           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2    United States v. Crayton                    No. 02-5738
        ELECTRONIC CITATION: 2004 FED App. 0038P (6th Cir.)
                    File Name: 04a0038p.06                                                 _________________
                                                                                                COUNSEL
UNITED STATES COURT OF APPEALS
                                                                       ARGUED:             W i l l i a m Y e so w i tch, BARBER,
                  FOR THE SIXTH CIRCUIT                                BANASZYNSKI & GLIDEWELL, Louisville, Kentucky, for
                    _________________                                  Appellant. Candace G. Hill, ASSISTANT UNITED STATES
                                                                       ATTORNEY, Louisville, Kentucky, for Appellee.
 UNITED STATES OF AMERICA , X                                          ON BRIEF:            William Yesowitch, BARBER,
             Plaintiff-Appellee, -                                     BANASZYNSKI & GLIDEWELL, Louisville, Kentucky, for
                                   -                                   Appellant. Candace G. Hill, Terry M. Cushing, ASSISTANT
                                   -  No. 02-5738                      UNITED STATES ATTORNEYS, Louisville, Kentucky, for
            v.                     -                                   Appellee.     Lawrence Edward Crayton, Jr., Lompoc,
                                    >                                  California, pro se.
                                   ,
 LAWRENCE EDWARD                   -
 CRAYTON, JR., also known as                                                               _________________
                                   -
 Manny Harris and Alex             -                                                           OPINION
 Winters,                          -                                                       _________________
          Defendant-Appellant. -
                                   -                                     ROGERS, Circuit Judge. Lawrence Crayton, Jr. (a/k/a
                                  N                                    Manny Harris, Alex Winters, and Terrell Mason) appeals his
       Appeal from the United States District Court                    conviction of attempt, conspiracy, and possession of over five
    for the Western District of Kentucky at Louisville.                kilograms of cocaine with the intent to distribute. After
 No. 98-00091—John G. Heyburn II, Chief District Judge.                receiving a tip from a police department in another state, the
                                                                       Louisville Metro Police searched boxes from an incoming
                   Argued: December 9, 2003                            cargo plane for a package addressed to “Alex Winters.” After
                                                                       obtaining a warrant, the police opened the box, replaced the
             Decided and Filed: February 5, 2004                       six kilograms of cocaine contained inside with filler, and
                                                                       delivered the package. Crayton, pretending to be Winters,
  Before: ROGERS and COOK, Circuit Judges; COHN,                       signed for the package at the delivery address. Crayton and
                  District Judge.*                                     his cousin, Andre Alexander, sped away in a vehicle with the
                                                                       package. Crayton and Alexander were followed by the
                                                                       police, and at some point during the chase, the box was
                                                                       opened and tossed out of the vehicle. Both men were
                                                                       arrested. During a joint trial, Alexander was acquitted, but
                                                                       the jury could not reach a verdict as to Crayton. A second jury
    *
                                                                       convicted Crayton of all three charges, and he was sentenced
     The Honorab le Avern Cohn, United States District Judge for the   to three concurrent life terms of imprisonment. Because the
Eastern District of Michigan, sitting by designation.

                                 1
No. 02-5738                        United States v. Crayton           3    4       United States v. Crayton                    No. 02-5738

district court did not violate the “rule of consistency” or err in         Suburban and stated that he was Mr. Winters.2 Crayton
deciding any of the other issues Crayton raises on appeal, we              signed for the package as Alex Winters. At this time, the
affirm the judgment of the district court.                                 detective noticed there was another person in Crayton’s
                                                                           vehicle. That person was Andre Alexander, Crayton’s cousin.
                               FACTS
                                                                              Crayton and Alexander left in the Suburban, but the police
  On April 15, 1998, Los Angeles, California, Police                       followed the vehicle without lights and sirens. During the
Detective George Osborne, with the Narcotics Interdiction                  pursuit, Crayton and Alexander stopped for five minutes on
Unit, received a tip that a box shipped via UPS and bound for              the shoulder of a road. The officers described that stop by
Louisville was suspicious because the return address was                   Crayton and Alexander as a countersurveillance move to see
false. Osborne then alerted the Louisville Metro Police                    if anyone was following them. After several minutes,
Department to the suspicious box.                                          Crayton asked Alexander to open the box. While opening the
                                                                           box, Alexander found the sample cocaine bag left in the box
   The Metro Police K-9 unit was waiting at the UPS depot                  by the police, and he tossed the box and its contents out of the
when the suspicious box arrived. The dog alerted on one box                car window and into an alley. Crayton’s vehicle then sped up,
shipped from California to Louisville, and the police got a                the police turned on their lights and sirens, and a chase began.
warrant for the package. The brown cardboard box was                       When Crayton drove into a high traffic area, the police
opened from the bottom so as not to damage the label on the                stopped the vehicle and arrested Crayton and Alexander.
top. Inside, the police found Styrofoam peanuts and two
packages wrapped in Christmas paper and cellophane tape.                     During the arrest, Crayton identified himself as “Manny
Each package contained approximately three kilograms of                    Harris,” and he claimed to have no idea what was in the box.
cocaine. The police then put a 4.5 gram sample of cocaine                  However, the police found the opened box near an alley along
into the box along with dummy packages of non-narcotic                     the route Crayton had taken.
filler wrapped to resemble the cocaine packages. A tracking
device was added, and the box was resealed.                                   Manny Harris was charged with trafficking in cocaine and
                                                                           tampering with physical evidence. Harris posted bond and
  Police set up surveillance around 541 North 44th Street, the             fled. On July 7, 1998, a federal grand jury issued an
destination listed on the label of the box addressed to “Alex              indictment against Harris and Alexander. Count 1 of the
Winters.” A detective disguised in a UPS uniform delivered                 indictment charged Harris with conspiring with Alexander
the box to the address. The detective got out of the UPS truck             and unknown persons to possess cocaine with the intent to
and knocked on the door of the house, but no one answered.1                distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
At this point, Crayton pulled up to the house in a blue                    Count 2 charged Harris and Alexander with attempting to
                                                                           possess cocaine with the intent to distribute. Count 3 charged
                                                                           them with actually possessing cocaine with the intent to

    1
      Police later discovered that the home was owned by Anthony               2
Anderson, an investo r who remodels houses for resale. The house was             A “Manny Harris” bought a blue Suburban with cash around this
vacant, and And erson did not know or give Crayton or any of his aliases   time, although there is some confusion as to the actual date of the
perm ission to use the house.                                              purchase.
No. 02-5738                    United States v. Crayton       5    6    United States v. Crayton                     No. 02-5738

distribute. Crayton, then going by the name of Terrell Mason,      acquitted, the remaining conspirator’s conviction must be
and Alexander were arrested on January 2, 1999 in Los              reversed for lack of sufficient evidence.” United States v.
Angeles. In September 2000, a superseding indictment was           Walker, 871 F.2d 1298, 1304 n.5 (6th Cir. 1989) (dictum).
issued in which Crayton was named specifically and the             However, the rule of consistency did not apply when co-
quantity, six kilograms, of cocaine was added to the               conspirators were tried separately and all but one were
indictment.                                                        acquitted. United States v. Roark, 753 F.2d 991, 995-96 (11th
                                                                   Cir. 1985) (cited in United States v. Sachs, 801 F.2d 839, 845
  A trial was held in December 2000, and the jury acquitted        (6th Cir. 1986)). Likewise, if the charges against all but one
Alexander but was unable to reach a verdict as to Crayton.         alleged co-conspirator had been dismissed, the rule of
Before his second trial, Crayton moved for a bill of               consistency was inapplicable. Sachs, 801 F.2d at 845.
particulars, but the district court denied the motion. Crayton
was convicted on all counts in his second trial. He was               The Supreme Court’s decision in United States v. Powell,
sentenced to life in prison.                                       469 U.S. 57 (1984), rendered the so-called “rule of
                                                                   consistency” no longer good law. Before Powell, this court
                          ANALYSIS                                 applied the rule of consistency in United States v. Williams,
                                                                   503 F.2d 50 (6th Cir. 1974). In Williams, a father and his
I. Effect of the Prior Acquittal of Alexander                      adult son flew into a Cleveland airport, but one of their
                                                                   suitcases was lost. Williams, 503 F.2d at 52. The airline lost
  Crayton makes a number of arguments based on the prior           baggage department found the bag and discovered that it
acquittal of his co-conspirator Alexander. None have merit.        contained large amounts of cocaine and heroin. Id. The
                                                                   airline gave the bag to the Drug Enforcement Administration,
  A. Powell’s Effect on the Rule of Consistency                    who substituted the real narcotics with a non-narcotic
  The district court properly denied Crayton’s motion to           substance and gave the bag to the son. Id. The agents
dismiss the superseding indictment based on the rule of            followed the son to the motel room and eventually caught the
consistency, which would require that one co-conspirator           father, son, and another man, Willie Johnson, attempting to
could not be convicted when all other co-conspirators are          flush the narcotics down the toilet. Id. All three men were
acquitted at the same trial, because that “rule” is no longer      charged with possession and conspiracy, and the jury found
good law. Before his second trial, Crayton moved to dismiss        the father guilty of possession but could not reach a verdict as
the superseding indictment because the indictment still            to the conspiracy of the father or the other two men. Id. Prior
contained Alexander’s name, even though Alexander had              to the second trial, the possession charges against the son and
been acquitted as a co-conspirator at the previous trial. This     Johnson were dismissed. Id. At the second trial, all three
court reviews de novo a district court’s denial of a motion to     men were convicted of conspiracy. Id.
dismiss an indictment on legal grounds. United States v.              The court held that there was insufficient evidence to
Campbell, 279 F.3d 392, 398 (6th Cir. 2002); In re Ford, 987       sustain Johnson and the son’s conspiracy convictions. Id. at
F.2d 334, 339 (6th Cir. 1992).                                     54. The court then announced the “rule of consistency” by
  The rule of consistency at one time required “that, where all    stating “[s]ince we have found that the convictions of Johnson
possible co-conspirators are tried together, and all but one are   and Williams, Jr. cannot stand, the conviction of Williams, Sr.
                                                                   must also fall. Where all other alleged co-conspirators are
No. 02-5738                      United States v. Crayton         7    8    United States v. Crayton                     No. 02-5738

acquitted, the conviction of one person for conspiracy will not        allow criminal defendants to challenge inconsistent verdicts
be upheld.” Id.; see also United States v. Sachs, 801 F.2d             on the ground that in their cases the verdict was a product of
839, 845 (6th Cir. 1986) (stating in dictum, “if coconspirators        some factor other than lenity. Id. at 66. Finally, the Court
are tried together, an acquittal on conspiracy charges as to all       relied on the independent review of the sufficiency of the
but one coconspirator mandates acquittal on conspiracy                 evidence undertaken by the trial and appellate courts to afford
charges as to the remaining defendant”).                               protection against jury irrationality or error. Id. at 67.
   Since we last applied the rule of consistency in Williams, a           Powell does not discuss inconsistent jury verdicts among
unanimous Supreme Court has held that inconsistent jury                co-conspirators, but as a number of our sister circuits have
verdicts are permissible. See Powell, 469 U.S. at 68-69. The           held, Powell rendered the rule of consistency no longer good
defendant in Powell was convicted of using the telephone to            law. Thus, the acquittal of all but one co-conspirator during
commit the felony of “conspiracy to possess with the intent to         the same trial does not necessarily indicate that the jury found
distribute and possession with intent to distribute cocaine,”          no agreement to act. See United States v. Bucuvalas, 909
but she was acquitted of knowingly and intentionally                   F.2d 593, 597 (1st Cir. 1990); United States v. Thomas, 900
possessing cocaine with the intent to distribute. Id. at 60.           F.2d 37, 40 (4th Cir. 1990); United States v. Zuniga-Salinas,
She argued that the verdicts were inconsistent because she             952 F.2d 876, 877-79 (5th Cir. 1992) (en banc); United States
was found guilty of conspiring to do something that she was            v. Valles-Valencia, 823 F.2d 381, 381-82 (9th Cir. 1987);
acquitted of, namely possession with the intent to distribute          United States v. Andrews, 850 F.2d 1557, 1560-62 (11th Cir.
cocaine. Id. The Court reaffirmed the holding of Dunn v.               1988) (en banc). Other circuits have recognized that the rule
United States, 284 U.S. 390, 393 (1932), that “where truly             of consistency does not survive Powell, without actually so
inconsistent verdicts have been reached, ‘[t]he most that can          holding. United States v. Dakins, 872 F.2d 1061, 1065 (D.C.
be said . . . is that the verdict shows that either in the acquittal   Cir. 1989) (Powell “cast[s] doubt” upon rule of consistency);
or the conviction the jury did not speak their real conclusions,       United States v. Mancari, 875 F.2d 103, 104 (7th Cir. 1989)
but that does not show that they were not convinced of the             (rejection of rule of consistency “makes good sense in light of
defendant’s guilt.’” Id. at 64-65. The Court rejected the              Powell”); Gov’t of the Virgin Islands v. Hoheb, 777 F.2d 138,
argument that courts must assume that an inconsistent                  142 n.6 (3d Cir. 1985) (rule of consistency “may be a vestige
acquittal is necessarily “the one the jury ‘really meant.”’ Id.        of the past”). See also Chad W. Coulter, Comment, The
at 68. “It is equally possible that the jury, convinced of guilt,      Unnecessary Rule of Consistency in Conspiracy Trials, 135
properly reached its conclusion on the compound offense, and           U. PA . L. REV . 223 (1986).
then through mistake, compromise, or lenity, arrived at an
inconsistent conclusion on the lesser offense.” Id. at 65.               The only contrary circuit opinion appears to be that of the
                                                                       Tenth Circuit. In United States v. Suntar Roofing, Inc., 897
   The Powell Court relied specifically on the rationale that          F.2d 469 (10th Cir. 1990), that court, while affirming
“inconsistencies” often are the product of jury lenity,                convictions based on the existence of unindicted
recognizing “the jury’s historic function, in criminal trials, as      co-conspirators, suggested that the rule of consistency may
a check against arbitrary or oppressive exercises of power by          have continuing vitality. The court noted that the trial court’s
the Executive Branch,” and, that the Government is unable to           conclusion that the rule of consistency was no longer good
invoke review of such lenity. Id. at 65-66. The Court                  law “is substantially undercut by the fact that the Powell
rejected as imprudent and unworkable a rule that would                 opinion does not discuss Hartzel [v. United States, 322 U.S.
No. 02-5738                     United States v. Crayton          9   10    United States v. Crayton                       No. 02-5738

680 (1944)] or expressly overturn the traditionally recognized           The reasoning of Powell applies to co-conspirator cases
exception.” Suntar Roofing, 897 F.2d at 475. As the First             even though Powell itself did not involve co-conspirators. As
Circuit has reasoned, however, the Tenth Circuit’s concern is         the First Circuit reasoned, “an apparent failure to prove an
not well founded:                                                     essential element of the offense would not distinguish
                                                                      conspiracy from any other case involving an inconsistent
  [T]he Hartzel decision to which the Tenth Circuit                   verdict.” Id. at 597. In a co-conspirator case just as much as
  referred did not involve inconsistent jury verdicts.                in Powell, inconsistencies may be the product of jury lenity,
  Instead, the “only co-conspirators of petitioner named in           given the jury’s historic function as a check on arbitrary
  the indictment” had their convictions set aside by judges           exercises of power. In a co-conspirator case just as much as
  due to insufficient evidence. 322 U.S. at 682 n. 3 . . . . It       in Powell, a rule that depended upon whether jury lenity was
  has been, and remains, the law that where the evidence              actually a factor would be “imprudent and unworkable.” And
  against all of an individual’s alleged co-conspirators is           finally, in a co-conspirator case just as in Powell, the
  deemed legally insufficient, the evidence against that              independent review of the sufficiency of the evidence
  individual is by definition also insufficient. See, e.g.,           undertaken by the trial and appellate courts affords protection
  Morrison v. California, 291 U.S. 82, 93 [] (1934);                  against jury irrationality or error. It is thus clear that the “rule
  Gebardi v. United States, 287 U.S. 112, 116, 123 []                 of consistency” previously recognized in this circuit did not
  (1932); United States v. Velasquez, 885 F.2d 1076,                  survive Powell.
  1090-1091 and n. 13 (3d Cir. 1989) (expressly noting it
  was not applying the rule of consistency, court held that             B. Unknown Conspirators
  an earlier appellate finding of insufficient evidence to
  convict the only alleged co-conspirator required finding               Even if the rule of consistency survived Powell, reversal
  insufficient evidence as to the remaining defendant.);              would not be required in the present case. We have held that
  United States v. Levario, 877 F.2d 1483, 1486 (10th Cir.            “an individual’s conviction for conspiracy may stand, despite
  1989) (trial court’s granting motion for judgment of                acquittal of other alleged coconspirators, when the indictment
  acquittal as to only alleged co-conspirator precluded               refers to unknown or unnamed conspirators and there is
  conspiracy conviction); United States v.                            sufficient evidence to show the existence of a conspiracy
  Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th Cir.                between the convicted defendant and these other
  1988) (same). A court’s determination that there is                 conspirators.” United States v. Anderson, 76 F.3d 685, 688-
  insufficient evidence to convict cannot be equated with             89 (6th Cir. 1996). Like the indictment in Anderson, Count
  a jury’s determination that a defendant, for whatever               1 of Crayton’s superseding indictment specifically mentions
  reason, should be acquitted. Accordingly, rather than               Alexander and “other persons, known and unknown.” The
  there being any “conflict between Powell and Hartzel,”              record presents ample evidence for a reasonable jury to have
  Suntar Roofing, 897 F.2d at 475-476, the Court’s                    concluded that Crayton conspired with unknown people in
  emphasis in Powell on the sufficiency of the evidence               California who sent the package to Crayton, or unknown
  fully embraces the Hartzel ruling. See Andrews, 850                 people in Louisville, to facilitate the delivery and/or
  F.2d at 1562 n. 15.                                                 distribution of the cocaine. Thus, Crayton’s conviction in the
                                                                      second trial would not violate the rule of consistency even if
Bucuvalas, 909 F.2d at 596-97.                                        it were still good law.
No. 02-5738                     United States v. Crayton       11    12    United States v. Crayton                      No. 02-5738

  C. Constructive Amendment of Counts 2 and 3                        it clearly mentioned that the burden of proof was on the
                                                                     Government when the court stated “[t]he indictment . . .
    Contrary to Crayton’s contentions, the Government                against the defendant is not evidence of guilt. The defendant
moreover did not constructively amend the superseding                is presumed innocent by the law, and the presumption of
indictment during the trial by not removing Alexander’s name         innocence is always there. . . . The defendant need not prove
and the aiding and abetting language from Counts 2 and 3 of          anything. . . . The United States has the burden of proving the
the superseding indictment. See e.g., United States v.               defendant guilty beyond a reasonable doubt . . . .” J.A. at
Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002). Count 2 of          778-79. The district court therefore did not err by reading
the superseding indictment states “. . . Crayton . . . and . . .     Alexander’s name in the indictment with the jury instructions.
Alexander, each aided and abetted by the other, did attempt to
knowingly and intentionally possess with intent to distribute        II. The Effect of Beamus’s Testimony
. . . cocaine . . . .” Count 3 is identical except “attempt to” is
omitted. The case law of this circuit disposes of this claim.           Crayton makes two arguments based on the fact that during
In Anderson, in language almost identical to that of Count 2         Crayton’s second trial, the Government called Terri Beamus
in this case, the indictment stated that the defendant aided and     as a rebuttal witness. Beamus testified as to some individuals
abetted two individuals who were acquitted at the same trial.        who may have aided Crayton with possible drug activity in
Anderson, 76 F.3d at 689. In that case we held,                      Louisville. Beamus had not been called to testify in the first
                                                                     trial against Crayton and Alexander. The rebuttal testimony
  The indictment gave defendant notice that he was being             of Beamus does not require a reversal of Crayton’s conviction
  charged under count two both with being an aider and               because no bill of particulars was required, there was no
  abettor and with the substantive crime of attempt.                 unfair surprise in her testimony, and there was no violation of
  Indeed, the punctuation of the indictment sets off the             Brady v. Maryland, 373 U.S. 83 (1963).
  “aided and abetted” phrase from the crime of attempt to
  possess cocaine with intent to distribute. The jury was              A. Bill of Particulars
  entitled to find defendant guilty of the substantive crime
  of attempt even though his codefendants were found not                First, the district court did not abuse its discretion in
  guilty of attempt or aiding or abetting his attempt.               denying Crayton’s Motion for a Bill of Particulars because it
                                                                     is unlikely that Crayton would have gleaned anything from a
Id. For identical reasons, there was no constructive                 bill of particulars. This court reviews the district court’s
amendment of Crayton’s superseding indictment.                       denial of Crayton’s motion for a bill of particulars for an
                                                                     abuse of discretion. United States v. Perkins, 994 F.2d 1184,
  D. Alexander’s name in the Jury Instructions                       1190 (6th Cir. 1993). To make a successful challenge to a
                                                                     district court’s denial of a motion for a bill of particulars, “the
  Finally, the district court did not somehow create a               defendant must show not only that the court abused its
mandatory presumption that Alexander was a co-conspirator            discretion, but that defendant actually suffered surprise or
by including Alexander’s name in the jury instructions.              other prejudice at trial.” United States v. Salisbury, 983 F.2d
Alexander’s name was only mentioned in the jury instructions         1369, 1375 (6th Cir. 1993).
when Count 1 of the superseding indictment was read. The
district court never mentioned any type of presumption, and
No. 02-5738                     United States v. Crayton      13    14       United States v. Crayton                        No. 02-5738

   Between the first and second trials, Crayton moved for a           B. Alleged Brady Violation
bill of particulars to find out more about the conspiracy
charge since Alexander had been acquitted. The district court         The Government also did not illegally withhold exculpatory
denied this motion shortly before trial. Crayton argues that        evidence from Crayton. The Sixth Circuit reviews de novo a
the district court erred by denying his motion for a bill of        district court determination that the prosecution did not
particulars and that he suffered prejudice because, he alleges,     wrongfully withhold exculpatory evidence. United States v.
the Government unexpectedly changed the theory of its case          Tarwater, 308 F.3d 494, 515 (6th Cir. 2002). Where, as in
in rebuttal by placing into evidence, during rebuttal, names of     this case, the defense counsel did not make a motion for a
potential co-conspirators without any corroborative evidence.       mistrial or raise the question of a possible Brady violation to
                                                                    the district court, we review at most for plain error. See
  Crayton claims that the second trial was virtually identical      United States v. Delgado, 350 F.3d 520, 527 n.10 (6th Cir.
to the first trial until Beamus’s testimony, but that her           2003).3 As we explain, the district court did not err, much
testimony was an unfair surprise. The function of a bill of         less commit plain error.
particulars is to “to minimize surprise and assist [the]
defendant in obtaining the information needed to prepare a             Crayton contends that the prosecution did not provide him
defense and to preclude a second prosecution for the same           with a prior statement by Beamus, in which she corroborated
crimes.” Id. A bill of particulars “is not meant as a tool for      Crayton’s story, until shortly before she testified. During her
the defense to obtain detailed disclosure of all evidence held      testimony, Beamus apparently changed her story and no
by the government before trial.” Id.                                longer corroborated Crayton’s version of events. Thus, since
                                                                    the Government did not give the defense Beamus’s prior
   The Government was not aware of Beamus’s testimony               inconsistent statement until shortly before her testimony,
until the day before her rebuttal, and it is thus unlikely that a   Crayton’s due process rights are said to have been violated
bill of particulars given before trial would have provided          under Brady v. Maryland, 373 U.S. 83 (1963).
Crayton with helpful information. Further, the Government
is not required to furnish the name of all other co-conspirators      Beamus’s prior statement was not explicitly exculpatory in
in a bill of particulars. United States v. Rey, 923 F.2d 1217,      that it did not tend to negate directly the guilt of the
1222 (6th Cir. 1991). Therefore, even if the Government had         defendant. Instead, Beamus’s statement was nonexculpatory
known of Beamus’s testimony at the beginning of trial, the          evidence that could be used to impeach her testimony.
identities of the possible co-conspirators she named would not      “Impeachment evidence, however, as well as exculpatory
need to be revealed in a bill of particulars. Crayton knew that     evidence, falls within the Brady rule.” United States v.
unnamed persons were referred to in the conspiracy count of         Bagley, 473 U.S. 667, 676 (1985).
the indictment. Although Beamus’s testimony may have been
unexpected, it was not an unfair surprise that the grant of a
bill of particulars would have avoided, and the district court
did not abuse its discretion in this regard.
                                                                         3
                                                                          It could also b e said that defend ant waived his Brady claim, such
                                                                    that even plain error review is not required. See United States v.
                                                                    Scarborough, 43 F.3d 1021, 1025 (6th Cir. 19 94); see also United States
                                                                    v. Reeves, No. 99-1248, 2000 W L 687649, at **2 (6th Cir. May 19, 2000)
                                                                    (applying this concept to a Brady claim).
No. 02-5738                    United States v. Crayton      15    16       United States v. Crayton                         No. 02-5738

  However, Crayton suffered no prejudice because the               “that increases the penalty for a crime beyond the prescribed
Government did produce the impeachment material in a               statutory maximum must be submitted to a jury, and proved
manner consistent with the requirements of Brady. Where a          beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
defendant claims a violation of Brady because of the               Crayton was sentenced to life imprisonment for each count,
Government’s failure to produce impeachment evidence, “so          which is within the statutory maximum for possession of over
long as the defendant is given impeachment material, even          five kilograms of cocaine. See 21 U.S.C. § 841 (b)(1)(A).
exculpatory impeachment material, in time for use at trial, we     Crayton argues that the district court erred by sentencing him
fail to see how the Constitution is violated.” United States v.    to the statutory maximum for possessing over five kilograms
Presser, 844 F.2d 1275, 1283 (6th Cir. 1988).                      of cocaine without a specific jury finding as to the quantity he
                                                                   possessed.4
   The record indicates that Beamus’s one-page prior
inconsistent statement was turned over to the defense soon            The district court complied with the requirements of
after the Government decided to call Beamus as a witness and       Apprendi because the district court instructed the jury that, for
before she testified. Any disadvantage that a defendant might      Crayton to be convicted, the Government needed to prove
suffer because of the tardiness of impeachment material can        beyond a reasonable doubt that Crayton “conspired or agreed
be cured by asking for a recess. Id. at 1283-84. Crayton’s         to commit the crime of possession with the intent to distribute
counsel only asked for a moment to look over Beamus’s prior        over five kilograms of cocaine.” J.A. at 780 (emphasis
statement, and the district court granted this request. Further,   added). The district court likewise indicated the same
Crayton’s counsel questioned Beamus extensively about the          quantity instruction along with counts two and three.
prior inconsistent statement, during cross examination. Thus,      Crayton’s sentencing, therefore, does not violate Apprendi
there appears to have been no Brady violation. Moreover,           because the jury found Crayton guilty of conspiracy, attempt,
even if there had been a Brady violation, “the proper inquiry      and possession of “over five kilograms.” Thus, the jury
is whether the Brady violation undermines confidence in the        sufficiently determined the quantity of cocaine that Crayton
verdict, because there is a reasonable probability that there      possessed and it was that quantity that the district court used
would have been a different result had the evidence been           to sentence Crayton to the statutory maximum for that amount
disclosed.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). It     of cocaine.
is difficult to imagine that the jury would have reached a
different result if the defense had Beamus’s prior statement
before trial. There was therefore clearly no violation of
Crayton’s constitutional rights under Brady.
                                                                        4
                                                                         That the defendant make s this argument is rather ironic considering
III. Alleged Sentencing Errors                                     that it was the G overnment that raised the possible Appren di issue
                                                                   immediately after the jury instructions were read to the jury. However,
  A. Apprendi                                                      Crayton’s counsel effectively objected to any change to the instructions
                                                                   to take Appren di into account. (More precisely, Crayton’s counsel
                                                                   objected to changing a proposed verdict form to comply with Apprendi,
   The district court did not violate Apprendi v. New Jersey,      and at the same time stated that “the verdict form is consistent with the
530 U.S. 466 (2000), by sentencing Crayton without a jury          instruction.”)   Thus, since Crayton intentionally relinquished or
finding as to the exact quantity of cocaine he possessed.          abandoned his known right, the issue could also be deemed waived . See
Apprendi held that any fact, other than a prior conviction,        United States v. Olano, 507 U.S. 725, 733 (1993); United States v.
                                                                   Shep pard, 149 F.3d 458 , 461 (6th C ir. 199 8).
No. 02-5738                           United States v. Crayton            17   18       United States v. Crayton                          No. 02-5738

  B. Sentencing Under United States Sentencing Guideline                       together and used § 2D1.1(c)(4) to determine the base offense
     § 3D1.1                                                                   level. J.A. at 830.
  Crayton also contends that the district court erred by                         It is § 5G1.2 that actually governs sentencing on multiple
sentencing him to imprisonment for three concurrent life                       counts. Section 5G1.2(b) provides generally that “the total
terms because the district court failed to consider United                     punishment is to be imposed on each count and the sentences
States Sentencing Guideline (“U.S.S.G.”) § 3D1.1.5                             on all counts are to be imposed to run concurrently to the
According to Crayton’s argument, § 3D1.1 requires the                          extent allowed by the statutory maximum sentence of
district court to group the three counts and only sentence him                 imprisonment for each count of conviction.” U.S.S.G.
to one life term instead of three.                                             § 5G1.2, cmt. n.1. This is precisely what the district court
                                                                               did, and the district court thus did not err in calculating
  The defendant misreads U.S.S.G. § 3D1.1—which actually                       Crayton’s sentence.
directs the court to determine the combined offense level.6
The Presentence Report clearly indicated a proper application                    C. Sentencing Under 21 U.S.C. § 851
of §3D1.1. The Presentence Report grouped all three counts
                                                                                  Crayton’s sentencing using 21 U.S.C. § 851 was moreover
                                                                               free of constitutional defect. Crayton claims that § 851,
                                                                               which deals with enhanced penalties for prior convictions,
    5                                                                          was used punitively in his case and represents an improper
        Section 3D1.1 states:
                                                                               delegation to the executive of legislative power to set criminal
    a) W hen a defendant has been convicted of more than one count,            penalties. Crayton argues that § 851 violates separation of
    the court shall:                                                           powers because the decision to request an enhanced sentence
           (1) Grou p the coun ts resulting in conviction into distinct        lies with the United States Attorney, while the district court
           Groups of Closely Related Counts (“Groups”) by applying             has no leeway.7 As the Eleventh Circuit has held, § 851 is
           the rules specified in § 3D1.2.                                     not an improper delegation of legislative authority. See
                                                                               United States v. Cespedes, 151 F.3d 1329, 1331-35 (11th Cir.
           (2) Determine the offense level applicable to each Group by         1998) (“[R]ather than delegating legislative power, § 851
           applying the rules specified in § 3D1.3.
                                                                               affords prosecutors a power no greater than that traditionally
           (3) Determine the combined offense level applicab le to all         exercised by the executive branch in the charging decision.”).
           Groups taken to gether by applying the rules specified in           Crayton suggests the lack of case law on the issue since
           § 3D1.4.

    (b) Exclude from the application of §§ 3D1.2-3D1.5 any count
    for which the statute (1) specifies a term of imprisonment to be
    imposed; and (2) req uires that such term of imprisonment be
    imposed to run consecutively to any other term o f impriso nment.
    Sentences for such counts are governed by the provisions of                     7
                                                                                     Crayton in a pro se supplemental brief also argues that his two prior
    § 5G1 .2(a).                                                               California state drug conviction should not have been used to enhan ce his
    6
                                                                               sentence under 21 U.S.C. § 851. H owever, during oral argument,
      No te that the title of § 3D1.1 is the “Procedure for Determ ining       Crayton’s counsel properly conceded that the defendant misapplied case
Offen se Level on M ultiple Counts” (emphasis added).                          law in this regard.
No. 02-5738                          United States v. Crayton          19     20   United States v. Crayton                    No. 02-5738

Apprendi may indicate that the courts are currently viewing                     The Supreme Court, in rejecting an argument that
the issue differently.8                                                       prosecutorial discretion under § 851 led to unwarranted
                                                                              disparity in sentencing, has analogized prosecutorial
  Section 851 provides that increases in sentences based upon                 discretion under § 851 to the power of the executive to charge
prior felony drug convictions may not be imposed unless the                   defendants. In United States v. LaBonte, 520 U.S. 751
United States Attorney has filed an information stating the                   (1997), the Supreme Court stated:
previous convictions to be relied upon. 21 U.S.C. § 851(a).
A defendant may challenge the use of any of the prior                           Insofar as prosecutors, as a practical matter, may be able
convictions that occurred within the previous five years.9 21                   to determine whether a particular defendant will be
U.S.C. § 851(b)-(c) & (e). At sentencing, the court must then                   subject to the enhanced statutory maximum, any such
impose the enhanced sentence if the defendant does not file a                   discretion would be similar to the discretion a prosecutor
response to the information “or if the court determines, after                  exercises when he decides what, if any, charges to bring
hearing, that the person is subject to increased punishment by                  against a criminal suspect. Such discretion is an integral
reason of prior convictions.” 21 U.S.C. at § 851(d)(1).                         feature of the criminal justice system, and is appropriate,
                                                                                so long as it is not based upon improper factors.
  Crayton complains that this mandatory obligation of the
district court to impose the enhanced sentence that the                       LaBonte, 520 U.S. at 762 (citations omitted).
prosecutor decides to put in the information places the
prosecutor in the position to set criminal penalties—a                          The Fourth Circuit recently considered the issue of § 851 as
function of the legislature. Thus, Crayton argues that § 851                  an improper delegation of legislative authority. See United
improperly delegates legislative power to the executive.                      States v. Moody, 30 Fed. Appx. 58, 60-61, No. 01-4285, 2002
                                                                              WL 235595 (4th Cir. Feb. 19, 2002) (per curiam). Relying on
                                                                              the language of LaBonte, quoted above, the Fourth Circuit
                                                                              held that there is not an improper delegation of legislative
    8
                                                                              power to the executive because the prosecutor is simply
      W e fail to see how the Supreme Court’s decision in Apprendi, relied    acting within his prosecutorial discretion.
upon by Crayton in this context, would affect the constitutionality of
§ 851 . Apprendi specifically states that a jury need not decide prior          The rationale of LaBonte leads directly to the conclusion
convictions for a defendant to receive an enhanced sentence . Apprendi,
530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that    that § 851 does not violate the principle of separation of
increases the penalty for a crime beyond the prescribed statutory             powers. The discretion a prosecutor exercises in determining
maximum must be submitted to a jury, and proved beyond a reaso nable          whether an enhanced statutory maximum applies under § 851
dou bt.” (emp hasis ad ded )). Therefore, the fact that there may be a lack   is similar to the initial discretion the prosecutor has in
of case law on the possible sep aratio n of powers issue in § 851 after       deciding which charges to bring against a defendant,
Appren di was decide d is not troublesom e.
                                                                              discretion that is obviously constitutional. Therefore,
    9
      The five year collateral attack limitation period contained within 21
                                                                              Crayton’s claim in this regard must fail.
U.S.C. § 851 does not vio late due pro cess. See United States v. Reed, 141
F.3d 644, 652-53 (6th Cir. 1998); United States v. Gonzales, 79 F.3d 413,
427 (5th Cir. 1996); United States v. Arango-Montoya, 61 F.3d 1331,
1338 (7th Cir. 1995); United States v. William s, 954 F.2d 668 , 673 (11th
Cir. 1992).
No. 02-5738                   United States v. Crayton     21    22   United States v. Crayton                    No. 02-5738

IV. Other Issues Raised by Crayton                                  “To warrant a new trial, however, prosecutorial misconduct
                                                                 must be so pronounced and persistent that it permeates the
  We also find no merit in the remaining issues raised by        entire atmosphere of the trial.” United States v. Krebs, 788
Crayton.                                                         F.2d 1166, 1177 (6th Cir. 1986) (internal quotes omitted).
                                                                 Crayton’s counsel properly objected to the answer, and his
  A. Prosecutorial Misconduct                                    objection was sustained. The statement was removed from
                                                                 the record. This one question, made at the end of the trial and
   The statements made by the prosecutor during his direct       removed from the record, hardly permeated the entire trial. It
examination of Beamus did not amount to prosecutorial            is the only incident Crayton points to of the prosecution’s
misconduct. Specifically, Beamus testified that she picked up    intentionally misleading the jury. Since the defendant has not
several people including Crayton at the airport and took them    shown that the prosecution’s question was improper, much
to her house because her cousin wanted to talk with Crayton.     less that it rose to the level of flagrant misconduct,
Crayton contends that the prosecutor then improperly asked       prosecutorial misconduct does not warrant reversal in this
Beamus if her cousin had “been involved with the distribution    case.
of cocaine?”, to which Beamus replied, “Yes, sir, I think so.”
J.A. at 703. At this point, the defense objected, and Beamus’s     B. Sufficiency of the Evidence
answer was stricken.
                                                                    Finally, there was sufficient evidence for a reasonable jury
   In order for a prosecutorial misconduct claim to succeed,     to convict Crayton of conspiracy. In his supplemental pro se
statements by the prosecutor must first be deemed to have        brief, Crayton argues that there was insufficient evidence to
been improper. Tarwater, 308 F.3d at 511. If the statements      convict him of conspiracy with the intent to distribute.
were improper, the court then “look[s] to see if they were       “[W]hen the sufficiency of the evidence is challenged on
flagrant and warrant reversal.” Id. To determine flagrancy,      appeal, the standard of review is ‘whether, after viewing the
the court considers                                              evidence in the light most favorable to the prosecution, any
                                                                 rational trier of fact could have found the essential elements
  1) whether the statements tended to mislead the jury or        of the crime beyond a reasonable doubt.’” United States v.
  prejudice the defendant; 2) whether the statements were        Swidan, 888 F.2d 1076, 1080 (6th Cir. 1989) (quoting
  isolated or among a series of improper statements;             Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
  3) whether the statements were deliberately or                 original)).
  accidentally before the jury; and 4) the total strength of
  the evidence against the accused.                                Crayton argues that the government failed to prove that he
                                                                 conspired with anyone to possess with intent to distribute
Id. The government’s theory of the case was that Crayton         cocaine. We have summarized what evidence is needed to
came to Louisville to distribute cocaine and not just to visit   establish a conspiracy under 21 U.S.C. § 846—the same
Louisville for the Kentucky Derby festivities. Thus, the         section Crayton was charged under—by stating:
question the prosecutor asked was relevant to the theory of
the case and not flagrantly improper.                                To establish a drug conspiracy under 21 U.S.C. § 846,
                                                                   the government must prove “‘that a conspiracy existed,
                                                                   that the accused knew of the conspiracy, and that he
No. 02-5738                    United States v. Crayton     23    24   United States v. Crayton                     No. 02-5738

  knowingly and voluntarily joined it.’” United States v.         countersurveillance technique to see if the car was being
  Barrett, 933 F.2d 355, 359 (6th Cir. 1991) (quoting             followed, (7) the box being thrown out the window when it
  United States v. Christian, 786 F.2d 203, 211 (6th Cir.         was opened, and (8) an ensuing chase. These facts alone
  1986)). The essence of conspiracy, of course, is                could lead a reasonable jury to conclude that Crayton
  agreement, but proof of a formal agreement is not               conspired with the person who sent the package. In addition,
  necessary; “a tacit or material understanding among the         Beamus’s testimony may have indicated that her cousins were
  parties” will suffice. United States v. Pearce, 912 F.2d        also involved in cocaine distribution. Thus, the jury could
  159, 161 (6th Cir. 1990). . . . “‘A conspiracy may be           have concluded that the cousins were also co-conspirators. In
  inferred from circumstantial evidence that can reasonably       sum, a rational trier of fact could easily conclude that Crayton
  be interpreted as participation in the common plan.’”           conspired with the intent to distribute cocaine.
  United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.
  1991) (quoting United States v. Bavers, 787 F.2d 1022,                                  CONCLUSION
  1026 (6th Cir. 1985)) . . . . The government need not
  show that a defendant participated in all aspects of the          Finding no merit to Crayton’s claims, we AFFIRM the
  conspiracy; it need only prove that the defendant was a         judgment of the district court.
  party to the general conspiratorial agreement. Further,
  the connection between the defendant and the conspiracy
  need only be slight. Id.
Untied States v. Ledezma, 26 F.3d 636, 640 (6th Cir. 1994).
The essential elements of conspiracy that violate 21 U.S.C.
§ 846 are “an agreement between two or more individuals,
with the intent to commit an offense in violation of the
Controlled Substance Act.” United States. v. Sullivan, 903
F.2d 1093, 1098 (7th Cir. 1990). Circumstantial evidence
may be the “sole support” of a conviction under § 846. Id.
   The jury heard testimony from various police officers
detailing (1) a tip from the Los Angeles Police Detective,
(2) a description of the box addressed to Alex Winters, which
had several earmarks of a package containing narcotics,
including a phony return address and being sent overnight
mail from a source city, (3) the K-9 unit’s indication that the
box contained narcotics, (4) the officers’ removal of the
cocaine and resealing the package, (5) Crayton’s pretending
to be “Alex Winters” to pick up the box at a vacant address at
the exact time of delivery, (6) Crayton’s driving away and
then stopping the car for five minutes on the side of the
highway, in what the police described as a
