United States Court of Appeals
For the First Circuit
No. 05-1872
UNITED STATES OF AMERICA,
Appellee,
v.
DWAYNE J. ANDERSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella and Lynch, Circuit Judges,
and Young,* District Judge.
Peter J. Cyr, with whom Law Offices of Anthony J. Sineni, III,
LLC, was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
June 29, 2006
*
Of the District of Massachusetts, sitting by designation.
TORRUELLA, Circuit Judge. On October 23, 2003, a one-
count indictment was filed in the United States District Court for
the District of Maine charging Dwayne J. Anderson with knowingly
and intentionally distributing five or more grams of cocaine base
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). After a
two-day jury trial in April 2004, Anderson was convicted and
sentenced. In this appeal, Anderson contests both his conviction
and sentence. After careful consideration, we affirm.
I. Background
A. The offense
On July 31, 2003, Eric Besore ("Besore") contacted Steven
Thibodeau ("Thibodeau"), a policeman of eight years' experience,
who, at the time, was working for the High-Intensity Drug-
Trafficking Task Force (HIDA) of the Drug Enforcement
Administration (DEA). Prior to this contact, Besore had agreed to
assist Thibodeau with investigating drug trafficking by providing
Thibodeau with information and by making controlled purchases of
drugs under Thibodeau's supervision. In exchange for this
assistance, Thibodeau assisted Besore with having a criminal
speeding charge dismissed by the state court. On the morning of
July 31, Besore called Thibodeau to say that he might be able to
purchase drugs that day from an individual nicknamed "Hoot."
Following a brief phone conversation, Besore agreed to
meet with Thibodeau at the DEA office in Portland, Maine to set up
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a controlled purchase. Once Besore arrived, Thibodeau and other
agents proceeded to instruct Besore on how they wanted the
controlled purchase to take place. They gave Besore $1,000 to
purchase the drugs and outfitted him with an electronic
transmitting device that looked and sounded like a pager. They
told Besore they would be monitoring his conversations. Finally,
Thibodeau conducted a pat-down search of Besore to ensure that
Besore did not have any drugs or money of his own on his person.
Besore's vehicle was also searched.
Once these preliminary steps were completed, Besore set
out in his car to Westbrook, Maine to meet Hoot. He was
accompanied by an entire surveillance team sent to observe the
purchase and ensure his safety. Two members of this team were
Thibodeau and Barry Kelly ("Kelly"). Kelly was charged with
listening to and recording the transmissions coming from Besore's
electronic transmitting device. Thibodeau, driving his own car,
followed Besore.
Besore eventually stopped at a parking lot at the corner
of King and Brown Streets in Westbrook. To hear the transmissions
coming from Besore's electronic transmitting device, Kelly had to
be within 200 feet of Besore's car. He therefore parked his own
car a block away. Thibodeau, trying to avoid arousing suspicion,
moved his car often but kept in contact with Besore by cell phone.
-3-
Shortly after arriving at the parking lot in Westbrook,
Thibodeau and Kelly noticed that a uniformed Westbrook police
officer driving an unmarked cruiser had stopped a car nearby for
speeding. Fearing the prospective drug seller might be frightened
away by the flashing blue lights, Thibodeau approached the police
officer while other surveillance team members kept watch on Besore.
At this point, Kelly learned, from monitoring the transmissions,
that Hoot planned to meet Besore up the street. Accordingly,
Besore moved his car up the street, and Kelly followed.
When Thibodeau finished talking with the police officer,
he noticed that Besore's car had moved. However, he heard by radio
that Besore was headed to pick up his seller. Moments later,
Thibodeau found Besore at an intersection. A green Subaru occupied
by a lone female was parked behind Besore; Kelly was parked behind
the Subaru. When Thibodeau slowly passed Besore's car, he observed
Besore in the driver's seat and a black male, whom he later
identified as Anderson, in the passenger seat. Thibodeau could not
see what took place in the car but when he reversed direction,
Besore and Anderson were still in Besore's car.
As Thibodeau was driving by Besore and Anderson, Kelly
remained parked behind the Subaru and continued to listen to and
record the transmissions received from Besore's electronic
transmitting device. As he did this, Kelly also observed Besore's
vehicle. He soon saw Anderson exit Besore's car and enter the
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Subaru parked directly behind Besore's vehicle. Besore then drove
away, and Kelly ended his surveillance. Kelly, however, retained
possession of the tape used to record the transmissions from
Besore's electronic transmitting device. At some point subsequent,
Kelly also made a copy of the tape.
After the controlled purchase was completed, Thibodeau
headed toward where Besore had agreed to meet him. Besore made a
U-turn and followed Thibodeau, who kept Besore's car in sight until
the two met a few minutes later. At the meeting place, Besore
exited his vehicle and gave Thibodeau a plastic bag filled with a
certain substance. Thibodeau then conducted the same search of
Besore that he had carried out prior to the controlled purchase.
No contraband or cash was found on Besore.
Thibodeau then conducted a field test on the substance in
the plastic bag. The field test came back positive for cocaine
base and appeared to be in crack form.1 Thibodeau put the
substance in an evidence envelope marked 159263, which he took to
the DEA office and locked in the safe. Following standard
procedure, he then mailed the drugs in a bag with his initials to
the DEA laboratory in New York to validate the identity of the
substance, as well as its weight and purity. Brian O'Rourke
1
In several previous cases, we have noted that crack cocaine is
merely one form of cocaine base. See, e.g., United States v.
Robinson, 144 F.3d 104, 107-09 (1st Cir. 1998); United States v.
López-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992) (opinion on panel
rehearing).
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("O'Rourke"), a DEA forensic chemist, tested the substance given by
Besore to Thibodeau. After testing, O'Rourke confirmed that the
substance was cocaine base and determined its net weight to be 6.1
grams.
B. The trial
On October 23, 2003, the grand jury returned its
indictment against Anderson. On April 7, 2004, a trial commenced
in the district court. For the purposes of this appeal, there were
a number of key flashpoints during the trial. We relate them here
in turn.
1. The transcript
The day before trial, on April 6, 2004, the government
filed a motion in limine requesting that the district court rule on
whether the jury would be allowed to view a transcript of the
recording containing the transmissions from the electronic
transmitting device worn by Besore. The recording was a copy made
from the original. The government argued that it would be
permissible for the transcript to be used as an aid to the jury
while the actual tape was being played. The defense argued that
the transcription was inaccurate, that it was not notarized, that
the date was incorrect, and that there was no indication on the
transcript as to who prepared it.
Having listened to the tape, the court asked the defense
to identify any inaccuracies in the transcript. The defense merely
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responded that words were missing, the conversation did not flow,
and parts of the tape were unintelligible. Noting that the defense
had not identified specific inaccuracies in the transcript, the
court ruled as follows:
We all know that it's the tape itself that --
that the jury should be directing themselves
to in terms of what should guide their
deliberations. The transcript is merely an
aid.
To the extent that the defense has an
alternative transcript, I will provide that to
the jury at the same time and inform them that
they can use either one, if they wish, for an
aid, whichever helps them the best.
Based on my review of the tape compared to the
transcript, I'm going to permit the transcript
provided by the government to go to the jury.
I am going to give them the standard
instruction, however, with regard to the use
of the transcripts.
At trial, the defense argued that the transcript had not
been authenticated. The court said that it assumed that the
transcript would be authenticated by whomever prepared it.
However, the individual who actually transcribed the tape and made
the transcript was the prosecutor, who would not be able to take
the stand as he was representing the government at trial. The
government therefore took the position that the transcript could be
authenticated by having the agent who made the recording, Kelly,
compare the contents of the tape with the transcript to determine
that the transcript accurately reflected the contents of the tape.
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The defense also argued that since the conversations documented in
the transcript were hearsay, the testimony of Besore, who actually
took part in the conversations, was required to properly
authenticate the transcript. However, the defense conceded that it
would no longer have any hearsay objections to the transcript if
the defendant's voice could be identified on the tape. The
district court then informed the parties that it would wait to rule
on whether the transcript could be properly authenticated until
after Kelly took the stand.
On direct examination, Kelly testified that his primary
role was to record any and all conversations relating to the
electronic transmitter worn by Besore. He testified that he was
able to hear what was being transmitted from Besore's electronic
transmitting device at the same time that it was being recorded.
Kelly also said that he could identify the defendant's voice on the
tape. Finally, Kelly testified that he compared the tape to a
transcript that the prosecutor's office had given him and concluded
that the transcript accurately reflected the conversation.
The defense objected, disputing the foundation for
Kelly's ability to recognize the defendant's voice on the tape.
This objection, however, was overruled, and the transcript was
admitted into evidence.
The government then moved to play the tape and give the
jury the transcript as an aid in listening. The defense once again
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objected but was overruled, and the transcript was distributed.
The court told the jury:
You are going to be given a transcript of
certain tape recordings that are going to be
played for you. I want to caution you -- this
is important -- that the transcript is being
given to assist you in listening to the tape.
The tape, not the transcript, is the evidence
in this case, and any difference that you see
between the transcript and the tape must be
resolved in favor of what you hear on the
recording.
Let me repeat that so that you're clear. The
tape recording is the evidence. So if you
hear -- let me just make something up --
brown, the color brown on the tape, and the
transcript says green, the tape -- it's what
you hear on the tape that governs and you are
to disregard . . . what you see on the
transcript if you see it's different.
Obviously, if it's the same, it makes no
difference. The transcript is merely to
assist you, but it's the tape recording that
governs. I guess I've said that three
different ways, three different times, so I
think it's probably pretty clear.
There was no objection to the instruction. The tape was then
played for the jury.2 However, it was garbled and not at all
2
The tape that was played for the jury was a copy, not the
original. The government had offered to play the original.
However, the district court had previously ruled that if Besore did
not appear to give testimony at the trial, the government would
have to edit the tape and make another transcript to eliminate any
hearsay. (The court was concerned in particular about any remarks
Besore made while he was alone.) After Besore did fail to appear,
the government realized that it would have to edit the tape.
However, it discovered that the original could not be redacted.
The government therefore decided to play a redacted version of the
copy.
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clear. After the tape ended, at the court's direction, the
transcripts were collected. The court did not allow the
transcripts to go into the jury room.
At the close of all the evidence, the court provided the
following limiting instruction to the jury:
During the course of this trial, you listened
to a tape recording and were provided a
transcript to assist you. Remember, the tape
recording, and not the transcript, is the
evidence in this case, and any difference
between the transcript and the tape must be
resolved in favor of what you heard on the
recording.
The jury, after deliberating for nearly two hours, sent
a note to the court requesting that it be provided with the
original tape recording. The jury further requested that the court
provide it with a copy of the transcript to help it in listening to
the tape. When the court proposed to explain that the original was
not available but to exercise its discretion to provide the
transcript, the defense objected that the jury would rely too
heavily on the transcript. Specifically, the defense argued:
Our basis, Judge, is that at this point in
time, where the jury is obviously having some
difficulty in listening to the tape because of
the quality of the tape, the transcript is
really essentially going to be substituted for
the tape itself. Just reading the transcript,
we believe, at this time is going to leave an
imprint upon the jurors' minds as to exactly
what is said, and they are certainly the best
arbiter as to what's said on that tape, Judge.
So we would object to the transcript going in
because at this point there's no difference
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between the transcript and the tape as being
evidence.
The court directed counsel to United States v. Ademaj, 170 F.3d 58
(1st Cir. 1999), in which we held that a jury could be given access
to an authenticated transcript subject to a limiting instruction.
On the basis of this case, the court concluded that while it would
not merely hand over the transcript to the jury, it was within its
discretion to "permit the jury to listen -- to have the transcript
while they listen to the tape recording that's been admitted
already into evidence." The court would also provide a limiting
instruction. When the defense challenged the authenticity of the
transcript, the court replied, "I've ruled on that . . . That's
in." After the parties were given time to read Ademaj, the defense
agreed that the jury be returned to the courtroom to listen to the
tape again with the transcript and another limiting instruction.
When the jury returned, the court announced that the
original recording was not available but that the parties had
agreed that the copy would be played while the jury followed with
the transcript. The court reminded the jury that
the transcript is only being provided to
assist you. The tape, and not the transcript,
is the evidence in the case, and any
difference that you hear between the
transcript and the tape is to be resolved in
favor of what you hear on the recording,
period.
After the tape was played again, the transcripts were collected,
and the jury returned to its deliberations.
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2. Admission of Besore's prior conviction
During the cross-examination of Thibodeau, the defense,
on two occasions, asked him about his relationship with Besore. On
the first occasion, Thibodeau testified that he had worked with
Besore on several occasions, that Besore was reliable, and that
Besore was a trustworthy individual. When Thibodeau was asked if
he was aware if Besore had a criminal record, he answered in the
affirmative.3 The following exchange then took place:
Defense: Okay. Were you aware that he was
convicted of --
Prosecutor: Objection. This is Rule 609
information, and it's for cross-examination of
the witness [i.e., Besore].
***
Prosecutor: Your Honor, Rule 609 is one of
the rules which you use to impeach a witness,
but you have to impeach the witness. [i.e.,
Besore; emphasis added]. You can't impeach
him through a third witness before -- there's
no cross-examination of this witness, of Mr.
Besore.
***
Defense: It is allowed, Your Honor. Pursuant
to Rule 404, a witness [i.e., Thibodeau] may
testify with respect -- to give an opinion as
to the truthfulness or untruthfulness
character of an individual [i.e., Besore], and
then he can give that opinion. And I'm also -
- and I'm allowed to use extrinsic evidence in
the form of convictions to -- to cross examine
3
Besore had a prior felony conviction for tampering with a
witness.
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that witness [Thibodeau] with respect to that
opinion.
Prosecutor: He [Thibodeau] hasn't given an
opinion about the guy's [Besore's]
truthfulness.
Defense: He just did.
Prosecutor: He did not. He said he was
trustworthy.
The court: To him, that's all he [Thibodeau]
said [i.e., that Besore was trustworthy]. I'm
not going to allow the question under rule 403
and under rule 609.
Second, later in the cross-examination of Thibodeau,
Thibodeau testified that he could not recall what Besore said when
they met after the controlled purchase but that Besore turned over
what he had bought. The defense then asked, "[a]nd you believed
. . . that that was true . . . do you believe Besore and trust
him?" Thibodeau replied, "Absolutely." Although acknowledging the
court's earlier ruling, the defense once again argued that Besore's
prior conviction should be admitted because "we should be able to
show that as it relates to this officer's [Thibodeau's] credibility
how credible this person is." The following exchange then ensued:
The court (clarifying): "You want to impeach
this witness's [Thibodeau's] credibility
because he believes somebody you say he
shouldn't be believing?"
Defense: This officer is saying that Mr.
Besore's believable. There is extrinsic
evidence that we have with respect to
convictions that would demonstrate that Mr.
Besore is not believable.
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The court: All right. Go ahead.
Prosecutor: Judge, it's improper impeachment
of this witness [Thibodeau], plus the agent
has already testified about the basis for --
the only thing that's changed since the last
[ruling] is this agent's described what he
observed during the transaction and said, when
Besore got out of the car and handed him the
drugs, he believed that he got these drugs
during the transaction. His [Thibodeau's]
testimony says, I don't remember what Besore
told me.
The court: I'm not going to allow it -- same
basis.
3. Chain of custody
Prior to the commencement of trial, the defense -- at the
same time the government had made its motion in limine regarding
the transcript -- orally moved in limine to exclude the drugs
Thibodeau recovered from Besore, on the basis that the government
would be unable to establish a clear chain of custody absent
Besore's testimony. The court declined to rule on the defense's
motion at that time, indicating that it was not yet certain that
Besore was not going to testify at trial.
At trial, on the redirect examination of Thibodeau, the
government sought to admit into evidence the drugs that were given
to Thibodeau by Besore. The defense objected, claiming that the
government had not established a clear chain of custody. The court
overruled this objection and allowed the drugs to be admitted into
evidence.
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4. Missing witness instruction
On April 7, 2004, at the start of the trial, the
government informed the defense and the court that, despite its
attempts to subpoena Besore to testify, Besore was not present.
Moreover, Besore never appeared during the remainder of the trial.
At the close of all the evidence, in a meeting in
chambers, the defense requested that the court give the following
"missing witness" instruction to the jury:
If it is peculiarly within the power of the
government to produce a witness who could give
material testimony, or if a witness, because
of his relationship to the government, would
normally be expected to support the
government's version of the events, the
failure to call that witness may justify an
inference that his testimony would in this
instance be unfavorable to the government.
You are not required to draw that inference,
but you may do so. No such inference is
justified if the witness is equally available
to both parties, if the witness would normally
not be expected to support the government's
version of the events, or if the testimony
would merely repeat other evidence.
The defense requested this instruction relying in part on
United States v. Pérez, 299 F.3d 1 (1st Cir. 2002). The government
filed a "Memorandum of Law Regarding Missing Witness Instruction"
in which it set forth its opposition to the charge being given.
The government's response included a copy of Besore's subpoena, his
grand jury testimony, and the affidavit of Nancy Evans, a paralegal
specialist for the government, describing communication with Besore
about his duty to appear, Besore's statement to the government that
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he feared his testimony would endanger his family, and information
about his general inability to keep interview appointments.
Using the framework for "missing witness" instructions
set out in Pérez and other cases,4 the court ruled as follows:
The witness here appears to be a, what I call,
independent contractor, confidential
informant. He worked when he wanted to work
for the government, and at other times, God
knows what he was doing, but he certainly
wasn't a government agent, nor was he a
government employee, nor was he a quasi-full-
time government informant working undercover.
And that sets a different relationship to the
government than a police officer or DEA agent
who fails to appear.
Second, it's unclear to me that this fellow
was favorably disposed to testify totally on
behalf of the government . . . there are
probably some issues he'd testify favorably
and some issues he'd testify not favorably.
And, clearly, the relationship he has with the
government . . . doesn't, in my view, make him
fully favorably disposed, nor do I find he's
peculiarly available to the government as to
be within their control, exclusive or
otherwise. The defendant in this case had the
same ability to seek out and subpoena this
individual as anybody else; they did not . . .
there certainly was no requirement that the
government even put this individual on even if
he was available, making the defendant's
ability to subpoena him and put him on even
more important.
4
As we discuss in greater detail below, a defendant seeking a
"missing witness" instruction must demonstrate that the uncalled
witness is "favorably disposed" or "peculiarly available" to the
government. Pérez, 299 F.3d at 3. If the defendant satisfies that
threshold burden, the court must then "consider the explanation (if
any) for the witness's absence and whether the witness, if called,
would likely provide relevant, non-cumulative testimony." Id.
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I also note that . . . no subpoena was served
by anyone in this case other than the
government, and if he was such a key witness,
the subpoena certainly would have been served
by both sides. I'm going to deny the request
for the missing witness instruction.
C. Sentencing
At the conclusion of the two-day jury trial, Anderson was
convicted. On July 27, 2004, the United States Probation Office
completed Anderson's Presentence Report (PSR). The PSR identified
the drug quantity as 6.1 grams of crack cocaine, which produced a
base offense level of 26. However, the PSR also explained that
Anderson stood convicted of a drug offense and had previously been
convicted of drug offenses, as described in PSR ¶26 and ¶28: a 1994
Massachusetts conviction and a 2002 Massachusetts conviction. This
made him a Career Offender. His total offense level, therefore,
became 34.
Anderson was initially assessed six criminal history
points, which placed him at a criminal history category (CHC) III.
However, because he was classified as a Career Offender, his CHC
was automatically increased to VI.
According to the PSR, the statutory term of imprisonment
was at least five years and no more than 40, pursuant to 21 U.S.C.
§ 841(b)(1)(B). At a total offense level of 34 and CHC VI,
Anderson's Guideline range was 262 to 327 months in prison.
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Anderson raised a number of specific objections to the
PSR. First, he contested the initial assignment of a base offense
level of 26, noting that such an assignment was based on the fact
that he had been convicted for possessing crack cocaine. Anderson
pointed out that he was convicted for possessing not crack cocaine,
but cocaine base. Second, Anderson objected to the conclusion
reached by the PSR that he qualified as a Career Offender, on the
grounds that the PSR ¶26 and ¶28 convictions did not qualify.
Finally, he disputed being placed preliminarily in CHC III as a
result of the six criminal history points he was assessed.
A presentence conference took place on December 7, 2004.
At this conference, Anderson continued to press his objection to
the base offense level of 26, disputing any references to crack
cocaine in the PSR. He again noted that the substance found at
trial was cocaine base, not crack cocaine. Then, he argued that
since the substance found was cocaine base, and because "there is
nothing chemically different from [i.e., between] cocaine base and
cocaine [powder]," he should be sentenced on the basis of 6.1 grams
of cocaine [powder], which would produce a base offense level of
12.5 He also reiterated his objection to the PSR's conclusion that
he be classified as a Career Offender.
5
Anderson's statement that "there is nothing chemically different
from [i.e., between] cocaine base and cocaine [powder]" is
factually incorrect. The two substances are chemically different.
See United States v. Isler, 429 F.3d 19, 29 (1st Cir. 2005);
Robinson, 144 F.3d at 108.
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The district court ordered both parties to submit
sentencing memoranda indicating objections and the grounds for the
objections with supporting case law. These sentencing memoranda,
once submitted, focused primarily on two issues. First, the
parties discussed whether Anderson was indeed a Career Offender;
second, they discussed Anderson's argument relating to the
distinctions between crack cocaine, cocaine base, and cocaine
powder.
Regarding the second issue,6 Anderson argued that the
government had failed to make any showing that the substance
recovered by Thibodeau from Besore was crack cocaine. He also
reiterated his argument that there is no chemical distinction
between cocaine base and cocaine powder. Relying on United States
v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004), he then pointed out
that an ambiguity existed in the governing statute, 21 U.S.C.
§ 841. As a result, he argued that the district court, following
the example of the D.C. Circuit, should apply the rule of lenity7
and sentence him under the statute governing the applicable amount
of cocaine powder, 21 U.S.C. § 841(b)(1)(C). In other words, he
6
As we discuss below, the "Career Offender" issue was resolved in
Anderson's favor, and it is not in dispute in this appeal.
Therefore, we do not discuss it further.
7
We have held that "[t]he rule of lenity requires that
ambiguities in the scope of a criminal statute must be resolved in
favor of the criminal defendant." United States v. Luna-Díaz, 222
F.3d 1, 3 n.2 (1st Cir. 2000).
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argued that rather than face a five-year mandatory minimum under 21
U.S.C. § 841(b)(1)(B), he should face only the default maximum of
20 years under 21 U.S.C. § 841(b)(1)(C).
In response, the government first pointed out that the
district court was not bound by the D.C. Circuit's opinion in
Brisbane. In addition, the government contended that this Court's
opinion in United States v. López-Gil, 965 F.2d 1124 (1st Cir.
1992) (opinion on panel rehearing), was more on point and
controlling on the issue.
On April 27, 2005, the district court conducted a
sentencing hearing. At the outset, the government resolved the
issue of whether Anderson was a Career Offender, conceding that he
did not have the two predicate offenses required under U.S.S.G.
§ 4B1.1(a) and that he should have been placed in CHC III. With
respect to the appropriate classification of the drugs recovered
from Besore following the controlled purchase (crack cocaine,
cocaine base, or cocaine powder), the court held that the PSR
correctly concluded that the drugs were crack cocaine. Summing up
and noting that Anderson was "accountable for the distribution of
6.1 grams of cocaine base, crack," that his base offense level was
26, and that he was placed in CHC III, the court determined that
Anderson had a Guideline range of 78 to 97 months.
The court then sentenced Anderson to 78 months of
imprisonment, five years of supervised release, and a $100
-20-
assessment. A timely notice of appeal was filed, objecting to both
the conviction and the sentence.
II. Discussion
A. The transcript issue
We review the district court's decision to allow the use
of the transcript for abuse of discretion. United States v.
Panzardi-Lespier, 918 F.2d 313, 318 (1st Cir. 1990); United States
v. Campbell, 874 F.2d 838, 849 (1st Cir. 1989).
The appellant makes two separate arguments about the
transcript used by the jury at trial. His first argument is that
the individual who prepared the transcript did not take the stand
to authenticate it. In this case, the individual who actually
transcribed the tape and made the transcript was the prosecutor,
who was not able to take the stand as he was representing the
government at trial. The government therefore took the position
that the transcript could be authenticated by having the agent who
made the recording, Kelly, compare the contents of the tape with
the transcript to determine that the transcript accurately
reflected the contents of the tape. This was deemed sufficient by
the district court to authenticate the transcript. The appellant,
however, contends this decision was erroneous.
We, however, discern no problem with Kelly authenticating
the transcript. In United States v. Carbone, 798 F.2d 21 (1st Cir.
1986), we wrote that "when transcripts are offered for use, either
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as evidence or a jury aid, they should be authenticated in the same
manner as tape recordings that are offered in evidence, i.e., by
testimony as to how they were prepared, the sources used, and the
qualifications of the person who prepared them." Id. at 26. In
this case, the government could not provide this testimony because
the individual who could best offer such information was prohibited
from providing it. That, however, did not mean that the transcript
could not be authenticated. In other cases, we have approved the
use of transcripts that were authenticated by individuals other
than the transcribers. For example, in Ademaj, 170 F.3d at 65 n.8,
we approved the authentication of transcripts where the transcripts
were authenticated by an individual other than the transcriber. In
that case, a cooperating witness listened to the tapes of
conversations in Greek and orally translated them into English. A
DEA agent then reduced the cooperating witness's oral translations
to writing. At trial, a Greek-language interpreter testified that
she had reviewed and compared these tape-recorded conversations
with the transcripts prepared by the cooperating witness and the
DEA agent and found the transcripts to be accurate.
The instant case presents a similar situation. Kelly --
like the Greek-language interpreter in Ademaj -- compared the
transcript to the tape recording and testified that the transcript
fairly and accurately represented the conversation on the tape. In
fact, we think that Kelly was in an even better position than the
-22-
interpreter in Ademaj to authenticate the transcript, as he himself
had listened to the conversation between Anderson and Besore while
monitoring the controlled purchase.
We also wish to point out that if the appellant was so
concerned about the authenticity of the government's transcript, he
could have submitted his own. The district court specifically
invited Anderson to submit his own transcript. Anderson, however,
failed to do so. In a number of cases, we have rejected a party's
claim about the admissibility of a transcript when the district
court had invited the party to submit a transcript of its own, and
the party declined to take up this invitation. See, e.g., Ademaj,
170 F.3d at 65; United States v. Pion, 25 F.3d 18, 21, 26-27 (1st
Cir. 1994). This case is no different.
Anderson's second argument relating to the transcript is
that because of the poor quality of the tape, the transcript --
which was to serve merely as an aid in interpreting the real
evidence, the tape -- became the actual evidence that the jury
relied upon in handing down its conviction. We encountered a
nearly identical argument in United States v. DeLeón, 187 F.3d 60,
66 n.3 (1st Cir. 1999). However, as in that case, we reject the
appellant's claim.
First, we note that the district court reminded the jury
at least three separate times that the tape, not the transcript,
constituted the evidence in this case and that any discrepancies
-23-
between the two were to be resolved in favor of the tape. In
DeLeón, we found such a limiting instruction to be an important
factor in rejecting the appellant's argument. In this case, we
think that such an instruction -- especially given the fact that it
had been repeated several times by the district judge -- ensured
that the jury did not rely on the transcript to convict the
appellant.
In United States v. Robinson, 707 F.2d 872 (6th Cir.
1983), the Sixth Circuit provided relief to an appellant making an
argument similar to the one made here by Anderson. In that case,
the district court had likewise provided a limiting instruction,
telling the jury to only consider the tape, not the transcript, as
evidence. The Sixth Circuit, however, held the following:
This Court is keenly aware that there is a
distinct difference between evidence and an
aid used to assist the jury in understanding
the evidence. However, the distinction
becomes nebulous where, as here, the evidence
is unintelligible. The practical effect of
using an aid to comprehend unintelligible
matter is that the aid becomes the evidence.
. . . While [the district court provided] an
adequate [limiting] instruction, its
directives are only viable when the tape is
clear enough for a juror to detect that the
tape is at variance with the transcript. But
where, as here, the tapes are partially
inaudible, the juror is precluded from making
an intelligent comparison. Hence, the likely
result is that the transcript becomes the
evidence.
Id. at 878. We, however, believe that this case is different from
Robinson in one key respect. In Robinson, the prosecution
-24-
submitted recordings that were in many portions so greatly
inaudible as to render any attempt at transcription speculative.
Nevertheless, the prosecution provided the jury with what it
purported to be transcripts of the recorded conversations. In this
case, however, the government never attempted to interpret portions
of the tape that were unintelligible. Rather, the transcript
specifically noted those portions of the tape that were unclear.
Thus, the jury in this case was not able to turn to the transcripts
to comprehend the unintelligible portions of the conversation, as
the transcript likewise provided no assistance. Accordingly, we
find Robinson to be inapposite here.
Second, even if there was error in the use of the
transcript, we believe that it was harmless. See United States v.
Andiarena, 823 F.2d 673, 677 n.5 (1st Cir. 1987). The tape and the
accompanying transcript constituted only a small part of the
government's case. There was other, overwhelming circumstantial
evidence that Anderson had engaged in the drug transaction in
question. Thibodeau and Kelly, two members of the surveillance
team that observed the transaction, testified in detail about the
following: 1) the constant electronic monitoring of Besore's
conversations; 2) the constant visual surveillance of Besore's car
by team members; and 3) the thorough searches of both Besore and
his vehicle before and after the controlled purchase. Thus, even
-25-
without the tape and the transcript, there was strong
circumstantial evidence of guilt.
B. Admission of Besore's prior conviction
The appellant's next argument is that the district court
erred by not allowing him to introduce evidence of Besore's felony
conviction. A challenge to a limitation on the scope of cross-
examination is reviewed for abuse of discretion. See United States
v. Kaplan, 832 F.2d 676, 684 (1st Cir. 1987).
For a number of reasons, we reject Anderson's argument.
Before we discuss our reasoning, we wish to point out that the
parties, in their briefs, disagree about exactly whose credibility
would be attacked if the appellant were permitted to introduce
evidence of Besore's felony conviction -- Besore's or Thibodeau's.
Because the appellant's claim fails in either case, we address both
scenarios.
We begin with the scenario in which it is Besore's
credibility that is being attacked. Fed. R. Evid. 608 reads as
follows:
(a) Opinion and reputation evidence of
character. The credibility of a witness may
be attacked or supported by evidence in the
form of opinion or reputation, but subject to
these limitations: (1) the evidence may refer
only to character for truthfulness or
untruthfulness, and (2) evidence of truthful
character is admissible only after the
character of the witness for truthfulness has
been attacked by opinion or reputation
evidence or otherwise.
-26-
(b) Specific instances of conduct. Specific
instances of the conduct of a witness, for the
purpose of attacking or supporting the
witness' character for truthfulness, other
than conviction of a crime as provided in rule
609, may not be provided by extrinsic
evidence. They may, however, in the
discretion of the court, if probative of
truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1)
concerning the witness' character for
truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or
untruthfulness of another witness as to which
character the witness being cross-examined has
testified.
Fed. R. Evid. 608. As support for his position that the prior
conviction evidence should have been permitted, the appellant cites
to Fed. R. Evid. 608(b)(2), i.e., the provision that states that
extrinsic evidence, such as evidence of a prior conviction, may be
inquired into on cross-examination "concerning the character for
truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified." See
Fed. R. Evid. 608(b)(2). The appellant argues that because
Thibodeau testified about Besore's trustworthiness, the appellant
should have been allowed to present Thibodeau with evidence of
Besore's prior conviction, a conviction that is probative of
Besore's character for untruthfulness.
Anderson's argument, however, contains a fundamental
weakness -- namely, the fact that Besore cannot be considered a
witness. As the government correctly points out, Besore never
testified. Rule 608(b)(2) makes clear that evidence of a prior
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conviction may be inquired into on cross-examination "concerning
the character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has
testified" (emphasis added). Here, however, Besore was not a
witness, so proof of his prior conviction is not permitted.
The appellant counters that since Thibodeau was allowed
to discuss Besore and his positive interactions with Besore under
Rule 608(a), it is only fair that he (the appellant) be allowed to
rebut that testimony and provide proof of Besore's prior
conviction. This argument fails. Rule 608(a), like Rule 608(b),
states that "the credibility of a witness may be attacked or
supported . . . ." In discussing his view that Besore was
trustworthy, Thibodeau was not attacking or supporting the
credibility of a witness, because, as discussed above, Besore did
not testify.
Rule 608(b) forecloses the appellant from arguing that it
was really Thibodeau, the witness, whose credibility was being
attacked, and that he could get into evidence Besore's felony
conviction through the back door when the front door was barred.
Rule 608(b) refers to "specific instances of the conduct of a
witness" as appropriate for inquiry through cross-examination. As
discussed above, Besore was not a witness. Therefore, the district
court was correct in finding that specific instances of his conduct
were not admissible during Thibodeau's cross-examination.
-28-
C. Chain of custody
Anderson's third argument is that there is a gap in the
chain of custody for the drugs that the government sought to admit
into evidence. Anderson notes that although Thibodeau testified
that he received the drugs from Besore, Besore did not take the
stand to testify that he in fact received the drugs from Anderson.
Thus, it was possible, suggests Anderson, that Besore hid drugs on
his person or in his vehicle in an effort to frame Anderson. He
argues that without Besore's testimony, there was no way for the
district court to determine that Besore had not exchanged, tampered
with, or contaminated the evidence since the meeting with Anderson
in Besore's car. To Anderson, then, Besore represents a gap in the
government's chain of custody. In light of this gap, Anderson
contends that the district court erred in admitting the drugs.
We review the district court's chain of custody
determination for abuse of discretion. See United States v.
Cartagena-Carrasquillo, 70 F.3d 706, 715 (1st Cir. 1995). In
United States v. Abreu, 952 F.2d 1458 (1st Cir. 1992), we set forth
the standards to be applied by the district court in such cases:
In determining whether the evidence is
admissible, the trial court must conclude that
it was reasonably probable that the evidence
had not been altered since the occurrence of
the crime. The evidence in question is
properly admitted if it is readily
identifiable by a unique feature or other
identifying mark. On the other hand, if the
offered evidence is of the type that is not
readily identifiable or is susceptible to
-29-
alteration, a testimonial tracing of the chain
of custody is necessary. The purpose of
testimonial tracing is to render it improbable
that the original item either has been
exchanged with another or has been tampered
with or contaminated.
Id. at 1467 (internal quotation marks and citations omitted). We
also noted that "[e]ven though there may be gaps in the chain of
custody for a certain piece of evidence, such gaps factor into the
weight given to the evidence rather than its admissibility." Id.
In this case, because the drugs that the government
sought to admit were not readily identifiable in any way, a
testimonial tracing of the chain of custody was required. At
trial, the government endeavored to provide the necessary tracing.
Thibodeau testified that after the controlled purchase, he met
Besore at a pre-arranged spot, where Besore gave him the drugs he
had purchased from Anderson. Thibodeau then conducted a field test
that proved positive for cocaine. Thibodeau then put the drugs in
an evidence envelope, marked it with an identifying number that he
recited at trial, took the envelope to the DEA office, and locked
it in the safe. Thereafter, following standard procedure, he
mailed the drugs in a bag that contained his initials to the DEA
laboratory in New York. At that point, O'Rourke, the forensic
chemist who analyzed the drugs, forged the next custody link. He
identified the bag by his initials, by the date he received it, and
by the date he sealed it again. O'Rourke also established that
-30-
until the bag was returned to Maine for the trial, it remained in
the custody of the DEA laboratory in New York.
Anderson contests the strength of the first link in this
chain -- namely, he argues that there is no proof that the drugs
Besore gave to Thibodeau were the same ones Besore had purchased
minutes earlier from Anderson. However, we think that the district
court was correct in finding that the chain of custody provided by
the government was sufficient for admitting the drugs into
evidence. We have held that "the prosecution's chain-of-custody
evidence must be adequate -- not infallible." United States v.
Ladd, 885 F.2d 954, 957 (1st Cir. 1989). In this case, there was
sufficient evidence for the district court to find that the drugs
the government sought to admit were indeed the ones that Anderson
had given to Besore. Both Besore and his vehicle were searched
extensively prior to the controlled purchase. Moreover, after the
controlled purchase was completed and Besore left to meet Thibodeau
at the pre-arranged meeting place, Besore remained in Thibodeau's
sight during the drive. Thus, there was no way that Besore could
possibly have contaminated or exchanged the evidence. Thibodeau's
testimony was sufficient to establish that the drugs were what the
government claimed them to be. See Fed. R. Evid. 901(a) (noting
that for authentication purposes, sufficient evidence is required
"to support a finding that the matter in question is what its
proponent claims"). Moreover, as the appellant himself points out,
-31-
even if information about the origin of the drugs provided to
Thibodeau did represent a gap in the chain of custody, such a gap
factored into the weight given to the evidence rather than its
admissibility. See Abreu, 952 F.2d at 1467. Accordingly, we hold
that the district court did not abuse its discretion in admitting
the drugs into evidence.
D. Missing witness instruction
Anderson's fourth argument is that the district court
erred in refusing to issue to the jury the "missing witness"
instruction he desired. We review the district court's decision
for abuse of discretion. See Pérez, 299 F.3d at 3; United States
v. DeLuca, 137 F.3d 24, 38 (1st Cir. 1998).
In Pérez, we set forth the requirements for a "missing
witness" instruction:
[A]s a preliminary requirement to the
consideration of a missing witness
instruction, a criminal defendant must
demonstrate that the uncalled witness is
either "favorably disposed" to testify on
behalf of the government by virtue of status
or relationship or "peculiarly available" to
the government. United States v. DeLuca, 137
F.3d 24, 38 (1st Cir. 1998). Once past that
point, the court must consider the explanation
(if any) for the witness's absence and whether
the witness, if called, would be likely to
provide relevant, non-cumulative testimony.
United States v. Lewis, 40 F.3d 1325, 1336
(1st Cir. 1994).
Pérez, 299 F.3d at 3. In this case, Anderson failed to satisfy his
threshold burden. He did not show that Besore was "favorably
-32-
disposed" or "peculiarly available" to the government. With regard
to demonstrating that Besore was "favorably disposed" to testify on
behalf of the government, the district court noted that Besore was
not a government agent who was in the government's employ.
Instead, he was a private citizen, who, in the court's view, was an
"independent contractor." Although Besore had cooperated in
exchange for Thibodeau's recommendation that Besore's criminal
speeding charges be dismissed, we have made clear that the mere
fact of cooperation does not make a witness "favorably disposed" to
the government. See DeLuca, 137 F.3d at 38. Here, moreover, it
was far from clear to the court that Besore "was favorably disposed
to testify totally on behalf of the government." Instead, as the
court explained, "there are probably some issues [on which] he'd
testify favorably and some issues [on which] he'd testify not
favorably." Thus, the district court was justified in finding that
Besore was not "favorably disposed" to the government.
Nor did Anderson demonstrate that Besore was "peculiarly
available" to the government. The government explained in detail
its efforts to secure Besore's presence at trial and how it had
failed. See United States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st
Cir. 1981). Not only had the government served Besore with a
subpoena to appear, but the government's paralegal specialist had
reminded him of that obligation. The paralegal specialist's
affidavit described her communications with Besore and his reply
-33-
that he feared his testimony would endanger his family.
Notwithstanding these contacts, by the time of trial, it appeared
the government did not even know where Besore could be found. That
the government could not get Besore to appear, despite such
efforts, demonstrates conclusively that he was not available to the
government, much less "peculiarly available."
Moreover, Anderson had the same ability as the government
to seek a subpoena to require Besore's appearance at trial.
Anderson clearly knew Besore might be a witness and indeed had
reason to believe he might be important to his defense. As the
defense conceded, however, it never tried to subpoena Besore.
Neither did Anderson seek a continuance to press his search for
Besore. See id. at 12. Instead, he simply requested the "missing
witness" instruction. See id. (pointing out that absent some
effort to secure witness's appearance, request for "missing
witness" instruction "indicates that defense counsel is more
interested in exploiting the witness's absence than seeing him
produced" (quoting United States v. Díaz, 535 F.2d 130, 135 n.5
(1st Cir. 1976)). The fact that Anderson was able to subpoena
Besore yet failed to do so gives us additional reason to believe
that the district court was correct in finding that Besore was not
"peculiarly available" to the government.
With Anderson's failure to satisfy his threshold burden
for the issuance of the "missing witness" instruction, it is
-34-
irrelevant whether Besore would have provided relevant, non-
cumulative information. Anderson goes on at length about how
Besore, had he testified, would have provided important information
about the conversation that he had with Anderson during the
controlled purchase, about whether the drug evidence had been
contaminated or exchanged, and about any motive that he had to
frame Anderson. That Besore could have provided such information,
however, does not matter, since Anderson was unable to show during
the preliminary inquiry that Besore was "favorably disposed" or
"peculiarly available" to the government.
Anderson likewise ignores the importance of this
threshold inquiry in his attempt to distinguish Pérez -- a case in
which we upheld the district court's decision to deny a defendant's
request for a "missing witness" instruction. In Pérez, a
confidential government informant who took part in a drug deal with
the defendant did not testify at the defendant's trial. To
Anderson, our decision to affirm the district court's denial of the
"missing witness" instruction in that case was based on the fact
that the government possessed a qualified privilege to withhold the
identity of confidential informants. Anderson argues that this
case is different, as the government disclosed the identity of
Besore prior to trial. He contends that the government possesses
no "qualified privilege" in this case, and the rationale
undergirding the Pérez decision is inapplicable here.
-35-
Anderson's reasoning, however, is flawed. Although we
did note in Pérez that the government possessed a qualified
privilege with respect to disclosing the identity of its
confidential informants, it was not the government's interest in
confidentiality that led us to uphold the district court's denial
of the "missing witness" instruction. Rather, it was the fact that
the defendant in Pérez had made no attempt to force the government
to disclose the confidential informant's identity prior to trial,
despite being able to do so. We wrote that "[i]nstead . . . he
waited until both sides had rested and then, despite having made no
effort to obtain the informant's identity in the usual manner,
implored the court to instruct the jurors that they could draw an
adverse inference from the government's failure to offer the
[confidential informant's] testimony." Pérez, 299 F.3d at 4.
Thus, rather than presenting a set of facts different
from this case, Pérez is actually quite similar. That the
defendant in Pérez could have taken steps to obtain the informant's
identity yet chose not to do so meant that he did not satisfy his
burden in demonstrating that the missing witness was "peculiarly
available" to the government. The same is true in this case. As
we have discussed, Anderson could have issued a subpoena to Besore
but elected not to do so. The result of such inaction on
Anderson's part is that he failed to satisfy his burden in
demonstrating that Besore was "peculiarly available" to the
-36-
government. As the government correctly points out, then, the
critical issue here is not whether the government possesses a
qualified privilege as to its confidential informants, but instead
whether the witness is "favorably disposed" or "peculiarly
available" to the government. Because Anderson failed to satisfy
his burden as to this threshold showing, we hold that the district
court did not abuse its discretion in denying the sought-after
"missing witness" instruction.
E. Sentencing
1.
Anderson next contests two aspects of his sentencing.
First, he argues that the district court erred in computing his
sentence under the Guidelines. The district court found that
Anderson was responsible for the distribution of 6.1 grams of crack
cocaine. Accordingly, the court, taking into account that Anderson
was placed in CHC III, found that Anderson's Guidelines range was
78-97 months. Anderson, however, claims that the district court
erred in its finding that he had distributed crack cocaine. He
contends that the trial had only established that he was
responsible for distributing cocaine base, not crack cocaine in
particular. This distinction is important because we have noted
that "[f]orms of cocaine base other than crack are treated as
cocaine hydrochloride [cocaine powder] for purposes of calculating
the GSR [Guidelines sentencing range]." United States v. Robinson,
-37-
144 F.3d 104, 108 (1st Cir. 1998) (citing U.S.S.G. App. C, Amend.
487). Anderson therefore states that his base offense level should
have been calculated based on 6.1 grams of cocaine hydrochloride
(cocaine powder). The Guidelines establish a base offense level of
12 for a quantity involving less than 25 grams of cocaine
hydrochloride (cocaine powder). See U.S.S.G. §2D1.1(c)(14) (2003).
At a total offense level of 12 and a criminal history category of
III, Anderson contends that his GSR should have been 15-21 months.
We have held that "[w]hether a particular substance is
crack or cocaine for purposes of the sentencing guidelines is a
question of fact to be determined by the court." Robinson, 144
F.3d at 109. The sentencing court's fact-finding must be accepted
unless it is clearly erroneous. See United States v. St. Cyr, 977
F.2d 698, 701 (1st Cir. 1992). When the nature of an illicit
substance is material at sentencing, the government has the burden
to prove the substance's identity by a preponderance of the
evidence. See United States v. Legarda, 17 F.3d 496, 499 (1st Cir.
1994).
We believe that the government has satisfied its burden.
At trial, Thibodeau testified that minutes after the conclusion of
the controlled purchase, Besore turned over to him the substance he
had bought from Anderson. Without objection, Thibodeau identified
the substance as "rock cocaine or crack cocaine in what we call
Dominican-tie plastic bags" and explained that the bags were cut
-38-
and twisted "to keep the rock clean." See Robinson, 144 F.3d at
108 (noting that crack is "the street name for a form of cocaine
base, usually prepared by processing cocaine hydrochloride and
sodium bicarbonate, and usually appearing in a lumpy, rocklike
form") (quoting U.S.S.G. § 2D1.1(c)(n.(D))). Twice more in his
testimony, Thibodeau referred to the drug Besore gave him as the
rock form of cocaine base.
Similarly, the government's expert, the DEA chemist Brian
O'Rourke, testified that he had received from Maine 16 small bags
each of which contained a yellowish-white, rock-like substance, and
that the net weight was 6.1 grams. Describing the procedure he
followed, O'Rourke explained that he ground the rocks into powder
so that they could be evaluated through three separate tests.
Based on his professional experience and the test results, without
objection, O'Rourke identified the drugs as cocaine base. Cross-
examination confirmed that when the drugs arrived they were in the
rock form that is characteristic of crack cocaine. See id.
Anderson challenges this testimony in two ways. First,
he claims that Thibodeau lacked the training and experience needed
to identify the drug as crack cocaine. He points out that
Thibodeau testified that he had been working as a HIDA agent for
only 18 months. Although this is true, Thibodeau had also worked
as a policeman for eight years. Both in his work as a police
officer and as a HIDA agent, he had participated in hundreds of
-39-
controlled purchases. See id. (noting that "we often have
permitted law enforcement officers, not formally trained as
'experts,' to furnish opinions based on their real-world
experience"). Moreover, we note that at trial, Anderson never
disputed Thibodeau's qualifications in making a visual
identification of the drug or in performing the field test that
proved positive for crack cocaine. See United States v. Díaz, 300
F.3d 66, 74 (1st Cir. 2002) (noting that "litigants must raise a
timely objection . . . to preserve a challenge on appeal").
To drive home his point that Thibodeau lacked the
exprience needed to identify the drugs as crack cocaine, Anderson
points out how Thibodeau seemed to confuse the terms "crack
cocaine" and "cocaine base" and use them interchangeably in his
testimony as though there was no difference between the two. For
example, Anderson points to the following exchange:
Q: Okay. Did -- based on your conversation
with Mr. Besore, what kind of drugs did you
think you might be buying that day?
Thibodeau: Crack cocaine.
Q: All right. Cocaine base?
Thibodeau: Correct.
We, however, see no confusion on Thibodeau's part in this exchange.
Rather, we think that he is demonstrating his knowledge of cocaine
base and its different forms, since, as we noted above, crack
cocaine is a kind of cocaine base.
-40-
Anderson's second challenge is based on the fact that the
government did not elicit any testimony from O'Rourke pertaining to
the different forms of cocaine base or whether the cocaine base he
tested was the type of cocaine base referred to as crack. This
argument, however, is unavailing, because even though O'Rourke did
not explicitly identify the drugs he tested as crack cocaine,
O'Rourke mentioned several times during his testimony that he had
tested the rock form of cocaine base. As we noted in Robinson,
cocaine base in a rock form is usually considered to be crack
cocaine. See Robinson, 144 F.3d at 108.
Moreover, we have encountered a nearly identical argument
in previous cases. See, e.g., United States v. Ferreras, 192 F.3d
5 (1st Cir. 1999); United States v. Martínez, 144 F.3d 189 (1st
Cir. 1998); Robinson, 144 F.3d at 104. For example, in Ferreras,
the defendant argued that the government had failed to prove that
the cocaine base in his possession was in fact crack cocaine. In
response, we wrote:
[O]nce the government laid a proper foundation
by introducing a chemical analysis proving
that, chemically, the contraband was cocaine
base, no further scientific evidence was
needed. Instead, the government could bridge
the evidentiary gap between cocaine base and
crack cocaine by presenting lay opinion
evidence (or an opinion proffered by an expert
who possessed practical as opposed to academic
credentials) from a reliable witness who
possesses specialized knowledge (gained by
experience in dealing with crack or
familiarity with its appearance and texture).
-41-
192 F.3d at 11 (internal citations and quotation marks omitted).
In this case, the government followed this framework to the letter.
As we discussed above, the government, through O'Rourke, introduced
chemical test results demonstrating that the drugs recovered from
Besore were indeed cocaine base. This, combined with Thibodeau's
testimony, was sufficient for the district court to find that
Anderson had distributed crack cocaine. Therefore, we hold that
the district court did not err in finding that Anderson was
responsible for the distribution of 6.1 grams of crack cocaine and
computing his sentence accordingly under the Guidelines.
2.
Anderson's second argument regarding his sentence is that
the district court violated his constitutional rights in
determining that a five-year mandatory minimum sentence applied to
him pursuant to 21 U.S.C. § 841(b)(1)(B)(iii). The
constitutionality of a sentence is a question of law subject to de
novo review. See Mistretta v. United States, 488 U.S. 361 (1989).
Anderson's entire argument is based on a May 2004 case
decided by the D.C. Circuit, United States v. Brisbane, 367 F.3d
910 (D.C. Cir. 2004). Brisbane related to the proper manner of
interpreting the sentencing scheme in 21 U.S.C. §§ 841(b)(1)(A),
(B), and (C). That scheme is considered to establish two tiers of
penalties for offenses involving cocaine, with higher penalties for
crack cocaine and other forms of cocaine base and lesser penalties
-42-
for cocaine powder. See 21 U.S.C. §§ 841(b)(1)(A), (B), and (C);
see also United States v. Richardson, 225 F.3d 46, 49 (1st Cir.
2000); Robinson, 144 F.3d at 107.
For example, § 841(b)(1)(B)(iii) provides for a mandatory
minimum five-year sentence for an offense involving "5 grams or
more of a mixture or substance . . . which contains cocaine base."
21 U.S.C. § 841(b)(1)(B)(iii). Section 841(b)(1)(B)(ii)(II), by
contrast, provides for a mandatory minimum five-year sentence for
offenses involving "500 grams or more of a mixture or substance
containing a detectable amount of cocaine, its salts, optical and
geometric isomers, and salts of isomers." 21 U.S.C. § 841(b)(1)
(B)(ii)(II). Importantly, no mandatory minimum sentence applies to
an amount of cocaine base that is less than 5 grams or an amount of
cocaine that is less than 500 grams. See 21 U.S.C. § 841(b)(1)(C).
In Brisbane, the D.C. Circuit ruled that such a
sentencing scheme was ambiguous. See 367 F.3d at 912. Anderson
notes that the ambiguity lies in the fact that references to
"cocaine base" and "cocaine" in § 841(b)(1) involve the same
substance. He leads us to this conclusion by pointing out that
cocaine in its naturally occurring form is a base. Therefore, the
phrase "cocaine base," in scientific terms, is redundant. In other
words, to a scientist, "cocaine" and "cocaine base" are synonymous;
they both refer to a substance with the same chemical formula.
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According to Anderson, to understand the statutory terms
in this way creates an ambiguity in the statute. For example, if
one is to read the mention of "cocaine" in § 841(b)(1)(B)(ii)(II)
as referring to "cocaine base," then the statute would be read in
such a way that a mandatory minimum five-year sentence applies for
an offense involving 500 grams or more of cocaine base. This,
however, is contrary to the scheme set forth in § 841(b)(1)
(B)(iii), which states that a mandatory minimum five-year sentence
applies for an offense involving five grams or more of cocaine
base. See United States v. Isler, 429 F.3d 19, 28-29 (1st Cir.
2005).
As a result of such an ambiguity, the D.C. Circuit in
Brisbane decided to apply the rule of lenity and ordered the lower
court to sentence the defendant in that case under the more
forgiving penalty provisions relating to cocaine powder (discussed
in 21 U.S.C. § 841(b)(1)(B)(ii)(II) and 21 U.S.C. § 841(b)(1)(C))
and not cocaine base (discussed in 21 U.S.C. § 841(b)(1)(B)(iii)).
In this case, Anderson urges us to follow the lead of the D.C.
Circuit and find an ambiguity in the statute. He asks us to
likewise apply the rule of lenity and sentence him on the basis of
an offense involving cocaine powder. If we were to follow such an
approach, no mandatory minimum sentence would apply to Anderson,
since the statute states that no mandatory minimum applies for an
amount of cocaine powder that is less than 500 grams. Anderson
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would only face the default maximum of 20 years under 21 U.S.C.
§ 841(b)(1)(C).
We, however, decline Anderson's invitation. In Isler,
429 F.3d at 29, we were presented with the opportunity to adopt the
position that the D.C. Circuit articulated in Brisbane. We elected
not to do so, noting that Brisbane was "a case from another circuit
that concedes it is expressing a minority view and is explicitly at
odds with this circuit's precedent." Id. Moreover, even if we
were now inclined to disregard Isler and adopt the approach of the
D.C. Circuit in Brisbane, we would not be free to do so. See
United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) ("[w]e
have held, time and again, that in a multi-panel circuit, prior
panel decisions are binding upon newly constituted panels in the
absence of supervening authority sufficient to warrant disregard of
established precedent").
As a last point, we only wish to point out that rather
than follow the approach articulated by the Brisbane court, we have
consistently interpreted § 841(b)(1) in a more "literal" manner.
We have held that "the term 'cocaine base' clearly defines a
substance differing from other forms of cocaine." United States v.
Barnes, 890 F.2d 545, 552 (1st Cir. 1989); see also Isler, 429 F.3d
at 29; Robinson, 144 F.3d at 108-09. Moreover, although § 841
(b)(1) does not define "cocaine base," we held in López-Gil, 965
F.2d at 1134, that the term, as used in the statute, includes all
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forms of cocaine base, including but not limited to crack cocaine.
Since, as discussed above, the district court found that Anderson
was found guilty of distributing 6.1 grams of crack cocaine, it is
clear that Anderson was properly sentenced under the "cocaine base"
provision of § 841(b)(1). Therefore, the district court was
correct in finding that the five-year mandatory minimum applied in
Anderson's case.
III. Conclusion
For the reasons stated above, we affirm the judgment of
the district court.
Affirmed.
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United States v. Anderson
Court: Court of Appeals for the First Circuit
Date filed: 2006-06-29
Citations: 452 F.3d 66
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