FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

December 2, 2008

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 08-3010
(D.C. No. 2:06-CR-20169-CM-1)
(D. Kan.)

BROCKE A. GRAHAM,
Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.

After Brocke A. Graham was convicted on five counts of a superseding

indictment involving drug trafficking, weapons possession, and witness
intimidation, the district court sentenced him to 235 months imprisonment. He
appeals both his conviction and sentence. Exercising jurisdiction under 18 U.S.C.
3742 and 28 U.S.C. 1291, we affirm.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

I. Background
Upon suspicion that Mr. Graham twice sold small quantities of cocaine
base (crack cocaine) to confidential informants in controlled purchases, police
officers of the City of Leavenworth, Kansas, obtained a search warrant and raided
his apartment, seizing 32.98 grams of crack cocaine, a scale, cash, a handgun, an
owe list, and assorted drug paraphernalia. He was later arrested and, after a
jury trial, convicted of two counts of distribution of a quantity of a mixture and
substance containing a detectable amount of crack cocaine in violation of
21 U.S.C. 841(b)(1)(C); one count of possession with intent to distribute a
mixture and substance containing five grams or more of crack cocaine, in
violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(iii); one count of being a felon
in possession of a firearm in violation of 18 U.S.C. 922(g)(1) and 924(a)(2);
and one count of witness tampering, in violation of 18 U.S.C. 1512(b)(1)
and 2. He was acquitted of one count of possession of a firearm in relation to a
drug trafficking offense in violation of 18 U.S.C. 924(c).
Relying on a presentence investigation report (PSR) at sentencing, the
district court calculated Mr. Grahams base offense level under the United States
Sentencing Guidelines to be 32, based on a finding that at least 150 grams but less
than 500 grams crack cocaine was attributable to him. See U.S.S.G.

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 2D1.1(c)(4). 1 The court also applied a two-level increase for possession of a

dangerous weapon, see id. 2D1.1(b)(1), and a two-level increase for obstruction
of justice, see id. 3C1.1, resulting in a total offense level of 36. Based on
Mr. Grahams criminal history category of III, the Guidelines range for
imprisonment was 235 to 293 months. The court sentenced Mr. Graham at the
bottom of the range235 months imprisonment on counts one, two, and three,
and 120 months imprisonment on counts five and six, to run concurrently.
II. Discussion
In appealing both his conviction and sentence, Mr. Graham asserts six
errors: (1) the prosecutors comments during rebuttal argument denied him a fair
trial; (2) the prosecutor improperly elicited testimony that bolstered an
informants credibility; (3) the district court erred in failing to inform the jury to
overlook an informants hearsay testimony; (4) the district court erred in
overruling a hearsay objection to a police officers testimony that he commenced
an investigation of Mr. Graham because other people told him they had heard
someone named Brocke was selling crack; (5) in determining his sentence, the
district court erred in applying the dangerous-weapon enhancement and in
calculating the drug quantity; and (6) the district court failed to apply a recent,

The PSR used the November 1, 2007, edition of the Guidelines, and our
citations are to that edition unless otherwise noted.
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retroactive amendment to the Guidelines that reduces by two the base offense
level for crack cocaine offenses. We address each issue in turn.
A. The prosecutors comments during rebuttal argument
Mr. Graham first claims he was denied a fair trial because, during rebuttal
argument, the prosecutor improperly likened defense counsel to a magician who
uses tricks and smoke to divert attention away from the facts. The government
counters that the comments were in response to defense counsels statements,
made during voir dire and opening argument, that the prosecutions case was
nothing but smoke and fire. Resp. Br. at 7. The government also argues that
the prosecutors isolated comment could not have affected the outcome of the trial
in view of the overwhelming evidence presented against Mr. Graham.
Because Mr. Graham did not object to the prosecutors comments at trial,
we review for plain error. See Fed. R. Crim. P. 52(b); United States v. Dazey,
403 F.3d 1147, 1170 (10th Cir. 2005). To establish plain error, Mr. [Graham]
must demonstrate that the district court (1) committed error, (2) that the error was
plain, and (3) that the plain error affected his substantial rights. Id. at 1174. If
all these conditions are met, [we] may exercise discretion to correct [the error] if
[it] seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.

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As the government notes, defense counsel referred to smoke and fire during
voir dire and opening argument:
I used the analogy during voir dire of where theres smoke theres
fire, and that [it] looks like this guys a drug dealer, he certainly fits
the profile, hes kind of a young black kid. . . . We know he has a
felony past. Gosh, that sounds like a drug dealer to me. And then
youre going to hear the government bring in all of the witnesses, but
its all the smoke. But when it comes down to actually seeing the
fire, there are going to be some pieces missing.
R., Vol. III, at 27:6-16. After discussing what pieces of evidence might be
missing, defense counsel stated:
It seems really straight forward when you hear it from the
prosecutors perspective, and Ill acknowledge that at first blush, you
see a lot of smoke and you think, wow, there must be a really big fire
there. . . . But . . . I think youre going to find that theres [sic] some
big gaps [in the evidence].
Id. at 35:9-19.
In turn, at the outset of rebuttal closing argument, the prosecutor began:
When you go to a magic show, [a] magician comes out, and he
throws something on the ground, and this big puff of smoke comes
up and diverts your attention, and then all of a sudden, something
appears that wasnt there before, and he does that for the purpose of
diverting your attention and make you think hes created some magic
act, and really, what hes done is blow smoke in your face to give
you that optical illusion. And [defense counsel] in his opening and
on voir dire talked about where theres smoke, theres fire. And . . .
the arguments [defense counsel] has made[,] smoke and mirrors,
thats what that is, to divert your attention away from what the real
evidence is.

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Id., Vol. V, at 587:10-22. The prosecutor continued on to discuss why the jury
should not be persuaded by defense counsels attempt to demonstrate gaps in the
evidence.
We see little of concern in this exchange of metaphoric rhetoric.
Generally, a prosecutor is afforded considerable latitude in responding to
arguments by defense counsel. United States v. Brewer, 630 F.2d 795, 803
(10th Cir. 1980). But [a]ttacks on defense counsel can at times constitute
prosecutorial misconduct when they disparage counsel or suggest untruthfulness.
Wilson v. Sirmons, 536 F.3d 1064, 1119 (10th Cir. 2008). Here, the prosecutors
comments did not call defense counsels character or truthfulness into question.
Nor did the prosecutor make the comments in an effort to persuade the jury to
render a conviction on grounds beyond the evidence, which we have implied is
improper, see Devine v. United States, 403 F.2d 93, 96 (10th Cir. 1968). Rather,
these comments were isolated and made in an apparent effort to focus the jury on
the admissible evidence and explain why the evidentiary gaps that defense
counsel tried to open were not an impediment to a guilty verdict. Accordingly,
they were a permissible response to defense counsels use of similar imagery to
show weakness in the evidence and do not warrant reversal under the plain error
standard of review.

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B. Testimony bolstering an informants credibility

Mr. Graham next argues that the prosecutor improperly elicited testimony
that bolstered the credibility of one of the informants by asking Leavenworth
police officer Neil Vogel whether information the informant had supplied in prior
investigations had proved reliable. The government contends that this testimony
was properly used to counter defense efforts to call the informants credibility
into question. Because there was no objection at trial, our review is for plain
error. See Fed. R. Crim. P. 52(b).
In support of his argument, Mr. Graham relies on the tenet that a prosecutor
may not indicate a personal belief in the witness credibility, either through
explicit personal assurances of the witness veracity or by implicitly indicating
that information not presented to the jury supports the witness testimony.
United States v. Jones, 468 F.3d 704, 707 (10th Cir. 2006) (quotation omitted).
But here, it was Officer Vogel, not the prosecutor, who vouched for the
informants past reliability. Jones therefore is inapposite. Mr. Graham has not
identified, nor have we found, any relevant authority to support his argument.
Thus, we see no plain error in the prosecutors line of questioning.
C. Failure to advise jury to overlook informants hearsay testimony
The third argument Mr. Graham raises concerns the testimony of one of the
confidential informants that Mr. Grahams sister drove by and yelled out the car
window, I know you snitched out my brother, bitch. R., Vol. III, at 114:15.
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The district court sustained a hearsay objection but did not advise the jury to
overlook the comment. This comment, Mr. Graham contends, was used to
establish his conviction on count six, witness tampering. The government says
the statement was not relevant to count six, and that in any event, other evidence
was sufficient to support that charge, rendering any error harmless.
Because Mr. Graham did not ask the court for a curative instruction, we
review for plain error. See Fed. R. Crim. P. 52(b). To begin, we question
whether the statement was hearsay because it was not offered to prove that the
informant had in fact snitched out Mr. Graham, the truth of which was not at
issue. Instead, it appears the statement was offered to show simply that it was
made. It is well settled that testimony is not hearsay when it is offered to
prove only that a statement was made and not the truth of the statement.
M.F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167, 172 (10th Cir. 1968).
As further explained in the Advisory Committees notes to Rule 801 of the
Federal Rules of Evidence:
If the significance of an offered statement lies solely in the fact that
it was made, no issue is raised as to the truth of anything asserted,
and the statement is not hearsay. . . . The effect is to exclude from
hearsay the entire category of verbal acts and verbal parts of an
act, in which the statement itself affects the legal rights of the
parties or is a circumstance bearing on conduct affecting their rights.
Fed. R. Evid. 801 advisory committees note to subdivision (c); see also United
States v. Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006) (quoting and relying on

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the advisory committees note). Thus, it appears to us that the statement was not
hearsay.
Even if the statement was hearsay, we see no clear error in the district
courts failure to tell the jury to disregard it. At the outset of trial, the court gave
the jury a preliminary verbal instruction regarding objections: You should not
be influenced by the objection or by the courts ruling on it. If the objection is
sustained, ignore the question. If it is overruled, treat the answer like any other.
R., Vol. III, at 11:23 to 12:1. In a written instruction given to the jury at the
close of trial, the court again addressed the matter:
During the trial, I did not let you hear the answers to some of the
questions the lawyers asked. And sometimes I ordered you to
disregard things that you saw or heard, or I struck things from the
record. You must completely ignore all of these things. Do not even
think about them.
Id., Vol. I, doc. 63, Instruction No. 4. Although the instructions could have stated
more specifically that, when the court sustained an objection to a question, the
jury was to ignore the answer as well as the question, we conclude that the
instructions, as given, adequately conveyed this notion to the jury. And because
[a] jury is presumed to follow its instructions, Weeks v. Angelone, 528 U.S.
225, 234 (2000), we see no plain error in the courts failure to also provide a
contemporaneous, sua sponte admonition to the jury to disregard the informants
testimony regarding the statement of Mr. Grahams sister.

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D. Police officers testimony about commencement of investigation

Mr. Graham raised a hearsay objection to a line of questioning to Officer
Vogel concerning the commencement of the investigation leading to
Mr. Grahams arrest. The district court overruled the objection and permitted
Officer Vogel to testify that prior to becoming acquainted with one of the
confidential informants, he had heard from several other people that someone
named Brocke was selling crack in a certain neighborhood. When the
informant later indicated that he, too, knew of a Brocke that was selling crack,
and provided more details, including an address that correlated with the
previously identified neighborhood and a telephone number, Officer Vogel
decided to set up a controlled buy. The district court ruled that the testimony was
not hearsay because it was not offered for the truth of the matter asserted, but for
the limited purpose of explaining why Officer Vogel began his investigation.
Our review of the district courts evidentiary ruling is for an abuse of
discretion. United States v. Norman T., 129 F.3d 1099, 1105 (10th Cir. 1997).
We have held that out-of-court statements by informants are not hearsay when
offered for the limited purpose of explaining why an investigation was started.
United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987). Officer Vogels
testimony was offered for that purpose, and the evidence was relevant to counter
statements defense counsel made during opening argument that there was no
evidence regarding the commencement of the investigation of Mr. Graham. Such
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evidence also must be evaluated under Rule 403 of the Federal Rules of Evidence.
See Freeman, 816 F.2d at 563. In pertinent part, Rule 403 requires a court to
evaluate whether the probative value [of relevant evidence] is substantially
outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. The district
court did not explicitly perform this task, but we have little problem concluding
that Officer Vogels testimony regarding the general statements of third parties
that Brocke had sold them crack cocaine did not unfairly prejudice Mr. Graham
because it was overshadowed by the much more specific testimony of three other
witnesses (including one of the informants) that they previously had purchased
crack cocaine from Mr. Graham. Also, Officer Vogel and Officer Ryan Park both
testified that during the raid, Mr. Graham admitted to them he had been selling
crack cocaine for five years, which further reduces any concern about unfair
prejudice. We therefore see no abuse of the district courts discretion in
overruling the hearsay objection.
E. Sentencing error: Total offense level
Turning to his sentence, Mr. Graham argues that the district court erred in
calculating his total offense level under the Guidelines when it (i) applied a
two-level enhancement for possession of a dangerous weapon and (ii) calculated
drug quantity. Because Mr. Graham lodged timely objections to these aspects of
his sentencing, we review the district courts factual findings for clear error and
its legal interpretation of the guidelines de novo. United States v. Norman,
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129 F.3d 1393, 1398 (10th Cir. 1997). We will not disturb findings unless they
are without factual support in the record, or if after reviewing all the evidence
we are left with the definite and firm conviction that a mistake has been made.
United States v. Garcia, 78 F.3d 1457, 1462 (10th Cir. 1996) (quotation omitted).
Dangerous weapon enhancement. Mr. Graham argues that the two-level
enhancement under U.S.S.G. 2D1.1(b)(1) for possession of a dangerous weapon
was improper because there was no direct nexus between the drug sale and the
gun that was found during the raid. Mr. Graham claims that he bought the gun for
personal protection, not to facilitate drug transactions. Also, he points out that
the gun was found in his roommates room, and that the jury acquitted him of the
charge of using a gun in furtherance of drug trafficking.
We are not persuaded by these arguments. The dangerous-weapon
enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the [drug] offense. U.S.S.G.
2D1.1, cmt. n. 3. The government bears the initial burden of proving
possession of the weapon by a preponderance of the evidence. United States v.
Williams, 431 F.3d 1234, 1237 (10th Cir. 2005). This burden is satisfied when
the government demonstrates that a temporal and spatial relation existed between
the weapon, the drug trafficking activity, and the defendant. Id. (quotation
omitted). Moreover, the government need only show that the weapon was found
in the same location where drugs or drug paraphernalia [were] stored. Id.
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(quotation omitted). If the government meets its burden, then the defendant must
show that it is clearly improbable the weapon was connected with the offense.
Id. at 1238. For example, the enhancement would not be applied if the
defendant, arrested at his residence, had an unloaded hunting rifle in the closet.
U.S.S.G. 2D1.1 cmt. n. 3.
As the government points out, one informant testified that the gun was
lying on the floor of the living room during the first controlled buy. Officer
Vogel testified that during the raid, Mr. Graham admitted that he bought the gun
for protection after the theft of $12,000 in drug money a couple of weeks earlier.
That testimony was consistent with the testimony of Mr. Grahams roommate.
Another witness testified that he had purchased the gun at Mr. Grahams request
and with money Mr. Graham gave to him. And Officer Parker testified that
Mr. Graham admitted he gave the gun to his roommate just prior to the raid
because he was leaving town and his roommate was going to use the gun for
protection. Moreover, the gun box and ammunition were found in Mr. Grahams
room. Thus, the government produced sufficient evidence of the nexus between
the crack cocaine sales and the gun, and Mr. Graham has failed to show that it
was clearly improbable the weapon was connected with the offense. The fact that
he was not convicted on the gun-in-furtherance charge does not preclude
application of the enhancement. See United States v. Magallanez, 408 F.3d 672,
684 (10th Cir. 2005) (holding that [a] jury verdict of acquittal on related
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conduct . . . does not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence) (quoting United States v. Watts, 519 U.S. 148,
157 (1997) (per curiam)).
Drug quantity. The only issue with regard to the drug-quantity calculation
that Mr. Graham has raised on appeal concerns the conversion of the stolen
$12,000 to 126.01 grams of crack cocaine. The district court overruled
Mr. Grahams objection that there was insufficient evidence linking the $12,000
exclusively to crack cocaine sales. In so doing, the court stated that it relied on
the trial testimony and the summation of the testimony relevant to drug quantity
set out in paragraph fifteen of the PSR, and specifically noted Mr. Grahams
admission that there was in fact $12,000 stolen from his residence, and that this
$12,000 was the result of drug proceeds, R., Vol. VII, at 40:13-15. On appeal,
Mr. Graham repeats his contention that there was insufficient proof that all of the
$12,000 came from crack cocaine sales. We disagree.
In calculating the quantity of drugs which may be attributed to a
defendant, the sentencing court may consider a wide range of information so long
as it bears the minimum indicia of reliability to support its probable accuracy.
Estimates of drug quantities for which a defendant will be held accountable are
acceptable so long as supported by the facts. United States v. Portillo-Quezada,
469 F.3d 1345, 1356 n.6 (10th Cir. 2006) (per curiam) (quotation and citation
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omitted), cert. denied, 127 S. Ct. 3066 (2007). And sums of cash can be
converted to drug quantities and attributed to the defendant if the court finds by
a preponderance that the cash is attributable to drug sales which were part of the
same course of conduct . . . as the conviction count. United States v. Rios,
22 F.3d 1024, 1027 (10th Cir. 1994).
In view of the evidence as a whole, we cannot say that we are left with a
definite and firm conviction that the district court made a mistake in converting
the $12,000 to crack-cocaine quantity. Officer Parker testified that during the
raid, Mr. Graham admitted he purchased the gun because of the theft of $12,000
he made selling crack cocaine, not the broader drug proceeds referenced at
sentencing. Also, there is no suggestion in the evidence, nor did Mr. Graham
advance any evidence, that he had ever dealt any drugs other than crack cocaine.
See United States v. Todd, 515 F.3d 1128, 1137 (10th Cir. 2008) (considering it
significant that defendant had offered no evidence demonstrating that confiscated
drugs were the product of a course of conduct other than that of the count of
conviction). Indeed, Mr. Grahams roommate testified that in two months of
living with Mr. Graham, he had never seen Mr. Graham sell anything other than
crack cocaine, and again, both Officer Parker and Officer Vogel testified that
Mr. Graham admitted to selling crack cocaine for the previous five years. Thus,
the facts supporting the district courts attribution of 126.01 grams of crack
cocaine to Mr. Graham by virtue of the stolen $12,000 bear the minimum indicia
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of reliability to support its probable accuracy. Portillo-Quezada, 469 F.3d

at 1356 (quotation omitted).
F. Sentencing Error: Application of Amendment 706
Mr. Grahams final argument concerns Amendment 706 to the Guidelines,
which took effect Nov. 1, 2007 and was made retroactive as of March 3, 2008.
United States v. Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008); see also U.S.S.G.
Supp. to Appx C, Amend. 706 (Nov. 1, 2007); U.S.S.G. Supp. to the 2007 Supp.
to Appx C (March 3, 2008). In pertinent part, Amendment 706 lowered the base
offense level from 34 to 32 for crack cocaine offenses involving 150-500 grams
of cocaine base. Compare U.S.S.G. 2D1.1(c)(4) (2007) with id. 2D1.1(c)(4)
(2006). Mr. Graham contends that by virtue of Amendment 706, he is entitled to
a two-level reduction in his base offense level under U.S.S.G. 1B1.10, which
permits a court to reduce a defendants term of imprisonment if a sentencing
range has subsequently been lowered by an amendment enumerated in that
section, including Amendment 706. But contrary to Mr. Grahams belief, the
district court used the reduced base-level calculation of 32 effected by
Amendment 706. Indeed, sentencing occurred on January 4, 2008, after the
effective date of Amendment 706, and the district court relied on the PSR, which

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used the amended version of the Guidelines effective November 1, 2007.

Therefore, he is not eligible for a reduction in sentence under 1B1.10.
III. Conclusion
We AFFIRM Mr. Grahams conviction and sentence.

Entered for the Court

Robert H. Henry
Chief Judge

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