                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 23 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-7045
                                                   (D.C. No. CR-97-24-3-S)
    MARK CRAWFORD,                                       (E.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BALDOCK , BARRETT , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       In this direct criminal appeal, defendant challenges his convictions on

seven drug trafficking charges, and his resulting concurrent sentences of 240 and

262 months’ imprisonment. Regarding his convictions, defendant argues that the

trial court 1) violated Fed. R. Crim. P. 11; 2) should have granted a judgment of

acquittal on the conspiracy charge due to a lack of evidence; 3) erred in allowing

an in-court identification of defendant that was based upon an impermissibly

suggestive out-of-court photographic identification; and 4) should have precluded

the testimony of the government’s cooperating witness. In challenging his

sentences, defendant argues that the district court 1) erred in classifying him as a

career offender; and 2) permitted the government to increase his sentences

improperly by making multiple controlled purchases of crack cocaine from

defendant, for no other reason that to increase the amount of crack cocaine for

which he could be sentenced. We affirm.



I.     CONVICTIONS

       Defendant contends that the trial court violated Fed. R. Crim. P. 11 by

allowing a government witness to identify defendant’s recorded voice, based upon

the witness’s having heard defendant speak during plea negotiations. This court

interprets federal rules de novo.   See United States v. Roman-Zarate , 115 F.3d

778, 781 (10th Cir. 1997).


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       Rule 11(e)(6) generally precludes the admission against a defendant of

statements made during plea discussions.      See also Fed. R. Evid. 410. Because

the trial court did not admit any substantive statements made during the plea

negotiations, however, the court did not violate Rule 11(e)(6) by allowing the

government witness to identify defendant’s voice based upon his observations

made during the plea discussions.     See United States v. Oriakhi , 57 F.3d 1290,

1299-1300 (4th Cir. 1995).

       Defendant next argues that there was insufficient evidence to support his

conspiracy conviction. Because defendant failed to renew his motion for acquittal

after he presented evidence on his behalf, this court will review this claim only

for manifest error.   See United States v. Walker , 915 F.2d 1463, 1466 (10th Cir.

1990). Nonetheless, the legal question for de novo review remains the same –

whether “on the basis of the whole record, [t]he evidence . . . is sufficient, . . .

when taken in the light most favorable to the government, [that] a reasonable

[trier of fact] could find the defendant guilty beyond a reasonable doubt.”     United

States v. Cox , 929 F.2d 1511, 1514 (10th Cir. 1991) (further quotation omitted).

       The record does contain sufficient evidence to support defendant’s

conspiracy conviction.     Among other things, the evidence established a direct

connection between an ongoing drug trafficking conspiracy headed by Gregory

Gordon and the house from which defendant sold crack to the government’s


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cooperating witness. Further, the cooperating witness had previously purchased

crack from Mr. Gordon and another of his conspirators at the same house.

Defendant stated to the cooperating witness that Mr. Gordon was defendant’s

uncle, and that defendant got his “stuff” from Mr. Gordon. This evidence was

sufficient to support defendant’s conspiracy conviction.       See generally United

States v. Vaziri , 164 F.3d 556, 565 (10th Cir. 1999) (setting forth necessary

elements of conspiracy).

       Defendant argues that his convictions resulted from an improperly

suggestive out-of-court photographic identification, asserting that law

enforcement agents showed the cooperating witness a single photograph, from

which she identified defendant as the individual from whom she had purchased

crack cocaine on six previous occasions. Because he did not raise this issue

before the district court, we review this argument only for plain error.      See

Haskins v. United States , 433 F.2d 836, 838 (10th Cir. 1970) (citing

Fed. R. Crim. P. 52(b)).

       Even assuming that the out-of-court photographic identification was unduly

suggestive, the subsequent in-court identification was, nevertheless, reliable when

viewed under the totality of the circumstances.      See United States v. Smith , 156

F.3d 1046, 1050 (10th Cir. 1998),     cert. denied , 119 S. Ct. 844 (1999);   United

States v. Flores , 149 F.3d 1272, 1278-79 (10th Cir. 1998),      cert. denied , 119 S. Ct.


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849 (1999). The cooperating witness had met with, and attempted to purchase

crack from, defendant on seven or eight separate occasions.        See United States v.

Klein , 93 F.3d 698, 702 (10th Cir. 1996) (in-court identification was sufficiently

reliable, despite suggestive pretrial photo identification, where witness met with

defendant on three occasions to negotiate or conduct controlled substance

transactions). On one of these occasions, the cooperating witness was able to

identify defendant at a car wash, rather than at the crack house where she usually

purchased drugs from him. Additionally, she was able accurately to describe

defendant to law enforcement officials.       See id. (in-court identification was

sufficiently reliable where, among other things, witness was able to describe

defendant accurately, except for height). In light of the totality of these

circumstances, there is not a substantial likelihood that the cooperating witness

misidentified defendant.   See Smith , 156 F.3d at 1051 (describing five factors to

be weighed against corruptive effect of suggestive pretrial identification).

      Defendant further contends that the trial court should have precluded the

testimony of the government’s cooperating witness in light of        United States v.

Singleton , 144 F.3d 1343 (10th Cir. 1998).         This court, however, has

subsequently overturned that decision.    See United States v. Singleton , 165 F.3d

1297 (10th Cir. 1999) (en banc).




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II.    SENTENCING

       Defendant challenges his sentences, arguing that the district court erred in

classifying him as a career offender    based upon the court’s determination that his

prior Oklahoma felony conviction for throwing rocks at an occupied moving

school bus was a crime of violence.     See U.S.S.G. § 4B1.1. We review de novo

the district court’s determination that defendant was a career offender.          See

United States v. Mitchell , 113 F.3d 1528, 1532 (10th Cir. 1997),          cert. denied , 118

S. Ct. 726 (1998).

       For purposes of determining whether a defendant is a career offender, the

Sentencing Guidelines define a crime of violence, in pertinent part, as a state or

federal offense, punishable by imprisonment for a term exceeding one year, that

“has as an element the use, attempted use, or threatened use of physical force

against the person of another, . . . or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).

Defendant pled guilty to “unlawfully, wilfully, knowingly . . . throw[ing] or

drop[ping] a rock on or at . . . a [s]chool bus, while [it] was travelling East on

Highway 270, . . . and being driven occupied by one Bobby Walker,” R. vol. VI,

Government’s Amended Objection to Presentence Report, ex. 87, a felony under

Oklahoma law punishable by up to ten years’ imprisonment,          see Okla. Stat. Ann.

tit. 47, § 11-1111. Because the conduct to which he pled guilty, “by its nature


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presented a serious potential risk of injury,”      United States v. Coronado-Cervantes        ,

154 F.3d 1242, 1244-45 (10th Cir. 1998), the district court did not err in

classifying defendant as a career offender under § 4B1.1.

       Lastly, defendant argues that the government improperly increased the

amount of controlled substances for which he was sentenced by continuing to

make controlled buys after it had gathered sufficient evidence against him.

While, absent a legitimate investigatory purpose, the government “could not

continue to conduct these transactions      ad infinitum thereby constantly increasing

the charges,” United States v. Harris , 997 F.2d 812, 818-19 (10th Cir. 1993), the

district court found that the government had a legitimate investigatory purpose for

the number of controlled buys it made from defendant. That factual finding was

not clearly erroneous.    See United States v. Baker , 63 F.3d 1478, 1499 (9th Cir.

1995). “Police must be given leeway to probe the depth and extent of a criminal

enterprise to determine whether coconspirators exist, and to trace the drug deeper

into the distribution hierarchy.”    Harris , 997 F.2d at 819 (further quotation

omitted). The government’s conduct in this case, therefore, was not sufficiently

outrageous to violate due process.       See id. ; see also, e.g. , Baker , 63 F.3d at 1500;

United States v. Barth , 990 F.2d 422, 425 (8th Cir. 1993).




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     The judgment of the United States District Court for the Eastern District of

Oklahoma is, therefore, AFFIRMED.



                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




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