U.S. v. Smiley, 92-2749

• Decision Date: 01 September 1993
• Docket Number: No. 92-2749,92-2749
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles SMILEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 475

997 F.2d 475

UNITED STATES of America, Plaintiff-Appellee, v. Charles SMILEY, Defendant-Appellant.

No. 92-2749.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1993.

Decided July 7, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Sept. 1, 1993.

James R. Wyrsch, Kansas City, MO, argued, for defendant-appellant.

Mark A. Miller, Asst. U.S. Atty., Kansas City, MO, argued, for plaintiff-appellee.

Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Charles Smiley appeals from his conviction of conspiring to import heroin in violation of 21 U.S.C. § 963 (1988), arguing that there was insufficient evidence to support the conviction. He also argues that the district court ¹ erred in denying his motion in limine to exclude evidence of a prior conviction, and by including one kilogram of heroin in determining his base offense level for sentencing. We affirm his conviction and sentence.

In May 1990 Detective Jon Ciarletta, ² a police officer assigned to the Jackson County, Missouri, Drug Task Force bought cocaine from David Jones, who got the cocaine at Dealer's Auto Fabric, a car reupholstering shop owned by Charles Smiley. Jones advised Ciarletta that he could also get white heroin from the same people who supplied the cocaine, two people he identified as "Bob" and "his boss."

Ciarletta then bought heroin several times from Jones. On a number of these buys, Ciarletta went with Jones to Dealers Auto Fabric, where Jones obtained the heroin. The heroin was white in color, the price was relatively low, and the purity level was high. Jones introduced Ciarletta to Bob Turney, who worked at Dealer's Auto Fabric, and Ciarletta began buying heroin from Turney. Turney also picked up the heroin at Dealer's Auto Fabric. Turney told Ciarletta that "his boss" set the prices, and complained that "Chuck" was the person making the profit.

Ultimately, Ciarletta came in direct contact with Smiley. On October 24, 1990, Ciarletta arranged a purchase of heroin from Turney. Turney, Smiley, and Ciarletta met at an Applebee's restaurant. The three sat at the bar, and Smiley told Ciarletta to "go outside with Bob, he's going to take care of this for you." Ciarletta left with Turney, and Turney got the heroin from Smiley's trunk. After Ciarletta paid Turney, Turney gave the money to Smiley. Another time, Smiley accepted $7,750 from Ciarletta as payment on a prior heroin sale that Ciarletta had negotiated with Turney. Ciarletta and Smiley discussed future purchases of heroin, and Smiley told him that he was having a supply problem over which he had no control. He explained that Customs had seized a significant amount of heroin from his source of supply. Smiley and Ciarletta discussed the high purity of the heroin, and Smiley said that it could be cut or adulterated six-fold. Smiley assured Ciarletta that he was going to try to get the heroin from the same persons who had supplied it in the past. There was testimony that most heroin in Kansas City had purity levels ranging from two to four percent, and that Smiley's heroin had purity levels of twenty-nine to forty percent. There was also testimony that the heroin contained traces of organic materials consistent with that originating in Southeast Asia.

The government placed a wiretap on Smiley's business phone, and recorded a conversation on February 6, 1991, in which Smiley informed an unknown male that he had to meet an in-law of his who was arriving by plane. He stated that she was an air hostess for Thai Airlines, and was coming to town for four or five hours. Smiley said that he had to pick her up and take her home. He stated "[s]he's helping me on a deal if you know what I mean." Later that day, he met Songruk Tumrongteppitux ³ at the airport and took her to his home, where she stayed about six hours.

Ciarletta telephoned Smiley several times to see whether Smiley had obtained more heroin, and on February 7, 1991, Smiley asked Ciarletta to meet with him. Ciarletta met Smiley at Dealer's Auto Fabric that same day. Smiley asked Ciarletta how many ounces of heroin he wanted because he "paid cash," and wanted to get the exact amount to avoid "overpurchases." Ciarletta told Smiley that he wanted to buy between one-half and one kilogram of heroin. Smiley responded that his source of supply had suddenly retired, but he stated that he could get the "same stuff." He told Ciarletta that the heroin was "transcontinental," explaining that it "comes from across the seas." Smiley told Ciarletta to contact him weekly to check the status.

The next week, Smiley flew to Bangkok, Thailand and arrived there on February 15, 1991. Smiley was placed under surveillance by Thai police assigned to the office of Narcotics Control Board, who were working with D.E.A. agents stationed in Bangkok. Smiley spent a few days at the home of Tumrongteppitux, and then traveled with Mr. Sarote, his brother-in-law, to the Chiang Rai region of Thailand, which is near the Burma and Laos borders. Heroin is produced in this area and is white in color. While in Chiang Rai, Smiley traveled to a village where "mountain" people reside. This village, located in a remote region, is not a tourist area, and is known for its opium growing and heroin trafficking activities. There was testimony from Thai police officers and D.E.A. agents that the "mountain" people who reside in the villages control the production and distribution of heroin, and that these people are recognizable by their distinctive clothing. Smiley was seen having lunch with several people, including at least one "mountain" person at a town named Mae Salong. Smiley returned to Bangkok on February 21, and left Thailand for the United States on February 24.

Ciarletta telephoned Smiley on February 26, and the two met the next day at Dealer's Auto Fabric. Smiley told Ciarletta that he had just returned from Thailand, "where they actually make that shit." He told Ciarletta that the heroin comes from Burma, and that he had gone to the Golden Triangle, a place where the Laos, Burma, and Thai borders touch. He stated that there had been a coup that had toppled the government and, therefore, some of the people he wanted to see were not there. He stated that he had "some people over there that I'm in touch with that ... are gonna get things done, but it jus' slows things way ... down and ... everybody needs to be sure over there ... whose [sic] protected." He told Ciarletta about going to territory controlled by a certain Khun Sa, whom he identified as the head opium man in the world. Ciarletta and Smiley talked about the high purity levels of the heroin, and Ciarletta stated that it was "good news" that Smiley could get "stuff right from the main guy over there." Smiley responded: "I think it was last time, I don't think it gets any better than that." He told Ciarletta that "they" do some "big business," and that "he didn't," but that he was assured that "they" would get things together and "do something," and that "they" told him "we haven't forgot ya and we like ya," and he added, "their word's good." Smiley told Ciarletta that "it's not going to be real, real soon," but it "will take place." Smiley asked Ciarletta how much he wanted, and Ciarletta told Smiley that he could "handle half of a case or a whole case." Smiley asked what he was calling a case, and Ciarletta responded "two point two." Smiley said "Oh, okay" and stated that he was "talkin (sic) about a higher price product," but could not give Ciarletta a price or delivery date.

On April 17, Smiley and Ciarletta met again. Smiley told Ciarletta that the coup in Thailand was causing difficulty in obtaining heroin, and advised him to read The Economist magazine, which explained the situation. Smiley never provided any heroin to Ciarletta.

Smiley was charged with conspiracy to import heroin in violation of 21 U.S.C. and § 963 (1988), conspiracy to distribute heroin in violation of 21 U.S.C. 846 (1988), and five counts of aiding and abetting the distribution of heroin in violation of 21 U.S.C. § 841(a)(1) (1988). The jury convicted him on both conspiracy counts and on four of the five distribution counts. Smiley appeals, arguing that there was insufficient evidence to support his conviction on the conspiracy to import charge, ⁴ and that the district court abused its discretion in allowing evidence of a prior conviction and erred in sentencing.

I.

Smiley argues that there was insufficient evidence to support his conviction on the conspiracy to import charge. He contends that the government offered no evidence that he entered an agreement with anyone to import heroin into the United States, and therefore, the government failed to prove an essential element of the conspiracy charge. Smiley stresses that there was no evidence linking Tumrongteppitux to drugs and no showing that any heroin was ever imported into the United States, and he argues that this lack of evidence leads to a reasonable inference that no agreement to import was ever made.

We must affirm Smiley's conviction "if, viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, ... a reasonable fact-finder could have found guilt beyond a reasonable doubt." United States v. Brown, 956 F.2d 782, 785 (8th Cir.1992) (quoting United States v. Foote, 898 F.2d 659, 663 (8th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 112, 112 L.Ed.2d 81 and 498 U.S. 938, 111 S.Ct. 342, 112 L.Ed.2d 307 (1990)). To prove a conspiracy to import, the government must show Smiley entered into an agreement to import heroin with at least one other person. See United States v. Giunta, 925 F.2d 758, 764 (4th Cir.1991). Once a conspiracy is proved, only slight evidence against a defendant which connects him to the conspiracy is needed to support a conviction. Brown, 956 F.2d at 785.

When the...