The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
A bench trial was held in this case on August 17-18, 2009. The government filed its Trial Brief (#25) on September 4, 2009. Defendant filed his Trial Brief (#30) on February 22, 2010. The government filed its Reply (#32) on March 16, 2010. The case is now fully briefed and ready for judgment. For the following reasons, Defendant is found GUILTY of Counts 1, 2, and 3 and is found NOT GUILTY of Counts 4, 5, and 6.
Defendant was indicted on two counts of, on or about May 28 and June 13, 2008, knowingly distributing 5 grams or more of a substance containing cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Counts 1 and 2); on or about June 18, 2008, knowingly distributing 50 grams or more of substance containing crack in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Count 3); on July 25, 2005, Defendant did knowingly possess 50 or more grams of a substance containing crack with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Count 4); on or about July 25, 2005, did knowingly possess a firearm in furtherance of a drug trafficking crime as charged in Count 4, in violation of 18 U.S.C. § 924(c) (Count 5); and on or about July 25, 2005, Defendant, having been previously convicted of a felony, did knowingly possess a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 6). Defendant waived his right to a jury trial and the case proceeded to a bench trial on August 17, 2009.
At trial, the government relied mainly, in regards to Counts 1-3, on the testimony of Special Agent Pat Albinger of the Vermilion County Metropolitan Enforcement Group (VMEG) and the testimony of a Confidential Source (CS). VMEG is Vermilion County's drug task force. Albinger does drug investigations and has worked somewhere between 200 and 300 drug investigations during his career.
Beginning in January 2008 he was approached by CS, a former drug addict who wanted to help remedy some of the harm he had seen caused by drug traffickers. The CS was not facing any criminal charges or seeking leniency for himself or others. CS provided Albinger with information concerning drug sales in Danville, Illinois,*fn1 including information on Defendant. CS told agents he could purchase crack from Defendant. Before hiring CS, Albinger interviewed him. Although CS was a drug user, he was told not to use drugs during his work for VMEG. CS said he has been clean from cocaine since mid-2006. CS's girlfriend also had a pending traffic charge, but Albinger did not remember speaking with the State's Attorneys Office on her behalf, although he may have. Albinger knew CS was a convicted felon who had been to the Department of Corrections. CS claimed he never got anything out of helping VMEG, except $50 and the knowledge that he was helping to clean up Vermilion County and make up for his past mistakes. CS was familiar with Defendant and had been involved in the Danville drug scene.
From January to March 2008 CS made three separate purchases of crack from Defendant. On one of these occasions Defendant gave CS a piece of paper with the address of the DeWitt County jail containing the names of Freddell Bryant and Cameron Polansky and asked him to contact them. Bryant and Defendant are both members of the Black P Stones street gang. For these January and March 2008 purchases CS was paid a total of $50 for his cooperation by VMEG. During May and June 2008 CS made three more controlled buys from Defendant for VMEG.
Controlled Buy of May 28, 2008 (Count 1)
On May 28, 2008, VMEG Special Agents Albinger and Derek Hillery met with CS at a location in Danville. Albinger searched CS's person and vehicle and did not find any contraband or currency. The meeting was to set up a controlled purchase of crack from Defendant. Defendant's address was 1228 Garden Drive in Danville. CS was given $400 by the agents to buy drugs. CS was fitted with a hidden audio recording device. Hillery activated the recording device and drove CS to the parking adjacent to 1228 Garden Drive. Albinger followed Hillery and CS to the location, while VMEG Special Agent Pete Miller maintained surveillance on CS as he entered 1228 Garden Drive. Agents observed CS get out of his vehicle and enter 1228 Garden Drive. CS met with Defendant inside the building. Agents, listening via transmitter, could hear CS enter an apartment and speak with Defendant. During the recorded conversation Defendant asked CS "what you got?" to which CS replied "...that four" and Defendant said "four hundred?" CS and agents, based on their training and experience, testified that "four hundred" meant $400. Defendant then said "I got you. Hard right" to which CS replied "I ain't doing soft for a minute." Hard refers to crack, soft to powder cocaine, according to CS and agents. As Defendant handed CS the crack, CS asked "what's this?" and Defendant replied "half," referring to one half ounce of crack. During the conversation CS gave Defendant $400 and Defendant gave CS approximately one half ounce (14 grams) of crack.
Agents then observed CS leave 1228 Garden and get back into the vehicle with Agent Hillery. Hillery and CS returned to the prearranged location. At the location, CS gave Albinger a clear plastic baggie containing an off-white chunky substance later determined at the DEA North Central Laboratory to be 13.6 grams of a mixture and substance containing cocaine base and sodium bicarbonate (baking soda), which is commonly used to cook powder cocaine into crack cocaine. Albinger searched CS's person and vehicle for contraband and did not find any.
Controlled Buy of June 13, 2008 (Count 2)
On June 13, 2008, Albinger, Hillery, and DEA Agent Christian McGuire met with CS at the same prearranged location in Danville. Agents searched CS's person and vehicle and found no contraband. Albinger provided CS with $900 prerecorded official authorized funds. CS was equipped with a hidden audio recording and transmitting device. Hillery again drove CS to 1228 Garden and McGuire and Albinger followed CS and Hillery to the location while Miller maintained surveillance on the CS.
Again, CS met with Defendant inside the building. CS could be heard over the transmitter speaking with Defendant, with Defendant asking "how much you got?" and CS replying "...that nine" referring to $900. CS asked Defendant "want for just one of them" to which Defendant replied "man, I only want, I only want eight for an ounce," which Albinger and CS said meant that Defendant only wanted $800 for an ounce of crack. Defendant also claimed it "was a drought" and "dry," which Albinger said referred to a shortage of cocaine. Defendant also informed CS that it was "28 with the bag," meaning the crack weighed a full 28 grams with the packaging included.
CS gave Defendant $800 and Defendant gave CS a little less than 28 grams of crack. Agents then observed CS leave 1228 Garden and get back into the vehicle with Agent Hillery. Hillery and CS returned to the prearranged location. At the location, CS gave Albinger a clear plastic baggie containing an off-white chunky substance later determined at the DEA North Central Laboratory to be 25.7 grams of a mixture and substance containing cocaine base and sodium bicarbonate (baking soda). Albinger searched CS's person and ...