In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1217

United States of America,

Plaintiff-Appellee,

v.

Kevin Wash, a/k/a KeKe,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana, Hammond
Division.
No. 2:99-CR-46--Rudy Lozano, Judge.


Argued September 25, 2000--Decided November 2,
2000



  Before Flaum, Chief Judge, and Easterbrook
and Diane P. Wood, Circuit Judges.

  Flaum, Chief Judge. Kevin Wash was
convicted of several counts related to
distributing cocaine base and carrying a
firearm during a drug trafficking
offense. Wash now appeals his conviction,
arguing that the district court erred in
admitting evidence of prior possessions
of crack cocaine under Fed.R.Evid.
404(b), in allowing his coconspirators to
testify about the identity of the drugs
that they dealt, and holding Wash
responsible for two ounces of crack
cocaine that an informant attempted to
buy from one of his coconspirators. For
the reasons stated herein, we affirm.

Background

  Wash was indicted on the following four
counts: (1) conspiracy to possess with
intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C.
sec. 846 from at least December of 1998
until approximately February 19, 1999;
(2) knowingly and intentionally
possessing with the intent to distribute
in excess of 5 grams of cocaine base, in
violation of 21 U.S.C. sec. 841(a)(1);
(3) knowingly and intentionally
attempting to possess in excess of 50
grams of cocaine base, in violation of 18
U.S.C. sec. 2; and (4) knowingly
possessing a firearm during and in
relation to a drug trafficking offense,
in violation of 18 U.S.C. sec. 924(c). He
pled not guilty to all four counts.
Originally, the federal complaint was
filed against Wash and his codefendants
Trammell Washington, Consuela Jones, and
Antonio Jones. Washington’s trial was
severed and he invoked his Fifth
Amendment right when called as a witness
by Wash. Both Consuela Jones and Antonio
Jones pled guilty to Count 1 pursuant to
a plea agreement and testified as
government witnesses.

  During December of 1998 until
approximately mid to late February of
1999, Wash and Consuela Jones were
involved in various drug transactions.
Initially, Wash supplied Consuela Jones
with crack cocaine from a house at 10th
and Harrison Street in Gary, Indiana.
When the supply dried up at this
location, Wash began to purchase his
crack through Consuela Jones at her
apartment. Consuela Jones’s cousin,
Antonio Jones, supplied Wash with the
crack. Wash’s involvement in drug
transactions also led him to assume a
broker role in a drug deal with Trammell
Washington. Unbeknownst to Wash,
Washington was an informant for the
police. Washington had been apprehended
by the police after fleeing a residence
in Gary, Indiana. There is some evidence
that Wash was at the residence because
his fingerprints were found at the scene.
The residence had, among other things,
crack cocaine, handguns, a revolver, a
semi-automatic pistol, cellular phones,
sandwich bags, beer bottles, and a razor
blade. One of the cellular phones had
Wash’s nickname, KeKe, stored in the
radio function of the phone.

  The arrest of Washington impacted Wash
because Washington made several telephone
calls that were recorded in an effort to
set up a controlled drug buy. Washington
and FBI Agent Bradley Bookwalter placed a
call to a pager number, put in the number
"1600," which represented the price of
two ounces of crack, and received a
return call from Wash./1 Washington
informed Wash that he needed to see him
about getting some drugs and asked Wash
to put him in contact with Antonio Jones.
This led to an exchange between Wash,
Washington, and Consuela Jones. Wash
called Consuela Jones to tell her that a
friend wanted to get some crack cocaine
from her cousin Antonio Jones. Consuela
Jones proceeded to page her cousin and in
the meantime Washington once again paged
Wash. Wash called back Washington, told
him that he contacted Consuela Jones, and
that she was trying to get the crack
cocaine from Antonio Jones. He then gave
Washington Consuela Jones’s phone number.


  Several more exchanges took place, until
finally an agreement was arrived at
whereby Washington would call Consuela
Jones and she would then page Antonio
Jones when Washington called her back in
ten minutes. The details at this point
are a bit unclear, but it seems as though
Antonio Jones was across the street from
Consuela Jones’s apartment and had
planned to bring the drugs over upon
Washington’s arrival. Wash set up the
deal and Consuela Jones acted as the
intermediary between Washington and
Antonio Jones. After calling Consuela
Jones, Washington was given 1600 dollars,
fitted with a transmitter, and
transported to the area of Ms. Jones’s
apartment. Washington was accompanied by
Gary Police Sergeant Reginald Harris in
an undercover role while police officers
acted in a surveillance capacity in the
vicinity of Consuela Jones’s residence at
1720 W. Fifth Avenue. The operation went
awry when Sergeant Harris was recognized
by a homicide suspect that the Sergeant
had previously interviewed. In the
meantime, a person fixing Consuela
Jones’s car also detected the police
surveillance of her apartment and told
her about their presence. Consuela Jones
left her apartment with her children as
Washington and Sergeant Harris
approached.

  Before trial, Wash filed a motion in
limine to exclude from trial the
introduction of prior bad acts evidence
under Rule 404(b) and the introduction of
testimony by his coconspirators
concerning the identity of the drugs
which they dealt. The district court
denied Wash’s 404(b) claim and allowed
Consuela Jones and Antonio Jones to
testify during trial regarding the
identity of the drugs they sold. Wash’s
initial trial resulted in a mistrial and
his second trial ended in the jury
finding him guilty on all counts. He was
sentenced to a term of imprisonment of
240 months for Counts 1, 2, and 3 and a
consecutive term of imprisonment of 60
months for Count 4.

Discussion
A. 404(b) Challenge

  Wash claims that the district court
improperly admitted evidence of his prior
bad acts under Fed.R.Evid. 404(b). The
district court allowed the introduction
of two prior occasions where Wash
possessed crack cocaine. In 1996, police
officers observed Wash and three other
individuals apparently conducting drug
sales with some motorists in Gary,
Indiana. The officers confronted Wash and
during a pat-down of Wash, he threw
something on the ground. What he had
thrown down was 23 packets containing a
total of 3.5 grams of crack. On June 5,
1997, a search of Wash was conducted at
the adult detention center in
Minneapolis, Minnesota, which revealed
5.4 grams of crack cocaine hidden in
Wash’s anus.

  We review the district court’s decision
to admit evidence for an abuse of
discretion. United States v. Curry, 79
F.3d 1489, 1494 (7th Cir. 1996). "Under
Federal Rule of Evidence 404(b), evidence
of other misconduct is not admissible to
show that the defendant acted in
conformity therewith, but may be
admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, or
identity." United States v. Wilson, 31
F.3d 510, 514 (7th Cir. 1994). A four-
part test must be satisfied for evidence
of prior acts to be admitted under Rule
404(b):

(1) the evidence is directed toward
establishing a matter in issue other than
the defendant’s propensity to commit the
crime charged; (2) the evidence shows
that the other act is similar enough and
close in time to be relevant to the
matter in issue, (3) the evidence is
sufficient to support a jury finding that
the defendant committed the similar act,
and (4) the probative value of the
evidence is not substantially outweighed
by the danger of unfair prejudice. Id. at
514-15.

  After considering, during a motion in
limine, the defendant’s and government’s
arguments concerning the prior bad acts
evidence, the district court concluded
that such evidence aided in proving
Wash’s knowledge of and/or intent to
distribute crack cocaine. The prior bad
acts, the district court found, were
similar enough and close enough in time
to be relevant and there was sufficient
evidence to support a finding by the jury
that Wash had committed the similar acts.
Finally, the district court said "the
probative value of the evidence is not
outweighed by the prejudicial effect." As
an additional precaution, the district
court offered to provide a limiting
instruction regarding the 404(b) evidence
while it was being presented and during
the final instructions to the jury.

  The prior bad acts were admitted to
prove Wash’s intent to distribute crack
cocaine under Count 2. "Possession of
cocaine with intent to distribute under
21 U.S.C. sec. 841(a)(1) is a specific
intent crime." United States v. Long, 86
F.3d 81, 84 (7th Cir. 1996). The evidence
was introduced to prove Wash’s intent and
"[w]hen a defendant is charged with a
specific intent crime, the government may
present other acts evidence to prove
intent." Id. at 84 (citations and
internal quotation marks omitted).

  Wash disagrees with the district court’s
determination that his prior acts were
relevant to the current charges against
him. According to Wash, the present case
against him centers around his intent to
distribute crack cocaine, which occurred
in a crack house that had within it tele
phones and firearms. In contrast, he
argues his 1996 stop and frisk happened
at a different location and with
different people. The setting in the 1996
incident was also distinguishable in
Wash’s view because there was no
completed transaction, Wash did not have
a gun, no telephones were employed, nor
was he inside a dwelling. Wash also
contends that the 1997 Minnesota incident
resulted from a search after Wash was
under arrest. In addition, during the
1997 occurrence the drugs were found in
Wash’s anus, no one else was involved,
and the search itself happened in
Minnesota and not in Indiana. Wash
suggests that because the 1996 and 1997
incidents occurred at least 2 or 3 years
prior to the conspiracy this makes them
too remote in time to be relevant.

  Wash’s argument is not convincing. He
focuses upon the factual differences
between his two prior bad acts and his
current convictions and this does not
make for a strong case because "[s]imple
differences in the type of conduct or
charge at issue cannot defeat the
similarity requirement. This prong of our
Rule 404(b) analysis need not be unduly
rigid." Long, 86 F.3d at 84 (citations
and internal quotation marks omitted).
Although Wash would like us to believe
that there is no similarity between the
1996 and 1997 incidents and his current
charges, all of these situations
implicate him in possessing distribution
amounts of drugs. The 1996 incident
involved Wash throwing down 23 packets
containing a total of 3.5 grams of crack
cocaine. According to a government
expert, a "dime bag" contains one-tenth
of a gram of crack cocaine, which is sold
for 10 dollars, and a typical user would
only have 10 dollars to 30 dollars worth
of crack cocaine at a time. Similarly,
the government expert said that a person
possessing an excess of 5 grams of crack
cocaine typically would use this amount
of crack for distribution and not
personal use. The 1997 incident in Minne
sota showed that Wash had 5.4 grams of
crack cocaine. The 1996 and 1997
occurrences, like the current charges
Wash faces, involved more than a small
amount of crack cocaine--they involved
distribution amounts. In United States v.
Hernandez, 84 F.3d 931, 935 (7th Cir.
1996), we concluded that a prior
marijuana conviction was similar enough
to the charged crimes of distributing
cocaine and heroin. What convinced the
court that these prior acts were relevant
was that although "[d]ifferent drugs were
involved, . . . both incidents concerned
distribution amounts of drugs and illicit
transport." Id. at 935.

  In this case, the common thread between
the prior bad acts and the current
charges is the distribution amounts
involved and this unifying element
overshadows any differences in location
and the number of individuals involved.
Furthermore, Wash’s argument concerning
the time lapse between his 1996 and 1997
incidents and his current charges is not
viable under this circuit’s precedent.
See, e.g., United States v. Kreiser, 15
F.3d 635, 640-41 (7th Cir. 1994) (seven
years is close enough in time); United
States v. Harrod, 856 F.2d 996, 1002 (7th
Cir. 1988) (five year lapse in time is
permissible); United States v. Tringali,
71 F.3d 1375, 1379 (7th Cir. 1995) (nine
years is not too long). We therefore
affirm the district court’s decision to
allow the prior bad acts evidence.
B. Objections to Testimony Regarding
the Use of the Term Crack Cocaine

  Wash further objects to the district
court’s decision to allow Consuela Jones
and Antonio Jones to testify about the
identity of controlled substances at
trial. As part of a pre-trial motion in
limine Wash objected to this type of
testimony, but the district court decided
not to render a decision on the question
at that time. At trial, the district
court allowed Consuela Jones and Antonio
Jones to testify about what they believed
was crack cocaine.

  We review a district court’s decision to
admit evidence for an abuse of
discretion. United States v. Johnson, 137
F.3d 970, 974 (7th Cir. 1998). A
determination made by a district court
judge regarding the admissibility of
evidence "’is treated with great
deference because of the trial judge’s
first-hand exposure to the witnesses and
the evidence as a whole, and because of
his familiarity with the case and ability
to gauge the likely impact of the
evidence in the context to the entire proceeding.’"
Id. at 974 (quoting United States v.
Torres, 977 F.2d 321, 329 (7th Cir.
1992)).

  The record reveals that Wash’s attorney
objected several times to the testimony
given by Consuela Jones and Antonio Jones
when they used the term "crack cocaine."
The basic premise of the objection was
that "witness lay persons [were]
testifying as to the chemical composition
and the actual identity of something for
which they are not competent to testify."
Wash contends that neither Consuela Jones
nor Antonio Jones were qualified as
experts on the issue of controlled
substances and therefore the testimony
they presented was lay opinion. According
to Wash, lay opinion needs to be based
upon first-hand knowledge and Rule 701
states that non-expert testimony is
limited to opinions or inferences that
are "(a) rationally based on the
perception of the witness and (b) helpful
to a clear understanding of the witness’
testimony or the determination of a fact
in issue." Fed.R.Evid. 701. According to
Wash, Consuela Jones testified that she
had never used crack and relied upon her
customers’ satisfaction to identify her
product as crack. Likewise, Wash argues
Antonio Jones premised his identification
of his product as crack cocaine upon the
fact that none of the people whom he
supplied ever complained that it was not
crack cocaine.

  Wash’s position is not persuasive.
Consuela Jones and Antonio Jones "were no
strangers to crack cocaine." United
States v. Earnest, 185 F.3d 808, 812 (7th
Cir. 1999). Consuela Jones testified that
she had been dealing "dime bags" of crack
cocaine for approximately two years.
Creating these dime bags was not a
haphazard affair, but rather involved a
definite methodology. She would purchase
3.5 grams of crack for 100 dollars and
break it down with a razor blade into
twenty dime bags, which she sold for 10
dollars apiece. She used small ziplock
bags to package the dime bags and when
she ran out of these she would use small
sandwich bags. According to Jones, she
sold to crack addicts, her customers were
satisfied with her product, and they
returned for additional purchases.
Antonio Jones also testified that for
approximately two years he dealt in what
he believed was crack cocaine, including
sales to Consuela Jones and Wash, and had
received no complaints. "[T]hose who
smoke, buy, or sell this stuff are the
real experts on what is crack." United
States v. Bradley, 165 F.3d 594, 596 (7th
Cir. 1999). Clearly, Consuela Jones and
Antonio Jones were in the business of
selling drugs. "[T]he people who
transport, cook, cut up, bag, and sell
crack are the sort of people who tend to
know what crack is." United States v.
Hardin, 209 F.3d 652, 661 (7th Cir.
2000). Wash additionally notes that
Consuela Jones testified that she had
never personally used crack cocaine; this
is an empty argument since "a cashier at
Jewel doesn’t have to bite off a piece of
the customer’s broccoli to know which
vegetable she is ringing up." Id. at 661-
62. Therefore, we affirm the district
court’s determination to allow Consuela
Jones’s and Antonio Jones’s testimony.

C.  Sentencing Guidelines Challenge
  Finally, Wash contends that the district
court’s inclusion of two ounces of crack
cocaine in determining his offense level
under the Sentencing Guidelines was
clearly erroneous. We review a district
court’s conclusions with deference and
"[t]he district court’s determination of
the quantity of drugs involved in an
offense is a factual finding which must
be supported by a preponderance of the
evidence. This court must uphold such
findings unless they are clearly
erroneous." Tringali, 71 F.3d at 1381
(citations omitted). We will overturn a
factual determination if we are left
"with the definite and firm conviction
that a mistake has been committed."
United States v. Garcia, 69 F.3d 810, 819
(7th Cir. 1995) (citations and internal
quotation marks omitted).

  Wash argues that the attempted two ounce
deal between himself, Washington, and
Consuela Jones had no potential of being
completed. Consuela Jones never received
the two ounces nor did she know that the
number "1600" was a code for two ounces,
according to Wash. Furthermore, Consuela
Jones testified that Washington would not
deal with her cousin Antonio Jones and
that she never had dealt in as large an
amount as two ounces. Thus, Wash claims
that there was a lack of intention to
complete the drug deal and therefore the
two ounces should not have been
considered in calculating the quantity of
drugs he was responsible for under the
Sentencing Guidelines.

  The Sentencing Guidelines are not silent
with respect to Wash’s contention.
"Application note 12 to U.S.S.G. sec.
2D1.1 . . . indicates that negotiated
quantities from an uncompleted drug
transaction should be included for
purposes of setting an offense level."
United States v. Bonilla-Comacho, 121
F.3d 287, 291 (7th Cir. 1997).
Nevertheless, if "the defendant
establishes that he or she did not intend
to provide, or was not reasonably capable
of providing, the agreed-upon quantity of
the controlled substance, the court shall
exclude from the offense level
determination the amount of controlled
substance that the defendant establishes
that he or she did not intend to provide
or was not reasonably capable of
providing." U.S.S.G. sec. 2D1.1, comment.
(n.12) (Nov. 1998). The burden is on the
defendant to show that he did not have
the intent or capability to provide the
negotiated amount of drugs. Bonilla-
Comacho, 121 F.3d at 292 n.2.

  The district court’s determination that
Wash was involved in setting up the
attempted purchase of two ounces of crack
cocaine with the informant Washington
cannot be disturbed under our highly
deferential standard of review.
Washington had called Wash and expressed
his desire to buy some crack. Wash then
called Consuela Jones and informed her
that he needed to acquire some crack for
a friend. Consuela Jones in turn paged
her source, that is, Antonio Jones. Wash
called Washington and told him that he
had spoken to Consuela Jones, that she
was going to get the crack, and Wash
provided Washington with Consuela Jones’s
telephone number. Washington indicated
the amount of crack he desired by putting
in the number "1600" in the pager calls
that he made to Consuela Jones and Wash.
Consuela Jones testified that she did not
know what the number "1600" meant, but
she did speak with Washington directly,
and apparently they reached an
understanding about delivering the drugs
to Washington. This entire process
appears to indicate that "negotiations
and not idle talk" took place between the
parties. Garcia, 69 F.3d at 820. Each
person involved seemed intent about
supplying the drugs and the discussions
were not "mere puffery." Bonilla-Comacho,
121 F.3d at 292.

  Additionally, Wash did not hesitate to
set up the deal and he had previously
purchased two ounces of crack from
Antonio Jones. Consuela Jones herself was
no stranger to setting up drug deals as
she had in the past arranged deals at her
apartment between Wash and Antonio Jones.
No one acted as if the deal would not
proceed as planned. The deal was
frustrated only by the discovery of the
police outside Consuela Jones’s apartment
rather than by a decision of the parties
themselves that the deal could not move
forward. The district court upon allowing
the two ounces to be considered said that
"the deal or the purchase of crack
cocaine . . . had proceeded substantially
and that the fact that the deal did not
go through is not necessarily relevant in
this case, due to the fact that there had
been prior deals. And the evidence in
this case showed that the drugs in
question could have been supplied." The
facts support the district court’s
reasoning. Wash has not provided us with
any persuasive evidence that establishes
that he lacked the intent or capability
to go through with the deal and the
burden to prove this is on him. The
district court appropriately included the
two ounces when it determined Wash’s
sentence. Therefore, we affirm the
district court’s decision to take into
account the two ounces of crack cocaine.
Conclusion

  For the reasons stated herein, we AFFIRM
the decision of the district court.



/1 According to the record, Agent Bookwalter could
not recall if he or Washington placed the page.
