                                                                            F IL E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                                                                          December 20, 2005
                    U N IT E D ST A T E S C O U R T O F A PP E A L S

                                  T E N T H C IR C U IT                      Clerk of Court



 U N ITED STA TES O F A M ER ICA,

       Plaintiff-Appellee,
                                                           No. 05-3143
 v.
                                                 (D.C. No. 03-CR-20096-13-KHV)
                                                             (D . Kan.)
 ALBERT W IN TERS, JR.,

       Defendant-Appellant.



                             O R D E R A N D JU D G M E N T *


Before B R ISC O E , L U C E R O , and M U R PH Y , Circuit Judges.


      Albert W inters, Jr., directly appeals his conviction for conspiracy to

distribute and possess with intent to distribute 500 grams or more of a mixture

and substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1);

21 U.S.C. § 841(b)(1)(A )(viii); and 18 U.S.C. § 2. W inters challenges his

conviction on three grounds. He argues that the evidence was insufficient to

support his conviction, that the jury instructions misled the jury, and that an



* The case is unanimously ordered submitted without oral argument pursuant to Fed. R.
App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
evidentiary ruling was an abuse of discretion and violated his Sixth Amendment

right to confrontation. For reasons similar to the district court, we A FFIR M .

      This case arises out of an investigation into a M exico-based drug ring that

imported and distributed methamphetamine in the Kansas City area. W inters was

originally charged in a conspiracy indictment naming twelve co-conspirators. The

charges against eight of his alleged co-conspirators w ere dropped prior to trial,

two of the co-conspirators pled guilty, and two co-conspirators were at large at

the time of trial. Consequently, when W inters came to trial, he faced a charge of

conspiring only with Philip Lopez, who pled guilty to the same charges, and

“other persons known and unknown.”

      Prior to trial, the government moved to exclude “any information regarding

the dismissal of charges w ithout prejudice against some of the co-defendants in

the present case.” W inters did not object to the motion, which the court granted.

On the basis of this motion, the court prevented him from asking witnesses at trial

whether any of the co-conspirators named in the original indictment knew

W inters.

      At trial, the government presented testimony from Lopez that he and

W inters had entered into business together selling drugs. Lopez testified that he

purchased drugs from a supplier in Kansas City and sold them to W inters.

According to Lopez, W inters purchased methamphetamine in increasingly larger



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amounts, and on at least one occasion, he purchased a single delivery of a half-

pound of methamphetamine. W illiam K renger and Nita W hittington both testified

that they purchased methamphetamine from W inters during this period. The jury

convicted W inters, and he appeals.

      W inters argues that there is insufficient evidence to establish that the total

amount of methamphetamine involved in the conspiracy was 500 grams or more.

W e review challenges to the sufficiency of the evidence de novo. United States v.

Bush, 405 F.3d 909, 919 (2005). In doing so we consider both direct and

circumstantial evidence, and all reasonable inferences therefrom, in the light most

favorable to the government. Id. W e do not “question the jury’s credibility

determinations or its conclusions about the weight of the evidence.” United

States v. Lazano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999). There is

sufficient evidence to support a conviction if “a reasonable jury could find the

defendant guilty beyond a reasonable doubt.” Bush, 405 F.3d at 919 (quotation

and citation omitted).

       Lopez testified that W inters “obtained ounces [of methamphetamine] and

one-half pound on one occasion” and that he and Winters discussed “doing a one-

pound deal.” A purchase of a pound and a half of methamphetamine would place




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W inters over the 500 gram limit. 1 Lopez further testified that for “[t]he first

month and a half or so, it was [an] ounce here, give or take . . . [then] we moved

up to quarters.” Between the discussion of a purchase of one-pound, the actual

purchase of a half-pound, and the series of one-ounce purchases of

methamphetamine, there is more than sufficient evidence for a reasonable jury to

find that W inters conspired to possess more than 500 grams of methamphetamine.

      Next, W inters claims that the verdict form was erroneous because it did not

give jurors the option of finding that the amount of methamphetamine involved in

the conspiracy was less than 500 grams. Because W inters did not object to the

verdict form at trial, we review for plain error. United States v. Dowlin, 408 F.3d

647, 664 (10th Cir. 2005). A plain error is one that “affects the [defendant’s]

fundamental right to a fair and impartial trial.” United States v. Hernandez-

Garcia, 901 F.2d 875, 876 (10th Cir. 1990). Fundamental rights are affected if

the outcome of the district court proceedings would have been different but for

the error. United States v. M cH orse, 179 F.3d 889, 903 (10th Cir. 1999). W inters

was charged with conspiring to possess with intent to distribute more than 500

grams of methamphetamine. Had the jury found that he conspired to possess less

than 500 grams of methamphetamine, they would have found him not guilty. See




      1
        One pound is equivalent to 454 grams. W inters conspired to purchase at
least one and a half pounds of methamphetamine, or 681 grams.

                                          -4-
United States v. Puryear, 940 F.2d 602, 603 (10th Cir. 1991) (drug quantity is an

element of the offense). Thus, we hold that the use of the verdict form does not

constitute plain error.

      Finally, W inters argues that the district court abused its discretion and

violated his Sixth Amendment rights by preventing him from developing his

defense that he did not know the other people charged in the original indictment.

He claims that he should have been able to raise the issue of whether he knew the

other co-conspirators, regardless of whether the charges against these co-

conspirators were dismissed. W e review a trial court’s decision to limit the scope

of cross-examination for abuse of discretion, reversing only if the error affected

the substantial rights of the accused. United States v. Begay, 144 F.3d 1336,

1339 (10th Cir. 1998). W e review de novo w hether a restriction on cross-

examination violates a defendant’s Sixth Amendment right to confrontation.

United States v. M cGuire, 200 F.3d 668, 677 (10th Cir. 1999).

      Because W inters was charged only with conspiring with Lopez and “other

persons known and unknown,” the district court did not err by granting the

government’s motion to exclude information regarding the dismissal of charges

against W inters’ co-defendants. Nor was W inters’ Sixth Amendment right to

confrontation violated by the court’s limitation on his cross-examination of the

other co-conspirators. W inters’ counsel demonstrated at trial that W inters did not



                                         -5-
know Luis Arelano, an associate of Alejandro Villegas, Lopez’s Kansas City drug

source, or M iguel Renaga, who delivered drugs for V illegas. The government

elicited testimony from Lopez that W inters could not have dealt directly with

Villegas “because he was Caucasian.” W inters also established that the agents

investigating the M exican drug ring had not seen Winters give money or pick up

drugs from Villegas or other co-conspirators under surveillance. Thus, W inters

had an opportunity to present his defense that he did not know the members of the

larger drug operation. The trial court did not abuse its discretion in granting the

government’s motion, and W inters’ Sixth Amendment rights were not violated by

the court’s limitation on cross-examination.

      Because there was sufficient evidence to support W inters’ conviction,

because the verdict form did not constitute plain error, and because the district

court did not err or violate W inters’ rights in limiting the scope of his cross-

examination, we A FFIR M .


                                        ENTERED FOR THE COURT




                                        Carlos F. Lucero
                                        Circuit Judge




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