United States v. Dent

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
7-6-1998
United States v. Dent
Precedential or Non-Precedential:
Docket 97-1666
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Filed July 6, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-1666
UNITED STATES OF AMERICA
v.
MICHAEL DENT,
Appellant
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 92-cr-00223-3)
Argued on October 28, 1997
BEFORE: SLOVITER, NYGAARD, and KRAVITCH,*
Circuit Judges.
(Filed July 6, 1998)
Anna M. Durbin (Argued)
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276
Attorney for Appellant
_________________________________________________________________
* Honorable Phyllis A. Kravitch, Senior Circuit Judge for the United
States Court of Appeals for the Eleventh Circuit, sitting by designation.
Alan J. Chaset
Law Offices of Alan J. Chaset
910 King Street, Suite 200
Alexandria, VA 22314
Attorney for Amicus-Appellant
Families Against Mandatory
Minimums Foundation
Zane D. Memeger (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorney for Appellee
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Michael Dent appeals his conviction for conspiracy to
distribute crack cocaine in violation of 21 U.S.C. S 841(b),
alleging that both his conviction and sentence rest on
legally insufficient evidence. Dent also argues that the
prosecution's delay in bringing his case to trial violated the
Sixth Amendment and the Interstate Agreement on
Detainers Act, and that the district court should have
permitted him to review the personnel file of his arresting
officer. We will affirm.
I.
Dent's case has a long and dramatic history, which need
be recounted only briefly for purposes of this appeal. On
January 19, 1992, Philadelphia police officers Stephen
Cassidy and Dathon Enoch pursued a suspected drug
dealer into a local residence. Inside they found Dent and
two other men seated at a table cluttered with cocaine base
and drug paraphernalia. The officers arrested Dent and his
companions, as well as the suspected drug dealer who led
them to the house. The federal prosecutor took over Dent's
case from the Philadelphia authorities, but Dent jumped
bond and fled the jurisdiction before federal agents could
2
arrest him. Because of Dent's fugitive status, delay on the
government's part and Dent's intervening incarceration in
New York state for unrelated crimes, he was not tried on
federal narcotics charges until February 1997, although a
grand jury indicted him on April 22, 1992. A jury convicted
Dent of one count of conspiracy to distribute crack cocaine,
but acquitted him of a related count for possession of a
controlled substance. As punishment, he now faces 92
months' imprisonment to be followed by a five-year period
of supervised release.
Dent's appeal raises numerous challenges to his
conviction and sentence. First, he alleges that the
government's delay in bringing his case to trial violated the
Sixth Amendment's speedy trial provision and the Interstate
Agreement on Detainers Act ("IAD"), 18 U.S.C. app. S 2.
Second, he claims that Officer Cassidy's testimony was
insufficient to prove his participation in a conspiracy to
distribute crack because the officer could not recall seeing
Dent personally handle any drugs or drug paraphernalia.
Next, Dent alleges that the district court should not have
admitted the cocaine base at trial, since the government
failed to establish a reliable chain of custody for the exhibit.
He further argues that the government did not demonstrate
that the drugs were crack rather than another form of
cocaine base, and that consequently he may not be
sentenced under U.S. Sentencing Guidelines Manual
("U.S.S.G.") S 2D1.1, which imposes a far harsher penalty
for crack offenses than is applied to crimes involving equal
quantities of cocaine in other forms. Dent also insists that
the district court should have permitted him to review
Cassidy's personnel file, and that had it done so, he could
have cast doubt on the officer's credibility as a witness.
Finally, Dent attacks his sentence on the ground that the
government used an unreliable method to determine the
amount of crack involved in his crime. We will consider
each of these arguments in turn.
The district court had jurisdiction under 18 U.S.C.
S 3231. We have appellate jurisdiction over the district
court's order under 28 U.S.C. S 1291 and over the final
sentence under 18 U.S.C. S 3742(a).
3
II.
We consider first Dent's contention that a prejudicial pre-
trial delay violated both his Sixth Amendment right to a
speedy trial and the IAD. We review the district court's legal
conclusions de novo, but will reverse factual findings only
if they are clearly erroneous. See United States v. Bierley,
922 F.2d 1061, 1064 (3d Cir. 1990).
A.
The Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial." U.S. Const. amend. VI. However, "[u]ntil
there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors"
relevant to whether a pre-trial delay prejudiced the
defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972).
Here, the approximately five-year delay between Dent's
arrest and his trial is sufficiently lengthy to trigger full
inquiry into the possibility that Dent suffered prejudice as
a result. See Doggett v. United States, 505 U.S. 647, 651
n.1, 658 (1992) (observing that most courts find a
postaccusation delay "presumptively prejudicial" at least as
it approaches one year); Hakeem v. Beyer, 990 F.2d 750,
760 (3d Cir. 1993) (fourteen and one-half month delay
warrants full inquiry into possible prejudice resulting from
postponement of trial).
Once the defendant identifies a presumptively prejudicial
delay in bringing his case to trial, determining whether that
delay violated the Sixth Amendment requires a highly fact-
specific analysis that balances all the relevant
circumstances. In conducting this balancing test, the
Supreme Court has emphasized four factors: (1) the length
of the delay, (2) the reasons for delay, (3) whether, in due
course, the defendant asserted his right to a speedy trial
and (4) the actual prejudice the defendant suffered as a
result. See Barker, 407 U.S. at 530. Although we begin our
analysis with these four factors, we are mindful that none
is "either a necessary or sufficient condition to the finding
of a deprivation of the right of speedy trial," and that we
must consider them together "with such other
circumstances as may be relevant." Id.4
Although the first of the Barker factors, the length of the
delay, weighs somewhat in Dent's favor, it is not
compelling. Certainly the gap between Dent's January 19,
1992 arrest and his trial on February 3 and 4, 1997 is
substantial. However, the seriousness of a postaccusation
delay varies depending on the circumstances, and a waiting
period during which the defendant is not detained presents
fewer concerns than a wait accompanied by pretrial
incarceration. See id. at 533 (noting serious societal
disadvantages caused by pretrial incarceration). Dent did
not endure any significant pretrial detention associated
with the conviction from which he appeals. We therefore do
not find the length of the pretrial delay in his case to be
intolerable.
More important, Dent's claim stumbles on the second
Barker factor, which requires us to consider whether Dent
or the government caused the delay. Although both parties
contributed to the post-indictment delay, it is clear that
Dent bears the bulk of responsibility in this regard. After
his arrest, Dent jumped bond and remained a fugitive for
more than two years. He was listed as a wanted person on
April 30, 1992 after failing to appear at a state court
hearing, and, despite diligent efforts, federal agents could
not locate him until August 1994. Dent argues that he is
not to blame for this part of the delay, because federal
agents had not yet arrested him when he fled, and thus he
did not know of the federal indictment. This argument is
specious. Dent may not have known that his case had been
adopted by federal prosecutors, but he certainly knew that
he had been arrested by Philadelphia police and released
on bond, and that proceedings had commenced against him
in state court. As a result, Dent was fully aware of his
fugitive status when he fled to New York sometime in early
1992.
Inexplicably, after learning that Dent was incarcerated in
New York, the government waited fourteen months before
taking further steps to bring him to justice. Beginning
October 17, 1995, however, the prosecution consistently
sought to have Dent tried in Pennsylvania. On that date,
prosecutors wrote to the U.S. Marshal Service requesting
that Dent's arrest warrant be lodged as a detainer with the
5
correctional facility where Dent purportedly was
incarcerated, only to learn that no inmate named Michael
Dent was then in residence at that institution. This
confusion was not resolved until April 1996, when the
government discovered that Dent was being held at a
different New York correctional institution under his real
name, Isaac Dennis. On April 26, 1996, the government
again wrote to the U.S. Marshal Service requesting that
Dent's outstanding federal arrest warrant be lodged as a
detainer, this time with the correct New York facility.
Thus, Dent is wholly responsible for the first 26 months
of the pre-trial delay, and the government is to blame for
only 14 months of that delay. Although an additional 13
months passed before Dent's trial, the government cannot
be faulted for this lag. By all accounts, the United States
Attorney's office sedulously attempted to locate Dent in the
New York penal system after October 17, 1995. Indeed, it
was Dent's use of an alias, not any neglect on the
government's part, which largely caused the additional
delay.
The third Barker criterion--whether the defendant timely
asserted the right to a speedy trial--also weighs against
Dent's Sixth Amendment claim. Dent did not assert his
right to a speedy trial until June 1996, more than four
years after his arrest. Although Dent was unaware of the
federal indictment until that date, he certainly knew that
narcotics charges were pending against him in Philadelphia
in connection with his prior arrest, and that he had left
Pennsylvania just as criminal proceedings against him were
beginning. Had Dent truly wished to expedite his trial, he
would have remained in Pennsylvania to be tried, or at the
very least maintained contact with authorities in that state.
Moreover, he would not have given arresting officers an
assumed name or allowed the state court to begin
proceedings against him using the alias.
The fourth element under Barker, prejudice to the
accused, likewise does not indicate a violation of Dent's
Sixth Amendment rights. Dent contends that the pretrial
delay prejudiced his defense because witnesses could no
longer remember important details. Further, Officer Enoch
retired before Dent's trial and thus allegedly could not be
6
located to testify for the defense. Dent also claims that his
mother, his stepfather and a codefendant, William Scott, all
died before the trial and therefore could not testify in his
defense. In addition, Dent alleges prejudice because he lost
the opportunity to serve his present sentence concurrently
with his incarceration in New York.
None of these allegations of prejudice is convincing. First,
the passage of time probably helped Dent's case by making
Sergeant Cassidy's testimony less detailed and therefore
less convincing. Indeed, one of Dent's principal arguments
at trial was that Cassidy could not recollect seeing Dent
personally handle any drugs or drug paraphernalia.
Second, there is no reason to believe that Officer Enoch's
testimony would have aided the defense. Moreover, Dent
has not shown that he seriously attempted to locate Enoch
for trial. Nor is it likely that William Scott could have
offered any useful information not provided by Dent
himself, because at all relevant times Scott and Dent were
seated side-by-side at the crime scene and thus had the
same opportunity to witness events. Finally, Dent's parents
could not have provided a credible alibi, because Cassidy
saw Dent at the crime scene and arrested him there. In any
event, Dent's mother died in 1993, during the period of the
delay attributable wholly to Dent's flight from the law. Thus
Dent, not the government, should bear the burden of any
loss of evidence caused by her unavailability.
Of course, "excessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove
nor, for that matter, identify." Doggett, 505 U.S. at 655.
Thus "affirmative proof of particularized prejudice is not
essential to every speedy trial claim." Id. On the other hand,
however, this presumptive prejudice certainly "cannot alone
carry a Sixth Amendment claim without regard to the other
Barker criteria." Id. Here, the presumptive prejudice from
the government's fourteen month delay simply cannot
outweigh the other Barker factors, which do not support a
conclusion that Dent suffered prejudice from denial of a
speedy trial. Accordingly, and because we find no other
circumstances relevant to this analysis, we hold that the
lag between Dent's arrest and trial did not violate the Sixth
Amendment.
7
B.
The IAD, which governs resolution of outstanding
criminal charges against suspects serving sentences in
other states, also fails to provide Dent a basis for relief.
Under Article III(a) of the IAD, a defendant must be tried on
outstanding criminal charges within 180 days after
authorities receive his or her request for trial. See 18 U.S.C.
app. S 2, art. III(a); Casper v. Ryan, 822 F.2d 1283, 1285
(3d Cir. 1987). Furthermore, Article V(c) of the IAD requires
that an indictment be dismissed with prejudice if trial is
not commenced within that period. 18 U.S.C. app.S 2, art.
V(c).
On April 26, 1996, after finally locating Dent at Mid-State
Correctional Facility ("Mid-State"), the United States
Attorney initiated proceedings to secure Dent's return to
Pennsylvania for trial under Article IV(a) of the IAD. That
Article permits a prosecutor outside the jurisdiction where
an inmate is incarcerated to lodge a detainer against the
prisoner and procure his presence for trial on pending
criminal charges. Meanwhile, on June 25, 1996, Dent sent
a letter to the federal district court for the Eastern District
of Pennsylvania requesting a speedy resolution of his
outstanding federal charges under the Interstate Agreement
on Detainers. His letter did not reference Article III,
however, and did not include the information which that
Article states must accompany such a request.
Dent claims that because the government received his
letter requesting a speedy trial on July 23, 1996, Article III
required the prosecution to initiate his trial on or before
January 19, 1997. However, invocation of Article III's 180-
day time limit generally requires strict compliance with the
Article's requirements. Nash v. Jeffes, 739 F.2d 878, 884
(3d Cir. 1984), rev'd on other grounds sub. nom., Carchman
v. Nash, 473 U.S. 716 (1985). Thus the 180-day period
does not begin until the inmate "shall have caused to be
delivered to the prosecuting officer and the appropriate
court . . . written notice of the place of his imprisonment
and his request for a final disposition to be made of the
indictment, information, or complaint." Article III(a).
Additionally, the request "shall be accompanied by a
certificate of the appropriate official having custody of the
8
prisoner, stating the term of commitment under which the
prisoner is being held, the time already served, the time
remaining to be served on the sentence, the amount of good
time earned, the time of parole eligibility of the prisoner,
and any decision of the State parole agency relating to the
prisoner." Id. Because Dent failed to satisfy these essential
procedural requirements, we hold that his June 25, 1996
letter did not start the clock for the government's
compliance with Article III. Instead, the 180-day period
began to run August 22, 1996 when the prosecution
learned that Dent wished to proceed under IAD Article III,
and did not expire until February 18, 1997, well after
Dent's trial.
Dent argues that the circumstances of his case require
us to excuse his noncompliance with Article III. He points
out that his June 25, 1996 letter invoked the IAD, the
government already possessed most of the necessary
information concerning his case and his noncompliance
was solely the fault of the New York state penal authorities.
Dent repeatedly asked authorities at Mid-State to provide
him with IAD forms so that he might resolve the federal
charges pending against him in Pennsylvania. Yet instead
of supplying the necessary forms, the authorities
erroroneously informed him that federal warrants "do not
fall under the IAD," because it "is solely an agreement
between states." They further advised Dent that he could
expedite his trial by writing the United States District Court
for the Eastern District of Pennsylvania, but that he need
"not fill out any papers." In doing so, the New York officials
failed to satisfy Article III(c)'s mandate that"[t]he warden,
commissioner of corrections, or other official having
custody of the prisoner shall promptly inform him of the
source and contents of any detainer lodged against him and
shall also inform him of his right to make a request for final
disposition of the indictment, information, or complaint on
which the detainer is based." 18 U.S.C. app. S 2, art. III(c).
In Casper, 822 F.2d at 1293, we recognized that "[s]trict
compliance with Article III may not be required when the
prisoner has done everything possible, and it is the
custodial state that is responsible for the default." We also
explained, however, that an inmate seeking the benefit of
9
this exception nonetheless must "show that s/he
substantially complied to the extent possible." Id. Dent's
letter did not include his term of commitment, the time
already served, the time remaining to be served on his
sentence, or any information concerning good-time credits
or parole eligibility as required under Article III. Nor does he
claim that he could not have supplied these details.
Instead, Dent notes that when the government received his
letter on July 23, 1996, it had already obtained most of the
necessary information through its own efforts to secure
custody of Dent under Article IV.1 This fact is not
dispositive. As we emphasized in Casper, the inmate's IAD
request must contain sufficient information to alert the
government that Article III has been invoked, without
requiring the prosecution "to analyze each communication
. . . with a fine-tooth comb to determine whether it should
be construed as invoking the IAD." Nash, 739 F.2d at 884.
Under the circumstances, Dent's letter simply was
inadequate to alert the government that he sought to rely
on Article III. To hold otherwise would "create`a trap for
unwary prosecuting officials' and . . . defeat the underlying
purpose of Article III's procedural requirements. . . ."
Casper, 822 F.2d at 1292-93 (quoting Nash , 739 F.2d at
884).
III.
We will review together Dent's various challenges to the
sufficiency of evidence supporting his conviction. We apply
a particularly deferential standard of review when deciding
whether a jury verdict rests on legally sufficient evidence.
"It is not for us to weigh the evidence or to determine the
credibility of the witnesses." United States v. Voigt, 89 F.3d
1050, 1080 (3d Cir.), cert. denied, ___ U.S. ___, 117 S. Ct.
623 (1996) (citation omitted). Rather, we must view the
evidence in the light most favorable to the government, see
United States v. Thomas, 114 F.3d 403, 405 (3d Cir. 1997),
and will sustain the verdict if " `any rational trier of fact
_________________________________________________________________
1. Dent claims that as of July 23, 1996, the government had all of the
information that Article III(a) requires him to supply, with the exception
of details regarding good-time credits. See Appellant's Reply Br. at 8.
10
could have found the essential elements of the crime
beyond a reasonable doubt.' " Voigt, 89 F.3d at 1080(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Accord United States v. Coleman, 811 F.2d 804, 807 (3d
Cir. 1987). Thus, "a claim of insufficiency of the evidence
places a very heavy burden on an appellant." United States
v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation
omitted).
The evidence against Dent consisted of testimony by
Dent's arresting officer, statements of a forensic scientist
who examined the drugs seized during Dent's arrest and
the cocaine itself. Dent insists that none of this suffices to
prove beyond a reasonable doubt that he participated in a
conspiracy to distribute crack. We disagree.
A.
Testimony from Dent's arresting officer, Sergeant
Cassidy, provided the prosecution's principal evidence at
trial. On the witness stand, Cassidy recounted the following
events. While patrolling Sharswood Avenue in Philadelphia,
he and Officer Dathon Enoch observed two men exchanging
money for several small, unidentified objects. When Cassidy
and Enoch approached, both men fled. Although the man
who received the objects escaped, the other, later identified
as Courtney Golden, entered 5411 Sharswood Avenue and
attempted to close the door of the residence to prevent the
officers from following him inside. The three men struggled
for a moment in a tug-of-war, as Golden sought to keep the
door shut, while Enoch and Cassidy tried to enter. Golden
eventually abandoned his hold on the door, fleeing to the
rear of the house and into the kitchen. Cassidy and Enoch
pursued Golden into the kitchen where, in Cassidy's words,
they
observed three males sitting at a table inside the
kitchen area with numerous drug items on the table.
There was a plate, there was a chunk of a -- an off-
white chunky substance. There were razor blades,
straw. There were vials, some were full. There were
vials in bags that were wrapped up and lined out . ..
in a straight line . . . about four or five of them.
11
Cassidy observed that "one of [the men] had a razor blade
in his hand," and based on his fifteen years of experience
investigating narcotics offenses, he concluded that the three
men seated at the table, one of whom was Dent, were
"bagging cocaine" for sale. Finally, Cassidy stated that
Courtney Golden had cocaine in his coat pocket.
In addition, Tanweer Ali, a forensic scientist from the
Philadelphia Police Drug Laboratory, testified that she
identified the substance seized from Dent as cocaine base
by performing two tests: (1) a Scott's reagent test, which
yielded positive results consistent with the presence of
cocaine base, and (2) a gas chromatograph ion test, which
also indicated the presence of cocaine. Ali also testified that
the Scott Test is 99.9 percent accurate.
We find this evidence sufficient to support a reasonable
inference that Dent and his co-defendants conspired to
distribute cocaine base. A conviction for conspiracy
requires proof of "unity of purpose, the intent to achieve a
common goal, and an agreement to work together toward
that goal." United States v. Powell, 113 F.3d 464, 467 (3d
Cir. 1997). The government must prove each element
beyond a reasonable doubt, but may do so solely by
circumstantial evidence. See United States v. Barrow, 363
F.2d 62, 64 (3d Cir. 1966). A reasonable jury could infer
from Dent's proximity to the drugs and paraphernalia,
while at least one of the men seated beside him bagged the
crack, that Dent and the other men conspired to distribute
cocaine. See United States v. James, 40 F.3d 850, 867 (7th
Cir. 1994), vacated on other grounds sub nom., James v.
United States, 516 U.S. 1022 (1995), modified on other
grounds, 79 F.3d 553 (7th Cir. 1996) (defendant's presence,
proximity and apparent participation during packaging of
drugs for street sale sufficed to sustain conviction for drug
distribution conspiracy, although arresting officer did not
actually see defendant handle cocaine). A jury also
reasonably could infer from Golden's actions outside the
house, his flight into 5411 Sharswood Avenue and the
presence of cocaine in his pockets that Golden had sold
drugs as part of a conspiracy in which Dent participated.
Dent's contention that the evidence also permits a less
sinister conclusion is immaterial. "To sustain the jury's
12
verdict, the evidence does not need to be inconsistent with
every conclusion save that of guilt." United States v.
Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation and
internal quotation marks omitted).
Dent's reliance on Thomas, supra, and United States v.
Wexler, 838 F.2d 88 (3d Cir. 1988), is also misplaced. In
those cases, we explained that a conviction for conspiracy
to distribute a controlled substance requires evidence that
the accused knew the conspiracy's purpose was to
distribute contraband. See Thomas, 114 F.3d at 406(insufficient evidence that defendant participated in drug
conspiracy absent proof that he knew the suitcase at issue
contained drugs); Wexler, 838 F.2d at 92 (evidence
insufficient to support drug conspiracy conviction absent
proof that defendant who acted as a lookout knew he was
facilitating hashish distribution). In contrast to Thomas and
Wexler, here the evidence clearly supports the conclusion
that Dent knew his accomplices intended to distribute
cocaine base because he watched them package the drugs
for sale.
B.
Dent also claims that the cocaine base was inadmissible
under Federal Rule of Evidence 901, because the
government failed to provide a reliable chain of custody. To
establish a chain of custody, the government need only
show that it took reasonable precautions to preserve the
evidence in its original condition, even if all possibilities of
tampering are not excluded. See United States v. Kelly, 14
F.3d 1169, 1175 (7th Cir. 1994). Absent actual evidence of
tampering, a trial court may presume regularity in public
officials' handling of contraband. See Kelly, 14 F.3d at
1175; United States v. Jackson, 649 F.2d 967, 973-74 (3d
Cir.), cert. denied, 454 U.S. 871 (1981). Unless the trial
court clearly abused its discretion, we must uphold its
decision to admit the cocaine base into evidence. See
Jackson, 649 F.2d at 973.
Here, Cassidy testified that he transported the drugs
directly from the crime scene to the Narcotics Division and
observed while laboratory personnel field tested the drugs
13
and assigned them an inventory number. Cassidy's
testimony also clearly distinguished the drugs seized from
codefendant Courtney Golden from those found on the
table where Dent was seated at the time of his arrest. Thus,
Dent's contention that police commingled the evidence with
drugs taken from other defendants is insupportable.
Moreover, the prosecution showed that the cocaine
attributed to Dent remained in a locked storage bin and
was removed only for laboratory testing and for
presentation in court. At all times, the laboratory
maintained a written record showing who handled the
contraband and when. Although Dent identifies a few
instances when the evidence was placed in a different
storage bin without the change being entered into the
record log, these discrepancies affect the weight of the
evidence, not its admissibility. Moreover, it is clear that the
drugs never left the lab except when transported for
proceedings against Dent's co-conspirators.
Nor is the evidence inadmissible because of a tear in the
plastic bag holding the vials of cocaine base. The chemist
testified that this tear could have resulted from handling or
temperature exposure. Thus, without more, it is insufficient
to require exclusion of the evidence. The chemist also
stated that when she tested and weighed the drugs, the bag
contained no tears.
Finally, we do not place great significance on variations
in the witnesses' descriptions of the cocaine. Cassidy's
description of the contraband at trial as "an off white
chunky substance" differs only slightly from that on the
property receipt, which specifies "a white chunky substance
wrapped in foil" and from Ali's statement that she tested
"white chunky residue" on a foil-wrapped glass plate. These
minor discrepancies can be attributed to the inevitable
differences in human perception, and we will not require
the police and laboratory chemists to use precisely the
same words in referring to evidence before it may be
admitted.
IV.
We turn next to Dent's claim that he should not have
been sentenced under the crack enhancement provisions of
14
U.S.S.G. S 2D1.1, because the government failed to prove
by a preponderance of the evidence that the substance
recovered during Dent's arrest was crack cocaine. We
review for clear error the district court's finding that the
substance found in Dent's presence was crack, reversing
only if we are left with a definite and firm conviction that a
mistake has been made. See United States v. Roman, 121
F.3d 136, 140 (3d Cir. 1997); United States v. Covington,
133 F.3d 639, 643 (8th Cir. 1998).
The crack enhancement provisions of Sentencing
Guidelines S 2D1.1 apply only if the prosecution proves by
a preponderance of the evidence that the cocaine-base
involved satisfies the Guidelines' definition of crack. See
United States v. James, 78 F.3d 851, 858 (3d Cir.), cert.
denied, 117 S. Ct. 128 (1996). That definition states that
" `Cocaine base' for purposes of this guideline, means crack.
`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." U.S.S.G. S 2D1.1(c) (Note D) (1995).
In Dent's case, although a chemist identified the
contraband as cocaine base, she did not perform a test to
determine whether it contained sodium bicarbonate, which
Dent claims would be present in crack. Therefore, the sole
evidence that Dent conspired to distribute crack rather
than another form of cocaine base was Sergeant Cassidy's
statement that the vials in Item 5 contained crack and Ali's
testimony that crack generally is sold in vials or plastic
bags. Although police seized six items of evidence from
Dent and his co-conspirators, the court sentenced Dent
based only on Items 2, 3 and 5. Cassidy characterized
these items as follows:
Item number two is a clear glass plate with
approximately three grams of white chunky substance,
cocaine. Item number 3 is 17 clear plastic vials sealed
with red caps containing a white substance,
cocaine. . . . Item number 5 is five clear plastic
sandwich bags containing 23 each clear plastic vials
sealed with red caps containing a white substance,
crack.
15
Thus Cassidy's testimony indicates only that Item 5
contained crack, rather than another form of cocaine base.
Ali testified that all of the items contained cocaine base
and stated only that she "mostly . . . see[s] crack in vials
and ziplock baggies, and it comes in hard, chunky
substance form, as compared to cocaine salt that comes in
chunky powdered form and that can also be packed in
ziplock baggies or heat-sealed baggies or in sandwich bags
[sic] kind bags." When asked more specifically about
whether the cocaine base she tested was crack, Ali testified
that she has "very little experience or no experience at all"
in distinguishing between different forms of cocaine base,
and that she could not say whether the substance was
crack.
In Roman, 121 F.3d at 141, we held that precise chemical
analysis is not necessary to prove that cocaine base is
crack under the Sentencing Guidelines. There, the
government had tested the cocaine base for traces of
sodium bicarbonate, but found none. Id. The prosecution
explained the absence of sodium bicarbonate by presenting
evidence that if cocaine is cooked carefully, no sodium
bicarbonate residue will remain in the finished crack. Id.Thus, the only evidence that the cocaine base was crack
was the statement of a twelve-year veteran of the police
force that it "was packaged in clear plastic vials with color
caps, which is how crack is commonly packaged in the
streets of Philadelphia." Id. (internal quotation marks
omitted). Because the testifying officer had more than
twelve years of experience with the Drug Enforcement
Agency task force, had participated in more than 1000
cases involving crack cocaine, attended training sessions on
cocaine conducted by the Philadelphia police chemical lab
and instructed other narcotics officers about identifying
crack, we found his testimony "just barely" sufficient to
meet the preponderance of the evidence standard. Id.As we stated in Roman, ideally the government should
aspire to provide a higher quality of proof than offered here.
Id. at 141 n.4. Nonetheless, we cannot conclude that the
district court abused its discretion by finding that the
testimony of Cassidy and Ali satisfied the prosecution's
burden of proof. Cassidy worked for the police force slightly
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longer than the officer in Roman, and although he only
testified that Item 5 contained crack, that item weighed
5.803 grams and therefore suffices to support Dent's
sentence. By her own admission, Ali has virtually no
experience in distinguishing between crack and other forms
of cocaine base. Thus, her testimony that the cocaine base
taken from the table where Dent was seated was packaged
using the method commonly used to pack crack for street
sale has substantially less probative value than the
statement of the investigating officer in Roman.
Nonetheless, when combined with Officer Cassidy's
testimony, it satisfies the government's burden of proof.
V.
We must also reject Dent's claim that the prosecution
failed to prove the quantity of crack involved in his crime
because it used an unreliable process to calculate the
crack's weight. The drugs attributed to Dent were Item 2, a
foil-wrapped lump of crack, and Items 3 and 5, both of
which consisted of several vials of cocaine base. Tanweer
Ali tested and weighed the single lump. She also
individually weighed four of the seventeen vials from Item 3
and eleven of the 115 vials in Item 5. She then used the
actual weights of these sample vials to extrapolate the
weights of the vials in Items 3 and 115 respectively. Ali also
testified that the substance in all of the vials had the same
general appearance. We upheld this weighing procedure in
United State v. McCutchen, 992 F.2d 22 (3d Cir. 1993).
There, we concluded that "[i]f a defendant challenges a drug
quantity estimate based on an extrapolation from a test
sample, the government must show, and the court must
find, that there is an adequate basis in fact for the
extrapolation and that the quantity was determined in a
manner consistent with accepted standards of reliability."
Id. at 25-26. This standard does not require that the
government produce statistical evidence supporting its
sampling techniques. Id. at 26. "Rather, reasonable
reliability is the touchstone of the determination." Id.Here, the weight calculation was reasonably reliable
because it was determined using an established procedure,
the vials and their contents were substantially similar in
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appearance, police seized all the drugs at the same time
and place, and Ali randomly selected the vials weighed.2 See
id.; United States v. Scalia, 993 F.2d 984, 989 (1st Cir.
1993) ("[S]ufficient indicia of reliability may be found where
a preponderance of the evidence demonstrates that (1) a
proper `random' selection procedure was employed; (2) the
chemical testing method conformed with an accepted
methodology; (3) the tested and untested samples were
sufficiently similar in physical appearance; and (4) the
tested and untested samples were contemporaneously
seized at the search scene.").
VI.
Finally, we will affirm the district court's decision denying
Dent's motion to subpoena Sergeant Cassidy's personnel
files. Before trial, Dent's counsel allegedly learned that
another drug case in which Cassidy was scheduled to
testify had been dismissed amid allegations that Cassidy
had committed misconduct in a drug investigation.
Anticipating that Cassidy's personnel records could be used
to impeach his credibility at trial, counsel sought to
subpoena those records under Federal Rule of Criminal
Procedure 17(c). After reviewing the personnel files in
camera and concluding that they contained neither
exculpatory evidence nor proper impeachment material, the
district court granted the government's motion to quash the
subpoena. See United States v. Dent, Cr. No. 92-223, slip
op. at 6 (E.D. Pa. July 16, 1997).
We review the district court's denial of Dent's Rule 17(c)
motion for abuse of discretion. See United States v. Nixon,
418 U.S. 683, 702 (1974). Thus we must uphold the district
court's decision "unless it is clearly arbitrary or without
support in the record." United States v. Hughes, 895 F.2d
1135, 1145 (6th Cir. 1990). "Rule 17(c) was not intended to
be a broad discovery device, and only materials that are
`admissible as evidence' are subject to subpoena under the
_________________________________________________________________
2. Dent argues that Ali's method of selecting which vials to weigh was
not random. We disagree with his characterization of Ali's testimony,
because nothing indicates that she selectively chose which vials to weigh
in a manner that would increase the estimated total weight.
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rule." United States v. Cuthbertson, 651 F.2d 189, 192 (3d
Cir. 1981). Thus although Brady v. Maryland, 373 U.S. 83,
87-88 (1963), mandates that the prosecution disclose
impeachment material that is exculpatory to the defendant,
it does not require that the prosecution make thefile
available for the defendant's general perusal. Instead, the
government need only direct the custodian of thefiles to
inspect them for exculpatory evidence and inform the
prosecution of the results of that inspection, or,
alternatively, submit the files to the trial court for in camera
review. See United States v. Jennings, 960 F.2d 1488, 1492
(9th Cir. 1992); United States v. Andrus, 775 F.2d 825, 843
(7th Cir. 1985). The district court's in camera inspection of
Cassidy's personnel files fully satisfied Brady's due process
requirements. Moreover, we cannot conclude that its
determination that the files contained no impeachment or
exculpatory material was clearly arbitrary or unsupported
by the record. Accordingly, we hold that the district court
did not abuse its discretion by granting the government's
motion to quash Dent's subpoena of Cassidy's records.
VII.
For the reasons set forth in this opinion, we hereby
affirm the district court's order in its entirety.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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