Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 CR 565--Suzanne B. Conlon, Judge.
Before LAY, *fn* CUMMINGS and DIANE P. WOOD, Circuit Judges.
DECIDED FEBRUARY 12, 1996
Shirley Thompson was convicted of conspiracy to possess with intent to distribute cocaine and of knowingly distributing approximately five kilograms of cocaine in violation of 21 U.S.C. secs. 846 and 841(a)(1). She was sentenced to seventy months of incarceration, followed by five years of supervised release. She appeals asserting that her conviction is not supported by the sufficiency of evidence and further contends the district court erred in admitting certain photographs into evidence under Fed. R. Evid. 403. The government cross-appeals the district court's two-level reduction as to Thompson's sentence under sec. 3E1.1(a) for acceptance of responsibility. We affirm.
In 1994, the FBI investigated suspected drug trafficking from a printing business in Chicago known as Techniprint owned and operated by Candelario Baiza. Thompson worked for Baiza as a secretary. FBI undercover agents taped a series of conversations involving Baiza, Thompson, and a cooperating witness, Maldonado, revealing (1) an agreement between Maldonado and Baiza for the sale, on credit, and subsequent distribution, of a large quantity of cocaine to Maldonado on July 29, 1994, (2) the actual exchange of five kilograms of cocaine on that date and, (3) pricing information for the subsequent resale of the cocaine. Thompson was involved in six of the eight taped conversations. After preliminary negotiations between Maldonado and Baiza, Maldonado and an FBI agent arrived at the building in which Techniprint was located to take delivery of the cocaine. Thompson came to the door, unlocked the chain and padlock, let them in, and immediately re-locked the door behind them. Baiza was not present. After a short greeting, and without being informed of the reason for Maldonado's visit, Thompson briefly left, returning with a shopping bag. It was stipulated at trial the bag contained five kilograms of cocaine--a red package containing one kilogram, and two green packages each containing two kilograms.
Thompson handed the undercover agent the bag, after Maldonado said he did not want to carry it. Maldonado asked Thompson if Baiza had given her a price. She responded no, stating "he just told me to, uh, I think it's four or five in there. I forgot." Gov't ex. 9A at 2. Maldonado said he would call back later, after Thompson had spoken to Baiza. She then unlocked the padlock on the front door, and Maldonado and the agent left with the cocaine. Later that morning, Maldonado called Thompson to confirm the price and the following exchange occurred:
MALDONADO: Did you check it out for me?
THOMPSON: Yeah. Ah . . . .
MALDONADO: Oh, how old is she?
THOMPSON: Uh . . . She's twenty. Gov't ex. 10A at 1.
A jury convicted Thompson of conspiracy to possess cocaine with intent to distribute, and of knowingly distributing cocaine. A psychologist who evaluated Thompson prior to sentencing determined Thompson suffered from a diminished capacity to understand complex situations. The district court held Thompson to be entitled to a four-point decrease in her offense level based on her minimal role in the cocaine distribution. The court also gave a two-level reduction for acceptance of responsibility under U.S.S.G. sec. 3E1.1, based on the psychological evaluation and the fact that Thompson gave information to the government as she knew and understood it. Thompson's offense level after adjustments resulted in a sentencing range below the statutory ...