997 F.

2d 687
38 Fed. R. Evid. Serv. 1440

UNITED STATES of America, Plaintiff-Appellee,

v.
Charles Edward McINTYRE, Defendant-Appellant.
No. 91-6331.

United States Court of Appeals,

Tenth Circuit.
June 7, 1993.
Order Modifying Opinion and Denying Rehearing Aug. 18, 1993.

Jack Fisher, Edmond, OK, on the brief, for defendant/appellant.

Charles Edward McIntyre, pro se.
Joe L. Heaton, U.S. Atty., and Frank Michael Ringer, Asst. U.S. Atty.,
Oklahoma City, OK, on the brief, for plaintiff/appellee.
Before TACHA and EBEL, Circuit Judges, and O'CONNOR, District
Judge.*
EBEL, Circuit Judge.

This case comes before us on direct appeal from the defendant's conviction in
the United States District Court for the Western District of Oklahoma. The
defendant was charged with conspiracy to distribute cocaine and cocaine base,
in violation of 21 U.S.C. 846; possession of cocaine with intent to distribute,
in violation of 21 U.S.C. 841(a)(1); and travelling and causing travel in
interstate commerce to facilitate the distribution and possession of cocaine and
cocaine base with intent to distribute, in violation of 18 U.S.C. 1952(a)(3) and
18 U.S.C. 2. The case was tried to a jury, which found the defendant guilty on
all counts. The defendant now appeals, asserting fifteen different errors below.
We affirm.

FACTS

The defendant was involved, along with a number of co-conspirators, in a drug

trafficking ring that transported cocaine and cocaine base from Southern
California to Oklahoma City, Oklahoma. The cocaine was then "cooked" and
transformed into rock cocaine or "crack" and sold on the streets.

The police intercepted some portion of three transfers of narcotics between

California and Oklahoma. In January of 1990, the defendant, accompanied by
Vickie Hogg, one of the co-defendants, travelled to California from Oklahoma
and acquired cocaine from J.C. Chatman, one of the co-defendants and the
primary source for narcotics in California. Vickie Hogg purchased a one-way
bus ticket to Oklahoma in the name of Stephen Smith and gave the ticket and
the cocaine to Tashawn Kyle Cook at the Los Angeles Bus Depot. Cook was
stopped, consented to a search of his luggage and the cocaine was discovered
and confiscated.

On July 27, 1990, officers of the Oklahoma City Police Department, while on a
narcotics interdiction assignment at the Will Rogers World Airport in
Oklahoma City, observed the defendant, accompanied by Darren Hogg and
Doris Wright, purchase tickets to Southern California. Darren Hogg was
stopped at the security checkpoint where a dark and unidentifiable object was
detected by the x-ray machine. He consented to a search of his bag where the
police found $9,700 in cash. D. Hogg was informed that the money would be
detained for inspection by a narcotics dog and that he was free to go.

The officers returned to where the defendant and Wright were standing and
began to question them. They both denied being with the other or with D.
Hogg. Wright at first consented to a search of her bag but once it had
commenced told the officer to stop. The officer complied with her request. The
officers informed the defendant and Wright that their bags would be detained
until they could be inspected by a narcotics dog but that they were free to go.
The bags were taken to another level of the airport and the parties followed,
protesting that they had planes to catch. The defendant gave permission to
search the bag he was carrying but denied that it was his. Wright then
reauthorized the search of her bag. The police found $12,000 in cash and a
portfolio containing letters to Vickie Hogg in the defendant's bag. The three
individuals made their flight but their bags were detained.

On August 23, 1990, the defendant was stopped again at the Will Rogers
Airport in Oklahoma City. The officers in Oklahoma had received information
from an officer of the Dallas-Fort Worth task force that a passenger registered
as Charles Smith had purchased a one-way ticket from Los Angeles to

Oklahoma City with cash and suggested that he be stopped.1 The officers
observed the defendant, whom they recognized from the airport incident on
July 27, 1990, deplane and followed him to the baggage claim area. The
defendant picked up a gift-wrapped box, which was marked with the name
Charles Smith. The officers approached the defendant and began to question
him. Although he claimed to have no identification, the defendant's plane ticket
read Charles Smith. The defendant claimed that the box was not his, that it
belonged to Larry Taylor, that he had no way of contacting Larry Taylor, and
that it contained cookware.
7

The officers informed the defendant that both he and the box would be detained
until a search warrant could be obtained. The defendant was escorted to the
police office in the airport where he was subjected to a pat down search. The
officers observed cigarette rolling papers in the defendant's open shirt pocket
and when removed, observed marijuana in a cellophane envelope. The
defendant was informed that he would be placed under arrest for possession of
marijuana.2 At that time the defendant orally consented to the search of the box.
However, because the defendant was unable to sign a consent form, the police
instead made an application for a search warrant. Based in part on a positive
alert from a narcotics detector dog, the search warrant was issued and the box
was found to contain four 4,000 milliliter glass beakers as are commonly used
in the cooking of crack cocaine.

On August 24, 1990, the Oklahoma City police were informed by the Los
Angeles Police Department, who received the information through an
informant, that the defendant was out on bond and was at an apartment on 46th
Street in Oklahoma City cooking cocaine that he and his co-conspirators had
brought in from California. The Oklahoma City police verified that the
defendant was out on bond, learned that the apartment was rented to Vickie
Hogg, and learned from the apartment manager that there was suspicious
activity at the residence. The police obtained a search warrant and executed it
on August 25, 1990; however, no drugs were found. Vickie Hogg was in the
apartment when the warrant was served and the defendant and Tashawn Kyle
Cook were found outside the apartment.

On February 28, 1991, a confidential informant notified the Oklahoma City

Police Department that the defendant was the "main man" in the biggest
narcotics ring in Oklahoma City, and that the defendant had just returned from
California with half a kilogram of cocaine, and that he was in room 141 of the
Comfort Inn in Oklahoma City. The officers obtained a search warrant and
served it the same day. They found the defendant with a woman in the room.
The defendant was searched and two bags of cocaine were found in his

underwear. Two additional bags of cocaine were found in the box springs of the
bed. The defendant was placed under arrest at that time.
10

The defendant was indicted along with Vickie Hogg on March 20, 1991. He
was charged with conspiracy to distribute cocaine and cocaine base, in violation
of 21 U.S.C. 846 (count 1); possession of cocaine with intent to distribute, in
violation of 21 U.S.C. 841(a)(1) (counts 2 & 5); and travelling and causing
the travel in interstate commerce to facilitate the distribution and possession of
cocaine and cocaine base with intent to distribute, in violation of 18 U.S.C.
1952(a)(3) and 18 U.S.C. 2 (counts 3 & 4). On July 2, 1991, the court ordered
the trial of Vickie Hogg and the defendant (No. CR-91-52-T) consolidated with
the trial of Clara Gary, Lenanier Brown, J.C. Chatman, Ronnie Miller, and
Kenneth Eugene Wright, each of whom had been indicted separately (No. CR91-51-T). On July 16, 1991, the court granted the government's unopposed
motion for the severance of the trial of Clara Gary and Lenanier Brown.3

11

The case was tried to a jury, and on September 30, 1991, the defendant was
found guilty on all five counts. He was sentenced to life imprisonment on
counts one and five, 480 months on count two, and 60 months on counts three
and four. The sentences were ordered to run concurrently. The defendant filed a
notice of appeal on October 3, 1991.

12

In this appeal the defendant alleges fifteen separate errors: 1) denial of the
motion to suppress evidence seized at the airport on July 27, 1990; 2) denial of
the motion to suppress the glass beakers seized at the airport on August 23,
1990; 3) admission of the beakers pursuant to an unlawful search warrant; 4)
the unlawful introduction of evidence of a prior arrest that was suppressed at a
pre-trial hearing; 5) failure to suppress evidence seized from the motel on
February 28, 1991; 6) failure to excuse for cause a juror who was a former
police officer; 7) unlawful admission of hearsay documents; 8) unlawful
admission of evidence of other acts outside the conspiracy; 9) prosecutorial
comments on the defendant's failure to testify; 10) insufficient evidence to
support a guilty verdict; 11) cumulative error; 12) error in the calculation of the
amount of cocaine distributed for sentencing purposes; 13) erroneous
classification of the substances distributed as cocaine base; 14) the unlawful
application of 21 U.S.C. 841 and U.S.S.G. 2D1.1., which he claims are void
for vagueness; and 15) error in increasing his sentence under U.S.S.G.
3B1.1(c) for serving as a leader or organizer.4 We affirm.

I. The Admission of Evidence

13

The first five of the defendant's allegations of error relate to the district court's

admission of evidence that was acquired through searches and seizures at the
Oklahoma City Airport on July 27, 1990, and August 23, 1990, and in a search
of an Oklahoma City motel room on February 28, 1991. The defendant filed a
motion before the district court on July 8, 1991, requesting that the court
suppress this evidence. He also filed a forty page brief in support of this motion
that set forth the same bases for suppression that now constitute the allegations
of error on appeal. An evidentiary hearing was held on July 12, 1991, at which
the defendant was present and represented by counsel. The court denied the
defendant's motion on July 15, 1991, and on July 29, 1991, it issued an
explanatory order to clarify the ruling. The court denied the defendant's motion
to suppress as to all except the marijuana seized in the pat down search on
August 23, 1990, and any statements made following that search.5
14

In reviewing the denial of a motion to suppress, we consider the evidence in the

light most favorable to the government, and we accept the district court's
findings of fact unless they are found to be clearly erroneous. United States v.
Ibarra, 955 F.2d 1405, 1409 (10th Cir.1992); United States v. McAlpine, 919
F.2d 1461, 1463 (10th Cir.1990). We have undertaken our own review of the
record, and we have reviewed the district court's explanatory order. We are
unable to conclude either that any of the factual findings of the district court
were clearly erroneous or that the district court made any errors of law.6 II.
Refusal to Grant a For-Cause Dismissal of a Juror Who Was a Former Police
Officer

15

The defendant claims that it was error for the district court to refuse to dismiss
for cause one of the jurors who was a former police officer. Whether an
individual is qualified to serve as a fair and impartial juror is a decision that is
firmly within the discretion of the district court. United States v. Grismore, 546
F.2d 844, 848 (10th Cir.1976). The decision to refuse a for-cause dismissal will
only be disturbed on appeal upon a "clear showing of abuse of discretion." Id.
at 848; see United States v. Chapman, 158 F.2d 417, 421 (10th Cir.1946).

16

We do not agree that there was an abuse of discretion in the instant case. The
fact that a prospective juror was once a police officer is not grounds, ipso facto,
for disqualification. See Mikus v. United States, 433 F.2d 719, 724 (2d
Cir.1970) (membership in a police force is not grounds for automatic
disqualification from a criminal jury); cf. Grismore, 546 F.2d at 849 (the fact
that a prospective juror is the wife of a policeman does not warrant a for-cause
dismissal). In the instant case the record reveals that the trial judge undertook a
thorough examination of the potential juror, explored his potential prejudice,
and satisfied himself of the juror's impartiality. The former officer testified that
he had been out of law enforcement for over 12 years and that he did not feel

that experience would have any impact on his assessment of the credibility of
witnesses or the guilt of the defendant. Given the careful and thorough
examination of the potential juror and the circumstances of this case, we find
that the refusal to grant a for-cause dismissal was not an abuse of discretion. 7
III. The Admission of Documents Alleged to Be Hearsay
17
18

On appeal, McIntyre alleges that the district court erroneously admitted five
documents which should have been excluded as hearsay: two motel registration
cards ("Exhibits 52 and 53"); a cellular phone application and record of calls
("Exhibit 24"); copies of nine Western Union money orders ("Exhibits 6a-i");
and an American Express receipt ("Exhibit 25"). In addition, McIntyre argues
that the district court erred when it allowed testimony concerning five other
documents that were allegedly hearsay even though it refused to admit those
documents into evidence. These documents consisted of two apartment rental
receipts ("Exhibits 18 and 19"); customer copies of several money order
receipts ("Exhibits 20 and 44"); and a customer copy of a car rental receipt
("Exhibit 23").

19

Evidentiary rulings are committed to the discretion of the trial court and are
only reviewed for an abuse of that discretion. United States v. Zimmerman, 943
F.2d 1204, 1211 (10th Cir.1991). Deference to the trial judge is heightened
when reviewing rulings on questions of the admissibility of hearsay evidence.
Boren v. Sable, 887 F.2d 1032, 1033 (10th Cir.1989). We review evidentiary
rulings by considering the record as a whole. Id. at 1034.

20

Hearsay is defined as "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted." Fed.R.Evid. 801(c). A statement is an "oral or written
assertion ... of a person, if it is intended by the person as an assertion."
Fed.R.Evid. 801(a). Hearsay evidence cannot be admitted unless it falls under
an exception. Fed.R.Evid. 802.
A. The Motel Registration Cards

21

The defendant objects to the admission into evidence of Exhibits 52 and 53,
registration cards from two motels located in California.8 The documents were
introduced to support the prosecution's theory that Vickie Hogg and at least one
of the other conspirators travelled to California to purchase cocaine. The
government offered these documents for the truth of the matter asserted,
namely that Vickie Hogg checked into the two motels on the dates recorded

and paid for the rooms. Accordingly, they are hearsay. See United States v.
Jefferson, 925 F.2d 1242, 1252 (10th Cir.1991) ("a receipt introduced as
evidence of payment for a good or service constitutes hearsay"); FDIC v.
Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986) (money order receipts
inadmissible hearsay to prove payments had been made); United States v.
Watkins, 519 F.2d 294, 296-97 (D.C.Cir.1975) (receipts for rent offered to
prove defendant lived at address were offered for truth of matter asserted and
therefore inadmissible hearsay).9
22

The district court admitted the arrival and departure log from the Magic Carpet
Motel and the registration form of the Villa Viejo Motel under the business
records exception to the hearsay rule, Federal Rule of Evidence 803(6).10 We
turn first to the Magic Carpet records. As to the arrival and departure log from
the Magic Carpet Motel, the defendant failed to make a proper objection at trial
to the admission of the document. Accordingly, we review the district court's
determination for plain error. Fed.R.Evid. 103(a)(1), (d); United States v.
Thody, 978 F.2d 625, 631 (10th Cir.1992).11

23

The owner of the Magic Carpet Motel testified that the log was kept in the
regular course of business. However, the owner also testified that an employee
of the motel filled in the log based on information received from the guest.
Because the motel employee relied on information received from the guest in
compiling the log, the record poses a hearsay problem.

24

The essential component of the business records exception is that each actor in
the chain of information is under a business duty or compulsion to provide
accurate information. See 2 McCormick on Evidence, 290 at 274 (John
William Strong, ed., 4th ed. 1992) (stating that the underlying theory of the
business records exception is "a practice and environment encouraging the
making of accurate records. If any person in the process is not acting in the
regular course of business, then an essential link in the trustworthiness chain
fails, just as it does when the person feeding the information does not have
firsthand knowledge.")In order for the business records exception to apply,
Rule 803(6) requires "an informant with knowledge acting in the course of the
regularly conducted activity." Fed.R.Evid. 803(6), Advisory Committee Notes
on 1972 Proposed Rules. The notes of the Advisory Committee on the 1972
Proposed Rules state:

25
Sources
of information presented no substantial problem with ordinary business
records. All participants, including the observer or participant furnishing the
information to be recorded, were acting routinely, under a duty of accuracy, with
employer reliance on the result, or in short "in the regular course of business." If,

however, the supplier of the information does not act in the regular course, an
essential link is broken; the assurance of accuracy does not extend to the information
itself, and the fact that it may be recorded with scrupulous accuracy is of no avail.
An illustration is the police report incorporating information obtained from a
bystander: the officer qualifies as acting in the regular course but the informant does
not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that
a report thus prepared was inadmissible. Most of the authorities have agreed with the
decision.
26

In the instant case, the motel clerk relied on the guest, who was not under a
business duty or compulsion, to provide the information that went into the
document. Therefore, the document presents hearsay problems.

27

However, the fact that the name on the registration was obtained from an actor
not under a business compulsion does not necessarily mean the business records
exception is inapplicable. If the business entity has adequate verification or
other assurance of accuracy of the information provided by the outside person,
the exception may still apply. Some courts have required that the business
employee recording the information be "able in some way to verify the
information provided--for example, by examining a credit card, driver's license,
or other form of identification." United States v. Lieberman, 637 F.2d 95, 101
(2d Cir.1980); see United States v. Zapata, 871 F.2d 616, 625 (7th Cir.1989); 2
McCormick on Evidence 290 at 275. We do not feel that in every case there
must be direct testimony that an employee actually verified the information, nor
is it necessary that there be an express policy that identification be checked. In
some cases, the interests of the business may be such that there exists a
sufficient self-interest in the accuracy of the log that we can find its contents to
be trustworthy. See FDIC v. Staudinger, 797 F.2d 908, 910 (10th Cir.1986) ("
'[a] foundation for admissibility may at times be predicated on judicial notice
of the nature of the business and the nature of the records as observed by the
court.' ") (quoting Weinstein's Evidence p 803(6) at 803-179 to -181 (1985));
Manufacturers and Traders Trust Co. v. Goldman (In re Ollag Constr. Equip.
Corp.), 665 F.2d 43, 46 (2d Cir.1981) (finding information on financial
statements provided to a bank in the regular course of the bank's business to be
sufficiently trustworthy to qualify as business records, in part because providing
of false information under such circumstances is subject to criminal sanctions;
the court contrasted such information to that provided by hotel guests, where
there is no similar indicia of reliability). However, in the instant case we do not
find adequate guarantees of trustworthiness in the financial self-interests of the
motel. Moreover, there was no evidence either that the identity of the individual
claiming to be Vickie Hogg was actually checked or that there was a policy to
do so. Nor do we find it persuasive that a motel employee transcribed the

information rather than the guest.12

28

29

Although the admission of the Magic Carpet log may have been erroneous, we
nevertheless are not convinced that it amounted to plain error. To constitute
plain error, the district court's error in admitting the document must have been
"both obvious and substantial." United States v. Jefferson, 925 F.2d 1242, 1254
(10th Cir.1991) (quoting United States v. Brown, 555 F.2d 407, 420 (5th
Cir.1977)). In light of our previous discussion, we do not find the error in
admitting the Magic Carpet Motel records to be obvious. Accordingly, we find
that the admission of the Magic Carpet log was not plain error.
The district court also admitted the registration card and folio receipt from the
Villa Viejo Motel under the business records exception to the hearsay rule. See
Fed.R.Evid. 803(6). 13 The office manager of the motel testified that those
records were kept in the normal course of business, and that, although a portion
of the registration card was filled out by a guest, the motel enforced a policy of
verifying the identity of guests by examining driver's licenses. Consequently,
we find that the Villa Viejo records were properly admitted under the business
records exception to the hearsay rule. See Lieberman, 637 F.2d at 101; Zapata,
871 F.2d at 625.
B. The Western Union Money Orders

30

The defendant objects to the admission into evidence of Exhibits 6(D)-(I),

copies of money order receipts that were subpoenaed from Western Union.14
The copies of the money order receipts were offered by the government to
show the means of money transfer and the involvement of certain individuals in
the conspiracy. The documents were therefore offered for the truth of the
matter asserted on the face of the receipts and are hearsay. See United States v.
Jefferson, 925 F.2d 1242, 1252 (10th Cir.1991) ("a receipt introduced as
evidence of payment for a good or service constitutes hearsay"); see also FDIC
v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986) (money order receipts
inadmissible hearsay to prove payments had been made); United States v.
Watkins, 519 F.2d 294, 296-97 (D.C.Cir.1975) (receipts for rent offered to
prove defendant lived at address and therefore offered for truth of matter
asserted).

31

Exhibits 6(D)-(I) were introduced by the government through an employee of

Western Union. The Western Union district manager testified the records were
kept in the ordinary course of business. He also testified that although no
identification was required to send money, identification would be required to

pick up the money under the circumstances of these transfers. The defendant
objected that, because the documents were being offered to prove the identities
of senders and recipients of money, and there was no attempt by Western Union
to verify the identities of the senders and recipients, the business records
exception did not apply. The district court admitted the documents finding that
the objection was "appropriate for cross examination. It goes to the credibility
of the exhibit and the witness. But, not to its admissibility." This decision was
partially in error.
32

Because Western Union did not have a policy of verifying the identity of
senders, and because it is apparent from the testimony brought out at trial that
senders could easily use aliases, the documents were inadmissible to prove the
identity of senders of money. See United States v. Bland, 961 F.2d 123, 126-27
(9th Cir.) (registration form for handgun purchase was business record because
identity of registrant was verified), cert. denied, --- U.S. ----, 113 S.Ct. 170, 121
L.Ed.2d 117 (1992); United States v. Patrick, 959 F.2d 991, 1000-02
(D.C.Cir.1992) (receipt not business record to show purchaser identity because
no showing that purchaser identity was verified); United States v. Zapata, 871
F.2d 616, 625-26 (7th Cir.1989) (hotel registration was a business record
because standard practice of hotel was to verify guest's identity); United States
v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980) (hotel registration not business
record because no evidence that guest's identity was verified or that practice of
hotel was to do so). However, because Western Union required the verification
of identity to receive money, the documents were admissible to prove the
identity of the recipients.

33

Accordingly, the defendant was entitled to an instruction limiting the use of the
documents to identification of recipients of the money. But, it does not appear
from the record that the defendant requested such an instruction. We therefore
will only reverse on this basis if there was plain error affecting the defendant's
substantial rights. United States v. Fingado, 934 F.2d 1163, 1166 (10th Cir.),
cert. denied, --- U.S. ----, 112 S.Ct. 320, 116 L.Ed.2d 262 (1991); United States
v. Petermen, 841 F.2d 1474, 1481 (10th Cir.1988), cert. denied, 488 U.S. 1004,
109 S.Ct. 783, 102 L.Ed.2d 774 (1989). Under the facts of this case we
conclude that the admission of the evidence did not amount to plain error.

34

C. Evidence Pertaining to the Existence and Location of Certain Documents

Rather Than to the Assertions Contained Therein

35

At trial the government had planned to offer into evidence two apartment rental
receipts ("Exhibits 18 and 19"), customer copies of several money order
receipts ("Exhibits 20 and 44"), an American Express receipt ("Exhibit 25"),

and a customer copy of a car rental receipt ("Exhibit 23"). The documents had
been found in Vickie Hogg's car, luggage, and apartment. The government had
planned to offer the evidence to link the defendants together in a common
scheme and to connect them to certain locations. The court considered each of
these documents in camera, and, with the exception of the American Express
receipt, refused to allow them into evidence on hearsay grounds. The court,
however, did allow the police officer who found the documents to testify
concerning the names and addresses contained in the documents and where the
documents were found. The court reasoned that testimony regarding the
documents and where they were found, if offered to link the defendants
together and to certain locations, did not pose hearsay problems because it was
not offered for the truth of the matter asserted.15 Although few courts have
considered the issue in any detail, the overwhelming majority of courts,
including several panels of this Circuit, have concluded with little discussion
that circumstantial evidence16 is not hearsay under the Federal Rules of
Evidence.17 Furthermore, academic and practical writings are in agreement that
such evidence is not hearsay under the rules.18
36

Important guidance is offered in the Notes of the Advisory Committee on 1972

Proposed Rules. The Notes explain how Fed.R.Evid. 801(c) was intended to be
applied as follows:

37can scarcely be doubted that an assertion made in words is intended by the

It
declarant to be an assertion. Hence verbal assertions readily fall into the category of
"statement." Whether nonverbal conduct should be regarded as a statement for
purposes of defining hearsay requires further consideration. Some nonverbal
conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the
equivalent of words, assertive in nature, and to be regarded as a statement. Other
nonverbal conduct, however, may be offered as evidence that the person acted as he
did because of his belief in the existence of the condition sought to be proved, from
which belief the existence of the condition may be inferred. This sequence is,
arguably, in effect an assertion of the existence of the condition and hence properly
includable within the hearsay concept.... Admittedly evidence of this character is
untested with respect to the perception, memory, and narration (or their equivalents)
of the actor, but the Advisory Committee is of the view that these dangers are
minimal in the absence of an intent to assert and do not justify the loss of the
evidence on hearsay grounds. No class of evidence is free of the possibility of
fabrication, but the likelihood is less with nonverbal than with assertive verbal
conduct. The situations giving rise to the nonverbal conduct are such as virtually to
eliminate questions of sincerity. Motivation, the nature of the conduct, and the
presence or absence of reliance will bear heavily on the weight to be given the
evidence.... Similar considerations govern nonassertive verbal conduct and verbal

conduct which is assertive but offered as a basis for inferring something other than
the matter asserted, also excluded from the definition of hearsay by the language of
subdivision (c).
38

Fed.R.Evid. 801(c), Notes of the Advisory Committee on 1972 Proposed Rules

(citations omitted) (emphasis added).

39

Here, the American Express receipt and the testimony about Exhibits 18, 19,
20, 23, and 44 were introduced only to link various of the defendants together
by the "circumstance" that documents bearing the names of certain defendants
or the location of certain drug transactions were found in Vickie Hogg's
possession. That testimony did not depend upon the truth of the assertions
contained in the documents, and consequently we conclude such evidence was
not hearsay as defined by Fed.R.Evid. 801(c).19

40

D. The Cellular Phone Application and Record of Calls

41

The defendant objects to the admission into evidence of Exhibit 24, an

application for cellular phone service and record of calls under the account
name Vickie Hogg.20 The documents were introduced to establish that Vickie
Hogg had a cellular phone and that she used that phone to contact her coconspirators in California, and to show that she travelled to, and used her
cellular phone in, California.21 As such they were offered for the truth of the
matter asserted and were hearsay. See United States v. Jefferson, 925 F.2d
1242, 1252 (10th Cir.1991) ("a receipt introduced as evidence of payment for a
good or service constitutes hearsay"); see also FDIC v. Roldan Fonseca, 795
F.2d 1102, 1110 (1st Cir.1986) (money order receipts inadmissible hearsay to
prove payments had been made); United States v. Watkins, 519 F.2d 294, 29697 (D.C.Cir.1975) (receipts for rent offered to prove defendant lived at address
and therefore offered for truth of matter asserted).

42

The district court admitted the application on the grounds that it was an
admission.22 However, this basis for introduction of the documents was error.
Because the government never verified the signatures on the application, the
document was improperly admitted as the admission of a party opponent. See
United States v. Markopoulos, 848 F.2d 1036, 1039 (10th Cir.1988).23

43

Similarly, although the District Client Service Supervisor for Cellular One
testified that the documents were kept in the regular course of business, there
was no evidence that there was a policy requiring customers to show
identification when signing up for the service. In fact, the Cellular One

employee admitted that anyone could have opened this account under the name
Vickie Hogg. Furthermore, the application was not taken by a Cellular One
employee, but rather by an independent contractor. Accordingly, we find that it
was error to admit the document as a business record under Fed.R.Evid. 803(6).
See United States v. Patrick, 959 F.2d 991, 1000-02 (D.C.Cir.1992); United
States v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980); cf. United States v. Bland,
961 F.2d 123, 126-27 (9th Cir.1992); United States v. Zapata, 871 F.2d 616,
625 (7th Cir.1989).
44

This does not end our analysis, however, because we must determine whether
this error was harmless. In determining whether a particular error is harmless,
there are two standards of review: the nonconstitutional harmless error standard
of review pursuant to Fed.R.Crim.P. 52(a), or the constitutional standard
established in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17
L.Ed.2d 705 (1967). The record does not indicate that the defendants made
constitutional objections to the admission of the document at trial. Rather, they
made only general hearsay objections under the Federal Rules of Evidence. See
United States v. Perez, 989 F.2d 1574, 1582 (10th Cir.1993) (en banc).
Although defendants make broad assertions of constitutional violations in their
briefs, as this court noted in Jefferson, "[a] violation of the hearsay rule does
not automatically equate to a violation of the Sixth Amendment."24 925 F.2d at
1254. Accordingly, we apply the nonconstitutional standard of harmless error
in this case.

45

The document in question related only to collateral matters, and the prosecution
offered it only as circumstantial proof of association among the defendants and
to link the defendants with places that drugs were distributed. Furthermore, in
light of the direct testimony identifying McIntyre as the leader of the drug
operation, we find the Cellular One documents to be cumulative. In fact, the
Cellular One application does not directly implicate McIntyre at all.25 Given
the strength of the other evidence and the nature of the documents in question,
we find that the admission of the cellular phone application did not affect the
outcome of the trial and therefore consider it to be harmless error.

IV. The Admission of Evidence of Other Acts Outside the Conspiracy

46
47

The defendant further objects that the district court erred when it allowed
Talisha Woods to testify, over the objection of defense counsel, that she and D.
Hogg had obtained cocaine from the defendant in October of 1989.26 The
indictment charges that the conspiracy originated "on or about March 1990, the
exact date being unknown to the Grand Jury." Before trial, the defendant filed a
brief and Request for Notice of Intention to Introduce Similar Acts Under

Fed.R.Evid. 404(b), which was denied on July 15, 1991. At trial, the defendant
objected to the introduction of the evidence as outside the period of the
conspiracy. The district court declined to grant a mistrial and instructed the jury
that the evidence might be relevant for purposes of the witnesses' knowledge of
the defendants and the way the business may have worked, but that the event
fell outside the time period of the indictment so it could not be considered for
purposes of guilt or innocence.
48

We review the admission of prior acts evidence under an abuse of discretion

standard. United States v. Jefferson, 925 F.2d 1242, 1257 (10th Cir.1991).
Federal Rule of Evidence 404(B) states that

49
Evidence
of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident....
50

In Jefferson we held that where testimony meets the following four

requirements we will presume that there is no undue prejudice:

51 the evidence must be offered for a proper purpose; (2) the evidence must be
(1)
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.
52

Jefferson, 925 F.2d at 1258.

53

Our review of the record in this case reveals no error. The testimony was both
proper and relevant to the government's case. We agree with the district court's
finding that it established the basis of the witness' knowledge and her
relationship with the defendant as well as the existence of the conspiracy itself.
We cannot say, in light of the abundance of testimony that had been introduced
about similar drug transactions, that the district court abused its discretion when
it found that the testimony was not prejudicial to the defendant. Finally, the
district court gave an appropriate limiting instruction. Accordingly, we find that
the admission of the prior acts evidence in the instant case does not amount to
an abuse of discretion on the part of the trial court.

V. Comments by the Prosecutor on the Defendant's Failure to Testify

54

55

The defendant alleges that his Fifth Amendment rights were violated when the
prosecutor commented on his refusal to testify. See Griffin v. California, 380
U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Because we find that the
prosecutor did not comment on the defendant's choice not to testify, we find
that there was no violation of the defendant's constitutional rights.

56

In closing arguments the defense counsel argued:

57

Let's talk about the Comfort Inn where Mr. McIntyre was arrested with this in
his shorts.

58

Who was the person--and let me say this first. Sometimes in a case like this or
in any case, the most important witness there can ever be is the one that doesn't
testify. That's the witness that can scream from the top of the Courthouse what
the truth is and the Government didn't choose to call Redonna Hill as a witness.

59

And the reason that they didn't is Officer Eastridge told you what she told him
after she was arrested. She said the drugs under the mattress is mine.

60

First, I think she said she didn't know whose they were. But then she said they
are my drugs. I got them over at this chicken restaurant from some guy and I
was going to sell them for him.

61

There's no reason to call her. It is obvious why the Government didn't. Why
repeat something that's damaging to your case.

62

Why would the defendant call them as a witness? We don't need to. She's
already said they were her drugs.

63

R. Vol. X at 124. The prosecution then responded in rebuttal:

64

If defense counsel wished to have a witness stand and scream at the top of the
Courthouse, the truth, they are certainly capable. And we would more than
welcome such an individual.

65

But that wasn't done.

66

The truth is what you heard from the witnesses that have testified.

67

R. Vol. X at 155-56. Defense counsel objected to these comments, claiming

that would be construed as a comment on the defendant's failure to testify.
Defense counsel requested either an admonition that the jury disregard the
prosecutor's remarks or a mistrial. The court disagreed with defense counsel's
characterization of the remark. Nevertheless, he explained "I do and will
instruct that the Defendants [sic] silence is not to be considered against the
Defendants."27 R. Vol. X at 169.

68

In Knowles v. United States, 224 F.2d 168, 170 (10th Cir.1955) this court
established that a statement is improper if "the language used was manifestly
intended or was of such character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused to testify." The
prosecutor's comments were not a commentary on the defendant's refusal to
testify. Rather they were an answer to the defense counsel's inference that the
prosecution failed to call Redonna Hill because she would have told the truth
about the drugs found in the defendant's possession.28

VI. Sufficiency of the Evidence

69

The defendant next asserts that the evidence brought out at trial was
insufficient to support his convictions under each of the five counts. In
evaluating the sufficiency of the evidence on appeal we examine the record in
the light most favorable to the government to determine if the evidence--both
direct and circumstantial, together with all the reasonable inferences to be
drawn therefrom--is such that a reasonable jury could find guilt beyond a
reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469,
86 L.Ed. 680 (1942); United States v. Hooks, 780 F.2d 1526, 1529 (10th Cir.),
cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). We are
bound to accept the resolution of conflicting evidence and the assessment of the
credibility of witnesses as they are found by the trial judge as the trier of fact.
United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir.1993); United States
v. Espinosa, 771 F.2d 1382, 1391 (10th Cir.), cert. denied, 474 U.S. 1023, 106
S.Ct. 579, 88 L.Ed.2d 561 (1985). Moreover, "[a] criminal conviction may be
sustained on wholly circumstantial evidence." Hooks, 780 F.2d at 1529.

70

Under count one, the defendant argues that the evidence was insufficient to
establish conspiracy to distribute cocaine. He assumes incorrectly as the basis
for this argument however that the evidence challenged in Sections I, III, and
IV, supra, would be found to have been admitted in error. Furthermore, he
would have us reassess and reweigh the testimony of Darren Hogg in
contravention of this court's rulings in Youngpeter, 986 F.2d at 353, and
Espinosa, 771 F.2d at 1391.

71

Under counts two and five, the defendant argues that the evidence offered at
trial is insufficient to establish possession with intent to distribute. In
considering the sufficiency of the evidence under count two, he would again
have us reassess and reweigh the testimony of two of his co-conspirators in
contravention of Youngpeter, 986 F.2d at 353, and Espinosa, 771 F.2d at 1391.
Furthermore, the uncorroborated testimony of a co-conspirator, so long as it is
not incredible or unsubstantial, is sufficient evidence on which to base a
conviction. United States v. Sigal, 572 F.2d 1320, 1324 (9th Cir.1978). In
considering the evidence under count five, the defendant argues that his mere
presence in room 141 of the Comfort Inn on February 28, 1991, is insufficient
to support his conviction for possession of the drugs found under the mattress.29
However, the fact that the defendant was found in possession of marijuana,
with cocaine concealed on his person,30 and was lying on the bed in which the
additional cocaine was found is circumstantial evidence from which a
reasonable jury could conclude that he was in actual or constructive possession
of all the cocaine found in the room. Furthermore, the large quantity of cocaine
found in the motel room is sufficient to support a judgment that the defendant
intended to distribute cocaine. See United States v. Hooks, 780 F.2d 1526, 1532
(10th Cir.1986) (citing United States v. Gonzalez, 700 F.2d 196, 204 (5th
Cir.1983)).

72

In counts three and four, the defendant argues that the evidence is insufficient
to establish either that he caused interstate travel to facilitate unlawful activity
or that he aided and abetted. Again he erroneously assumes that the evidence
objected to in Sections I and III, supra, would be excluded.31 This evidence
alone would have been sufficient because as this court has recognized a
conviction for aiding and abetting may rest upon circumstantial evidence.
United States v. Maldonado-Campos, 920 F.2d 714, 716 (10th Cir.1990).
Furthermore, even without that physical evidence, direct testimony on the
record indicates that McIntyre directed the interstate transportation of drugs.

73

After a thorough review of the record we conclude that the evidence is

sufficient to support the defendant's conviction under counts one through five.

VII. Cumulative Error

74

Next, the defendant would have us consider the cumulative effect of the errors
committed at trial. As we held in United States v. Rivera, 900 F.2d 1462, 1471
(10th Cir.1990), cumulative-error analysis evaluates only the effect of matters
found to be errors, not the cumulative effect of non-errors. Here, aside from
some wrongly admitted evidence, the defendant has failed to prove there were
errors in his trial. We do not find that the cumulative effect of the wrongly

admitted evidence rises to such a level that it had a "substantial influence" on

the outcome of the trial, nor does it leave us with "grave doubt" as to whether it
had such effect under the nonconstitutional harmless error analysis of
Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed.
1557 (1946).
VIII. Quantity of Cocaine Attributed to McIntyre
75
76

The defendant next alleges that the district court erred in determining the
quantity of cocaine to be used in setting his base offense level. We review the
sentencing court's factual determinations under a clearly erroneous standard.
United States v. Easterling, 921 F.2d 1073, 1077 (10th Cir.1990), cert. denied, -- U.S. ----, 111 S.Ct. 2066, 114 L.Ed.2d 470 (1991). The quantum of proof
necessary to support a finding of fact under the sentencing guidelines is a
preponderance of the evidence. United States v. Rutter, 897 F.2d 1558, 1560
(10th Cir.), cert. denied, 498 U.S. 829, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990).
Estimates are an acceptable method of calculating drug quantities so long as the
information supporting the estimate has a minimum indicia of reliability.
Easterling, 921 F.2d at 1077.

77

The defendant first asserts that the trial court improperly relied on Darren
Hogg's testimony, which he alleges was untrustworthy because of internal
inconsistencies. Again, this court will not reexamine the credibility of a
witness' testimony nor will we decide between competing interpretations of
testimony. United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir.1993);
Espinosa, 771 F.2d at 1391.32 Furthermore, the district court only attributed 15
kilos to McIntyre in calculating his base offense level, while both Darren
Hogg's testimony and the presentence report suggest that between 20 and 24
kilos were actually attributable to McIntyre.

78

Second, the defendant argues that the cocaine found in the bed mattress at the
Comfort Inn on February 28, 1990, was wrongly attributed to him. For the
reasons that we find the evidence sufficient to support his conviction under
Count 5, supra Section VI, we find that it was properly included in calculating
his base offense level.

IX. Classification of the Drugs

79

The defendant also claims that the district court erred in finding that the
substances attributed to McIntyre were cocaine base rather than cocaine
hydrochloride (HC1 sub2 ).33 Under the sentencing guidelines, possession and
distribution of cocaine base or "crack" is more severely punished, and McIntyre

argues that the district court erred in not presuming that all cocaine that was not
tested by a chemist was cocaine hydrochloride (powder) for purposes of
sentencing. See U.S.S.G. 2D1.1; see also 21 U.S.C. 841(b)(1)(A)(iii). We
disagree.
80

The calculation of quantities of drugs for purposes of sentencing is reviewed

for clear error. United States v. Slater, 971 F.2d 626, 638 (10th Cir.1992). The
record supports the finding that the drugs possessed by McIntyre were in the
form of cocaine base. In his testimony, Darren Hogg consistently refers to the
substances possessed by McIntyre as crack cocaine. This court has held that
mere testimony concerning the substance is sufficient to support a finding that
it is crack rather than cocaine hydrochloride. See, e.g., United States v. LeRoy,
944 F.2d 787, 790 (10th Cir.1991); United States v. Anthony, 944 F.2d 780,
782 (10th Cir.1991). That Darren Hogg also referred to powder cocaine in his
testimony does not persuade us otherwise; in those instances, he was referring
to McIntyre transporting cocaine powder from California and cooking the
powder into crack.34

X. Void for Vagueness

81

The defendant next challenges the application of 21 U.S.C. 841 and U.S.S.G.
2D1.1 as void for vagueness. He asserts that the use of the term "cocaine
base" is unconstitutionally vague and deprives him of his Fifth Amendment
right to due process. This court has squarely addressed the constitutionality of
the use of the term "cocaine base" and found it to be sound. United States v.
Turner, 928 F.2d 956, 959-60 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct.
230, 116 L.Ed.2d 187 (1991). The defendant would have us distinguish Turner
on the ground that in that case the party did not contend that the substance he
possessed was inaccurately classified as cocaine base. However, subsequent to
our opinion in Turner, this court has rejected that distinction and reaffirmed our
holding. See United States v. Slater, 971 F.2d 626, 638-39 (10th Cir.1992).
Accordingly, we reaffirm the holdings of Turner and Slater, and hold that the
use of the term "cocaine base" does not encourage arbitrary and discriminatory
enforcement, and was not vague as applied to the defendant's conviction and
sentence in this case.

XI. Sentencing Enhancement

82

The defendant finally contends that the district court erred when it enhanced
the defendant's sentence for serving as an organizer or leader under U.S.S.G.
3B1.1(c). We review the district court's factual findings regarding the role of
the defendant under a clearly erroneous standard. United States v. Beaulieu,

893 F.2d 1177, 1181-82 (10th Cir.), cert. denied, 497 U.S. 1038, 110 S.Ct.
3302, 111 L.Ed.2d 811 (1990). Having reviewed the record, we cannot
conclude that the district court clearly erred in finding that McIntyre was a
leader and organizer under U.S.S.G 3B1.1. McIntyre was clearly the key
figure in the transportation of cocaine from California to Oklahoma; he
solicited and directed the involvement of the participants in the conspiracy; and
he accepted the proceeds of sales through middlemen and was involved with
partnerships with other drug dealers.
CONCLUSION
83

For the forgoing reasons, the defendant's conviction and sentence are
AFFIRMED.

SUPPLEMENTAL ORDER MODIFYING EARLIER OPINION AND DENYING

84
PETITIONS FOR REHEARING
Aug. 18, 1993.
85
86

EBEL, Circuit Judge.

87

We have before us a Petition for Rehearing and a Suggestion for Rehearing En

Banc filed by counsel for the defendant. In addition, we have allowed the
defendant to file a pro se Petition for Rehearing and a Suggestion for Rehearing
En Banc.1

88

In his pro se petition for rehearing, the defendant argues more forcefully than
he did in his Pro Se Supplemental Reply Brief on direct appeal that he was
denied the effective assistance of trial counsel in violation of the Sixth
Amendment. In particular the defendant claims that, in the course of closing
arguments, his trial counsel conceded that the defendant was guilty of certain
crimes charged in the indictment to which he had plead not guilty.

89

The Tenth Circuit has adopted a general policy that claims of ineffective
assistance of counsel are best addressed on collateral attack where a complete
evidentiary record can be established. See Beaulieu v. United States, 930 F.2d
805, 806-07 (10th Cir.1991); Osborn v. Shillinger, 861 F.2d 612, 622-23 (10th
Cir.1988). The defendant's pro se petition for rehearing convinces us that the
issues he raises concerning defense counsel's improper closing remarks before
the jury and any other claims of ineffective trial counsel are best addressed in
collateral proceedings. See Strickland v. Washington, 466 U.S. 668, 691, 104

S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984) ("an inquiry into counsel's
conversations with the defendant might be critical"). Accordingly, we AMEND
our prior opinion to dismiss the defendant's ineffectiveness of counsel claim
without prejudice to his ability to raise that issue in a collateral attack.
90

In all other respects the Petitions for Rehearing and Suggestions for Rehearing
En Banc are DENIED.

The Honorable Earl E. O'Connor, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation

The information that the ticket was purchased with cash was found to be false
at the July 12, 1991, suppression hearing. Order of July 29, 1991

On July 22, 1991, the district court ordered the suppression of the marijuana
found in the pat down search and all statements made following the search

The defendant was ultimately tried together with J.C. Chatman, Ronnie Miller,
Kenneth Eugene Wright, and Vickie Hogg. J.C. Chatman was the principal
supplier of cocaine in southern California. Ronnie Miller worked for Chatman.
Kenneth Eugene Wright purchased cocaine from Darren Hogg, who was in turn
supplied by the defendant. Vickie June Hogg worked closely with the
defendant and served both as a courier for the transportation of the drugs and as
the defendant's business manager
None of the alleged errors in this appeal arise from the intricacies of the joint
trial. The district court was apparently cognizant of the potential for conflicts.
For example, on July 19, 1991, the district court granted the defendant's motion
in limine excluding any mention of the defendant in the introduction of codefendant Wright's confession.

In addition to those arguments raised by counsel, we have before us several

pleadings filed by the defendant pro se. The defendant has filed a pro se
supplemental brief arguing five separate errors. He alleges that the district court
erred by (i) allowing the admission of, and testimony concerning, the drugs
seized at the Los Angeles bus station in January 1990; (ii) denying the
defendant's pre-trial motion for notice to introduce evidence of similar acts; (iii)
denying an evidentiary hearing to determine the existence of a conspiracy
before allowing co-conspirator testimony; (iv) refusing to grant the defendant's
motion for change of court-appointed attorney; and (v) refusing to adjust the
defendant's sentence for acceptance of responsibility and diminished capacity,
and allowing enhancements for possession of a firearm and his role in the

offense. He has also filed two motions to amend his pro se supplemental brief,
one of which asserts, as an additional allegation of error, that the district court
improperly admitted testimony concerning evidence that was subject to a
suppression order. We also have before us the defendant's pro se supplemental
reply brief which asserts four additional grounds for reversal: (i) insufficiency
of the evidence; (ii) failure to give requested instructions; (iii) improper
prosecutorial statements; and (iv) denial of the effective assistance of counsel
We have reviewed each of these ten allegations of error, and the many
subarguments as set forth in the defendant's pleadings, in light of the record as a
whole. We find no error.
5

In response to the defendant's motions, the district court did suppress "the
marijuana seized during a pat-down search on August 23, 1990, and any
statements made following the search." Order of July 29, 1991. The defendant
claims that the district court wrongly allowed testimony regarding his arrest for
the marijuana found in his pocket on August 23, 1990
His claim is based on the following exchange that took place between counsel
and Sergeant Eastridge at trial:
Q. Now, Sergeant Eastridge, after you took these items, they were checked in
there at the Police Department; is that correct?
A. That's correct. Into the property room.
Q. What did you do with the individual that you [ ] knew to be under the name
of Willy Thomas and Charles Smith?
A. He was arrested.
Q. At that time, did this individual give you an indication of another name?
A. Yes, ma'am.
Q. What was that name?
A. Charles Edward McIntyre.
Q. Mr. McIntyre, after his arrest, was taken to jail; is that correct?
A. Yes, ma'am.
R.Vol. VII at 199-200. No objection was made at trial to the introduction of
this evidence and accordingly we review its introduction for plain error.

Fed.R.Crim.Proc. 52(b); United States v. Thody, 978 F.2d 625, 631 (10th
Cir.1992). The counsel for the defendant has submitted an affidavit that
professes that he did not receive a copy of the suppression order and for that
reason he did not object to the testimony. We find that the mention of this arrest
does not rise to the level of plain error. The officer's testimony does not
introduce evidence that was precluded by the suppression order. The testimony
did not directly bring into evidence either the marijuana itself nor any statement
following the arrest. The defendants do not appeal the scope of the suppression
order as it concerns the marijuana and accordingly that question is not before
us. Further, we find the testimony, even if error, to be harmless. See U.S. v.
Popejoy, 578 F.2d 1346, 1350 (10th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct.
257, 58 L.Ed.2d 243 (1978). It refers only to an arrest, without mention of the
drugs. In light of the subsequent arrest on February 28, 1991, when the
defendant was found to possess both marijuana and crack cocaine, we find that
mention of the earlier arrest for possession of marijuana was harmless.
6

The defendant's claims regarding various pieces of evidence that were

introduced over their motion to suppress include:
1) Money and letters seized at the airport on July 27, 1990
The defendant claims that this evidence was seized without probable cause, that
his consent to the search was involuntary, and that the scope of the search went
beyond the consent that was given.
First, probable cause was not necessary for the temporary detention of the
carry-on bag prior to the time that consent to search was given. Rather, this
limited detention could be sustained upon a finding of articulable suspicion. In
United States v. Bell, 892 F.2d 959, 967 (10th Cir.1989), cert. denied, 496 U.S.
925, 110 S.Ct. 2618, 110 L.Ed.2d 639 (1990), this court noted that "
[t]emporary detentions for questioning may be justified if there is articulable
suspicion that a person has committed or is about to commit a crime" (citations
and quotations omitted). In United States v. Place, 462 U.S. 696, 706, 103 S.Ct.
2637, 2644, 77 L.Ed.2d 110 (1983), the Supreme Court recognized that "some
brief detentions of personal effects may be so minimally intrusive of Fourth
Amendment interests that strong counterveiling governmental interests will
justify a seizure based only on specific articulable facts that the property
contains contraband or evidence of a crime."
Second, the evidence here was clearly sufficient to establish articulable
suspicion. The defendant was travelling with two other people (although they
each denied it, Wright admitted to arriving together with the other two, the
police observed them approach the ticket counter together and also saw D.

Hogg carry off a bag that Wright had brought into the airport with her). The
bag carried by one of the defendant's companions was found to contain a
suspicious amount of cash in denominations such that the police suspected it
was linked to drugs. The defendant also appeared nervous and was unable to
produce any identification. Finally, the officers found it significant that the
defendant was travelling to Los Angeles.
The implication that the intrusion in the instant case would have interfered with
the defendant's travel plans is pure conjecture. The police officer told the
defendant that he was free to leave. Although his bag was to be detained for a
narcotics dog to examine, it is not clear that this would have interfered with the
travel plans. There is no evidence as to how long it would have taken the
narcotics dog to arrive. In fact, even with the delay that was caused in the
instant case, the defendant made his plane.
The defendant also claims that his ultimate consent to search was not
voluntarily given. He relies on the facts that he was not told that he need not
consent and that he has below average intelligence. Whether a defendant is told
that he need not consent is only one factor in a test that mandates that a court
look to the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S.
218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973). The district court
determined that the consent was voluntary, and we cannot conclude that finding
was in error. Regarding the defendant's below-average intelligence, it is not
clear that the police knew or should have known about the defendant's
deficiencies in this case. In fact, the circumstances indicate to the contrary. The
defendant was capable of giving and travelling under an assumed name, and he
was capable of running a large drug operation. The record does not support
defendant's claim that consent was involuntary.
When the bag was searched, the police found, in addition to a significant
amount of cash, a portfolio that contained letters addressed to Vickie Hogg. The
defendant objects to the search of the portfolio asserting that the consent was
only to search for drugs, that drugs could not have been in the portfolio and
therefore the search was beyond that to which he consented. The district court
found that the consent was not so limited and the record supports the district
court's ruling.
2) The box and beakers seized at the airport on August 23, 1990
The defendant claims that this seizure was illegal because the reasonable
suspicion articulated was illegitimately based on the allegedly illegal encounter
at the airport on July 27, 1990. Because we find that the challenge to the earlier
airport encounter is without merit, this challenge also fails. In any event, the

district court found that even without the knowledge gained in the prior
encounter, there was a reasonable basis for the officers to seize the package
until they could get a search warrant to inspect it. We agree. The officers were
alerted to the presence of a suspicious character on the plane, the defendant
appeared nervous, was travelling under an assumed name, could not produce
identification, was defensive when questioned about the box, denied that the
box was his although the name on the box matched that on his ticket, and he
told the police that he had no way to find Larry Taylor, whom the defendant
claimed owned the box. Further, a narcotics dog alerted on the box.
3) Challenge to the validity of the search warrant for the box
The defendant claims that the search warrant for the box was illegal because
the affidavit used to acquire it contained false information (the ticket to
Oklahoma was not purchased with cash) and it contained information about
prior arrests that was acquired from the defendant after the illegal search of his
pocket which uncovered marijuana.
This claim is also without merit. First, the defendant orally consented to the
search of the box; it was only after the defendant claimed that he could not read
or write and therefore could not sign a written consent that the officers decided
to obtain a search warrant. Second, the district court found that the affidavit,
even without the false statement and the wrongfully obtained information, was
sufficient to justify issuance of the warrant, and we agree. The factors set forth
in paragraph 2 above justify the warrant.
4) The evidence found at the Comfort Inn on February 28, 1991
The defendant claims that the evidence found in the search of the Comfort Inn
should have been suppressed because the affidavit was insufficient to justify
the warrant. He claims that the affidavit contained a false statement (there was
not a criminal case pending in California), that it was based on illegally
obtained information from the prior airport encounters, and that the tip which
identified the Comfort Inn was not corroborated. The district court adequately
addressed these concerns and concluded that even with the offending material
deleted, there was probable cause established in the affidavit to support the
search warrant. We agree, particularly because of our conclusion that the prior
airport encounters were constitutional.
7

Furthermore, the former officer did not sit on the jury in the instant case.
Rather the defendants used a peremptory challenge to remove him. The
Supreme Court in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d
80 (1988), held that there is no violation of either the Sixth or Fourteenth
amendments when a trial court has erroneously denied a for-cause challenge

and the juror is subsequently struck through the use of a peremptory challenge.
The Court concluded that "the loss of a peremptory challenge [does not]
constitute[ ] a violation of the constitutional right to an impartial jury." Id. at 88,
108 S.Ct. at 2278. "Any claim that the jury was not impartial ... must focus ...
on the jurors who ultimately sat." Id. at 86, 108 S.Ct. at 2277. "So long as the
jury that sits is impartial, the fact that the defendant had to use a peremptory
challenge to achieve that result does not mean the Sixth Amendment was
violated." Id. at 88, 108 S.Ct. at 2278. Subsequent opinions of the Tenth Circuit
have reached similar conclusions
Because the erroneous denial of a for-cause challenge does not rise to the level
of a constitutional violation, we apply the harmless error analysis set forth in
Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
"A non-constitutional error is harmless unless it had a 'substantial influence' on
the outcome or leaves one in 'grave doubt' as to whether it had such effect."
United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (citing
Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248). In the instant case the defendant
does not allege that the use of peremptory challenges on this juror resulted in an
impartial jury or disadvantaged him in any way. Accordingly, we find that even
if the for-cause challenge was improperly denied, any error resulting therefrom
was harmless.
8

The registration card from the Villa Viejo Motel indicated that a Vickie Hogg
and one other person checked in on August 21, 1990, and stayed one night. The
ledger of arrivals and departures from the Magic Carpet Motel indicated that
Vickie Hogg had checked in on August 19, 1990, rented two rooms, and stayed
one night

We find no distinction between offering the evidence to prove that Vickie

Hogg herself checked into the motel, or second, offering the document to prove
that someone claiming to have the same name as the Vickie Hogg checked into
the motel. In either event, the document would be introduced for the purpose of
showing that someone using the name Vickie Hogg had checked into the motel.
That is the assertion on the registration cards and it was made out of court.
Hence, it is hearsay. Contra United States v. Lieberman, 637 F.2d 95, 101 (2d
Cir.1980)

10

Federal Rule of Evidence 803(6) states:

A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular practice of that

business activity to make the memorandum, report, record, or data compilation,

all as shown by the testimony of the custodian or other qualified witness, unless
the source of information or the method or circumstances of preparation
indicate lack of trustworthiness.
11

At trial the following exchange took place between the judge and the
defendant's counsel:
MR. FISHER: Your Honor, we would object to this as being hearsay unless a
proper foundation is laid showing the identity of the person that's--the
representative's name, the name of the person being the person that's
represented in this document. We feel that it is hearsay for the purpose of
identification.
THE COURT: Well, why is it not a business record?
MR. FISHER: Your Honor, it's not a business record because--it may be a
business record. But, it's attempting to show the identity of someone. And that
it is offered for the truth of the matter asserted.
R.Vol. VI at 11-12. Counsel for the co-defendants proceeded to make
objections such as (i) "[i]t is a business record, but it's not his business record,"
based on misconceptions regarding the witness' dates of ownership of the
motel, and (ii) "it may be a business record. But, it is offered as hearsay."

12

The courts in Lieberman, 637 F.2d at 100-101, and Zapata, 871 F.2d at 625,
rejected the notion that the admissibility of a document under the business
records exception of Fed.R.Evid. 803(6) was controlled by whether the
recording person was a guest or employee of the hotel. Indeed, although we
feel that this is one factor to consider in determining the trustworthiness of the
source or method of preparation, it is not determinative. Whether the guest tells
the clerk his name and address and the clerk then writes it down or whether the
guest writes the information down, the guest is still the source of the
information. Accordingly, an examination of the source, method, and
circumstances of preparation is necessary regardless of who transcribes the
information

13

At trial, the defendant objected on the grounds that the witness was not a
proper custodian of the Villa Viejo documents and that the information
contained in the documents was provided by someone other than a motel
employee. R. Vol. VI at 21, 26

14

The documents showed transfers between (a) Vincent Wilson and Gene
McIntyre; (b) Lucy Black and J.C. Chatman; (c) Theresa Taylor and Pam

Chatman; (d) Charles McIntyre and J.C. Chatman; (e) John Chatman and
Pamela Chatman; (f) J.C. Chatman and Pam Chatman; (g) J. Chatman and Pam
Barnes; (h) J. Chatman and Pam Chatman; (i) J. Chatman and Pam Chatman
The government introduced the receipts in two stages at trial. Exhibits 6(A)-(C)
were introduced during the testimony of Darren Hogg. He authenticated the
documents and testified that he personally made one of the transactions and
directed someone else to make the other two transfers. See Fed.R.Evid. 901.
Darren Hogg testified that he was present when all of the transfers were made.
The court properly admitted Exhibits 6(A)-(C) as non-hearsay. Fed.R.Evid.
801(c).
15

When considering the evidence in camera, the court stated:

The fact that in someone's home is something that links him to another address,
it's not saying anything. It's not being offered to prove the truth of the matter
asserted. It is just the fact that it is there.
The same as--I believe there is a rent receipt in regard to Vickie Hogg on
another address. And you want to offer that to show that she had leased that
other address. Well, I think that's hearsay if it is offered to prove that she, in
fact, rented a certain address. But, if you want to offer it, just have your
investigator say, we found documents in her house which have that address on
them. In other words, linking her to that address.
Also, I think there was a document in her house maybe with the name J.C.
Chatman on it. I think that just the fact that she has a document or a piece of
paper with J.C. Chatman's name on it is admissible. Again, it's not offered to
prove the truth of the matter asserted. It is just the fact that she has his name. I
think it is admissible against both of them for whatever use the jury wants to
make of it. But, the documents themselves would not come in.
R. Vol. VIII at 5-6.

16

The phrase "circumstantial evidence" is a bit misleading. Just because evidence

is introduced circumstantially, rather than directly to prove a fact, has no
bearing on whether the evidence itself is hearsay. As we noted in United States
v. Jefferson, 925 F.2d 1242, 1252-53 (10th Cir.1991)
[w]hether evidence is offered as circumstantial evidence as opposed to direct
evidence has nothing to do with whether it constitutes inadmissible hearsay....
the fact that the evidence was introduced to link circumstantially the accused to
the crime does not render the hearsay violation any more acceptable. Indeed, in
many cases, the government will be forced to rely solely upon circumstantial

evidence in order to achieve a conviction. The protection afforded to an

accused by Rule 801 should not be discarded simply because the evidence is to
be used circumstantially.
The label of "circumstantial evidence" is used, however, because it is
commonly accepted by the courts. It denotes evidence that is not introduced for
the assertions contained therein or at least evidence where the party who
introduces it does not rely on the assertions for the purposes for which they
were made. Rather the document is introduced for the inferences that may be
drawn circumstantially from its existence or from where it is found, regardless
of whether the assertions contained therein are true or not.
17

United States v. Peveto, 881 F.2d 844, 853-54 (10th Cir.) (traffic ticket found
in defendant's apartment, introduced to tie him to van containing contraband,
was not introduced for the truth of the matter asserted on ticket that he had
committed a traffic violation), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107
L.Ed.2d 336 (1989); United States v. Markopoulos, 848 F.2d 1036, 1039 (10th
Cir.1988) (spiral notebook entries offered as circumstantial evidence of
conspiracy and not for truth of the matter asserted); United States v. Shepherd,
739 F.2d 510, 514 (10th Cir.1984) (order to scare individual offered to show
that it occurred, and not for its truth or falsity); United States v. Hensel, 699
F.2d 18, 35 (1st Cir.1983) (list of names nonhearsay to show participation in
conspiracy through inference that member of conspiracy possessed list but not
from accuracy of the list itself); United States v. Mejias, 552 F.2d 435, 446 (2d
Cir.) (hotel and luggage receipts and business card not offered for truth of
matter asserted but as circumstantial evidence to link defendant with hotel,
luggage found therein, and individual whose name appeared on card), cert.
denied 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977); United States v.
Ellis, 461 F.2d 962, 970 (2d Cir.) (address book entries and driver's license
nonhearsay because offered as circumstantial proof of association with others
and ownership), cert. denied, 409 U.S. 866, 93 S.Ct. 162, 34 L.Ed.2d 115
(1972); United States v. Mishkin, 317 F.2d 634, 637 (2d Cir.) (documents
identifying names, phone number, and reference to store found in defendant's
possession were nonhearsay to show connection between individuals), cert.
denied, 375 U.S. 827, 84 S.Ct. 71, 11 L.Ed.2d 60 (1963); United States v.
Mazyak, 650 F.2d 788, 792 (5th Cir. Unit B. 1981) (letter, addressed to all four
defendants, found aboard ship was admissible nonhearsay as circumstantial
proof of association between defendants, and collective association with ship),
cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982); Brown v.
United States, 403 F.2d 489, 491 (5th Cir.1968) (note with name and phone
number found in defendant's possession nonhearsay to show knowledge of
another member of conspiracy), cert. denied, 397 U.S. 927, 90 S.Ct. 932, 25
L.Ed.2d 106 (1970); United States v. Marino, 658 F.2d 1120, 1124-25 (6th

Cir.1981) (directions, receipts, bank and customs documents, and name and
phone number notations were admissible nonhearsay to show circumstantial
relationship of parties to scene, contraband, and other parties); United States v.
Patrick, 959 F.2d 991, 999-1000 (D.C.Cir.1992) (name found on receipt
admissible for nonhearsay purpose of showing that item belonging to defendant
found in same room with contraband but not to show that defendant lived in
apartment where found because that would rely on the truth of an assertion in
the receipt); United States v. Watkins, 519 F.2d 294, 297 (D.C.Cir.1975)
(implying no hearsay problem if the prosecution had offered receipts merely to
show they were located in the bedroom occupied by the defendant)
18

19

David F. Binder, Hearsay Handbook, 2.07 at 31 (3d ed. 1991) ("An out-ofcourt assertion constitutes circumstantial evidence if the trier of fact may,
regardless of its truth, infer from it, alone or in combination with other
evidence, the existence or nonexistence of a fact in issue. An out-of-court
assertion offered as circumstantial evidence is not hearsay."); 2 McCormick on
Evidence 250 at 111-12 (John William Strong, ed., 4th ed. 1992); 6 Wigmore
on Evidence 1788 at 313 (Chadbourn Revision 1976) ("If, then, an utterance
can be used as circumstantial evidence, i.e., without inferring from it as an
assertion to the fact asserted ..., the hearsay rule does not oppose any barrier,
because it is not applicable."); David W. Louisell & Christopher B. Mueller,
Federal Evidence, 417 at 108-22 (1980 & 1992 Supp.); Jack B. Weinstein &
Margaret A. Berger, Weinstein's Evidence, p 801(c) at 801-77--801-82 (1992)
Exhibits 18 and 19 are the rental receipts in the names of McIntyre and Hogg
for the address on W. 139th St. in Hawthorne, California. They were found in
Vickie Hogg's luggage. The district court ruled that they were hearsay if
offered to prove that Vickie Hogg paid rent for a particular apartment, but that
the prosecution could present evidence that a document was found in Vickie
Hogg's possession that contained the address. The prosecution offered
testimony of the police officer who found the receipts that he found two
receipts that showed the address. R.Vol. VIII at 79-80
Exhibit 20 is the money order receipt found in Vickie Hogg's apartment that
documented a transfer of money between Nicole and Keisha Cochran and listed
an address of 500 S.W. 93rd St., a known crack house. It was offered to prove
that Vickie Hogg was connected to the crack house. Other evidence was later
admitted to show McIntyre had delivered cocaine to that location. The district
court allowed testimony that a document was found with the particular address
on it.
Exhibit 44 consisted of money order receipts made out to Vickie Hogg for rent
payments to the Heather Ridge and Park Forest Apartments. They were found

in Vickie Hogg's luggage and were offered to prove that Vickie Hogg was
connected with the apartments. The court limited the testimony to an
affirmation that the police officer found a money order receipt for Heather
Ridge Apartments among Vickie Hogg's possessions.
Exhibit 25 was the American Express receipt found in Vickie Hogg's car which
showed that a card belonging to Jay Chatman was used to purchase clothing at
a Kid's Footlocker store in Culver City, California. The receipt was offered to
prove the association of Vickie Hogg and Jay Chatman. The court allowed the
receipt to be admitted into evidence concluding that it was not being offered for
the truth of the matter asserted.
Exhibit 23 was a receipt for a rental car signed by Pamela Chatman that was
found in Vickie Hogg's car. It was offered to prove that Vickie Hogg was
associated with Pamela Chatman, that she was connected with the address
found on the receipt, and ultimately that she was the business manager and paid
the bills associated with the drug conspiracy. The court limited use of the
document to testimony that the officer found a rent-a-car receipt, signed by
Pamela Chatman, giving an address in Los Angeles, in Vickie Hogg's car.
20

The Cellular One documents were raised at trial on two separate occasions.
First, Officer Williams testified that he found a Cellular One document in
Vickie Hogg's name in her car. McIntyre's attorney did not object at the time
that this testimony was introduced. Second, the documents were admitted into
evidence through a representative of Cellular One. McIntyre's attorney objected
only to the application portion of the document on the grounds that it was not
prepared by an employee of Cellular One but by the customer. The application
was a form provided by Cellular One to independent contractors who would in
turn solicit potential customers. The form required potential customers to fill in
certain information and provide a signature as a prerequisite to obtaining
cellular phone service
Because of McIntyre's failure to object to the record of calls and our belief that
the admission of that portion of the document did not amount to plain error, we
conclude that the admission of that evidence did not amount to reversible error.
Fed.R.Evid. 103(a)(1), (d).

21

The prosecution attempted to allege at trial that they were not offering the
document to show that the defendant Vickie Hogg had and used a cellular
phone. Rather they asserted that they were only offering the document to show
that someone named Vickie Hogg had, and used, a cellular phone from which
the jury could infer it was the defendant. R. Vol. IX at 137. We find this to be a
distinction without legal significance. See supra note 9 and accompanying text

22

The court noted:

I don't see any reason why it's not admissible as an admission. It is on the basis
of someone named Vickie Hogg that filled this out. I think it is circumstantial
evidence that she did. There may be another Vickie Hogg. And that's perfectly
good argument. But here's a signature of Vickie Hogg.
R. Vol. IX at 137.

23

Through an adoption of arguments made by one of the attorneys representing a

co-defendant, McIntyre's counsel did object to the authenticity of the signature
In closing arguments, the government invited the jury to compare the signature
on the cellular phone receipt and the signature on Exhibit 9, a rental receipt
with the signature found on the registration log of the Villa Viejo Motel.
However, no evidence was offered at trial attributing any of these signatures to
Vickie Hogg.

24

The defendant does argue on appeal that we should review the alleged
constitutional violations for plain error, under a more lenient standard as set
forth in Jefferson, 925 F.2d at 1254. For the reasons outlined in the text, we do
not believe that the admission of the document was a sufficiently obvious
violation of the defendant's constitutional rights to constitute plain error

25

The information on the Cellular One application form was also contained in the
phone bill that was admitted, without objection, as part of the same exhibit

26

The following testimony was elicited from Talisha Woods at trial:

Q. Were you ever with Darren (Hogg) when he picked up cocaine from Charles
McIntyre?
A. Yes.
Q. Were you ever in Los Angeles when this occurred?
A. Yes.
Q. Approximately how many times?
A. Maybe twice.
Q. Do you recall when the first time was?
A. About the first part of October.

Q. Of what year?
A. '89.
R. Vol. VII at 9-10.
27

The jury instructions were not included in the record on appeal

28

Even if we were to conclude that the prosecutor's comment was a veiled

commentary on the defendant's refusal to testify we would not be compelled to
overturn the conviction in this case. In the instant case the prosecutor was
doing no more than responding to the defense arguments and the record, when
viewed as a whole, does not support the conclusion that the defendant's right to
a fair trial was denied

29

The defendant brought out at trial that the motel room was rented by Redonna
Hill, who was also arrested at the time of the execution of the warrant.
Although Ms. Hill at first denied owning the drugs and later recanted her
statements, she at some point informed the officer that she owned the cocaine
that was found in the bed

30

The defendant admits that the cocaine found on his person is sufficient to
support a conviction for possession. Aplt. Opening Br. at 45. However, he
points to evidence in the record that he needed 14 grams of cocaine per day to
supply his own habit and would have us infer that the 25.7 grams found in his
underwear, because it is consistent with personal use, is insufficient to establish
possession with intent to distribute

31

McIntyre claims that without the evidence suppressed at the Will Rogers
Airport on August 23, 1990, and the receipts from the Villa Viejo and the
Magic Carpet motels, the evidence is insufficient to find that he travelled in
interstate commerce

32

However, even if we were to examine Darren Hogg's testimony, we do not feel

that the perceived inconsistencies merit reversal. The defendant would have us
discredit Darren Hogg's testimony because he asserted on direct examination
that McIntyre transported a one and one-half kilos from California on seven
occasions between July 1990 and February 1991. Then on cross-examination,
Darren Hogg testified that "it was more than seven times.... I didn't say seven. I
said several." The defendant would have us calculate, based on eight trips each
transporting one and one-half kilos of cocaine, that the evidence only supports a
finding that McIntyre can be linked with 11.5 kilos. We disagree. The only
direct testimony on the question of quantity is Darren Hogg's testimony that
McIntyre transported between 20 and 24 kilos of cocaine over the course of the

conspiracy. The underlying basis for this conclusion is supported by the fact
that Darren Hogg later testified that the trips commenced in April of 1990 and
not July of 1990
33

Cocaine base, or cocaine free base, as used in the federal statute, includes crack.
United States v. LeRoy, 944 F.2d 787, 790 (10th Cir.1991) (citing United
States v. Pinto, 905 F.2d 47 (4th Cir.1990)). The witnesses in the instant case
generally distinguished between powder cocaine and rock, or crack, cocaine.
The powder was transported from California to Oklahoma where it was mixed
with baking soda and water ("cut") and cooked in glass beakers to form crack

34

In addition, Darren Hogg testified that cooking powder cocaine produces over
50% more crack cocaine in terms of weight; accordingly, even if we accepted
McIntyre's argument that the imported substance was powder cocaine, the
testimony concerning cooking would support a finding that McIntyre possessed
even more base or crack cocaine

In accordance with Rule 35(b), Federal Rules of Civil Appellate Procedure, the
suggestions for rehearing en banc were transmitted to all of the judges of the
court who are in regular active service. No member of the panel and no judge in
regular active service on the court having requested that the court be polled on
rehearing en banc, the suggestions for en banc review are denied