United States of America v. LAWRENCE EDWARD CRAYTON, JR., also known as Manny Harris and Alex Winters

*The Honorab le Avern Cohn, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0038P (6th Cir.)
File Name: 04a0038p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAWRENCE EDWARD
CRAYTON, JR., also known as
Manny Harris and Alex
Winters,
Defendant-Appellant.
X
-
-
-
->
,
-
-
-
-
-
-
N
No. 02-5738
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 98-00091—John G. Heyburn II, Chief District Judge.
Argued: December 9, 2003
Decided and Filed: February 5, 2004
Before: ROGERS and COOK, Circuit Judges; COHN,
District Judge.*
2 United States v. Crayton No. 02-5738
_________________
COUNSEL
ARGUED: W i l l i a m Y e so w i tch, BARBER,
BANASZYNSKI & GLIDEWELL, Louisville, Kentucky, for
Appellant. Candace G. Hill, ASSISTANT UNITED STATES
ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: William Yesowitch, BARBER,
BANASZYNSKI & GLIDEWELL, Louisville, Kentucky, for
Appellant. Candace G. Hill, Terry M. Cushing, ASSISTANT
UNITED STATES ATTORNEYS, Louisville, Kentucky, for
Appellee. Lawrence Edward Crayton, Jr., Lompoc,
California, pro se.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Lawrence Crayton, Jr. (a/k/a
Manny Harris, Alex Winters, and Terrell Mason) appeals his
conviction of attempt, conspiracy, and possession of over five
kilograms of cocaine with the intent to distribute. After
receiving a tip from a police department in another state, the
Louisville Metro Police searched boxes from an incoming
cargo plane for a package addressed to “Alex Winters.” After
obtaining a warrant, the police opened the box, replaced the
six kilograms of cocaine contained inside with filler, and
delivered the package. Crayton, pretending to be Winters,
signed for the package at the delivery address. Crayton and
his cousin, Andre Alexander, sped away in a vehicle with the
package. Crayton and Alexander were followed by the
police, and at some point during the chase, the box was
opened and tossed out of the vehicle. Both men were
arrested. During a joint trial, Alexander was acquitted, but
the jury could not reach a verdict as to Crayton. A second jury
convicted Crayton of all three charges, and he was sentenced
to three concurrent life terms of imprisonment. Because the

-- 1 of 12 --

No. 02-5738 United States v. Crayton 3
1Police later discovered that the home was owned by Anthony
Anderson, an investo r who remodels houses for resale. The house was
vacant, and Anderson did not know or give Crayton or any of his aliases
perm ission to use the house.
district court did not violate the “rule of consistency” or err in
deciding any of the other issues Crayton raises on appeal, we
affirm the judgment of the district court.
FACTS
On April 15, 1998, Los Angeles, California, Police
Detective George Osborne, with the Narcotics Interdiction
Unit, received a tip that a box shipped via UPS and bound for
Louisville was suspicious because the return address was
false. Osborne then alerted the Louisville Metro Police
Department to the suspicious box.
The Metro Police K-9 unit was waiting at the UPS depot
when the suspicious box arrived. The dog alerted on one box
shipped from California to Louisville, and the police got a
warrant for the package. The brown cardboard box was
opened from the bottom so as not to damage the label on the
top. Inside, the police found Styrofoam peanuts and two
packages wrapped in Christmas paper and cellophane tape.
Each package contained approximately three kilograms of
cocaine. The police then put a 4.5 gram sample of cocaine
into the box along with dummy packages of non-narcotic
filler wrapped to resemble the cocaine packages. A tracking
device was added, and the box was resealed.
Police set up surveillance around 541 North 44th Street, the
destination listed on the label of the box addressed to “Alex
Winters.” A detective disguised in a UPS uniform delivered
the box to the address. The detective got out of the UPS truck
and knocked on the door of the house, but no one answered.1
At this point, Crayton pulled up to the house in a blue
4 United States v. Crayton No. 02-5738
2A “Manny Harris” bought a blue Suburban with cash around this
time, although there is some confusion as to the actual date of the
purchase.
Suburban and stated that he was Mr. Winters.2 Crayton
signed for the package as Alex Winters. At this time, the
detective noticed there was another person in Crayton’s
vehicle. That person was Andre Alexander, Crayton’s cousin.
Crayton and Alexander left in the Suburban, but the police
followed the vehicle without lights and sirens. During the
pursuit, Crayton and Alexander stopped for five minutes on
the shoulder of a road. The officers described that stop by
Crayton and Alexander as a countersurveillance move to see
if anyone was following them. After several minutes,
Crayton asked Alexander to open the box. While opening the
box, Alexander found the sample cocaine bag left in the box
by the police, and he tossed the box and its contents out of the
car window and into an alley. Crayton’s vehicle then sped up,
the police turned on their lights and sirens, and a chase began.
When Crayton drove into a high traffic area, the police
stopped the vehicle and arrested Crayton and Alexander.
During the arrest, Crayton identified himself as “Manny
Harris,” and he claimed to have no idea what was in the box.
However, the police found the opened box near an alley along
the route Crayton had taken.
Manny Harris was charged with trafficking in cocaine and
tampering with physical evidence. Harris posted bond and
fled. On July 7, 1998, a federal grand jury issued an
indictment against Harris and Alexander. Count 1 of the
indictment charged Harris with conspiring with Alexander
and unknown persons to possess cocaine with the intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Count 2 charged Harris and Alexander with attempting to
possess cocaine with the intent to distribute. Count 3 charged
them with actually possessing cocaine with the intent to

-- 2 of 12 --

No. 02-5738 United States v. Crayton 5
distribute. Crayton, then going by the name of Terrell Mason,
and Alexander were arrested on January 2, 1999 in Los
Angeles. In September 2000, a superseding indictment was
issued in which Crayton was named specifically and the
quantity, six kilograms, of cocaine was added to the
indictment.
A trial was held in December 2000, and the jury acquitted
Alexander but was unable to reach a verdict as to Crayton.
Before his second trial, Crayton moved for a bill of
particulars, but the district court denied the motion. Crayton
was convicted on all counts in his second trial. He was
sentenced to life in prison.
ANALYSIS
I. Effect of the Prior Acquittal of Alexander
Crayton makes a number of arguments based on the prior
acquittal of his co-conspirator Alexander. None have merit.
A. Powell’s Effect on the Rule of Consistency
The district court properly denied Crayton’s motion to
dismiss the superseding indictment based on the rule of
consistency, which would require that one co-conspirator
could not be convicted when all other co-conspirators are
acquitted at the same trial, because that “rule” is no longer
good law. Before his second trial, Crayton moved to dismiss
the superseding indictment because the indictment still
contained Alexander’s name, even though Alexander had
been acquitted as a co-conspirator at the previous trial. This
court reviews de novo a district court’s denial of a motion to
dismiss an indictment on legal grounds. United States v.
Campbell, 279 F.3d 392, 398 (6th Cir. 2002); In re Ford, 987
F.2d 334, 339 (6th Cir. 1992).
The rule of consistency at one time required “that, where all
possible co-conspirators are tried together, and all but one are
6 United States v. Crayton No. 02-5738
acquitted, the remaining conspirator’s conviction must be
reversed for lack of sufficient evidence.” United States v.
Walker, 871 F.2d 1298, 1304 n.5 (6th Cir. 1989) (dictum).
However, the rule of consistency did not apply when co-
conspirators were tried separately and all but one were
acquitted. United States v. Roark, 753 F.2d 991, 995-96 (11th
Cir. 1985) (cited in United States v. Sachs, 801 F.2d 839, 845
(6th Cir. 1986)). Likewise, if the charges against all but one
alleged co-conspirator had been dismissed, the rule of
consistency was inapplicable. Sachs, 801 F.2d at 845.
The Supreme Court’s decision in United States v. Powell,
469 U.S. 57 (1984), rendered the so-called “rule of
consistency” no longer good law. Before Powell, this court
applied the rule of consistency in United States v. Williams,
503 F.2d 50 (6th Cir. 1974). In Williams, a father and his
adult son flew into a Cleveland airport, but one of their
suitcases was lost. Williams, 503 F.2d at 52. The airline lost
baggage department found the bag and discovered that it
contained large amounts of cocaine and heroin. Id. The
airline gave the bag to the Drug Enforcement Administration,
who substituted the real narcotics with a non-narcotic
substance and gave the bag to the son. Id. The agents
followed the son to the motel room and eventually caught the
father, son, and another man, Willie Johnson, attempting to
flush the narcotics down the toilet. Id. All three men were
charged with possession and conspiracy, and the jury found
the father guilty of possession but could not reach a verdict as
to the conspiracy of the father or the other two men. Id. Prior
to the second trial, the possession charges against the son and
Johnson were dismissed. Id. At the second trial, all three
men were convicted of conspiracy. Id.
The court held that there was insufficient evidence to
sustain Johnson and the son’s conspiracy convictions. Id. at
54. The court then announced the “rule of consistency” by
stating “[s]ince we have found that the convictions of Johnson
and Williams, Jr. cannot stand, the conviction of Williams, Sr.
must also fall. Where all other alleged co-conspirators are

-- 3 of 12 --

No. 02-5738 United States v. Crayton 7
acquitted, the conviction of one person for conspiracy will not
be upheld.” Id.; see also United States v. Sachs, 801 F.2d
839, 845 (6th Cir. 1986) (stating in dictum, “if coconspirators
are tried together, an acquittal on conspiracy charges as to all
but one coconspirator mandates acquittal on conspiracy
charges as to the remaining defendant”).
Since we last applied the rule of consistency in Williams, a
unanimous Supreme Court has held that inconsistent jury
verdicts are permissible. See Powell, 469 U.S. at 68-69. The
defendant in Powell was convicted of using the telephone to
commit the felony of “conspiracy to possess with the intent to
distribute and possession with intent to distribute cocaine,”
but she was acquitted of knowingly and intentionally
possessing cocaine with the intent to distribute. Id. at 60.
She argued that the verdicts were inconsistent because she
was found guilty of conspiring to do something that she was
acquitted of, namely possession with the intent to distribute
cocaine. Id. The Court reaffirmed the holding of Dunn v.
United States, 284 U.S. 390, 393 (1932), that “where truly
inconsistent verdicts have been reached, ‘[t]he most that can
be said . . . is that the verdict shows that either in the acquittal
or the conviction the jury did not speak their real conclusions,
but that does not show that they were not convinced of the
defendant’s guilt.’” Id. at 64-65. The Court rejected the
argument that courts must assume that an inconsistent
acquittal is necessarily “the one the jury ‘really meant.”’ Id.
at 68. “It is equally possible that the jury, convinced of guilt,
properly reached its conclusion on the compound offense, and
then through mistake, compromise, or lenity, arrived at an
inconsistent conclusion on the lesser offense.” Id. at 65.
The Powell Court relied specifically on the rationale that
“inconsistencies” often are the product of jury lenity,
recognizing “the jury’s historic function, in criminal trials, as
a check against arbitrary or oppressive exercises of power by
the Executive Branch,” and, that the Government is unable to
invoke review of such lenity. Id. at 65-66. The Court
rejected as imprudent and unworkable a rule that would
8 United States v. Crayton No. 02-5738
allow criminal defendants to challenge inconsistent verdicts
on the ground that in their cases the verdict was a product of
some factor other than lenity. Id. at 66. Finally, the Court
relied on the independent review of the sufficiency of the
evidence undertaken by the trial and appellate courts to afford
protection against jury irrationality or error. Id. at 67.
Powell does not discuss inconsistent jury verdicts among
co-conspirators, but as a number of our sister circuits have
held, Powell rendered the rule of consistency no longer good
law. Thus, the acquittal of all but one co-conspirator during
the same trial does not necessarily indicate that the jury found
no agreement to act. See United States v. Bucuvalas, 909
F.2d 593, 597 (1st Cir. 1990); United States v. Thomas, 900
F.2d 37, 40 (4th Cir. 1990); United States v. Zuniga-Salinas,
952 F.2d 876, 877-79 (5th Cir. 1992) (en banc); United States
v. Valles-Valencia, 823 F.2d 381, 381-82 (9th Cir. 1987);
United States v. Andrews, 850 F.2d 1557, 1560-62 (11th Cir.
1988) (en banc). Other circuits have recognized that the rule
of consistency does not survive Powell, without actually so
holding. United States v. Dakins, 872 F.2d 1061, 1065 (D.C.
Cir. 1989) (Powell “cast[s] doubt” upon rule of consistency);
United States v. Mancari, 875 F.2d 103, 104 (7th Cir. 1989)
(rejection of rule of consistency “makes good sense in light of
Powell”); Gov’t of the Virgin Islands v. Hoheb, 777 F.2d 138,
142 n.6 (3d Cir. 1985) (rule of consistency “may be a vestige
of the past”). See also Chad W. Coulter, Comment, The
Unnecessary Rule of Consistency in Conspiracy Trials, 135
U. PA. L. REV. 223 (1986).
The only contrary circuit opinion appears to be that of the
Tenth Circuit. In United States v. Suntar Roofing, Inc., 897
F.2d 469 (10th Cir. 1990), that court, while affirming
convictions based on the existence of unindicted
co-conspirators, suggested that the rule of consistency may
have continuing vitality. The court noted that the trial court’s
conclusion that the rule of consistency was no longer good
law “is substantially undercut by the fact that the Powell
opinion does not discuss Hartzel [v. United States, 322 U.S.

-- 4 of 12 --

No. 02-5738 United States v. Crayton 9
680 (1944)] or expressly overturn the traditionally recognized
exception.” Suntar Roofing, 897 F.2d at 475. As the First
Circuit has reasoned, however, the Tenth Circuit’s concern is
not well founded:
[T]he Hartzel decision to which the Tenth Circuit
referred did not involve inconsistent jury verdicts.
Instead, the “only co-conspirators of petitioner named in
the indictment” had their convictions set aside by judges
due to insufficient evidence. 322 U.S. at 682 n. 3 . . . . It
has been, and remains, the law that where the evidence
against all of an individual’s alleged co-conspirators is
deemed legally insufficient, the evidence against that
individual is by definition also insufficient. See, e.g.,
Morrison v. California, 291 U.S. 82, 93 [] (1934);
Gebardi v. United States, 287 U.S. 112, 116, 123 []
(1932); United States v. Velasquez, 885 F.2d 1076,
1090-1091 and n. 13 (3d Cir. 1989) (expressly noting it
was not applying the rule of consistency, court held that
an earlier appellate finding of insufficient evidence to
convict the only alleged co-conspirator required finding
insufficient evidence as to the remaining defendant.);
United States v. Levario, 877 F.2d 1483, 1486 (10th Cir.
1989) (trial court’s granting motion for judgment of
acquittal as to only alleged co-conspirator precluded
conspiracy conviction); United States v.
Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th Cir.
1988) (same). A court’s determination that there is
insufficient evidence to convict cannot be equated with
a jury’s determination that a defendant, for whatever
reason, should be acquitted. Accordingly, rather than
there being any “conflict between Powell and Hartzel,”
Suntar Roofing, 897 F.2d at 475-476, the Court’s
emphasis in Powell on the sufficiency of the evidence
fully embraces the Hartzel ruling. See Andrews, 850
F.2d at 1562 n. 15.
Bucuvalas, 909 F.2d at 596-97.
10 United States v. Crayton No. 02-5738
The reasoning of Powell applies to co-conspirator cases
even though Powell itself did not involve co-conspirators. As
the First Circuit reasoned, “an apparent failure to prove an
essential element of the offense would not distinguish
conspiracy from any other case involving an inconsistent
verdict.” Id. at 597. In a co-conspirator case just as much as
in Powell, inconsistencies may be the product of jury lenity,
given the jury’s historic function as a check on arbitrary
exercises of power. In a co-conspirator case just as much as
in Powell, a rule that depended upon whether jury lenity was
actually a factor would be “imprudent and unworkable.” And
finally, in a co-conspirator case just as in Powell, the
independent review of the sufficiency of the evidence
undertaken by the trial and appellate courts affords protection
against jury irrationality or error. It is thus clear that the “rule
of consistency” previously recognized in this circuit did not
survive Powell.
B. Unknown Conspirators
Even if the rule of consistency survived Powell, reversal
would not be required in the present case. We have held that
“an individual’s conviction for conspiracy may stand, despite
acquittal of other alleged coconspirators, when the indictment
refers to unknown or unnamed conspirators and there is
sufficient evidence to show the existence of a conspiracy
between the convicted defendant and these other
conspirators.” United States v. Anderson, 76 F.3d 685, 688-
89 (6th Cir. 1996). Like the indictment in Anderson, Count
1 of Crayton’s superseding indictment specifically mentions
Alexander and “other persons, known and unknown.” The
record presents ample evidence for a reasonable jury to have
concluded that Crayton conspired with unknown people in
California who sent the package to Crayton, or unknown
people in Louisville, to facilitate the delivery and/or
distribution of the cocaine. Thus, Crayton’s conviction in the
second trial would not violate the rule of consistency even if
it were still good law.

-- 5 of 12 --

No. 02-5738 United States v. Crayton 11
C. Constructive Amendment of Counts 2 and 3
Contrary to Crayton’s contentions, the Government
moreover did not constructively amend the superseding
indictment during the trial by not removing Alexander’s name
and the aiding and abetting language from Counts 2 and 3 of
the superseding indictment. See e.g., United States v.
Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002). Count 2 of
the superseding indictment states “. . . Crayton . . . and . . .
Alexander, each aided and abetted by the other, did attempt to
knowingly and intentionally possess with intent to distribute
. . . cocaine . . . .” Count 3 is identical except “attempt to” is
omitted. The case law of this circuit disposes of this claim.
In Anderson, in language almost identical to that of Count 2
in this case, the indictment stated that the defendant aided and
abetted two individuals who were acquitted at the same trial.
Anderson, 76 F.3d at 689. In that case we held,
The indictment gave defendant notice that he was being
charged under count two both with being an aider and
abettor and with the substantive crime of attempt.
Indeed, the punctuation of the indictment sets off the
“aided and abetted” phrase from the crime of attempt to
possess cocaine with intent to distribute. The jury was
entitled to find defendant guilty of the substantive crime
of attempt even though his codefendants were found not
guilty of attempt or aiding or abetting his attempt.
Id. For identical reasons, there was no constructive
amendment of Crayton’s superseding indictment.
D. Alexander’s name in the Jury Instructions
Finally, the district court did not somehow create a
mandatory presumption that Alexander was a co-conspirator
by including Alexander’s name in the jury instructions.
Alexander’s name was only mentioned in the jury instructions
when Count 1 of the superseding indictment was read. The
district court never mentioned any type of presumption, and
12 United States v. Crayton No. 02-5738
it clearly mentioned that the burden of proof was on the
Government when the court stated “[t]he indictment . . .
against the defendant is not evidence of guilt. The defendant
is presumed innocent by the law, and the presumption of
innocence is always there. . . . The defendant need not prove
anything. . . . The United States has the burden of proving the
defendant guilty beyond a reasonable doubt . . . .” J.A. at
778-79. The district court therefore did not err by reading
Alexander’s name in the indictment with the jury instructions.
II. The Effect of Beamus’s Testimony
Crayton makes two arguments based on the fact that during
Crayton’s second trial, the Government called Terri Beamus
as a rebuttal witness. Beamus testified as to some individuals
who may have aided Crayton with possible drug activity in
Louisville. Beamus had not been called to testify in the first
trial against Crayton and Alexander. The rebuttal testimony
of Beamus does not require a reversal of Crayton’s conviction
because no bill of particulars was required, there was no
unfair surprise in her testimony, and there was no violation of
Brady v. Maryland, 373 U.S. 83 (1963).
A. Bill of Particulars
First, the district court did not abuse its discretion in
denying Crayton’s Motion for a Bill of Particulars because it
is unlikely that Crayton would have gleaned anything from a
bill of particulars. This court reviews the district court’s
denial of Crayton’s motion for a bill of particulars for an
abuse of discretion. United States v. Perkins, 994 F.2d 1184,
1190 (6th Cir. 1993). To make a successful challenge to a
district court’s denial of a motion for a bill of particulars, “the
defendant must show not only that the court abused its
discretion, but that defendant actually suffered surprise or
other prejudice at trial.” United States v. Salisbury, 983 F.2d
1369, 1375 (6th Cir. 1993).

-- 6 of 12 --

No. 02-5738 United States v. Crayton 13
Between the first and second trials, Crayton moved for a
bill of particulars to find out more about the conspiracy
charge since Alexander had been acquitted. The district court
denied this motion shortly before trial. Crayton argues that
the district court erred by denying his motion for a bill of
particulars and that he suffered prejudice because, he alleges,
the Government unexpectedly changed the theory of its case
in rebuttal by placing into evidence, during rebuttal, names of
potential co-conspirators without any corroborative evidence.
Crayton claims that the second trial was virtually identical
to the first trial until Beamus’s testimony, but that her
testimony was an unfair surprise. The function of a bill of
particulars is to “to minimize surprise and assist [the]
defendant in obtaining the information needed to prepare a
defense and to preclude a second prosecution for the same
crimes.” Id. A bill of particulars “is not meant as a tool for
the defense to obtain detailed disclosure of all evidence held
by the government before trial.” Id.
The Government was not aware of Beamus’s testimony
until the day before her rebuttal, and it is thus unlikely that a
bill of particulars given before trial would have provided
Crayton with helpful information. Further, the Government
is not required to furnish the name of all other co-conspirators
in a bill of particulars. United States v. Rey, 923 F.2d 1217,
1222 (6th Cir. 1991). Therefore, even if the Government had
known of Beamus’s testimony at the beginning of trial, the
identities of the possible co-conspirators she named would not
need to be revealed in a bill of particulars. Crayton knew that
unnamed persons were referred to in the conspiracy count of
the indictment. Although Beamus’s testimony may have been
unexpected, it was not an unfair surprise that the grant of a
bill of particulars would have avoided, and the district court
did not abuse its discretion in this regard.
14 United States v. Crayton No. 02-5738
3It could also b e said that defendant waived his Brady claim, such
that even plain error review is not required. See United States v.
Scarborough, 43 F.3d 1021, 1025 (6th Cir. 19 94); see also United States
v. Reeves, No. 99-1248, 2000 W L 687649, at **2 (6th Cir. May 19, 2000)
(applying this concept to a Brady claim).
B. Alleged Brady Violation
The Government also did not illegally withhold exculpatory
evidence from Crayton. The Sixth Circuit reviews de novo a
district court determination that the prosecution did not
wrongfully withhold exculpatory evidence. United States v.
Tarwater, 308 F.3d 494, 515 (6th Cir. 2002). Where, as in
this case, the defense counsel did not make a motion for a
mistrial or raise the question of a possible Brady violation to
the district court, we review at most for plain error. See
United States v. Delgado, 350 F.3d 520, 527 n.10 (6th Cir.
2003).3 As we explain, the district court did not err, much
less commit plain error.
Crayton contends that the prosecution did not provide him
with a prior statement by Beamus, in which she corroborated
Crayton’s story, until shortly before she testified. During her
testimony, Beamus apparently changed her story and no
longer corroborated Crayton’s version of events. Thus, since
the Government did not give the defense Beamus’s prior
inconsistent statement until shortly before her testimony,
Crayton’s due process rights are said to have been violated
under Brady v. Maryland, 373 U.S. 83 (1963).
Beamus’s prior statement was not explicitly exculpatory in
that it did not tend to negate directly the guilt of the
defendant. Instead, Beamus’s statement was nonexculpatory
evidence that could be used to impeach her testimony.
“Impeachment evidence, however, as well as exculpatory
evidence, falls within the Brady rule.” United States v.
Bagley, 473 U.S. 667, 676 (1985).

-- 7 of 12 --

No. 02-5738 United States v. Crayton 15
However, Crayton suffered no prejudice because the
Government did produce the impeachment material in a
manner consistent with the requirements of Brady. Where a
defendant claims a violation of Brady because of the
Government’s failure to produce impeachment evidence, “so
long as the defendant is given impeachment material, even
exculpatory impeachment material, in time for use at trial, we
fail to see how the Constitution is violated.” United States v.
Presser, 844 F.2d 1275, 1283 (6th Cir. 1988).
The record indicates that Beamus’s one-page prior
inconsistent statement was turned over to the defense soon
after the Government decided to call Beamus as a witness and
before she testified. Any disadvantage that a defendant might
suffer because of the tardiness of impeachment material can
be cured by asking for a recess. Id. at 1283-84. Crayton’s
counsel only asked for a moment to look over Beamus’s prior
statement, and the district court granted this request. Further,
Crayton’s counsel questioned Beamus extensively about the
prior inconsistent statement, during cross examination. Thus,
there appears to have been no Brady violation. Moreover,
even if there had been a Brady violation, “the proper inquiry
is whether the Brady violation undermines confidence in the
verdict, because there is a reasonable probability that there
would have been a different result had the evidence been
disclosed.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). It
is difficult to imagine that the jury would have reached a
different result if the defense had Beamus’s prior statement
before trial. There was therefore clearly no violation of
Crayton’s constitutional rights under Brady.
III. Alleged Sentencing Errors
A. Apprendi
The district court did not violate Apprendi v. New Jersey,
530 U.S. 466 (2000), by sentencing Crayton without a jury
finding as to the exact quantity of cocaine he possessed.
Apprendi held that any fact, other than a prior conviction,
16 United States v. Crayton No. 02-5738
4That the defendant make s this argument is rather ironic considering
that it was the G overnment that raised the possible Appren di issue
immediately after the jury instructions were read to the jury. However,
Crayton’s counsel effectively objected to any change to the instructions
to take Appren di into account. (More precisely, Crayton’s counsel
objected to changing a proposed verdict form to comply with Apprendi,
and at the same time stated that “the verdict form is consistent with the
instruction.”) Thus, since Crayton intentionally relinquished or
abandoned his known right, the issue could also be deemed waived . See
United States v. Olano, 507 U.S. 725, 733 (1993); United States v.
Shep pard, 149 F.3d 458 , 461 (6th C ir. 199 8).
“that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
Crayton was sentenced to life imprisonment for each count,
which is within the statutory maximum for possession of over
five kilograms of cocaine. See 21 U.S.C. § 841 (b)(1)(A).
Crayton argues that the district court erred by sentencing him
to the statutory maximum for possessing over five kilograms
of cocaine without a specific jury finding as to the quantity he
possessed.4
The district court complied with the requirements of
Apprendi because the district court instructed the jury that, for
Crayton to be convicted, the Government needed to prove
beyond a reasonable doubt that Crayton “conspired or agreed
to commit the crime of possession with the intent to distribute
over five kilograms of cocaine.” J.A. at 780 (emphasis
added). The district court likewise indicated the same
quantity instruction along with counts two and three.
Crayton’s sentencing, therefore, does not violate Apprendi
because the jury found Crayton guilty of conspiracy, attempt,
and possession of “over five kilograms.” Thus, the jury
sufficiently determined the quantity of cocaine that Crayton
possessed and it was that quantity that the district court used
to sentence Crayton to the statutory maximum for that amount
of cocaine.

-- 8 of 12 --

No. 02-5738 United States v. Crayton 17
5Section 3D1.1 states:
a) W hen a defendant has been convicted of more than one count,
the court shall:
(1) Group the counts resulting in conviction into distinct
Groups of Closely Related Counts (“Groups”) by applying
the rules specified in § 3D1.2.
(2) Determine the offense level applicable to each Group by
applying the rules specified in § 3D1.3.
(3) Determine the combined offense level applicab le to all
Groups taken to gether by applying the rules specified in
§ 3D1.4.
(b) Exclude from the application of §§ 3D1.2-3D1.5 any count
for which the statute (1) specifies a term of imprisonment to be
imposed; and (2) req uires that such term of imprisonment be
imposed to run consecutively to any other term of impriso nment.
Sentences for such counts are governed by the provisions of
§ 5G1 .2(a).
6No te that the title of § 3D1.1 is the “Procedure for Determ ining
Offen se Level on M ultiple Counts” (emphasis added).
B. Sentencing Under United States Sentencing Guideline
§ 3D1.1
Crayton also contends that the district court erred by
sentencing him to imprisonment for three concurrent life
terms because the district court failed to consider United
States Sentencing Guideline (“U.S.S.G.”) § 3D1.1.5
According to Crayton’s argument, § 3D1.1 requires the
district court to group the three counts and only sentence him
to one life term instead of three.
The defendant misreads U.S.S.G. § 3D1.1—which actually
directs the court to determine the combined offense level.6
The Presentence Report clearly indicated a proper application
of §3D1.1. The Presentence Report grouped all three counts
18 United States v. Crayton No. 02-5738
7Crayton in a pro se supplemental brief also argues that his two prior
California state drug conviction should not have been used to enhan ce his
sentence under 21 U.S.C. § 851. H owever, during oral argument,
Crayton’s counsel properly conceded that the defendant misapplied case
law in this regard.
together and used § 2D1.1(c)(4) to determine the base offense
level. J.A. at 830.
It is § 5G1.2 that actually governs sentencing on multiple
counts. Section 5G1.2(b) provides generally that “the total
punishment is to be imposed on each count and the sentences
on all counts are to be imposed to run concurrently to the
extent allowed by the statutory maximum sentence of
imprisonment for each count of conviction.” U.S.S.G.
§ 5G1.2, cmt. n.1. This is precisely what the district court
did, and the district court thus did not err in calculating
Crayton’s sentence.
C. Sentencing Under 21 U.S.C. § 851
Crayton’s sentencing using 21 U.S.C. § 851 was moreover
free of constitutional defect. Crayton claims that § 851,
which deals with enhanced penalties for prior convictions,
was used punitively in his case and represents an improper
delegation to the executive of legislative power to set criminal
penalties. Crayton argues that § 851 violates separation of
powers because the decision to request an enhanced sentence
lies with the United States Attorney, while the district court
has no leeway.7 As the Eleventh Circuit has held, § 851 is
not an improper delegation of legislative authority. See
United States v. Cespedes, 151 F.3d 1329, 1331-35 (11th Cir.
1998) (“[R]ather than delegating legislative power, § 851
affords prosecutors a power no greater than that traditionally
exercised by the executive branch in the charging decision.”).
Crayton suggests the lack of case law on the issue since

-- 9 of 12 --

No. 02-5738 United States v. Crayton 19
8W e fail to see how the Supreme Court’s decision in Apprendi, relied
upon by Crayton in this context, would affect the constitutionality of
§ 851 . Apprendi specifically states that a jury need not decide prior
convictions for a defendant to receive an enhanced sentence . Apprendi,
530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reaso nable
doubt.” (emp hasis ad ded )). Therefore, the fact that there may be a lack
of case law on the possible sep aratio n of powers issue in § 851 after
Appren di was decide d is not troublesom e.
9The five year collateral attack limitation period contained within 21
U.S.C. § 851 does not violate due pro cess. See United States v. Reed, 141
F.3d 644, 652-53 (6th Cir. 1998); United States v. Gonzales, 79 F.3d 413,
427 (5th Cir. 1996); United States v. Arango-Montoya, 61 F.3d 1331,
1338 (7th Cir. 1995); United States v. Williams, 954 F.2d 668 , 673 (11th
Cir. 1992).
Apprendi may indicate that the courts are currently viewing
the issue differently.8
Section 851 provides that increases in sentences based upon
prior felony drug convictions may not be imposed unless the
United States Attorney has filed an information stating the
previous convictions to be relied upon. 21 U.S.C. § 851(a).
A defendant may challenge the use of any of the prior
convictions that occurred within the previous five years.9 21
U.S.C. § 851(b)-(c) & (e). At sentencing, the court must then
impose the enhanced sentence if the defendant does not file a
response to the information “or if the court determines, after
hearing, that the person is subject to increased punishment by
reason of prior convictions.” 21 U.S.C. at § 851(d)(1).
Crayton complains that this mandatory obligation of the
district court to impose the enhanced sentence that the
prosecutor decides to put in the information places the
prosecutor in the position to set criminal penalties—a
function of the legislature. Thus, Crayton argues that § 851
improperly delegates legislative power to the executive.
20 United States v. Crayton No. 02-5738
The Supreme Court, in rejecting an argument that
prosecutorial discretion under § 851 led to unwarranted
disparity in sentencing, has analogized prosecutorial
discretion under § 851 to the power of the executive to charge
defendants. In United States v. LaBonte, 520 U.S. 751
(1997), the Supreme Court stated:
Insofar as prosecutors, as a practical matter, may be able
to determine whether a particular defendant will be
subject to the enhanced statutory maximum, any such
discretion would be similar to the discretion a prosecutor
exercises when he decides what, if any, charges to bring
against a criminal suspect. Such discretion is an integral
feature of the criminal justice system, and is appropriate,
so long as it is not based upon improper factors.
LaBonte, 520 U.S. at 762 (citations omitted).
The Fourth Circuit recently considered the issue of § 851 as
an improper delegation of legislative authority. See United
States v. Moody, 30 Fed. Appx. 58, 60-61, No. 01-4285, 2002
WL 235595 (4th Cir. Feb. 19, 2002) (per curiam). Relying on
the language of LaBonte, quoted above, the Fourth Circuit
held that there is not an improper delegation of legislative
power to the executive because the prosecutor is simply
acting within his prosecutorial discretion.
The rationale of LaBonte leads directly to the conclusion
that § 851 does not violate the principle of separation of
powers. The discretion a prosecutor exercises in determining
whether an enhanced statutory maximum applies under § 851
is similar to the initial discretion the prosecutor has in
deciding which charges to bring against a defendant,
discretion that is obviously constitutional. Therefore,
Crayton’s claim in this regard must fail.

-- 10 of 12 --

No. 02-5738 United States v. Crayton 21
IV. Other Issues Raised by Crayton
We also find no merit in the remaining issues raised by
Crayton.
A. Prosecutorial Misconduct
The statements made by the prosecutor during his direct
examination of Beamus did not amount to prosecutorial
misconduct. Specifically, Beamus testified that she picked up
several people including Crayton at the airport and took them
to her house because her cousin wanted to talk with Crayton.
Crayton contends that the prosecutor then improperly asked
Beamus if her cousin had “been involved with the distribution
of cocaine?”, to which Beamus replied, “Yes, sir, I think so.”
J.A. at 703. At this point, the defense objected, and Beamus’s
answer was stricken.
In order for a prosecutorial misconduct claim to succeed,
statements by the prosecutor must first be deemed to have
been improper. Tarwater, 308 F.3d at 511. If the statements
were improper, the court then “look[s] to see if they were
flagrant and warrant reversal.” Id. To determine flagrancy,
the court considers
1) whether the statements tended to mislead the jury or
prejudice the defendant; 2) whether the statements were
isolated or among a series of improper statements;
3) whether the statements were deliberately or
accidentally before the jury; and 4) the total strength of
the evidence against the accused.
Id. The government’s theory of the case was that Crayton
came to Louisville to distribute cocaine and not just to visit
Louisville for the Kentucky Derby festivities. Thus, the
question the prosecutor asked was relevant to the theory of
the case and not flagrantly improper.
22 United States v. Crayton No. 02-5738
“To warrant a new trial, however, prosecutorial misconduct
must be so pronounced and persistent that it permeates the
entire atmosphere of the trial.” United States v. Krebs, 788
F.2d 1166, 1177 (6th Cir. 1986) (internal quotes omitted).
Crayton’s counsel properly objected to the answer, and his
objection was sustained. The statement was removed from
the record. This one question, made at the end of the trial and
removed from the record, hardly permeated the entire trial. It
is the only incident Crayton points to of the prosecution’s
intentionally misleading the jury. Since the defendant has not
shown that the prosecution’s question was improper, much
less that it rose to the level of flagrant misconduct,
prosecutorial misconduct does not warrant reversal in this
case.
B. Sufficiency of the Evidence
Finally, there was sufficient evidence for a reasonable jury
to convict Crayton of conspiracy. In his supplemental pro se
brief, Crayton argues that there was insufficient evidence to
convict him of conspiracy with the intent to distribute.
“[W]hen the sufficiency of the evidence is challenged on
appeal, the standard of review is ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” United States v.
Swidan, 888 F.2d 1076, 1080 (6th Cir. 1989) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original)).
Crayton argues that the government failed to prove that he
conspired with anyone to possess with intent to distribute
cocaine. We have summarized what evidence is needed to
establish a conspiracy under 21 U.S.C. § 846—the same
section Crayton was charged under—by stating:
To establish a drug conspiracy under 21 U.S.C. § 846,
the government must prove “‘that a conspiracy existed,
that the accused knew of the conspiracy, and that he

-- 11 of 12 --

No. 02-5738 United States v. Crayton 23
knowingly and voluntarily joined it.’” United States v.
Barrett, 933 F.2d 355, 359 (6th Cir. 1991) (quoting
United States v. Christian, 786 F.2d 203, 211 (6th Cir.
1986)). The essence of conspiracy, of course, is
agreement, but proof of a formal agreement is not
necessary; “a tacit or material understanding among the
parties” will suffice. United States v. Pearce, 912 F.2d
159, 161 (6th Cir. 1990). . . . “‘A conspiracy may be
inferred from circumstantial evidence that can reasonably
be interpreted as participation in the common plan.’”
United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.
1991) (quoting United States v. Bavers, 787 F.2d 1022,
1026 (6th Cir. 1985)) . . . . The government need not
show that a defendant participated in all aspects of the
conspiracy; it need only prove that the defendant was a
party to the general conspiratorial agreement. Further,
the connection between the defendant and the conspiracy
need only be slight. Id.
Untied States v. Ledezma, 26 F.3d 636, 640 (6th Cir. 1994).
The essential elements of conspiracy that violate 21 U.S.C.
§ 846 are “an agreement between two or more individuals,
with the intent to commit an offense in violation of the
Controlled Substance Act.” United States. v. Sullivan, 903
F.2d 1093, 1098 (7th Cir. 1990). Circumstantial evidence
may be the “sole support” of a conviction under § 846. Id.
The jury heard testimony from various police officers
detailing (1) a tip from the Los Angeles Police Detective,
(2) a description of the box addressed to Alex Winters, which
had several earmarks of a package containing narcotics,
including a phony return address and being sent overnight
mail from a source city, (3) the K-9 unit’s indication that the
box contained narcotics, (4) the officers’ removal of the
cocaine and resealing the package, (5) Crayton’s pretending
to be “Alex Winters” to pick up the box at a vacant address at
the exact time of delivery, (6) Crayton’s driving away and
then stopping the car for five minutes on the side of the
highway, in what the police described as a
24 United States v. Crayton No. 02-5738
countersurveillance technique to see if the car was being
followed, (7) the box being thrown out the window when it
was opened, and (8) an ensuing chase. These facts alone
could lead a reasonable jury to conclude that Crayton
conspired with the person who sent the package. In addition,
Beamus’s testimony may have indicated that her cousins were
also involved in cocaine distribution. Thus, the jury could
have concluded that the cousins were also co-conspirators. In
sum, a rational trier of fact could easily conclude that Crayton
conspired with the intent to distribute cocaine.
CONCLUSION
Finding no merit to Crayton’s claims, we AFFIRM the
judgment of the district court.

-- 12 of 12 --