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United States v. Oliver

January 8, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LANCE A. OLIVER, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

A bench trial was held in this case on September 5 and 6, 2006. Pursuant to the stipulation (#34) entered into by the parties, the sole issue for this court to decide is whether the cocaine base possessed by Defendant, Lance A. Oliver, was in the form of "crack," or some other form of cocaine base. This court has carefully reviewed the transcript of the testimony presented at the bench trial (#48), as well as the Government's Proposed Findings of Fact and Conclusions of Law (#51), Defendant's Proposed Findings of Fact and Conclusions of Law (#53), and the Government's Reply (#54). Following this careful review, this court concludes that the Government clearly proved, beyond a reasonable doubt, that the cocaine base possessed by Defendant was in the form of "crack." This court also concludes that Defendant's expert witness, Dr. Michael A. Evans, does not qualify as an expert on "crack" under the standard set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Accordingly, the Government's Combined Objection to Defense Expert and Motion for Daubert Hearing (#41), which was taken with the case, is now GRANTED.

BACKGROUND

On September 8, 2005, Defendant was charged by indictment with: (1) knowingly and intentionally possessing at least 50 grams of a mixture and substance containing cocaine base ("crack"), a Schedule II controlled substance, with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A); (2) possession of a firearm after having been previously convicted of a crime punishable for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The Government provided Notice (#12) that Defendant was previously convicted of two drug offenses which qualify Defendant for enhanced sentencing pursuant to 21 U.S.C. § 841(b)(1).

On October 19, 2005, Defendant filed a Motion to Suppress Evidence (#13) and a Motion for Evidentiary Hearing Regarding Nature of Alleged Cocaine Seized (#14). A hearing was held on the Motion to Suppress on November 30, 2005. Following the hearing, a briefing schedule was set. This court also granted Defendant's Motion for Evidentiary Hearing and scheduled the evidentiary hearing for March 15, 2006, at 10:30 a.m.

On January 9, 2006, the Government filed a Motion to Reconsider (#18), asking this court to reconsider its decision to hold an evidentiary hearing, prior to trial, on the issue of the nature of the cocaine seized. The Government renewed its argument that a pre-trial evidentiary hearing to determine the nature of the substance in question is legally improper. The Government further renewed its argument that Defendant's motion was based upon an incorrect premise. The Government also noted that this court had denied a motion for an identical evidentiary hearing in United States v. Billings, Case No. 05-20041.

On January 24, 2006, Defendant filed his Response to the Government's Motion to Reconsider (#20), and supporting Exhibits (#21). Defendant first stated that he "agrees that it's not necessary to hold an evidentiary hearing in the case at bar." Based upon this concession by Defendant, this court entered an Opinion (#24) on January 25, 2006, which granted the Government's Motion to Reconsider (#18) and vacated the scheduled evidentiary hearing.

In its Opinion, this court also noted that the Seventh Circuit has long held that crack is one of several forms of cocaine base and that the enhanced penalties included in the applicable statutes and guidelines apply only to the crack form of cocaine base. See United States v. Abdul, 122 F.3d 477, 478 (7th Cir. 1997); United States v. Reddrick, 90 F.3d 1276, 1282 (7th Cir. 1996); United States v. Booker, 70 F.3d 488, 494 (7th Cir. 1995). The Seventh Circuit has also long held that "those who smoke, buy, or sell this stuff [crack cocaine] are the real experts on what is crack." United States v. Earnest, 185 F.3d 808, 812 (7th Cir. 1999), quoting United States v. Bradley, 165 F.3d 594, 596 (7th Cir. 1999); see also United States v. Linton, 235 F.3d 328, 330 (7th Cir. 2000) ("testimony of witnesses familiar with crack, combined with direct evidence that the substance had the appearance of and was packaged like crack, is sufficient to satisfy the government's burden of proof and permit a district court to conclude that a defendant possessed crack").

This court therefore stated that it concluded that the Seventh Circuit's decision in United States v. Edwards, 397 F.3d 570, 574 (7th Cir. 2005), did not change any of this well established law. This court noted that, in Edwards, the defendant pleaded guilty to two counts of possession with intent to distribute more than 50 grams of a substance containing cocaine base, while reserving his right to contest the nature of the substances involved. Edwards, 397 F.3d at 572. United States District Judge Milton A. Shadur deferred accepting Edwards' guilty pleas until after a subsequent hearing was held regarding the nature of the substances. After hearing expert testimony, Judge Shadur concluded that the substances in Edwards' possession were a noncrack form of cocaine base. Edwards, 397 F.3d at 573. Judge Shadur then concluded that the statutory mandatory minimum applied to all forms of cocaine base, not just crack, and imposed two concurrent ten-year terms of imprisonment. Edwards, 397 F.3d at 573.

On appeal, the Seventh Circuit reaffirmed its earlier ruling in United States v. Booker, 70 F.3d 488 (7th Cir. 1995), that "for purposes of the enhanced penalties in the Guidelines and the statutes 'cocaine base' means 'crack cocaine.'" Edwards, 397 F.3d at 572 (emphasis in original), citing Booker, 70 F.3d at 489-90, 494. Therefore, because Judge Shadur made a factual finding that Edwards possessed noncrack forms of cocaine base, the Seventh Circuit concluded that the sentences imposed based upon mandatory minimum set out in the statute for "cocaine base" had to be reversed. Edwards, 397 F.3d at 577. The Seventh Circuit therefore reversed and remanded the case for resentencing. Edwards, 397 F.3d at 577.

Following this court's careful review of the Edwards decision, this court found no support for Defendant's argument that the Government cannot prove the substance at issue in this case is crack cocaine without forensic analysis. This court stated that the decision in Edwards did not call into question the long line of decisions which hold that evidence from witnesses familiar with crack is sufficient. In fact, in United States v. Cannon, 429 F.3d 1158 (7th Cir. 2005), the Seventh Circuit rejected an argument based upon Edwards. In Cannon, the defendant stipulated at trial that the substance at issue was "cocaine base (crack)." Cannon, 429 F.3d at 1160. The Seventh Circuit noted that Cannon's appellate lawyer argued that "Cannon and trial counsel may not have appreciated that there are varieties of cocaine base other than crack." Cannon, 429 F.3d at 1160. However, the Seventh Circuit concluded that "Cannon surely knew whether his own inventory was 'crack.'" Cannon, 429 F.3d at 1160. This court therefore concluded, based upon case law from the Seventh Circuit, that a defendant may plead guilty to possessing crack cocaine, may stipulate that the substance is crack cocaine at trial, or may be found guilty by a jury of possessing crack cocaine, all without the need for forensic analysis to test for crack.

On March 2, 2006, this court entered another Opinion (#27) which denied Defendant's Motion to Suppress Evidence. This court agreed with the Government that the search warrant was properly issued in this case and that, in any case, the police officers relied upon the warrant in good faith. This court further found that Defendant was properly stopped and arrested.

Subsequently, the Government and Defendant orally agreed to proceed by way of a bench trial. On July 24, 2006, they filed a written Waiver of Jury Trial and Stipulations for Bench Trial (#34). The parties thereby stipulated that, as to Count 1, the Government could prove beyond a reasonable doubt that: (1) Defendant knowingly possessed over 50 grams of cocaine base; (2) Defendant possessed the cocaine base with the intent to distribute it; and (3) Defendant knew the substance was a controlled substance. Defendant did not stipulate, however, that the cocaine base possessed by Defendant was in the form of "crack." As to Count 2, the parties stipulated that the Government could prove beyond a reasonable doubt all of the elements of the offense of possession of a firearm by a felon. As to Count 3, the parties stipulated that the Government could prove beyond a reasonable doubt all of the elements of the offense of possession of a firearm in furtherance of a drug trafficking crime.

On August 28, 2006, the Government filed its Combined Objection to Defense Expert and Motion for Daubert Hearing (#41). The Government stated that it objected to the testimony of the defense expert, Dr. Michael Evans. The Government argued that the testimony it expected Dr. ...


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