Appeal from the United States District Court for the District of Montana Paul G. Hatfield, District Judge, Presiding Argued and Submitted December 2, 1997--Seattle, Washington
Before: Thomas M. Reavley,* Robert Boochever, and Andrew J. Kleinfeld, Circuit Judges.
The opinion of the court was delivered by: Boochever, Circuit Judge
Daniel Whitecotton appeals from his conviction for conspiracy and possession with intent to distribute methamphetamine and cocaine, contending that the district court erred at sentencing. His claims of insufficient evidence and a variety of other trial errors are addressed in a separate memorandum disposition.
Montana Narcotics Investigation Bureau Agent Ken Poteet was working on an unrelated case in Great Falls, Montana, when a confidential informant ("CI") named John Maddox told Agent Poteet he could introduce him to someone from whom he could buy drugs. On April 17, 1996, Agent Poteet drove with CI Maddox, who was wearing a recording device (a "wire"), to the house where Daniel Whitecotton was staying with a roommate named Mary Jo. Whitecotton, Agent Poteet and CI Maddox went into the kitchen, and began to discuss the purchase of cocaine. Agent Poteet told Whitecotton he wanted one gram of cocaine and one gram of methamphetamine. Whitecotton told Agent Poteet he could get him cocaine, but the methamphetamine supplier was at work. Whitecotton left to get the drugs, and Agent Poteet and CI Maddox also left.
When they returned, Whitecotton was there, with a small baggie he said contained one and one-half grams of methamphetamine. (The amount actually introduced as evidence was .73 grams.) Whitecotton told them no cocaine was available. Whitecotton told them it would be $130 for the drug and asked them if they wanted more. When Agent Poteet and CI Maddox said yes, Whitecotton said he could get them a half ounce for seven to nine hundred dollars.
Agent Poteet testified at trial that the next day, April 18, Whitecotton told him over the telephone that Agent Poteet would have to give Whitecotton $750 in advance. When Agent Poteet refused and hung up, Whitecotton called back to say that he could come over and bring the money. Agent Poteet and CI Maddox returned to Whitecotton's residence. They parked in the alleyway behind the house and Whitecotton came out to talk to them. Matthew Lineberry arrived and entered the house, and CI Maddox and Whitecotton went inside to talk to him. CI Maddox came back out and asked Agent Poteet for the drug money, assuring Agent Poteet that he had seen the drugs. CI Maddox took the money inside and emerged with 10.09 grams of methamphetamine.
Lineberry testified that within about a month after April 18 he sold larger amounts of methamphetamine and cocaine to Agent Poteet on four different occasions, totaling over 150 grams of methamphetamine and over 44 grams of cocaine. Although Whitecotton was not present at these later sales, Lineberry testified that he would not have sold drugs to Agent Poteet if his close friend Whitecotton had not introduced the two men. Agent Poteet also eventually seized substantial amounts of methamphetamine, cocaine, and marijuana from Lineberry's residence.
Whitecotton was charged in an indictment filed June 21, 1996, with one count of conspiring to distribute methamphetamine and cocaine in violation of 21 U.S.C. SS 841(a)(1) and 846, and one count of possession of methamphetamine and cocaine with the intent to distribute in violation of 21 U.S.C. S 841(a)(1). Agent Poteet and Lineberry (who had pled guilty) testified for the government at Whitecotton's two-day trial. A jury found Whitecotton guilty after deliberating for a little more than an hour. The district court sentenced him to 120 months imprisonment and eight years supervised release.
Whitecotton argues that he should have been sentenced only on the basis of the amount of drugs purchased by Agent Poteet on April 17 and 18, which was 10.82 grams of methamphetamine. If this quantity had been used, Whitecotton's guideline range would have been as low as 9 to 15 months. Instead, the prosecution's calculation included the total amount of drugs sold by Lineberry to Agent Poteet, adding the much larger amounts Lineberry testified that he sold to Agent Poteet on four occasions within a month after Whitecotton's introduction of Lineberry and Agent Poteet. The prosecution even added the methamphetamine, cocaine, and marijuana seized from Lineberry's residence, ...