United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 2008 Decided February 26, 2008
No. 07-3027
UNITED STATES OF AMERICA,
APPELLEE
v.
FRANKLIN H. PETTIFORD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00162-01)
Mary E. Davis, appointed by the court, argued the cause for
appellant. With her on the brief was Christopher Davis,
appointed by the court.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III, Assistant U.S.
Attorney.
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: After a jury trial, defendant
Franklin H. Pettiford was found guilty of possession with intent
to distribute five grams or more of cocaine base. Pettiford
contends that the district court that presided over his case erred
in the following ways: (1) by admitting evidence of a prior drug
trafficking offense at trial; (2) by denying his motion for a new
trial based on newly discovered evidence; and (3) by denying his
motion for judgment of acquittal on the ground that the evidence
was insufficient to prove that the cocaine base found in his car
was crack cocaine. We reject these challenges and affirm the
judgment of the district court.
I
On May 11, 2006, Officer David Augustine of the
Metropolitan Police Department (MPD) stopped a 2003 Ford
Expedition because of a burned-out headlight. Defendant
Pettiford was the sole occupant of the vehicle, and Augustine
determined that its registration was expired. Augustine let the
defendant go with a warning notice regarding the headlight.
Four days later, on May 15, 2006, MPD officers James
Chastanet and Theodore Brosey stopped the same Ford
Expedition. Pettiford was again the sole occupant. This time,
the officers arrested Pettiford for driving an unregistered vehicle
and searched the passenger compartment incident to the arrest.
In the center console, located between the driver’s and
passenger’s seats, Chastanet found a clear plastic bag. The bag
contained: (1) loose “medium clusters of white, rock-like
substances”; (2) a medium-size ziplock bag with “a large cluster
of white, rock-like substance”; and (3) three smaller ziplock
bags with “medium and small rock-like substances.” 11/27/06
Tr. 129. The police also found in the console a digital scale,
plastic gloves, and envelopes. The white, rock-like substances
field-tested positive for cocaine base.
3
On June 13, 2006, a grand jury indicted Pettiford on one
count of possession with intent to distribute five grams or more
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(B)(iii). Pettiford’s first trial began on September 26,
2006, but ended in a mistrial on October 2, 2006, when the jury
was unable to reach a unanimous verdict. The case was re-
assigned to another judge, and a second trial commenced on
November 27, 2006. The second trial resulted in the conviction
that is the subject of this appeal.
At trial, Officer Augustine testified that he had stopped
Pettiford in the Ford Expedition on May 11, 2006, four days
before his arrest. Officer Chastanet then recounted the events
leading up to and following Pettiford’s arrest on May 15,
including the discovery of the plastic bag of drugs and the other
paraphernalia in the center console of the Ford Expedition.
Based on his prior experience in making crack cocaine arrests,
Chastanet testified that he recognized the white, rock-like
substances to be crack cocaine. The parties stipulated that a
DEA chemist had analyzed the seized substances and
determined them to be 71% cocaine base and to weigh a total of
18.8 grams. Detective Anthony Washington, who qualified as
an expert witness in the distribution and use of narcotics,
identified the substances seized from Pettiford’s vehicle as
“cocaine base which is also known as crack cocaine” in
Washington, D.C. 11/27/06 Tr. 184. Detective Washington
further opined that the packaging of the cocaine base and the
presence of the digital scale and gloves were consistent with the
wholesale distribution of crack cocaine. The ziplock bags, he
said, contained “what we call eight balls, 3.5 grams which is an
eighth of an ounce” of crack. Id. at 185. In that form, he said,
the wholesale value of the drugs found in the Ford was $700; if
broken down into $10 or $20 bags for street distribution, the
same amount of crack would be worth between $2600 and
$2800.
4
To buttress its proof that Pettiford knowingly possessed the
crack cocaine found in the Ford’s console, and that he
specifically intended to distribute the drugs, the government
moved pretrial to introduce evidence that Pettiford had also
possessed cocaine with intent to distribute it just three weeks
earlier, on April 27, 2006. Over Pettiford’s objection, the court
ruled that proof of the prior crime was admissible. Rather than
have the government call live witnesses, Pettiford agreed that
the prosecutor could read the jury a redacted transcript of his
guilty plea to that prior offense in District of Columbia Superior
Court. Appellant’s Br. 15.
According to the Superior Court transcript that was read to
the jury, the prosecutor in that case proffered and Pettiford
agreed to the following facts. On April 27, 2006, MPD officers
observed Pettiford engage in an apparent drug sale. They then
watched him walk to a blue Mercedes, open the front passenger
door, reach inside, bend over into the vehicle, withdraw, shut the
door, and place something on the ground near the car. The
officers subsequently stopped Pettiford and searched the car,
which was registered in his name. In the Mercedes’ center
console, the police found 48 ziplock bags containing white,
rock-like substances that field-tested positive for cocaine.
After the government concluded its case-in-chief, the
defense presented its evidence, which consisted solely of the
introduction of a certified “Vehicle Record” for the 2003 Ford
Expedition. The Record stated that, as of April 30, 2006, the
Ford Expedition was registered to a Marisa Ardelia Beam of
Annandale, Virginia. Following closing arguments, the case
was submitted to the jury.
On November 29, 2006, the jury convicted Pettiford of the
crime charged in the indictment, and on February 27, 2007, the
district court sentenced him to 86 months’ incarceration.
5
Pettiford now appeals, leveling three attacks on his conviction.
He contends that the district court erred: (1) by admitting
evidence of the prior drug trafficking offense, in violation of
Federal Rules of Evidence 404(b) and 403; (2) by denying
Pettiford’s motion for a new trial, which was based on the fact
that his plea of guilty to the prior offense was later vacated as
involuntary; and (3) by denying his motion for judgment of
acquittal, which argued that the evidence was insufficient to
prove that the cocaine base in the Ford Expedition was crack
cocaine. Pettiford also asks that the case be remanded to the
district court for resentencing in light of the U.S. Sentencing
Commission’s recent decision to lower the U.S. Sentencing
Guidelines’ sentencing ranges for certain crack cocaine offenses.
II
We first consider Pettiford’s claim that the district court
erred, under Rules 404(b) and 403, by admitting evidence that
he had possessed with intent to distribute cocaine on a prior
occasion.
A
Rule 404(b) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith,” but that
it can “be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” FED. R. EVID.
404(b); see United States v. Pindell, 336 F.3d 1049, 1056 (D.C.
Cir. 2003). “We review a claim that a district court improperly
admitted evidence under Rule 404(b) solely to determine
whether the court abused its discretion.” Pindell, 336 F.3d at
1056-57. We find no abuse of discretion here.
6
The district court admitted the evidence of Pettiford’s prior
crime to show that, in the instant case, he possessed the crack
found in the Ford Expedition’s console knowingly and/or
intentionally, and that he did so with the specific intent to
distribute it. These mental states are elements of the offense
with which Pettiford was charged. See 21 U.S.C. § 841(a)(1)
(making it unlawful to “knowingly or intentionally . . . possess
with intent to . . . distribute” a controlled substance). And, as
quoted above, Rule 404(b) expressly approves admission of
prior crimes evidence to prove these elements. See also United
States v. Bowie, 232 F.3d 923, 930 (D.C. Cir. 2000) (“Intent and
knowledge are . . . well-established non-propensity purposes for
admitting evidence of prior crimes or acts.”). Accordingly, we
have repeatedly approved the admission of such evidence under
the Rule.1
Pettiford does not dispute these general propositions but
argues that, in his case, “the other crimes evidence was not
needed to prove possession” or state of mind. Appellant’s Br.
8 (emphasis added). This is so, he maintains, because the police
officers testified that they stopped the Ford Expedition on two
separate days, and that on both occasions Pettiford was its only
occupant. In addition, the government’s drug expert testified
that drug dealers keep their drugs close to them, and that the
1
See, e.g., In re Sealed Case, 488 F.3d 1011, 1019 (D.C. Cir.
2007) (stating that evidence of the defendant’s prior crack sale was
admissible to prove knowledge and intent regarding crack found in the
defendant’s apartment); United States v. Douglas, 482 F.3d 591, 600
(D.C. Cir. 2007) (rejecting a challenge to the use of the defendant’s
prior arrest for selling crack at his trial for possession with intent to
distribute crack); United States v. Rogers, 918 F.2d 207, 210 (D.C.
Cir. 1990) (holding that the defendant’s prior distribution of crack was
admissible to prove that he had intent and knowledge regarding crack
found in a gym bag).
7
packaging of the cocaine base and the presence of the digital
scale and gloves were consistent with wholesale distribution of
crack cocaine. If the jury believed these witnesses, Pettiford
contends, this testimony was more than enough -- without resort
to the prior crimes evidence -- to prove that he knowingly or
intentionally possessed the crack with intent to distribute it.
Prior crimes evidence, however, does not become
“irrelevant if the government’s other evidence is sufficient to
establish the elements of the offense.” Douglas, 482 F.3d at 598
n.9. As the Supreme Court held in Old Chief v. United States,
“evidentiary relevance . . . [is not] affected by the availability of
alternative proofs of the element.” 519 U.S. 172, 179 (1997).
The fact that the government produced probative evidence of
Pettiford’s knowledge and intent does not preclude it from
offering additional evidence to establish those elements beyond
a reasonable doubt.
Pettiford insists that his case is on all fours with the decision
in United States v. Linares, 367 F.3d 941 (D.C. Cir. 2004). In
that case, in which the defendant was charged with being a felon
in unlawful possession of a firearm, this circuit held that the
district court erroneously permitted the government to present
evidence that Linares had possessed a handgun years earlier. In
the trial of the crime that was the subject of Linares’ appeal to
this court, eyewitnesses testified that he had held the gun in his
hand and fired it. Referring to that testimony, the Linares court
said:
Given the evidence in this case, we do not understand
how Linares’ previous possession of a pistol makes it
any more likely that he knowingly possessed a gun this
time. In fact, it is hard to see how Linares could
possibly have possessed the gun unknowingly, i.e.,
without being aware that he possessed it or without
8
realizing that the object in his hand was a gun. . . . If
the jury believed these eyewitnesses, then Linares
possessed the gun knowingly; if it did not, then it
should have acquitted based on the government’s
failure to prove possession rather than its failure to
prove knowledge.
Id. at 946.
This case is substantially different from Linares. We have
no doubt that there was sufficient evidence from which a jury
could conclude beyond a reasonable doubt that Pettiford
possessed the crack in the center console, and that he did so
knowingly and with the requisite intent. But this is not a case in
which the jury had to either believe the witnesses and conclude
that the defendant knowingly possessed the crack with intent to
distribute it, or disbelieve them and find that he did not possess
the crack at all. Unlike the situation in Linares, the unlawfully
possessed object was not in Pettiford’s hand but in the console.
Unlike the object in Linares, the object here was not one that the
defendant could not help but recognize (like a gun), but rather
a white, rock-like substance, which -- as we noted in Linares
itself -- “a reasonable jury could conclude . . . [the defendant]
believed . . . to be some ‘innocuous substance.’” Douglas, 482
F.3d at 598-99 (quoting Linares, 367 F.3d at 951). And unlike
the crime charged in Linares, the government had to prove not
only that the defendant knowingly possessed the object, but also
that he did so with the intent to distribute it. As we explained in
Douglas, in the course of rebuffing a similar attempt to apply
Linares to a prosecution for possession with intent to distribute
crack, “‘a reasonable jury could . . . conclude [] that although
[the defendant] possessed the crack . . . , the government had
failed to prove beyond a reasonable doubt that he intended to
distribute it’” or that he knew it was a controlled substance.
Douglas, 482 F.3d at 598 (alterations in original) (quoting
9
Linares, 367 F.3d at 952). Hence, the prior crimes “evidence is
relevant to the permissible Rule 404(b) purpose of proving
[Pettiford’s] knowledge” and intent, and “the district court did
not abuse its discretion in admitting” it. Id. at 599, 600.
B
Pettiford further argues that, even if the prior crimes
evidence satisfies Rule 404(b), it is nonetheless inadmissible
under Rule 403. See Old Chief, 519 U.S. at 182 (noting that
evidence admissible under Rule 404(b) may be excluded under
Rule 403); Douglas, 482 F.3d at 600. That rule provides that
evidence, “[a]lthough relevant, . . . may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice.” FED. R. EVID. 403. “[B]ecause the trial court
is in the best position to perform [that] subjective balancing[,]
. . . its decision should be reviewed only for grave abuse.”
Douglas, 482 F.3d at 596 (internal quotation marks omitted).
Rule 403 “does not bar powerful, or even ‘prejudicial’
evidence. Instead, the Rule focuses on the ‘danger of unfair
prejudice,’ and gives the court discretion to exclude evidence
only if that danger ‘substantially outweigh[s]’ the evidence’s
probative value.” United States v. Gartmon, 146 F.3d 1015,
1021 (D.C. Cir. 1998) (emphasis in Gartmon) (quoting FED. R.
EVID. 403). As we noted above, the 404(b) evidence in this case
was highly probative of Pettiford’s knowledge and intent. The
crack cocaine in the Ford Expedition was not in plain view, but
rather was hidden in the center console of a car registered to
someone else. The fact that, just three weeks earlier, the police
had found Pettiford distributing cocaine from the center console
of another car made it substantially more likely that he knew
that there was (and intended that there be) crack in the console
of the Ford -- and that he intended to distribute that crack. See
Douglas, 482 F.3d at 597 (“Evidence that [the defendant]
10
previously possessed and distributed crack cocaine to an
undercover officer ‘has a tendency to make’ it ‘more probable,’
FED. R. EVID. 401, both that he knew the nature of the substance
. . . he was charged with possessing [in the case at issue] and
that he intended to distribute it.” (citation omitted)).
As we acknowledged in Douglas, the admission of prior
possession-with-intent-to-distribute evidence “almost
unavoidably raises the danger that the jury will improperly
‘conclude that because [the defendant] committed some other
crime, he must have committed the one charged in the
indictment.’” Id. at 601 (quoting United States v. Crowder, 141
F.3d 1202, 1210 (D.C. Cir. 1998) (en banc)); see United States
v. Rogers, 918 F.2d 207, 211 (D.C. Cir. 1990) (same). But
“[t]his danger . . . ‘cannot give rise to a per se rule of
exclusion.’” Douglas, 482 F.3d at 601 (quoting Crowder, 141
F.3d at 1210). And as in Douglas, the record of Pettiford’s trial
indicates no “‘compelling or unique evidence of prejudice in this
case.’” Id. (quoting United States v. Mitchell, 49 F.3d 769, 777
(D.C. Cir. 1995)).
Moreover, here, as in Douglas, the district court took the
appropriate steps to minimize the danger that the jury would use
the 404(b) evidence for an improper purpose.2 Immediately
after the prosecutor read the transcript of the plea in the prior
case, the court carefully instructed the jury that it could consider
that evidence only to help decide whether the defendant
2
See Crowder, 141 F.3d at 1210 (noting that “the effect of a
limiting jury instruction to protect the rights of the accused” is taken
into account in assessing the balance of prejudice and probativeness);
see also Pindell, 336 F.3d at 1057 n.9 (noting, in rejecting a Rule
404(b) challenge, that the district court had taken care to safeguard
against the jury drawing improper inferences from the prior crimes
evidence).
11
possessed the cocaine base knowingly, intentionally, and with
specific intent to distribute it, and not for any other purpose.
The court made clear that the defendant was “not charged . . .
with any offense relating to the events of April 27, 2006,” that
the jury could “not consider this evidence to conclude the
defendant has a bad character or that he has a criminal
propensity,” and that it could not consider it “in deciding
whether the government has proved the defendant committed the
acts constituting the charged offense.” 11/27/06 Tr. 198-99.
The court gave the same instructions before sending the case to
the jury on the following day. In short, the district court took
proper “‘caution to guard the space between the permissible and
impermissible inferences by instructing the jury to consider the
evidence only for its proper purpose.’” Pindell, 336 F.3d at
1057 n.9 (quoting Mitchell, 49 F.3d at 777).
The only ground Pettiford offers for concluding that the
404(b) evidence was particularly prejudicial is that “the jury
heard that Pettiford admitted that the allegations [regarding the
prior crime] were true,” which he believes was “very stinging
evidence” in a short trial. Appellant’s Br. 11. As Pettiford
concedes, however, the only reason the jury heard his admission
is that he “agreed to have the [redacted] transcript of his plea in
Superior Court read to the jury” rather than have the government
“call[] live witnesses.” Appellant’s Br. 4; see Appellant’s Br.
15; see also Def.’s Mot. for New Trial at 1 (acknowledging that
the prosecutor used the transcript “with the consent of the
defense”). That agreement was a perfectly appropriate tactical
decision aimed at limiting the impact of the prior crimes
evidence: the transcript that the prosecutor read was brief (less
than three pages) and described the events in a matter-of-fact
way. There is nothing to suggest that it was more prejudicial
than the kind of prior crimes evidence that this court has
previously found admissible in other possession-with-intent-to-
distribute cases. See, e.g., Douglas, 482 F.3d at 601; Rogers,
12
918 F.2d at 210. Accordingly, the district court did not abuse its
discretion in permitting the use of the transcript.
III
As just noted, the government -- with the agreement of the
defendant -- submitted its prior crimes evidence in the form of
a transcript of Pettiford’s Superior Court guilty plea. At the time
Pettiford agreed to this procedure, he had pending in Superior
Court a motion to withdraw that plea. Appellant’s Br. 15. On
January 29, 2007, two months after the jury found Pettiford
guilty in the instant case, the judge in the Superior Court case
vacated the plea as involuntary. Id.3 On February 15, Pettiford
moved for a new trial in this case pursuant to Federal Rule of
Criminal Procedure 33, which permits the district court to grant
a new trial “if the interest of justice so requires.” FED. R. CRIM.
P. 33. Pettiford’s motion was based on the claim that his guilty
plea constituted “newly discovered evidence.” FED. R. CRIM. P.
33(b)(1). The district court denied the motion, and Pettiford
contends that the denial was erroneous.
Under this circuit’s Thompson test, a district court may
grant a new trial on the ground of newly discovered evidence
only if the following five conditions are met:
(1) the evidence must have been discovered since the
trial; (2) the party seeking the new trial must show
diligence in the attempt to procure the newly
discovered evidence; (3) the evidence relied on must
not be merely cumulative or impeaching; (4) it must be
material to the issues involved; and (5) of such nature
3
It appears that the judge ruled the plea involuntary because
Pettiford did not understand the penalties that he faced upon entering
the plea. See 2/27/07 Tr. 7-8.
13
that in a new trial it would probably produce an
acquittal.
United States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993)
(quoting Thompson v. United States, 188 F.2d 652, 653 (D.C.
Cir. 1951)). “In reviewing the District Court’s decision on a
new trial motion, we apply a deferential standard, and will
reverse only if the court abused its discretion or misapplied the
law.” Id.
Questioning whether the vacation of Pettiford’s plea was
newly discovered evidence at all, the district court found that it
failed multiple prongs of the Thompson test. Without casting
doubt on the court’s findings regarding the other prongs, we
affirm its conclusion that there was no prospect that a new trial
would probably produce an acquittal. Pettiford’s contention is
that, “had the jury known that the admission was not voluntary,
it likely would not have given the 404(b) evidence much credit.”
Appellant’s Br. 16. But in a new trial, the jury would not learn
of the involuntariness of the guilty plea; indeed, the jury would
not hear of the guilty plea at all. The only reason the
government used the plea transcript in the first place was that
Pettiford’s counsel preferred a dry transcript to the live
testimony of police officers who would testify that they watched
him transact a drug deal and then found crack in the same
location in which it was found in this case -- in the center
console of an automobile. As the district court made clear, had
the defendant not preferred the use of the transcript, it would
have allowed the police officers to testify about what they
personally saw on April 27, 2006. 2/27/07 Tr. 3, 9. And we
agree with the court that there is no reason to suspect that, if
there were a new trial, the live testimony would have less impact
than the transcript had in the original trial. Id. 12-13. Indeed,
the defendant’s own tactical choice indicates that he, at least,
believed the opposite. We conclude that the district court did
14
not abuse its discretion in denying the motion for a new trial.
IV
Pettiford also contends that the district court erred in
denying his motion for judgment of acquittal, which argued that
the evidence was insufficient to prove that the cocaine base
found in the Ford Expedition was crack cocaine. Pettiford’s
indictment charged him with violating 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii), by possessing with intent to distribute five grams
or more of “cocaine base.” Under § 841, a “certain quantity of
‘cocaine base’ will trigger much stiffer penalties than an
equivalent quantity of powdered cocaine -- that is, ‘cocaine, its
salts, optical and geometric isomers, and salts of isomers.’”
United States v. Powell, 503 F.3d 147, 148 n.1 (D.C. Cir. 2007).
Beginning with United States v. Brisbane, 367 F.3d 910 (D.C.
Cir. 2004), this court has held that, to “uphold the higher
penalties that § 841 prescribes for crimes involving ‘cocaine
base,’” the government must prove that the kind of cocaine base
seized was either “smokable cocaine base or crack cocaine.”
United States v. Johnson, 437 F.3d 69, 71 (D.C. Cir. 2006); see
United States v. Baugham, 449 F.3d 167, 171 (D.C. Cir. 2006).4
4
As we recounted in United States v. Eli:
In United States v. Brisbane, the court first rejected the
possibility that, for purposes of the statute, “‘cocaine base’.
. . include[s] all base forms of cocaine.” 367 F.3d 910, 913
(D.C. Cir. 2004). It then identified “two other options”:
“First, ‘cocaine base’ could mean only crack[,] . . . the only
form of cocaine that is both smokable and widely available.
. . . The second option is that ‘cocaine base’ means any
cocaine that is smokable. . . . In addition to crack, [this]
includes in the definition ‘traditional’ freebase cocaine and
cocaine paste.” Id. at 914. In the end, the Brisbane court
concluded that it “need not choose between the[se] two
15
Our standard for reviewing a challenge to the sufficiency of the
evidence to establish such a statutory element is narrow: We
must accept the jury’s guilty verdict if we conclude that “‘any
rational trier of fact could have found the essential element[] of
the crime beyond a reasonable doubt.’” United States v.
Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
Both Pettiford and the government stipulated that a DEA
chemist had determined that the substance found in the center
console was cocaine base. It is also agreed that the government
did not offer evidence that the substance was smokable cocaine
base. Thus, the only question before us is whether there was
sufficient evidence that the cocaine base the officers found was
crack cocaine.
Following Brisbane, we have held that the government may
prove that cocaine base is crack cocaine in a variety of ways.5
options,” because “the government did not prove that the
substance distributed was smokable and it did not prove that
it was crack.” Id.
379 F.3d 1016, 1020 (D.C. Cir. 2004).
5
See, e.g., Eli, 379 F.3d at 1021 (upholding a conviction where
the evidence established that the substance was “‘rock-like,’” and a
chemist indicated that it was “smokable” and properly identified as
crack); Baugham, 449 F.3d at 183 (affirming a conviction where a
police witness testified that the substance was a “‘white rock
substance,’” distinguished the substance from powder cocaine, and
agreed that crack was “‘vernacular slang for cocaine base’”); United
States v. Lawrence, 471 F.3d 135, 139 (D.C. Cir. 2006) (affirming a
conviction where police witnesses testified that the substance was a
“large white rock substance” and that the sale “followed conventional
practices for the sale of crack cocaine,” and where an undercover
16
In United States v. Johnson, the government’s evidence, which
we found sufficient to sustain the defendant’s conviction, was
the following: a chemist testified that the substance recovered
from the defendant’s apartment was 55% cocaine base;6 the
seizing officers “testified that the recovered drugs were ‘rock’
or ‘white rock,’ a description that suggests crack cocaine”; a
drug expert testified that paraphernalia found in the defendant’s
apartment, including a “‘cocaine cooking kit’” and a “digital
scale,” could be used to make crack cocaine; and the same
expert testified that the quantity and packaging of the drugs
found in the apartment were consistent with the street sale of
crack cocaine. 437 F.3d at 75. In United States v. Powell, the
evidence was as follows: testimony that the seized substance
was “‘rock-like’ and ‘off-white’ or ‘yellowish’ in color”;
testimony by a chemist that it was 83% cocaine base; testimony
by the seizing officer, experienced in crack cases, that the
substance was crack; and testimony by an expert in the
packaging and distribution of controlled substances that a
photograph of the seized material showed crack and not powder
cocaine. 503 F.3d at 148. “While not exactly overwhelming,”
we concluded that “the evidence was enough to enable a rational
trier of fact to determine that [the substance] was crack
cocaine.” Id. at 149.
officer testified that the defendant gave him the substance in response
to his request to buy crack).
6
The Johnson court cited the opinion in United States v. Eli,
which noted a DEA chemist’s testimony that the concentration of
cocaine base in crack cocaine is typically at least 50-60%. 437 F.3d
at 75 (citing Eli, 379 F.3d at 1021); see also Eli, 379 F.3d at 1021
(holding that purity of 36-44% did not disqualify a drug as crack, in
light of the chemist’s testimony that he had previously tested crack of
lower-than-typical purity).
17
This case is governed by Johnson and Powell. The
chemist’s report stated that the substances seized from the center
console were 71% cocaine base. Based on his experience in
“prior arrests dealing with crack cocaine,” Officer Chastanet
testified that the “white, rock-like substance” he seized from
Pettiford’s car was “crack cocaine.” 11/27/06 Tr. 127. The
government’s narcotics expert described the process by which
crack is made, noting that the end result is a “rock state form.”
Id. at 182. Examining a photograph of the seized substance, he
opined that the “cluster of white . . . rock-like substance . . . was
cocaine base which is also known as crack cocaine” in
Washington, D.C. Id. at 181. The expert further opined that the
cocaine base seized was packaged in amounts (“eight balls”)
that were consistent with the wholesale distribution of crack. Id.
at 185. And he went on to say that the digital scale found in
Pettiford’s car was typical of equipment used in wholesale crack
transactions. Id. at 187. The defendant offered no contrary
evidence.
Pettiford argues that this evidence was insufficient because
there was no testimony that the substance was smokable, and no
testimony that the paraphernalia (scale and gloves) could only be
used in the sale of crack. But Johnson and Powell make clear
that, although useful, see Powell, 503 F.3d at 149 & n.2,
“evidence about the substance’s smokability” is not required to
sustain a finding that it is crack, Johnson, 437 F.3d at 75; see
Powell, 503 F.3d at 148.7 Nor have we required the presence of
paraphernalia (or packaging material), let alone proof that the
paraphernalia could only be used in connection with crack. See
7
Powell noted that a characteristic of crack cocaine is that it can
be vaporized before the cocaine molecule decomposes, and hence can
be smoked without losing the narcotic effect. 503 F.3d at 149 n.2; see
Andrew C. Mac Nally, A Functionalist Approach to the Definition of
“Cocaine Base” in § 841, 74 U. CHI. L. REV. 711, 718 (2007).
18
Powell, 503 F.3d at 149.
Because the evidence was sufficient for a reasonable juror
to conclude beyond a reasonable doubt that the substance
Pettiford possessed was crack cocaine, we affirm his conviction
for violating 21 U.S.C. § 841(a) and (b)(1)(B)(iii).
V
Finally, Pettiford asks that we remand his case to the district
court so that he may file a motion, pursuant to 18 U.S.C. §
3582(c)(2), for a reduced sentence in light of recent actions of
the U.S. Sentencing Commission. Those actions lower the
Sentencing Guidelines ranges for certain categories of offenses
involving crack cocaine and permit district courts to apply the
lower ranges retroactively. See Notice of Final Action
Regarding Amendments to Policy Statement § 1B1.10, Effective
March 3, 2008, 73 Fed. Reg. 217 (Jan. 2, 2008); Notice of
Submission to Congress of Amendments to the Sentencing
Guidelines, 72 Fed. Reg. 28558 (May 21, 2007). The
government does not dispute that Pettiford may be eligible for
consideration of a reduction in his sentence. But it maintains
that we should simply affirm the judgment below; Pettiford can
then file a motion for a reduced sentence pursuant to §
3582(c)(2). Neither party has articulated any substantive
difference attending these alternative procedural dispositions.
To the contrary, both agree that Pettiford can make the same
arguments in favor of a reduction regardless of which procedural
disposition we direct. Oral Arg. Recording at 7:37-7:43, 13:46-
13:56.
It thus appears that resolution of this dispute is without
practical consequence. In this case, moreover, the effective date
of the Guidelines amendment that Pettiford intends to ask the
district court to apply retroactively has not yet arrived. See 73
19
Fed. Reg. at 217. Hence, he is not yet eligible to be considered
for a reduced sentence. We therefore affirm the district court’s
judgment and leave it to the defendant to file an appropriate
motion when he becomes eligible.
VI
For the foregoing reasons, the judgment of the district court
is
Affirmed.