U.S. v. Rackstraw

• Decision Date: 25 October 1993
• Docket Number: No. 92-1122,92-1122
• Citation: 7 F.3d 1476
• Parties: 39 Fed. R. Evid. Serv. 1057 UNITED STATES of America, Plaintiff-Appellee, v. Thomas E. RACKSTRAW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1476

7 F.3d 1476

39 Fed. R. Evid. Serv. 1057

UNITED STATES of America, Plaintiff-Appellee, v. Thomas E. RACKSTRAW, Defendant-Appellant.

No. 92-1122.

United States Court of Appeals, Tenth Circuit.

Oct. 25, 1993.

Rehearing Denied Nov. 24, 1993.

Neil MacFarlane, Westminster, CO, for defendant/appellant.

John M. Hutchins, Asst. U.S. Atty., Denver, CO (Michael J. Norton, U.S. Atty., and Guy Till and Kathleen M. Tafoya, Asst. U.S. Attys., with him on the brief), for plaintiff/appellee.

Before EBEL and KELLY, Circuit Judges, and VRATIL, District Judge. ^*

EBEL, Circuit Judge.

On direct appeal, the defendant-appellant, Thomas E. Rackstraw, raises evidentiary and constitutional challenges to his conviction on three counts for crimes involving the transportation and distribution of crack cocaine. We affirm his conviction, holding: (1) that the district court's admission of evidence of Rackstraw's alleged sales of crack in Fort Worth, Texas, did not violate Federal Rule of Evidence 404(b); (2) that the district court did not err in denying Rackstraw's Fifth Amendment objection to questions concerning his alleged Fort Worth crack sales or in forcing him to claim his Fifth Amendment privilege in front of the jury; (3) that there was no reversible error in allowing the government to call a probation officer to testify as to the operation of the United States Sentencing Guidelines; and (4) that Rackstraw's sentence under the guidelines was not so disproportionate to the sentence received by one of the drug ring's leaders who pled guilty as to violate the Eighth Amendment.

FACTS

The charges on which Rackstraw was convicted stem from his transportation of crack cocaine to Denver for Malcolm Green. Green originally began transporting crack cocaine to Denver, Colorado in 1987. Although Green initially transported the crack himself, he eventually hired others to transport the drugs to Denver for him.

In November 1990, Green entered into an agreement with Eddie "E-Macc" Williams The next day, Green picked up Williams at his hotel and they returned to Green's apartment. While at the apartment, Green received a page for Williams. Williams and Green gave the caller directions to the apartment. The defendant-appellant, Thomas E. Rackstraw, arrived at the apartment a short time later.

                whereby Williams would supply a quantity of crack cocaine to Green and Green would help sell the drugs in Denver.   Williams told Green that someone would drive to Denver with the crack the next morning
                

Rackstraw carried an ice chest into the apartment and set it down on a table. He then went "off in the corner by the window and sat down." Williams opened the cooler. Green looked in and saw milk and sandwich fixings, but did not see any crack. He asked Williams where the drugs were. Williams took out all of the food, and then removed sixteen to sixteen-and-a-half ounces of crack. Williams said that the spilled milk in the cooler would hide the crack. Although Rackstraw said nothing, there was testimony that the discussion about the crack took place in his presence, while he was in the kitchen and they were in the living room nearby.

At Rackstraw's trial, the district court admitted evidence of Rackstraw's alleged sales of crack in Fort Worth. The evidence showed that on September 25, 1990, an undercover detective, Edward Salame, purchased crack cocaine from Rackstraw in Fort Worth. In connection with that transaction, Rackstraw called Williams' pager number. When Williams did not respond, Rackstraw called the number of F & F Car Company, a business owned by Ron Fisher. Salame then drove to F & F Car Company with Rackstraw and completed the crack purchase.

Rackstraw sold Salame additional crack on December 5, 1990. At that time, Rackstraw told Salame that he was a runner for Williams and Ron Fisher and that he transported a lot of cocaine. Later, in January 1991, Rackstraw told Salame that he had conducted drug runs for Ron Fisher and his organization to various places, including Denver, Colorado.

Rackstraw and twenty-one others were indicted on September 13, 1991. He was charged in a superseding indictment on January 10, 1992, with traveling in interstate commerce to distribute crack cocaine in violation of 18 U.S.C. §§ 2, 1952 and 21 U.S.C. §§ 841(a)(1) and 846; with aiding and abetting the distribution of crack cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii); and with conspiring, along with three others, to distribute more than fifty grams of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). He was tried on March 2-5, 1992, along with his co-defendant Sharon Moore. The jury convicted Rackstraw on all three counts. On April 24, 1992, Rackstraw was sentenced to two terms of 132 months for counts 13 and 37 and 16 months on count 36, with all sentences to run concurrently.

Rackstraw appeals his convictions, pointing to four alleged errors at trial. Because we find no reversible error, we affirm his convictions and sentence.

DISCUSSION

I. OTHER ACTS EVIDENCE

Rackstraw first challenges the admission under Federal Rule of Evidence 404(b) ¹ of evidence that he sold crack to undercover agent Salame in Fort Worth. We review the decision to admit "other acts" evidence under Fed.R.Evid. 404(b) for an abuse of discretion. United States v. Record, 873 F.2d 1363, 1373 (10th Cir.1989). When offering 404(b) evidence, the government " 'must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the evidence of other acts.' " Record, 873 F.2d at 1373 (quoting United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986)). Concomitantly, the trial court must identify specifically the purpose for which the evidence is admitted. Id. There must be a clear and logical connection between the "other acts" evidence and the case being tried. Id.

Here, the government adequately articulated, and the district court specifically identified, the purpose behind the admission of evidence of the Fort Worth crack sales: the evidence was offered to refute Rackstraw's claim that he thought he was delivering only a car to Denver and that he did not know the cooler contained crack. The court therefore clearly identified that the Fort Worth crack sales were being admitted for the purpose of showing "intent, ... knowledge, ... or absence of mistake or accident" under Rule 404(b).

Once we have ascertained that the government and the district court have identified a specific basis for the admission of the 404(b) evidence, we determine whether admission on that basis was proper. To do so, we apply a four-part test, which requires that:

(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed.R.Evid. 105, the trial court shall, upon request, instruct the jury that the evidence of similar acts is to be considered only for the proper purpose for which it was admitted.

United States v. Jefferson, 925 F.2d 1242, 1258 (10th Cir.) (citing Record, 873 F.2d at 1374 (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988))), cert. denied, --- U.S. ----, 112 S.Ct. 238, 116 L.Ed.2d 194 (1991). Applying these standards to Rackstraw's case, we cannot find that the district court abused its discretion in admitting the evidence of Rackstraw's sales of crack to Salame in Fort Worth.

The government offered the evidence for a proper purpose because Rule 404(b) allows evidence of other acts for the purpose of intent, knowledge and lack of mistake. The evidence is also relevant. We have long recognized the relevance of prior crimes in the context of narcotics violations where the uncharged misconduct is close in time and similar in method to the charged scheme and where knowledge or intent was at issue. Record, 873 F.2d at 1375 (citing United States v. Bridwell, 583 F.2d 1135, 1140 (10th Cir.1978)); see also United States v. Harrison, 942 F.2d 751, 760 (10th Cir.1991). Here, the Fort Worth crack sales occurred within months of, and indeed overlapped with, Rackstraw's transportation of crack to Colorado. The first Fort Worth sale took place on September 25, 1990; Rackstraw delivered the crack to Williams and Green in Colorado in November 1990; and the second Fort Worth sale occurred on December 5, 1990.

Rackstraw's crack sales in Fort Worth also were similar in method to his transportation of crack to Colorado. Both schemes involved the same drug and the same players in similar roles: in both cases, Rackstraw served as the middle man in a drug transaction, delivering crack supplied by Williams and Fisher to a buyer. The evidence showed that Rackstraw knew that he was working for Williams and Fisher on both occasions. During the first Fort Worth drug transaction, Williams supplied the drugs that Rackstraw sold to Salame, the sale took place near a business owned by Ron Fisher, and Rackstraw indicated that next time, Rackstraw would take Salame straight to "Ron" [Fisher]. The evidence also showed in the instant case that Rackstraw made the trip to Colorado on behalf of Williams and Fisher.

A defendant's prior drug transactions may be relevant to whether the defendant intended to engage in or had knowledge of the charged scheme, where the schemes involve the same people. See Harrison, 942 F.2d at 759-60 (evidence that defendant had engaged in drug trafficking on previous occasions with his supplier was relevant to show that he knew he was engaged in, and intended to engage in, a conspiracy to possess with intent to distribute drugs with his supplier and others on the occasions charged in the indictment, where the uncharged transactions...