United States v. Frank Roy Marsalla, United States of America v. Letti K. Rivera, Also Known as Letti K. Wright

164 F.3d 1178, 1999 U.S. App. LEXIS 574, 1999 WL 16709

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 19, 1999
• Docket: 98-1938WM, 98-1984WM
• Status: Published

Opinions

FAGG, Circuit Judge.

Frank Roy Marsalla and Letti K. Rivera were involved in a large-scale drug conspiracy. Following their arrests, Marsalla pleaded guilty to several conspiracy and substantive drug-related offenses, and Rivera elected to go to trial where a jury convicted her of conspiracy to distribute Schedule II controlled substances. Marsalla appeals his sentence and Rivera appeals her conviction and sentence. We affirm.

Marsalla contends the Government failed to prove he purchased crack cocaine instead of another type of cocaine in December of 1995, and thus the district court improperly sentenced him under the crack cocaine guidelines. At sentencing, Urena Lowe, one of Marsalla’s codefendents, testified she sold Marsalla crack cocaine in November and December of 1995. For the November sale, Lowe purchased cocaine in powder form and processed it into crack cocaine herself, which turned the substance into “little stones” with a “creamy milky color.” Marsalla does not challenge the district court’s finding that the substance involved in this transaction was crack cocaine.

Instead of making the crack cocaine for the December transaction, Lowe purchased the substance from a known supplier who made crack cocaine with “ammonia and baking soda.” The supplier sent the substance to Lowe’s residence in a clear plastic bag. Although Lowe did not remove the substance from the bag, she saw it was a “more solid piece of rock____ The same substance, creamy, milky white.” Besides making the crack cocaine sold to Marsalla in November, Lowe observed and dealt with crack cocaine “three or four times a month” from May to November of 1995. Because of her familiarity with the drug, Lowe testified she had “no doubt” the rock-like substance sold to Mar-salla in the December transaction was crack cocaine. Marsalla called a chemist who vigorously challenged Lowe’s ability to identify the disputed substance as crack cocaine. Although the chemist testified that crack cocaine could not be made with ammonia, he acknowledged that mixing cocaine with ammonia and baking soda would produce crack cocaine. Based on Lowe’s experience with crack cocaine as a maker, buyer, handler, observer, and seller, the district court found that Marsalla purchased crack cocaine in December.

Crack cocaine “usually has a distinctive appearance and form” that makes it easily recognizable to a person who is experienced with the drug. United States v. Brown, 156 F.3d 813, 816 (8th Cir.1998). Although the record presented the district court with conflicting views about Lowe’s ability to identify the challenged substance, the Government’s evidence showed that Lowe’s real-life experiences enabled her to recognize crack cocaine when she saw it. See United States v. Paiva, 892 F.2d 148, 155-57 (1st Cir.1989). Thus, the district court justifiably relied on Lowe’s well-grounded opinion that the substance was crack cocaine. See id at 157; see also Brown, 156 F.3d at 816 (district court relied on lay witnesses’ experience in identifying crack cocaine); United States v. Cantley, 130 F.3d 1371, 1378-79 (10th Cir.1997) (same), cert. denied, — U.S. -, 118 S.Ct. 1098, 140 L.Ed.2d 153 (1998); United States v. Taylor, 116 F.3d 269, 273-74 (7th Cir.1997) (same). Additionally, Marsalla’s failure to offer evidence that he complained about the quality of the substance he received from Lowe “is strong confirmation that [Lowe] was selling genuine crack.” Brown, 156 F.3d at 816. Finally, relying on the preponderance of the evidence standard, Marsalla contends “the Government [failed] to prove at sentencing the type of drug attributable to [him].” We disagree. Having carefully considered the record, we can neither say the Government failed to satisfy this burden, see United States v. Monroe, 978 F.2d 433, 435 (8th Cir.1992), nor the district court committed clear error when it chose between two permissible views of the evidence, see United States v. Rice, 49 F.3d 378, 385 (8th Cir.1995).

We also reject Rivera’s contentions. First, Rivera contends the Government failed to prove she conspired with Marsalla to distribute various illegal drugs. After reviewing the record in a light most favorable to the verdict, we believe sufficient evidence exists from which a reasonable jury could find beyond a reasonable doubt that Rivera was guilty of conspiring to distribute Schedule II controlled substances. See United States v. Ortiz, 125 F.3d 630, 633 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1087, 140 L.Ed.2d 143 (1998). The Government offered recordings of telephone conversations between Rivera and Marsalla that contained coded references to drug-distribution activity, information on drug sources, and discussions on how to process cocaine into crack form. Next, Rivera contends the Government proved the existence of multiple conspiracies rather than a single conspiracy to distribute a number of different drugs. We disagree. The Government proved the existence of a single conspiracy by presenting abundant evidence that showed Rivera participated with other coconspirators sharing a common purpose and objective under one overall agreement. See United States v. Summers, 137 F.3d 597, 602 (8th Cir.1998). Finally, having only considered the amount of drugs directly attributable to Rivera rather than the entire amount chargeable to the conspiracy, the district court properly refused Rivera’s request for a minimal participant reduction to her sentence. See United States v. McCarthy, 97 F.3d 1562, 1573-74 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1011, 136 L.Ed.2d 888 (1997), and — U.S. -, 117 S.Ct. 1284, 137 L.Ed.2d 359 (1997).

We affirm Marsalla’s sentence and Riv-. era’s conviction and sentence.