* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 23 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MARK CRAWFORD,

Defendant-Appellant. No. 98-7045 (D.C. No. CR-97-24-3-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

In this direct criminal appeal, defendant challenge s his convictions on seven drug trafficking charges, and his resulting c oncurrent sentences of 240 and 262 months’ imprisonment. Regarding his conviction s, defendant argues that the trial court 1) violated Fed. R. Crim. P. 11; 2) sho uld have granted a judgment of acquittal on the conspiracy charge due to a lack of evidence; 3) erred in allowing an in-court identification of defendant that was ba sed upon an impermissibly suggestive out-of-court photographic identification ; and 4) should have precluded the testimony of the government’s cooperating witne ss. In challenging his sentences, defendant argues that the district court1) erred in classifying him as a career offender; and 2) permitted the government to increase his sentences improperly by making multiple controlled purchases of crack cocaine from defendant, for no other reason that to increase the amount of crack cocaine for which he could be sentenced. We affirm.

I. CONVICTIONS Defendant contends that the trial court violated Fe d. R. Crim. P. 11 by allowing a government witness to identify defendant ’s recorded voice, based upon the witness’s having heard defendant speak during p lea negotiations. This court interprets federal rules de novo. See United States v. Roman-Zarate , 115 F.3d 778, 781 (10th Cir. 1997).-3-

Rule 11(e)(6) generally precludes the admission aga inst a defendant of statements made during plea discussions. See also Fed. R. Evid. 410. Because the trial court did not admit any substantive state ments made during the plea negotiations, however, the court did not violate Ru le 11(e)(6) by allowing the government witness to identify defendant’s voice ba sed upon his observations made during the plea discussions. See United States v. Oriakhi , 57 F.3d 1290, 1299-1300 (4th Cir. 1995). Defendant next argues that there was insufficient e vidence to support his conspiracy conviction. Because defendant failed to renew his motion for acquittal after he presented evidence on his behalf, this court will review this claim only for manifest error. See United States v. Walker , 915 F.2d 1463, 1466 (10th Cir. 1990). Nonetheless, the legal question for de novo review remains the same – whether “on the basis of the whole record, [t]he ev idence . . . is sufficient, . . . when taken in the light most favorable to the government, [that] a reasonable [trier of fact] could find the defendant guilty beyond a reasonable doubt.” United States v. Cox , 929 F.2d 1511, 1514 (10th Cir. 1991) (further quo tation omitted). The record does contain sufficient evidence to supp ort defendant’s conspiracy conviction. Among other things, the evidence established a d irect connection between an ongoing drug trafficking cons piracy headed by Gregory Gordon and the house from which defendant sold crac k to the government’s-4-

cooperating witness. Further, the cooperating witn ess had previously purchased crack from Mr. Gordon and another of his conspirato rs at the same house. Defendant stated to the cooperating witness that Mr . Gordon was defendant’s uncle, and that defendant got his “stuff” from Mr. Gordon. This evidence was sufficient to support defendant’s conspiracy conviction. See generally United States v. Vaziri , 164 F.3d 556, 565 (10th Cir. 1999) (setting forthnecessary elements of conspiracy). Defendant argues that his convictions resulted froman improperly suggestive out-of-court photographic identification , asserting that law enforcement agents showed the cooperating witness asingle photograph, from which she identified defendant as the individual fr om whom she had purchased crack cocaine on six previous occasions. Because h e did not raise this issue before the district court, we review this argument only for plain error. See Haskins v. United States , 433 F.2d 836, 838 (10th Cir. 1970) (citing Fed. R. Crim. P. 52(b)). Even assuming that the out-of-court photographic id entification was unduly suggestive, the subsequent in-court identification was, nevertheless, reliable when viewed under the totality of the circumstances. See United States v. Smith , 156 F.3d 1046, 1050 (10th Cir. 1998), cert. denied , 119 S. Ct. 844 (1999); United States v. Flores , 149 F.3d 1272, 1278-79 (10th Cir. 1998), cert. denied , 119 S. Ct.-5-

849 (1999). The cooperating witness had met with, and attempted to purchase crack from, defendant on seven or eight separate occasions. See United States v. Klein , 93 F.3d 698, 702 (10th Cir. 1996) (in-court ident ification was sufficiently reliable, despite suggestive pretrial photo identif ication, where witness met with defendant on three occasions to negotiate or conduc t controlled substance transactions). On one of these occasions, the coop erating witness was able to identify defendant at a car wash, rather than at th e crack house where she usually purchased drugs from him. Additionally, she was ab le accurately to describe defendant to law enforcement officials. See id. (in-court identification was sufficiently reliable where, among other things, wi tness was able to describe defendant accurately, except for height). In lightof the totality of these circumstances, there is not a substantial likelihoo d that the cooperating witness misidentified defendant. See Smith , 156 F.3d at 1051 (describing five factors to be weighed against corruptive effect of suggestive pretrial identification). Defendant further contends that the trial court sho uld have precluded the testimony of the government’s cooperating witness in light of United States v. Singleton , 144 F.3d 1343 (10th Cir. 1998). This court, however, has subsequently overturned that decision. See United States v. Singleton , 165 F.3d 1297 (10th Cir. 1999) (en banc).-6-

II. SENTENCING Defendant challenges his sentences, arguing that th e district court erred in classifying him as a career offender based upon the court’s determination that his prior Oklahoma felony conviction for throwing rocks at an occupied moving school bus was a crime of violence. See U.S.S.G. § 4B1.1. We review de novo the district court’s determination that defendant was a career offender. See United States v. Mitchell , 113 F.3d 1528, 1532 (10th Cir. 1997), cert. denied , 118 S. Ct. 726 (1998). For purposes of determining whether a defendant is a career offender, the Sentencing Guidelines define a crime of violence, i n pertinent part, as a state or federal offense, punishable by imprisonment for a t erm exceeding one year, that “has as an element the use, attempted use, or threatened use of physical force against the person of another, . . . or otherwise i nvolves conduct that presents a serious potential risk of physical injury to anothe r.” U.S.S.G. § 4B1.2(a). Defendant pled guilty to “unlawfully, wilfully, kno wingly . . . throw[ing] or drop[ping] a rock on or at . . . a [s]chool bus, wh ile [it] was travelling East on Highway 270, . . . and being driven occupied by one Bobby Walker,” R. vol. VI, Government’s Amended Objection to Presentence Report, ex. 87, a felony under Oklahoma law punishable by up to ten years’ imprisonment, see Okla. Stat. Ann. tit. 47, § 11-1111. Because the conduct to which h e pled guilty, “by its nature-7-

presented a serious potential risk of injury,” United States v. Coronado-Cervantes , 154 F.3d 1242, 1244-45 (10th Cir. 1998), the distri ct court did not err in classifying defendant as a career offender under § 4B1.1. Lastly, defendant argues that the government improp erly increased the amount of controlled substances for which he was se ntenced by continuing to make controlled buys after it had gathered sufficie nt evidence against him. While, absent a legitimate investigatory purpose, the government “could not continue to conduct these transactions ad infinitum thereby constantly increasing the charges,” United States v. Harris , 997 F.2d 812, 818-19 (10th Cir. 1993), the district court found that the government had a legi timate investigatory purpose for the number of controlled buys it made from defendant. That factual finding was not clearly erroneous. See United States v. Baker , 63 F.3d 1478, 1499 (9th Cir. 1995). “Police must be given leeway to probe the d epth and extent of a criminal enterprise to determine whether coconspirators exis t, and to trace the drug deeper into the distribution hierarchy.” Harris , 997 F.2d at 819 (further quotation omitted). The government’s conduct in this case, therefore, was not sufficiently outrageous to violate due process. See id. ; see also, e.g. , Baker , 63 F.3d at 1500; United States v. Barth , 990 F.2d 422, 425 (8th Cir. 1993).-8-

The judgment of the United States District Court fo r the Eastern District of Oklahoma is, therefore, AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge