" in violation of 21 U.S.C.

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Secs. 841(a)(1), 841(b)(1)(B) (1982 & Supp. V 1987) (Counts IV & V); and one count of "knowingly and intentionally distribut[ing] a mixture and substance containing cocaine base ... in an amount of 50 grams or more" in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A) (1982 & Supp. V 1987) (Count VI). Sue Luster was also charged in Count VI.

At trial the prosecution introduced testimony supporting the following facts. Undercover Detective John Ciarletta of the Jackson County, Missouri, Drug Task Force purchased mixtures containing cocaine base from Jackie Luster in 1988 for $215.00 on April 11, $225.00 on April 14, $225.00 on April 27, and $1,200.00 on May 6. Dan McCarty, a government chemist, testified that the net weight of each mixture (that is, the weight of the substance without packaging) was 2.9 grams for the April 11 purchase (Exhibit 1), 3.2 grams for the April 14 purchase (Exhibit 2), 3.2 grams for the April 27 purchase (Exhibit 3), and 28.2 grams for the May 6 purchase (Exhibit 4).

On May 24, 1988, Drug Enforcement Agency (DEA) Special Agent Rick LaMere accompanied Ciarletta to the Luster residence for the fifth crack cocaine transaction with Mr. Luster. LaMere noticed a .22 caliber rifle lying on the floor of the living room. Ciarletta gave Mr. Luster $1,200.00 for a bag of crack cocaine, a yellowish brown mixture resembling a bar of soap or hunk of wax, which the defendant had "cooked up" in his kitchen from powder cocaine hydrochloride. Sanford Angelos, a DEA Chemist, testified that eighty-five per cent of the mixture (Exhibit 5) was cocaine base and the net weight of the mixture was 21.7 grams.

The sixth cocaine sale occurred on June 14, 1988, again at the Lusters' residence. Ciarletta and LaMere placed an order for two ounces of crack cocaine, which Jackie Luster telephoned to his supplier. During this telephone conversation, Mr. Luster told his supplier that Sue Luster would pick up the cocaine. After the telephone call, Mr. Luster informed the agents that the crack cocaine would cost $2,400.00 and "hollered" at Mrs. Luster, who was studying in the dining room, to get ready and "go over and get it." Mr. Luster told Mrs. Luster that she was supposed to go to 58th and Brooklyn, to which she replied, "[O]h, I know where it's at. It's the place where we were there [sic] before."

While LaMere and Ciarletta waited in the living room for Mrs. Luster to return, they observed a .32 caliber handgun bullet on top of the coffee table and the same .22 caliber rifle LaMere had seen during the previous transaction. When Mr. Luster noticed the agents were looking at the bullet, he remarked "Yes, I've got a gun," and that he "wouldn't mind shooting a red neck." Earlier Mr. Luster had told Ciarletta that "if anybody ever snitched on him he'd blow their brains out" and that he "could beat a murder rap a lot easier than [he] could a drug rap."

Mrs. Luster returned in about thirty minutes and placed on the coffee table a clear plastic package containing a still-warm substance that was the same waxy and soap-like material as Ciarletta had received in the earlier transactions with Mr. Luster, but with a darker yellowish color than before. Chemist Angelos testified that the material in the package weighed 55.5 grams, eighty-seven per cent of which was cocaine base.

At the request of defense counsel, the trial judge instructed the jury that evidence related to the first five drug transactions was offered to prove Counts I through V against Jackie Luster alone and that only the evidence concerning the sixth transaction should be considered in returning the verdict as to Count VI against both Mr. and Mrs. Luster. The jury found Jackie Luster guilty of all counts and Sue Luster guilty of Count VI. Pursuant to the Federal Sentencing Guidelines, the district court sentenced Mr. Luster to 262 months and Mrs. Luster to 121 months imprisonment.

II.

The Lusters both contend that the district court should have granted their motions for acquittal on Count VI because the government failed to offer sufficient evidence

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for a reasonable jury to return a verdict against them on this count. We consider their arguments in turn, viewing the evidence in the light most favorable to the government, see United States v. O'Connell, 841 F.2d 1408, 1424 (8th Cir.), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 893 (1988), cert. denied, --- U.S. ----, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989).

A.

Jackie Luster points out that Chemist Angelos's testimony established that only 48.285 grams of actual cocaine base were sold in the transaction of June 14 (eighty-seven per cent of the 55.5 gram mixture). He argues that the evidence was insufficient to submit Count VI to the jury because in order to obtain a conviction under this count, the government was required to prove that fifty grams or more of cocaine base were distributed.

We disagree with the defendant's contention for two reasons. First, although Count VI listed both subsections 841(a)(1) and 841(b)(1)(A) of title 21 as the legal basis of the charge, the prosecution did not need to prove the quantity of the drug under subsection 841(b)(1)(A) before the jury could find against the defendant on this count. 2 The quantity of the drug...

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