United States v. Dexter Betts ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3555
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D EXTER W AYNE B ETTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 699-3—David H. Coar, Judge.
A RGUED M AY 28, 2009—D ECIDED A UGUST 12, 2009
Before E VANS, W ILLIAMS, and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. Dexter Betts pleaded guilty to
distributing more than fifty grams of cocaine base. In-
creased penalties apply to the distribution of crack, but
not to other forms of cocaine base. Betts objected to the
government’s characterization of the substance as crack,
but after a two-day sentencing hearing, the district court
found that the substance was crack and sentenced Betts
to 140 months’ imprisonment. Betts contends that the
2 No. 08-3555
evidence presented was insufficient to establish that the
substance was crack and relies on ambiguous comments
that the judge made in the course of sentencing to argue
that the court’s finding was flawed. But a reading of the
record as a whole shows that the court permissibly
relied on the testimony of an experienced investigating
officer and did not err in finding that the substance
Betts sold was crack. So we affirm the judgment of the
district court.
I. BACKGROUND
In June 2006 the Chicago Police Department began
investigating reports of an open air drug market on the
south side of Chicago. On September 9, 2006, Sergeant
Ronald Kimble, operating undercover, arranged to pur-
chase half a kilogram of crack from Betts’s codefendant,
Timothy Person. Both Betts and Person arrived at the
agreed sale location, where Betts supplied Person with
two plastic bags, each containing large chunks of a white,
rocky substance. Person then sold the bags to Sergeant
Kimble, who paid him $11,000 in pre-recorded bills. Person
gave a portion of the money to Betts. After the exchange,
Sergeant Kimble asked Betts how much he would charge
for a whole kilogram of crack, to which Betts responded
$16,000. Officers arrested Betts a few blocks away and
found $7,200 in pre-recorded bills in his possession.
Betts was initially charged in a criminal complaint with
conspiring to distribute in excess of fifty grams of crack.
See 21 U.S.C. §§ 841(a)(1); 846. In October 2006 a grand
jury returned a multi-count superseding indictment,
No. 08-3555 3
which charged Betts with conspiring with five other
codefendants to distribute crack and with distributing
in excess of fifty grams of crack. Betts pleaded guilty to
the distribution charge, admitting that he sold a sub-
stance containing cocaine base but stating that, for sen-
tencing purposes, he disputed the allegation that the
substance was crack. The government later dismissed
the conspiracy charge without prejudice.
At sentencing the government presented two witnesses
in support of its contention that the substance was crack.
A forensic chemist with the Drug Enforcement Admin-
istration (“DEA”), Nicole Wenzel, testified that she ana-
lyzed the chemical composition of the substances con-
tained in the two plastic bags. The first bag contained a
paste-like substance, and the other contained a wet, off-
white, rock-like substance. Wenzel’s testing showed that
the substance in the first bag was cocaine base and pro-
caine, a local anesthetic that is used as an adulterant
because it has physiological effects similar to cocaine. The
substance in the second bag was made up of cocaine
base, cocaine, and sodium bicarbonate. Asked to explain
the difference between cocaine hydrochloride (powder
cocaine) and cocaine base, Wenzel testified that cocaine
hydrochloride has chloride salts attached to the cocaine
molecule, while cocaine base has no salt attached. In
her testing, Wenzel sought only to determine the
presence of cocaine base and did not conclude whether
either substance was crack.
Sergeant Kimble, an eighteen-year veteran of the
Chicago Police Department with eight years as an under-
4 No. 08-3555
cover officer specializing in the investigation of narcotics
trafficking, testified that he had purchased crack in an
undercover capacity more than one hundred times and
is familiar with the look, smell, and feel of crack. Sergeant
Kimble testified that he called Person, asking for a half-
kilo of crack, and in response, Betts and Person sold
him two large chunks of a white, rocky substance. Based
on his years of experience in narcotics, and by seeing,
feeling, and smelling the substance, Sergeant Kimble
concluded that it was crack.
To counter this evidence, the defense called an expert
witness, Wayne Morris, a forensic scientist who had
worked in law enforcement chemically analyzing thou-
sands of drug samples. Morris testified that he was
familiar with the traditional method of creating crack, and
based on the procedure Betts described to him in an
earlier interview, Morris concluded that the substance
Betts created was not crack, but a non-crack form of
cocaine base. Morris based this conclusion on Betts’s
statements that he used only a small amount of water
and did not filter the substance, and that he had used
the procaine and sodium bicarbonate to simply “blow up”
or bulk up the product to “rip off” his customers.
Betts also testified, explaining that he and another
codefendant, Antwan Ramsey, created the substance by
taking a small amount of powder cocaine and adding an
equal amount of procaine and sodium bicarbonate to
bulk it up. They added a small amount of water, heated
the mixture in the microwave for twenty to thirty
seconds, and did not decant the resulting product. He
No. 08-3555 5
testified that he sold the half-kilo to Person for $5,000
below the market price for crack (although Sergeant
Kimble paid full market price) and stated that his cus-
tomers had complained about the quality of his product,
which he held out to be crack.
In rebuttal, the government introduced the testimony
of FBI Agent Jeffrey Moore, who participated in a proffer
interview with Betts in May 2007. Agent Moore testified
that in that interview, Betts explained that he and
Ramsey had learned of a buyer who was seeking half a
kilogram of crack. They therefore purchased powder
cocaine and cooked it to prepare the crack. During the
interview, Betts admitted that the facts contained in the
criminal complaint and supporting affidavit, which
described the transaction and included numerous refer-
ences to “crack,” were true and accurate. Agent Moore
testified that it is his practice to clarify whether an inter-
view subject is speaking about crack or powder
cocaine, and that he had understood Betts as referring
to crack throughout the interview. In his notes, Agent
Moore noted the word “crack” as well as street terms for
crack, including “hard cocaine,” “rock cocaine,” and
“cooked.”
At the conclusion of the testimony, the district court
ruled that the substance at issue was crack, and, there-
fore, the ten-year statutory minimum sentence applied.
See 21 U.S.C. § 841(b)(1)(A)(iii). In making its ruling
the court specifically noted the testimony of Sergeant
Kimble, stating, “there is nothing in that evidence that
was submitted that would suggest that it is anything other
6 No. 08-3555
than what the undercover agent testified that it was. He
testified by sight, smell, and by feel that it appeared to be
crack. That is sufficient.” The court then applied the
relevant sentencing guideline for crack, see U.S.S.G.
§ 2D1.1, and sentenced Betts to 140 months’ imprison-
ment, the bottom of the applicable guidelines range.
This appeal followed.
II. ANALYSIS
On appeal Betts challenges the district court’s finding
that the substance he sold was crack because, he argues,
the government’s evidence is insufficient to show that
the substance was anything more than cocaine base.
Additionally, Betts takes issue with two of the judge’s
statements, which, he contends, show that the judge not
only relied on evidence outside the record but failed to
understand the legal distinction between crack and
cocaine base.
A. The drug-type finding was not clearly erroneous.
At sentencing the government has the burden to prove
drug type by a preponderance of the evidence. United
States v. Stephenson, 557 F.3d 449, 452 (7th Cir. 2009). We
review the district court’s factual finding that the sub-
stance was crack under the deferential standard of clear
error, and will reverse “only if we are left with the
definite and firm conviction that a mistake was made.”
United States v. Padilla, 520 F.3d 766, 769 (7th Cir. 2008).
No. 08-3555 7
Crack is just one type of cocaine base, see United States v.
Booker, 70 F.3d 488, 490-92 (7th Cir. 1995), and the
enhanced statutory minimum sentence for the distribution
of fifty grams or more of “cocaine base,” 21 U.S.C.
§ 841(b)(1)(A)(iii), applies only to crack, United States v.
Edwards, 397 F.3d 570, 571-72 (7th Cir. 2005). Similarly,
the enhanced penalties contained in the sentencing guide-
lines use the term “cocaine base,” but expressly apply
only to crack. See U.S.S.G. § 2D1.1(c), Note D; United
States v. Bryant, 557 F.3d 489, 498 (7th Cir. 2009). In light
of the disparity between sentences for crack and other
forms of cocaine base, it is critical that the government
present evidence to show that the substance was crack
and not merely cocaine base. Padilla, 520 F.3d at 771;
Edwards, 397 F.3d at 571-72.
The difficulty, however, is that there is no precise
chemical definition of crack, Bryant, 557 F.3d at 498, and in
the guidelines, “crack” is described only as “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,” U.S.S.G. § 2D1.1(c), Note D. Consequently, in
determining whether a substance is crack, courts have
relied on a number of factors such as whether the sub-
stance has tested positive for the presence of cocaine
base; the color, shape, and texture; the method of packag-
ing; the price; and whether the seller represents the
substance as or understands the substance to be crack.
Bryant, 557 F.3d at 499-500 (quotations and footnotes
omitted).
8 No. 08-3555
Here, the district court primarily relied on the observa-
tions and opinion of Sergeant Kimble, a veteran police
officer with years of experience in narcotics investiga-
tions, to determine that the substance was crack. That
finding is supported by the chemical analysis showing
that the substance in each bag contained cocaine base as
well as either sodium bicarbonate, commonly used in
the production of crack, see U.S.S.G. § 2D1.1(c), Note D;
Padilla, 520 F.3d at 770; or procaine, which, as the
forensic chemist’s testimony supports, is a common
additive found in crack, see also United States v. Snow,
462 F.3d 55, 60 n.1 (2d Cir. 2006). Additionally,
Agent Moore’s understanding that Betts was referring
to crack based on his repeated use of street terms for
crack, as well as Betts’s own statements that his cus-
tomers came to him for crack and that the facts in the
complaint were true and correct, further support the
court’s finding.
Betts takes issue with the district court’s reliance on
Sergeant Kimble’s conclusion that the substance was
crack because on cross-examination the sergeant acknowl-
edged that he did not know how the substance was
produced. Additionally, Sergeant Kimble was never
asked whether he is able to distinguish between crack and
other forms of cocaine base. We have repeatedly held,
however, that a district court may rely on the testimony
of people familiar with crack to determine that the sub-
stance was crack—“as those who buy and sell in the
market generally understand the term.” Stephenson, 557
F.3d at 453. Experts in this area may include veteran police
officers, forensic chemists, drug users, and drug dealers.
No. 08-3555 9
Id.; United State v. Lake, 500 F.3d 629, 634 (7th Cir. 2007);
United States v. Bradley, 165 F.3d 594, 596 (7th Cir. 1999).
The court was therefore allowed to rely on Sergeant
Kimble’s testimony that he believed, based on the look,
smell, and feel of the substance, that it was crack.
Betts next argues that the unrefuted testimony of his
expert witness shows that the method he used to produce
the substance lacked the hallmarks of traditional
crack production: the use of large amounts of water,
dissolution, and a final decantation or filtration process.
We have refused to adopt a rigid definition of crack or
to recognize one specific method for producing crack
because to do so “would invite those in the drug trade
to make minor changes in structure, processing, or pack-
aging to avoid the increased penalties for selling crack
cocaine.” Stephenson, 557 F.3d at 453; see Bryant, 557 F.3d
at 499; United States v. Abdul, 122 F.3d 477, 479 (7th Cir.
1997). Moreover, the district court discounted the testi-
mony of Betts’s expert witness based on the fact that the
expert relied on Betts’s own description of how he made
the substance and, the court concluded, Betts’s account
of that procedure was not consistent with the chemical
analysis, which showed that the substance had been
converted to cocaine base.
B. Judge’s comments did not amount to reversible error.
Betts next contends that two of the judge’s comments
at sentencing constitute reversible error. Betts argues
that the court improperly relied on evidence outside the
record to discount the testimony of Betts and his expert
10 No. 08-3555
witness, citing the judge’s statement that, “[i]n the many
cases that I’ve had where experts have testified about
crack cocaine, Mr. Betts’ testimony . . . about how this
was produced would be absolutely inconsistent with the
process yielding cocaine base.” The judge went on to
explain that if Betts had used only a small amount of
water and did not pour it out, the substance would
simply be powder cocaine mixed with sodium bicarbonate,
“and that’s not the clinical analysis of the substance.”
Therefore, the judge concluded, “it didn’t happen the
way Mr. Betts testified.”
A sentencing court has wide latitude in the types of
evidence it may consider, Padilla, 520 F.3d at 769, so long
as that evidence bears sufficient indicia of reliability, see
U.S.S.G. § 6A1.3(a). Although the rules of evidence and
the right to confront witnesses do not apply at sen-
tencing, see Williams v. New York, 337 U.S. 241, 250-51
(1949); United States v. Roche, 415 F.3d 614, 618 (7th Cir.
2005), the court is generally prohibited from relying on
undisclosed evidence as this deprives the parties of the
opportunity to rebut or respond to the evidence, see
Burns v. United States, 501 U.S. 129, 135 (1991) (ex-
plaining that Federal Rule of Criminal Procedure 32
“contemplates full adversary testing of the issues
relevant to a Guidelines sentence”); United States v.
Christman, 509 F.3d 299, 304-05 (6th Cir. 2007). Indeed, it is
unclear which experts the judge was referring to, or if, as
the government suggests, the judge was referring to
his knowledge of undisputed scientific facts about the
process of creating cocaine base, detailed in our prior
opinions, see, e.g., United States v. Kelly, 519 F.3d 355, 359
No. 08-3555 11
(7th Cir. 2008); Edwards, 397 F.3d at 574; Booker, 70 F.3d at
490-91 (taking judicial notice of the chemical properties of
cocaine and cocaine base as well as the conversion pro-
cess). Nevertheless, the court’s statement does not con-
stitute reversible error. The parties had a full oppor-
tunity to present evidence on this issue, and the court
adequately explained its reasoning for the conclusion that
Betts’s description of how he produced the cocaine base
was not credible. A district court’s determination of
credibility is entitled to great deference, United States v.
Longstreet, 567 F.3d 911, 925 (7th Cir. 2009), and even if
we disregard the court’s reference to expert testimony
from other cases, sufficient evidence supports the
court’s credibility determination, and it was not clearly
erroneous.
Finally, Betts highlights the judge’s comment that
“[t]here is no dispute that on the other side of the
process it yielded cocaine base, so I’m at a loss to under-
stand why we went through this exercise.” Betts is correct
that a conversion to cocaine base does not necessarily
create crack, see Stephenson, 557 F.3d at 453 (noting that
other methods of converting powder cocaine may result
in non-crack cocaine base, including “freebase cocaine”);
Booker, 70 F.3d at 491 (same); Bradley, 165 F.3d at 596
(distinguishing “coca paste” and “other exotic form[s] of
cocaine base” from crack), and the evidence presented
at sentencing was important given the significant sen-
tencing disparity between crack and other forms of
cocaine base, the latter of which are sentenced in the
same manner as powder cocaine, see Padilla, 520 F.3d at
771. But a reading of the ruling as a whole shows that
12 No. 08-3555
the judge understood crack to be just one form of cocaine
base. As the judge commented, “[c]rack is merely a physi-
cal form of cocaine base that’s smokable.” Moreover, the
court permissibly relied on Sergeant Kimble’s opinion
that the substance was crack. The court’s determination
that none of the other evidence submitted “would sug-
gest that it is anything other than what the undercover
agent testified that it was,” reflects that the court consid-
ered the remaining evidence, and we cannot say that this
finding was clearly erroneous. Although the govern-
ment’s evidence provided little to specifically distinguish
the substance from other forms of cocaine base, it
needed to show only “more likely than not” that the
substance was crack, United States v. Branch, 195 F.3d 928,
934 (7th Cir. 1999). And here the totality of the evi-
dence—including the chemical analysis showing
cocaine base, the undercover officer’s opinion that the
substance was crack, and Betts’s own use of street terms
for crack in the proffer interview as well as his state-
ments that he purported to sell crack and that the crim-
inal complaint alleging that he sold “crack” was cor-
rect—supports the court’s finding.
III. CONCLUSION
Accordingly, we A FFIRM Betts’s sentence.
8-12-09