United States v. Robinson

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2185



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                       PHILLIP F. ROBINSON,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



             [Hon. Mary M. Lisi, U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Michael J. Lepizzera, Jr., by appointment of the court, for

appellant.

     Margaret E. Curran, Assistant United States Attorney, with

whom Sheldon Whitehouse, United States Attorney, and Richard W.

Rose, Assistant United States Attorney, were on brief, for

appellee.


May 8, 1998


SELYA, Circuit Judge.  This appeal features a dispute

about the extent to which scientific evidence must be adduced at

sentencing before the court can impose the onerous penalties

attached to trafficking in crack cocaine.  We pause first to set

the stage and address another, more mundane issue.  We then proceed

to the sentencing question.

I.  BACKGROUND

  On January 6, 1997, Providence police officers obtained

a warrant authorizing them to search residential premises located

at 151 Reynolds Avenue for cocaine, money, and other articles

related to the sale or use of narcotics.  In securing the warrant,

the gendarmes relied on input from a confidential informant (CI-1),

thought by them to be reliable, who not only provided information

but also made a controlled purchase of cocaine from the subject

premises a few days before the warrant issued.  According to CI-1,

the person primarily responsible for the drug-distribution activity

was "Louie," a dark-haired Hispanic male approximately five feet

eight inches tall and of medium build.

  Upon entering the premises, officers discovered cocaine

in a pair of pants that were lying on the bed in which defendant-

appellant Phillip F. Robinson was sleeping.  Drugs also were found

on the kitchen table and in an unoccupied bedroom.  The police

arrested the appellant and his mother, Carolyn Robinson, and a

federal grand jury later indicted both individuals for possessing

cocaine base, intending to distribute it, and conspiring to commit

that offense.  See 21 U.S.C.  841(a)(1),  846 (1994).

  After the initial arrest, the police sought another

search warrant for 151 Reynolds Avenue.  They based the application

for this warrant on information from a second confidential

informant (CI-2), who vouchsafed that drug trafficking had

continued at the premises notwithstanding the appellant's

detention.  The warrant issued, but the neoteric search proved a

waste of time.

  During pretrial proceedings, the appellant moved for

disclosure of the identities of both confidential informants.  The

district court denied the motion.  In the ensuing trial, the jury

convicted the appellant on both charges.

     At the disposition hearing, the key issue centered around

whether the appellant's offenses involved crack cocaine as opposed

to powdered cocaine.  The district court, relying principally upon

two pieces of evidence   a pharmacologist's laboratory report

attesting that the seized drugs had the chemical composition of

cocaine base and the testimony of Detective Daniel Gannon, an

experienced narcotics investigator, that the contraband was indeed

crack   resolved this dispute in the government's favor and

sentenced Robinson accordingly.  This appeal followed.  In it, the

appellant challenges both the trial court's denial of his motion

for disclosure and its sentencing determinations.

II.  THE DISCLOSURE MOTION

     We review a district court's decision not to force the

prosecution to divulge the identity of a confidential informant for

abuse of discretion.  See United States v. Lewis, 40 F.3d 1325,

1335 (1st Cir. 1994).  In this context, the abuse of discretion

standard is quite deferential:  the district court's resolution of

a disclosure request should be upheld as long as it comports with

some reasonable rendition of the record.  See United States v.

Bender, 5 F.3d 267, 269 (7th Cir. 1993).

     The Supreme Court first recognized a tattler's privilege

  that is, a privilege to withhold the identity of an informant  

in Roviaro v. United States, 353 U.S. 53 (1957).  The privilege is

designed to protect the government's sources and to shield citizens

who contribute their knowledge to facilitate the prosecution of

criminal acts.  Still, the tattler's privilege is not absolute.  In

determining whether justification for an exception exists, the nisi

prius court must balance the interests undergirding the privilege

against the accused's fundamental right to a fair trial, and, in

doing so, must take into account the full panoply of relevant

circumstances (including the nature of the crime charged, the

contours of the defenses asserted, the available means of proving

the charges and defenses, and the significance of the informant's

role).  See id. at 62; United States v. Martinez, 922 F.2d 914,

920-21 (1st Cir. 1991); United States v. Giry, 818 F.2d 120, 130

(1st Cir. 1987).

     To further the policies behind the Roviaro rationale, the

trial court's analysis begins with a presumption favoring

confidentiality.  Thus, the defendant must carry the devoir of

persuasion to show that disclosure is necessary to mounting an

adequate defense.  See Lewis, 40 F.3d at 1335; Giry, 818 F.2d at

130.  This burden is heavy, but not intractable.  If, for example,

the informant is the sole participant, other than the accused, in

the transaction charged, or if the informant is the only person who

is in a position to amplify or contradict crucial testimony of

government witnesses, then the court may order disclosure.  SeeRoviaro, 353 U.S. at 64; Martinez, 922 F.2d at 920-21; United

States v. Bibbey, 735 F.2d 619, 621 (1st Cir. 1984).  If, however,

the informant is merely a source   one who does little more than

put a flea in an officer's ear   the court almost always will deny

disclosure.  See Lewis, 40 F.3d at 1335; United States v. Batista-

Polanco, 927 F.2d 14, 19-20 (1st Cir. 1991).

     Here, the appellant alleges that the confidential

informants' identities would have been helpful in his defense.  He

notes that CI-1 identified a suspect named Louie as the person who

was selling large quantities of cocaine at 151 Reynolds Avenue;

that he obviously is not Louie (after all, the appellant is a six

foot tall Caucasian who weighs 300 pounds   a far cry from a five

foot eight inch Hispanic of medium build); that his most promising

defense involved pointing a finger at Louie; and that, through CI-

1, he might have discovered Louie's identity, or, at least, focused

the jury's attention on a suspect other than himself.  The

appellant adds that he also needed to know CI-2's identity because

CI-2 could testify that another cocaine transaction took place at

151 Reynolds Avenue after he (Robinson) was detained.  The

appellant claims that this information would lend credence to the

idea that Louie was the real culprit.

     The appellant says that the facts of this case mandate

disclosure under our decision in Zaroogian v. United States, 367

F.2d 959 (1st Cir. 1966).  We demur.  Assuming, without deciding,

that Zaroogian remains good law, the rule elucidated there applies

only when a defendant shows that an informant would make a valuable

material witness for the defense.  Id. at 962.  The appellant has

not made such a showing.

     Here, the informers' evidence, though desired by the

appellant, was peripheral to the crimes charges.  In the last

analysis, the jury convicted Robinson based not on what CI-1 or CI-

2 said or did, but on his culpable presence at a locus where

substantial amounts of contraband were found.  Neither CI-1 nor

CI-2 could be expected to shed much light on these circumstances. 

Furthermore, even if the elusive Louie existed and could be run to

ground, a showing that Louie was guilty would not exonerate the

appellant.  Hence, learning Louie's identity would be only

marginally relevant, if relevant at all, to the charges confronting

Robinson.

     Where, as here, the government's informants neither

participated in nor witnessed the events that inculpated the

defendant and led to his arrest, the informants ordinarily are

deemed mere tipsters.  See, e.g., Martinez, 922 F.2d at 921; Giry,

818 F.2d at 130; United States v. Alonzo, 571 F.2d 1384, 1387 (5th

Cir. 1978).  There is nothing in the record that removes this case

from the sweep of that generalization.  Moreover, we have held with

a regularity bordering on the echolalic that tipsters, as opposed

to informants who are active participants in the crimes charged,

generally deserve anonymity.  See, e.g., Martinez, 922 F.2d at 921;

Giry, 818 F.2d at 130; United States v. Hemmer, 729 F.2d 10, 15

(1st Cir. 1984).  Consequently, the lower court did not abuse its

discretion in refusing to force the government to divulge the

informants' identities.

III.  SENTENCING

     The appellant's sentencing challenge links various

asseverations, all of which implicate the district court's

determination that the offenses of conviction involved crack

cocaine as opposed to powdered cocaine.  We treat these

asseverations as a single forensic unit.

     The federal sentencing guidelines penalize trafficking in

crack cocaine much more harshly than trafficking in cocaine

hydrochloride (cocaine powder).  See United States v. Armstrong,

116 S. Ct. 1480, 1492 (1996).  After an evidentiary hearing, the

district court computed the appellant's offense level on the basis

that all the contraband   35.33 grams (including an amount

attributable to the conversion of the cash seized, see USSG 

2D1.1, comment. (n.12))   was crack cocaine.  This determination

yielded a guideline sentencing range (GSR) of 108 to 135 months,

and the judge imposed a 121-month incarcerative sentence.

     In this court, as below, the appellant challenges the

premise on which his sentence rests.  He maintains that the

government proved nothing beyond the fact that the substance was

cocaine base and that, therefore, his offense level should have

been set on the basis of cocaine hydrochloride (which would have

produced a GSR of 18 to 24 months and led to a much gentler

sentence).  This argument takes dead aim at the district court's

admission of detective Gannon's testimony to the effect that the

hard, rock-like substance found on the premises was crack.  In the

appellant's view, Gannon, who has no formal scientific training,

was unqualified to render such an opinion.

     We start with the Sentencing Commission's handiwork. 

Since 1993, the Commission has acknowledged that, in common

parlance, "cocaine base" means "crack," and that this equivalency

is cognizable for purposes of computing a defendant's GSR.  USSG

2D1.1(c)(n.(D)).  The Commission further defines crack 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."  Id.  Forms of

cocaine base other than crack are treated as cocaine hydrochloride

for purposes of calculating the GSR.  See USSG App. C, Amend. 487;

see also United States v. Abdul, 122 F.3d 477, 479 (7th Cir.),

cert. denied, 118 S. Ct. 643 (1997).

     To implement these directions, it is important to grasp

certain rudimentary facts.  Cocaine base (C17H21NO4) is a natural

alkaloid found in the coca leaf.  It is a "base" because it reacts

with acids to produce a salt.  The naturally occurring compound is

usually processed by dissolving a paste made from the coca leaf in

hydrochloric acid (HCl) and water (H2O) to create a salt:  cocaine

hydrochloride (C17H22ClNO4), also known as cocaine (in its powdered

form).  The salt is water-soluble and may be snorted or dissolved

in a liquid and injected, but it cannot be smoked.

     There are several ways to convert this salt into a base. 

The most common method is to dissolve the salt in baking soda

(NaHCO3) and water (H2O) and boil the mixture until it solidifies

and dries.  The resulting substance is chemically identical to a

naturally occurring cocaine base.  In appearance, however, the

substance is hard and rock-like.  This artificially manufactured

base is known in the vernacular as "crack" or "crack cocaine."  SeeAbdul, 122 F.3d at 478; United States v. Sloan, 97 F.3d 1378, 1382

(11th Cir. 1996), cert. denied, 117 S. Ct. 2459 (1997).  Although

crack is not water-soluble, it can be smoked.

     Against this backdrop, the district court's admission of

detective Gannon's testimony is fully supportable.  The Federal

Rules of Evidence do not pertain during the sentencing phase of a

criminal trial.   See United States v. Gonzalez-Vazquez, 34 F.3d

19, 25 (1st Cir. 1994).  Rather, the sentencing court may consider

evidence that would be inadmissible at trial as long as that

evidence possesses "sufficient indicia of reliability to support

its probable accuracy."  USSG 6A1.3(a).  Under this generous

formulation, the court has wide latitude to decide what type of

proof is, or is not, sufficiently trustworthy to enter into the

sentencing calculus.  See United States v. Brewster, 127 F.3d 22,

27 (1st Cir. 1997); United States v. Tardiff, 969 F.2d 1283, 1287

(1st Cir. 1992).

     In this case, the district judge acted within her

discretion in allowing Gannon's testimony.  Even in a trial

setting, we often have permitted law enforcement officers, not

formally trained as "experts," to furnish opinions based on their

real-world experience.  See, e.g., United States v. Valle, 72 F.3d

210, 215 (1st Cir. 1995) (noting that courts regularly allow

testimony from experienced narcotics agents anent matters such as

"dosages, prices, and other particulars endemic to the ingestion

and distribution of crack cocaine"); United States v. Rivera, 68

F.3d 5, 8 (1st Cir. 1995), cert. denied, 116 S. Ct. 970 (1996);

United States v. Tejada, 886 F.2d 483, 486 (1st Cir. 1989).  This

is merely a reflection that "[e]xpertise is not necessarily

synonymous with a string of academic degrees or multiple

memberships in learned societies."   United States v. Hoffman, 832

F.2d 1299, 1310 (1st Cir. 1987).  By like token, "proof based upon

scientific analysis or expert testimony is not required to prove

the illicit nature of a substance."  United States v. Valencia-

Lucena, 925 F.2d 506, 512 (1st Cir. 1991); accord United States v.

Walters, 904 F.2d 765, 770 (1st Cir. 1990); United States v. Paiva,

892 F.2d 148, 157 (1st Cir. 1989); United States v. Ladd, 885 F.2d

954, 960 (1st Cir. 1989).

     These precedents are persuasive here.  The government

laid a proper foundation for Gannon's testimony by introducing a

chemical analysis in the form of a pharmacologist's report proving

that, chemically, the contraband was cocaine base.  Chemical

analysis cannot distinguish crack from any other form of cocaine

base because crack and all other forms of cocaine base are

identical at the molecular level.  Thus, no further scientific

testimony would have been of any conceivable assistance, and we

will not require the government to indulge in an empty exercise.

     This brings us to Gannon's testimony.  The sentencing

judge did not specify whether she admitted this testimony as a lay

opinion or as an opinion proffered by an expert who possessed

practical as opposed to academic credentials, probably because the

distinction is immaterial for purposes of this case.  Either way,

it is clear that the sentencing court has discretion to admit the

opinion evidence of a reliable witness who possesses specialized

knowledge (here, experience in dealing with crack and familiarity

with its appearance and texture).  See Paiva, 892 F.2d at 160;

Ladd, 885 F.2d at 959-60.

     Such testimony is particularly helpful in a case like

this one.  Crack can be differentiated from other cocaine bases

only by appearance and texture, and the applicable guideline, which

refers to crack as "the street name" for a particular form of

cocaine base, USSG 2D1.1(c)(n.(D)), strongly suggests that

knowledge of what dealers and users consider to be crack may be a

satisfactory experiential base for opinion evidence.  Gannon, a

veteran narcotics investigator who worked undercover for several

years as both a "seller" and a "buyer" in sting operations, had an

intimate familiarity with the crack trade.  Accordingly, the

district court did not err in permitting him to identify a

particular substance as crack cocaine.  See Hoffman, 832 F.2d at

1310 (upholding admission of opinion testimony offered by "veteran

DEA agent" and noting that "[i]n a rough-and-ready field such as

[hard-core drug trafficking], experience is likely the best

teacher").

     Despite this conclusion, our journey must continue.  The

appellant also contends that the district court erred in finding

that the contraband was crack.  This contention need not occupy us

for long.

     Whether a particular substance is crack or cocaine for

purposes of the sentencing guidelines is a question of fact to be

determined by the court.  See Edwards v. United States , ___ S. Ct.

___, ___ (1998) [1998 WL 201395, at *2].  When the nature of an

illicit substance is material at sentencing, the government has the

burden to prove the substance's identity, but its proof need only

be by a preponderance of the evidence.  See United States v.

Legarda, 17 F.3d 496, 499 (1st Cir. 1994); Tardiff, 969 F.2d at

1289.  The sentencing court's factfinding must be accepted unless

it is clearly erroneous.  See United States v. St. Cyr, 977 F.2d

698, 701 (1st Cir. 1992); United States v. David, 940 F.2d 722, 739

(1st Cir. 1991).

     Here, Judge Lisi's factfinding is amply supported.  The

government introduced the pharmacologist's laboratory report to

establish the chemical composition of the substances seized from

the searched premises.  The report identified the substances as

cocaine base.  Detective Gannon, drawing on his experience and

remarking the appearance and hard, rock-like texture of the cocaine

base seized from 151 Reynolds Avenue, identified it as crack. 

Finally,  the appellant testified at the disposition hearing and,

although he denied that he sold drugs from his abode, he admitted

that he intended to sell the packets of drugs seized from his pants

pocket, and that he bought and sold "rock."  On the strength of

this proof, and in the utter absence of any controverting evidence,

Judge Lisi's finding easily survives clear-error review.

IV.  CONCLUSION

     We need go no further.  For aught that appears, the

appellant was fairly tried and appropriately sentenced.  We add

only one small coda:  although the guidelines punish offenders who

traffic in crack cocaine very severely, especially in relation to

those who traffic in powdered cocaine, that is a permissible policy

choice articulated by Congress and the Sentencing Commission. 

Therefore, the courts are obliged to give it effect.



Affirmed.