*

 This order and judgment is not binding precedent except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAY 28 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL C. PEACH,

Defendant-Appellant.

No. 96-3233

(D.C. No. 95-CR-10052)

(D. Kan.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
-2-

Mr. Michael C. Peach appeals from his convictions and sentences on two

counts of possession with intent to distribute crack cocaine, two counts of using

or carrying a firearm during and in relation to a drug trafficking offense, and one

count of unlawful and wilful obstruction of commerce by robbery.

On December 18, 1994, Wichita Police Officer Patrick M. Chapman

stopped the vehicle driven by Mr. Peach for making a lefthand turn without

signaling. Officer Chapman then approached the driver's side of the vehicle and

asked Mr. Peach for his driver's license. As Mr. Peach reached for his driver's

license, Officer Chapman observed the tip of a plastic baggie between Mr. Peach's

legs which Officer Chapman believed contained crack cocaine. When a second

officer arrived on the scene, Officer Chapman asked Mr. Peach to exit his vehicle. 

When Mr. Peach did so, he left the plastic baggie on the driver’s seat of the

vehicle. The second office then placed Mr. Peach under arrest.

An inventory search of the vehicle revealed a loaded Titan Model 380

handgun underneath the driver’s seat and a pager which repeatedly "went off"

during the search. Analysis of the contents of the plastic baggie revealed it

contained 1.41 grams of crack cocaine.
-3-

On February 7, 1995, two officers of the Wichita Police Department on

routine patrol observed a vehicle driven by a black male traveling southbound on

Broadway at a high rate of speed. The officers observed the vehicle's front

windshield was cracked and decided to stop the vehicle.

As the officers exited their patrol car, the driver of the detained vehicle,

Mr. Peach, got out of his vehicle. The officers told Mr. Peach to get back into his

vehicle. However, Mr. Peach turned and ran from the scene. During the ensuing

chase, the pursuing officer observed Mr. Peach place his right hand on what the

officer believed to be the butt on a handgun and drop the weapon on the ground. 

When the officer finally tackled Mr. Peach, he observed Mr. Peach trying to stuff

a plastic baggie into his mouth. The officers then retrieved the plastic baggie,

which contained eight "rocks" of crack cocaine weighing 1.19 grams, and a

loaded .9 mm. Ruger P 89 handgun. The officers also recovered a dark colored

pager and $168 from Mr. Peach's person. An inventory search of the vehicle

revealed a registration card indicating Mr. Peach had recently purchased the

vehicle and a pink pager.

On April 10, 1995, a black male entered Jimmie's Diner at 3111 N. Rock

Road, Wichita, Kansas, with a handgun and demanded money while holding a
-4-

hostage around the neck with the handgun jammed into her ribs. The robber

obtained approximately $300 in cash and change from the cash register in a

maroon bank bag. He then fled in a blue Ford Taurus.

Officers responding to the robbery call noticed a vehicle fitting the

description of the robber’s vehicle traveling westbound on 32nd Street and gave

chase. The officers eventually stopped the vehicle and took both occupants of the

vehicle to the scene of the robbery for identification. The hostage, an employee

of Jimmie’s Diner, identified Mr. Peach as the robber.

On the ground near where the vehicle stopped, officers found a Marksman

BB gun pistol and brown pants turned inside out with $202 in cash in the pockets,

which was separated by denomination. In the vehicle, officers found rolled coins

and fifty wrapped $1 bills along with a maroon bank bag belonging to Jimmie's

Diner.

On April 19, 1995, the grand jury returned a five-count indictment against

Mr. Peach. Counts I and III charged Mr. Peach with possession with intent to

distribute cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1)

(1994) and 18 U.S.C. § 2 (1994), on December 18, 1994, and February 7, 1995,
-5-

respectively. Counts II and IV charged him with unlawfully carrying or using a

firearm during and in relation to a drug trafficking offense, namely possession of

crack cocaine with intent to distribute, in violation of 18 U.S.C. §§ 924(c) and 2

(1994), on December 18, 1994, and February 7, 1995, respectively. Count V

charged him with unlawfully, knowingly and willfully obstructing, delaying, and

affecting commerce and attempting to obstruct, delay, and affect commerce by

robbing Jimmie's Diner on April 10, 1995, by means of actual and threatened

violence, force, and fear of injury, in violation of 18 U.S.C. §§ 1951 and 2

(1994).

Prior to trial, the district court denied Mr. Peach's motion to dismiss Count

V, but granted his motion to sever Count V from the remaining counts. On

October 18, 1995, Mr. Peach proceeded to trial on Counts I through IV. A jury

convicted him on all four counts on October 19, 1995.

On January 17, 1996, as a result of the Supreme Court’s decision in Bailey

v. United States, 116 S. Ct. 501 (1995), the district court granted Mr. Peach a new

trial on Count II, using or carrying a firearm during and in relation to a drug

trafficking offense. The district court denied Mr. Peach’s motion for a new trial

on Counts I, III, and IV. The court then sentenced Mr. Peach to thirty-six months
-6-

imprisonment on Counts I and III, to run concurrently, and sixty months

imprisonment on Count IV, to run consecutively to his sentences for Counts I and

III.

On March 19-20, 1996, Mr. Peach was retried on Count II and found guilty. 

On April 3, 1996, the district court denied Mr. Peach’s renewed motion for

acquittal.

On May 21, 1996, Mr. Peach was tried on Count V. The jury convicted him

on May 22, 1996.

On June 17, 1996, the district court sentenced Mr. Peach to twenty years

imprisonment on Count II and sixty-three months imprisonment on Count V, both

sentences to run consecutively to his prior sentences.

On appeal, Mr. Peach contends: (1) in his first trial, the district court erred

in allowing Detective Fettke to testify as an expert on drug dealers and regarding

a conversation Detective Fettke had with him in December 1994; (2) the evidence

was insufficient to sustain his convictions on Counts I and III; (3) the district

court erred in failing to give a jury instruction on aiding and abetting as charged
1

 In his reply brief, Mr. Peach asserts for the first time the evidence was

insufficient to convict him on Count V and that the district court erred in giving

an aiding and abetting instruction on Count V. We will not address these issues,

however, because issues raised for the first time in the reply brief are deemed

waived and will not be considered. See Codner v. United States, 17 F.3d 1331,

1332 n.2 (10th Cir. 1994).

-7-

in the indictment in Counts I through IV; and (4) the district court lacked

jurisdiction to prosecute him on Count V.1

As a preliminary matter, we address the government's assertion we lack

jurisdiction to consider Mr. Peach's claims related to his convictions on Counts I,

III, and IV because his notice of appeal was untimely. The government's

argument is wholly without merit. A notice of appeal must be filed within ten

days of the entry of the judgment appealed from. Fed. R. App. P. 4(b). For the

purposes of Fed. R. App. P. 4(b), a judgment is entered "when it is entered on the

criminal docket." Id. Although the judgment on Counts I, III, and IV was filed

January 30, 1996, it was entered on the criminal docket sheet on January 31,

1996. Therefore, Mr. Peach's February 12, 1996, filing of a notice of appeal was

timely. See Fed. R. App. P. 26(a) ("The last day of the period so computed shall

be included, unless it is a Saturday, a Sunday, or a legal holiday, ... in which
2

 This appeal was docketed as No. 96-3054 and dismissed for lack of

finality on August 26, 1996, by a jurisdictional panel of this court.

-8-

event the period runs until the end of the next day which is not one of the

aforementioned days.").2

I.

Mr. Peach contends that at the October 1995 trial on Counts I-IV: (a) the

district court erred in allowing Detective Fettke to testify as an expert on crack

cocaine sales and differences between drug dealers and simple drug users, and (b)

the district court prejudiced his defense and denied him his Sixth Amendment

right to a fair trial by permitting Detective Fettke to testify regarding a

conversation Detective Fettke had with him in December 1994.

a.

Mr. Peach contends the district court erred in allowing Detective Fettke to

testify as an expert witness. "The determination of whether expert testimony

should be admitted rests with the sound discretion of the [district] court." United

States v. Esch, 832 F.2d 531, 535 (10th Cir. 1987), cert. denied, 485 U.S. 908

(1988). Therefore, we defer to the district court and review its determination only

for abuse of that discretion. Id.
3

 Although the district court did not formally accept Detective Fettke as an

expert witness, the court knew the prosecution offered him as an expert witness,

heard him describe his qualifications and then allowed him to give his opinion

testimony. We therefore assume the court accepted Detective Fettke as an expert

witness. See United States v. McDonald, 933 F.2d 1519, 1522 n.2 (10th Cir.),

cert. denied, 502 U.S. 897 (1991).

-9-

At the first trial in October, 1995, Detective Fettke testified as an expert

witness on crack cocaine sales and the differences between crack cocaine users,

user-dealers, and dealers based on his training and experience in the sale of

narcotics.3 Detective Fettke testified to his extensive training and experience in

drug sales during his eleven years with the Wichita Police Department. 

Thereafter, he testified the "normal" crack cocaine user only possesses: one $20

"rock" of crack cocaine, which weighs approximately 0.10 grams; a crack pipe;

and a lighter or a torch to provide the high heat necessary to vaporize the cocaine. 

Detective Fettke testified users usually do not carry more than $20-$40 with them

and usually do not carry firearms for protection. He testified a user normally only

carries firearms to be pawned or traded for cocaine. Finally, Detective Fettke

testified crack cocaine users usually do not have any money or any valuable

possessions, because they spend all their money on and trade all their possessions

for more cocaine.
-10-

In regard to user-dealers, Detective Fettke testified user-dealers often carry

firearms with them; occasionally have pagers to make them more accessible to

their buyers; and normally do not carry their crack pipes and drug usage

paraphernalia with them. He noted user-dealers usually have "some of the nicer

things that go along with dealing cocaine."

The proper inquiry concerning expert testimony is whether the jury is able

to understand the evidence without the specialized knowledge available from the

testimony of the expert witness. United States v. McDonald, 933 F.2d at 1522. In

this case, the basic facts were the amount of crack cocaine found in plastic

baggies, 1.41 and 1.19 grams, coupled with the possession of loaded firearms,

pagers, and over $100 in cash. Without understanding the drug trade and how a

drug dealer works, a jury could not be expected to understand the significance of

this evidence. McDonald, 933 F.2d at 1522. Detective Fettke provided the

specialized knowledge needed to understand the evidence presented. Therefore,

we hold the district court did not abuse its discretion in allowing Detective Fettke

to testify as an expert witness.
-11-

b.
-12-

Mr. Peach asserts the district court prejudiced his defense and denied him

his Sixth Amendment right to a fair trial by permitting Detective Fettke, over Mr.

Peach's objections, to testify regarding a conversation Detective Fettke had with

him in December 1994.

During the government's case-in-chief, the government called Detective

Fettke to testify that Mr. Peach told him he "does not distribute or use crack

cocaine." Detective Fettke's testimony was presented to refute Mr. Peach's

defense that he was a simple user of cocaine and not a dealer. The district court

found this testimony relevant and concluded its probative value was not

outweighed by the prejudice to Mr. Peach. Immediately following Detective

Fettke's testimony, the district court instructed the jury that the testimony could

only be used for the purpose of determining whether Mr. Peach possessed the

necessary intent to distribute crack cocaine and not for the purpose of whether

Mr. Peach was engaged in an illegal transaction when the conversation took place.

"We review both the district court's determination of the relevancy of the

evidence and its conclusion that the probative value of the evidence is not

substantially outweighed by its prejudicial effect for an abuse of discretion." 

United States v. Flanagan, 34 F.3d 949, 952 (10th Cir. 1994).
-13-

Federal Rule of Evidence 401 provides that relevant evidence is "evidence

having any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be

without the evidence." Mr. Peach did not dispute his possession of 1.41 and 1.19

grams of crack cocaine on December 18, 1994, and February 7, 1995,

respectively. Rather, his defense centered on his being a simple user of crack

cocaine and not a distributor. Therefore, Detective Fettke’s testimony was

relevant to Mr. Peach’s intent to use or to distribute the crack cocaine in his

possession.

Federal Rule of Evidence 403 provides relevant evidence "may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice." The evidence here was certainly damaging to Mr. Peach's defense: it

refuted his assertions that he was a simple user of crack cocaine and not a dealer,

and it showed additional involvement with the police. However, it did not rise to

the level of unfair prejudice. "[T]he unfair prejudice aspect of Rule 403 'cannot

be equated with testimony which is simply unfavorable to a party. It must be

unfair in the sense that it would be misleading and not aid and assist the jury in

making a material determination in the case.'" Flanagan, 34 F.3d at 953 (quoting

McEwen v. City of Norman, 926 F.2d 1539, 1549-50 (10th Cir. 1991)). 
-14-

Accordingly, we hold the district court did not abuse its discretion in admitting

Detective Fettke's testimony regarding the conversation he had with Mr. Peach in

December 1994.

II.

Mr. Peach contends there was insufficient evidence to support his

convictions on Counts I and III for possession of crack cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). Mr. Peach asserts he is merely a

user of cocaine, not a distributor.

To obtain a conviction under 21 U.S.C. § 841(a)(1) for possession with

intent to distribute crack cocaine, the government must establish Mr. Peach (1)

possessed crack cocaine; (2) knew he possessed crack cocaine; and (3) intended to

distribute the crack cocaine. See United States v. Wilson, 107 F.3d 774, 778 (10th

Cir. 1997). Mr. Peach does not claim he did not knowingly possess crack

cocaine. Mr. Peach challenges the sufficiency of the evidence to establish he

intended to distribute the crack cocaine rather than use it personally.

We review the record for sufficiency of the evidence de novo. Wilson, 107

F.3d at 778. "'Evidence is sufficient to support a conviction if a reasonable jury
-15-

could find the defendant guilty beyond a reasonable doubt, given the direct and

circumstantial evidence, along with reasonable inferences therefrom, taken in a

light most favorable to the government.'" Id. (quoting United States v. Mains, 33

F.3d 1222, 1227 (10th Cir. 1994)). "Rather than examining the evidence in 'bits

and pieces,' we evaluate the sufficiency of the evidence by 'consider[ing] the

collective inferences to be drawn from the evidence as a whole.'" Wilson, 107

F.3d at 778 (quoting United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.),

cert. denied, 475 U.S. 1128 (1986)). Thus, we must affirm the conviction if the

"collective inferences" from the totality of the evidence could have led a

reasonable jury to find beyond a reasonable doubt that Mr. Peach intended to

distribute the crack cocaine he possessed.

In reviewing the record, we hold there was sufficient evidence to establish

Mr. Peach's intent to distribute the crack cocaine found in his possession on

December 18, 1994, and February 7, 1995. The evidence demonstrated: Mr.

Peach possessed 1.41 and 1.19 grams of crack cocaine on December 18, 1994,

and February 7, 1995, respectively; he did not have with him any paraphernalia

associated with drug use on either occasion; on February 7, 1995, he was carrying

$168 in cash on his person; on both occasions, he possessed at least one pager;

and on both occasions he possessed a loaded firearm. Considering the expert
4

 From the record before us, we cannot discern whether the district court

actually read the redacted indictment to the jury in addition to submitting a

written copy to the jury in the jury instructions. However, the distinction is

-16-

testimony of Detective Fettke, evidence indicates intent to distribute crack

cocaine. Furthermore, this court has indicated the presence of firearms in

connection with drugs, as with the two firearms in this case, may be probative

evidence of an intent to distribute the drugs. See United States v. Hager, 969

F.2d 883, 888 (10th Cir.), cert. denied, 506 U.S. 964 (1992). Taken as a whole,

the evidence was sufficient for a reasonable jury to conclude beyond a reasonable

doubt that Mr. Peach possessed crack cocaine with the intent to distribute.

III.

Mr. Peach contends the district court erred in failing to give an aiding and

abetting instruction on Counts I through IV. Mr. Peach argues that in order for

the jury to find guilt beyond a reasonable doubt all elements of the offenses

charged must be given to the jury and, thus, failing to give an aiding and abetting

instruction as charged in the indictment is per se reversible error, especially when

the evidence presented at trial was insufficient to support the charges of aiding

and abetting in the indictment. Mr. Peach asserts the district court constructively

amended the indictment by omitting the aiding and abetting charges from its

reading of the indictment to the jury and from its jury instructions.4
irrelevant to our analysis. Our holding would be the same whether the district

court read the redacted indictment to the jury, simply allowed the jury to have a

copy thereof in the jury instructions, or both.

-17-

Because Mr. Peach did not object to the district court's omitting the aiding

and abetting instruction, we review only for plain error. Fed. R. Crim. P. 52(b). 

See United States v. DeSantiago-Flores, 107 F.3d 1472, 1479 (10th Cir. 1997). 

"Plain error is one that 'affects the defendant's right to a fair and impartial trial.'" 

United States v. Galbraith, 20 F.3d 1054, 1057 (10th Cir.) (quoting United States

v. Smith, 13 F.3d 1421, 1424 (10th Cir.), cert. denied, 513 U.S. 878 (1994)), cert.

denied, 513 U.S. 889 (1994). "It must have been both 'obvious and substantial.'" 

Id. at 1057 (quoting Smith, 13 F.3d at 1424).

In this case, the district court's omission of the aiding and abetting charges

from the reading of the indictment to the jury and from the jury instructions

ensured Mr. Peach received a fair trial as he was the only person charged in the

indictment. Therefore, there can be no error in the district court’s actions.

Next, Mr. Peach is correct that the jury must find a defendant guilty beyond

a reasonable doubt on all elements of the offense charged. See Sullivan v.

Louisiana, 508 U.S. 275, 277-78 (1993) (a criminal conviction must rest upon a

jury determination that the defendant is guilty beyond a reasonable doubt of each
-18-

element of the offense charged). However, aiding and abetting is a separate

offense with its own elements under 18 U.S.C. § 2, and not an element of 21

U.S.C. § 841(a)(1), possession with intent to distribute a controlled substance, or

of 18 U.S.C. § 924(c)(1), using or carrying a firearm during and in relation to a

drug trafficking offense. See Wilson, 107 F.3d at 778 (discussing elements of 21

U.S.C. § 841(a)(1)); United States v. Ruth, 100 F.3d 111, 112-13 (10th Cir. 1996)

(discussing elements of § 924(c)(1)); United States v. Yost, 24 F.3d 99, 104 (10th

Cir. 1994) (discussing elements of 18 U.S.C. § 2). Therefore, a court need not

instruct a jury on aiding and abetting in order to instruct on all the elements of

possession with intent to distribute or using or carrying a firearm during and in

relation to a drug trafficking offense. In fact, it would be error for the district

court to allow an aiding and abetting instruction simply because the charge was

included in the indictment where, as in this case, the evidence presented at trial

does not support such a charge. See United States v. Martin, 747 F.2d 1404,

1407-08 (11th Cir. 1984).

Finally, we review whether the district court constructively amended the

indictment by omitting the aiding and abetting instruction.

A constructive amendment occurs "if the evidence presented at trial,

together with the jury instructions, raises the possibility that the

defendant was convicted of an offense other than that charged in the

indictment." "The specific inquiry is whether the jury was permitted
-19-

to convict the defendant upon 'a set of facts distinctly different from

that set forth in the indictment.'"

Galbraith, 20 F.3d at 1058 (quoting Hunter v. New Mexico, 916 F.2d 595, 599

(10th Cir. 1990), cert. denied, 500 U.S. 909 (1991)).

The key to constructive amendment is the defendant's conviction of an

offense not charged in the indictment. Since it is impossible for the jury to have

convicted Mr. Peach on a charge which was not even presented to them, the

district court's omission of the aiding and abetting charges did not constructively

amend the indictment. If anything, the district court’s omissions amounted to a

judgment of acquittal on the aiding and abetting charges.

IV.

Mr. Peach contends the district court lacked jurisdiction to prosecute him

under the Hobbs Act, 18 U.S.C. § 1951, for the April 10, 1995, robbery of

Jimmie’s Diner. Mr. Peach asserts the government "seized" his case from Kansas

authorities in violation of his civil and constitutional rights. Finally, Mr. Peach
5

 He also perfunctorily asserts the district court lacked personal jurisdiction

over him. Because he fails to develop this issue, we decline to review this claim. 

Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).

-20-

argues the government selectively prosecuted him.5 We review challenges to

jurisdiction de novo. F.D.I.C. v. Hulsey, 22 F.3d 1472, 1479 (10th Cir. 1994).

"The Hobbs Act provides for the punishment of anyone who 'in any way or

degree obstructs, delays, or affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion or attempts or conspires so to

do.'" United States v. Zeigler, 19 F.3d 486, 489 (10th Cir.) (quoting 18 U.S.C.

§ 1951(a)), cert denied, 513 U.S. 1003 (1994) (emphasis in original). Under the

Act, commerce includes "'all commerce between any point in a State, ... and any

point outside thereof; ... and all other commerce over which the United States has

jurisdiction.'" Id. (quoting 18 U.S.C. § 1951(b)(3)).

"Consistent with this broad statutory language, ... the 'jurisdictional

predicate of the Hobbs Act can be satisfied by a showing of "any de minimis

effect on commerce."'" United States v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995)

(quoting Zeigler, 19 F.3d at 489), cert. denied, 116 S. Ct. 966 (1996). "In order

to establish the requisite de minimis effect on commerce, the government need
-21-

only produce evidence establishing that the assets of a business engaged in

interstate commerce were depleted during the commission of the crime." Id.

During the trial on Count V, the Hobbs Act charge, the government

presented evidence establishing that the robbery of Jimmie's Diner depleted the

assets of business engaged in interstate commerce. Specifically, the government

demonstrated the money taken in the robbery would have been used to purchase

supplies for the diner from Wonder Hostess in St. Louis, Missouri; Milani Foods

in Charlotte, North Carolina; Mid-Central/SYSCO in Kansas City, Missouri; and

Meadow Gold in Dallas, Texas. This evidence is sufficient to demonstrate a de

minimis effect on interstate commerce under the Hobbs Act. See Bolton, 68 F.3d

at 399; Zeigler, 19 F.3d at 491-93. Therefore, we hold the district court had

jurisdiction to prosecute Mr. Peach for violating the Hobbs Act.

Finally, Fed. R. Crim. P. 12(b)(1) requires a defendant to raise "objections

based on defects in the institution of the prosecution" prior to trial. "A selective

prosecution claim clearly qualifies as such an objection." United States v. Bryant,

5 F.3d 474, 476 (10th Cir. 1993). Furthermore, Fed. R. Crim. P. 12(f) presumes

these objections are waived if they are not raised prior to trial; a presumption

which can be overcome with a showing of cause. The record in this case
-22-

indicates Mr. Peach failed to raise selective prosecution prior to trial and he failed

to show cause for this untimeliness. Accordingly, Mr. Peach's selective

prosecution claim is waived.

For the foregoing reasons, we AFFIRM Mr. Peach's convictions and

sentences on all counts.

Entered for the Court

WADE BRORBY

United States Circuit Judge