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United States v. Betts

August 12, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DEXTER WAYNE BETTS, 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.

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED MAY 28, 2009

Before EVANS, WILLIAMS, and TINDER, Circuit Judges.

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 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 purchase half a kilogram of crack from Betts's co-defendant, 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, which charged Betts with conspiring with five other co-defendants 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 substance containing cocaine base but stating that, for sentencing 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 Administration ("DEA"), Nicole Wenzel, testified that she analyzed the chemical composition of the substances contained 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- 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 halfkilo 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 co-defendant, 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 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 customers 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 references to "crack," were true and accurate. Agent Moore testified that it is his practice to clarify whether an interview 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. ยง 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 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 ...


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