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. e du/thir dc ir c uit_1998/149Filed 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 Jud ge for the United States Court of Appeals for the Eleventh Circuit, s itting 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 tha t the prosecution's delay in bringing his case to trial v iolated the Sixth Amendment and the Interstate Agreement on Detainers Act, and that the district court should h ave permitted him to review the personnel file of his a rresting

officer. We will affirm.

I.

Dent's case has a long and dramatic history, which need be recounted only briefly for purposes of this appe al. On January 19, 1992, Philadelphia police officers Step hen Cassidy and Dathon Enoch pursued a suspected drug dealer into a local residence. Inside they found De nt and

two other men seated at a table cluttered with coca ine base and drug paraphernalia. The officers arrested Dent and his companions, as well as the suspected drug dealer wh o led them to the house. The federal prosecutor took over Dent's case from the Philadelphia authorities, but Dent ju mped bond and fled the jurisdiction before federal agent s could

2arrest him. Because of Dent's fugitive status, dela y on the

government's part and Dent's intervening incarcerat ion in New York state for unrelated crimes, he was not tri ed on federal narcotics charges until February 1997, alth ough a grand jury indicted him on April 22, 1992. A jury c onvicted 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 9 2 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 vi olated the Sixth Amendment's speedy trial provision and the In terstate 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 conspi racy to

distribute crack because the officer could not reca ll seeing Dent personally handle any drugs or drug parapherna lia. Next, Dent alleges that the district court should n ot have admitted the cocaine base at trial, since the gover nment failed to establish a reliable chain of custody for the exhibit. He further argues that the government did not demon strate 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 p enalty for crack offenses than is applied to crimes involv ing equal quantities of cocaine in other forms. Dent also ins ists that the district court should have permitted him to rev iew Cassidy's personnel file, and that had it done so, he could have cast doubt on the officer's credibility as a w itness. Finally, Dent attacks his sentence on the ground th at the government used an unreliable method to determine t he

amount of crack involved in his crime. We will cons ider each of these arguments in turn.

The district court had jurisdiction under 18 U.S.C. S 3231. We have appellate jurisdiction over the dis trict

court's order under 28 U.S.C. S 1291 and over the f inal sentence under 18 U.S.C. S 3742(a).

3II.

We consider first Dent's contention that a prejudic ial pretrial delay violated both his Sixth Amendment right to a speedy trial and the IAD. We review the district co urt's legal conclusions de novo, but will reverse factual findi ngs 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 crimi nal 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 prejudic ial, there is no necessity for inquiry into the other fa ctors" relevant to whether a pre-trial delay prejudiced th e defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972 ). Here, the approximately five-year delay between Den t's arrest and his trial is sufficiently lengthy to tri gger full inquiry into the possibility that Dent suffered pre judice as a result. See Doggett v. United States, 505 U.S. 64 7, 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 del ay warrants full inquiry into possible prejudice resul ting from postponement of trial).

Once the defendant identifies a presumptively preju dicial delay in bringing his case to trial, determining wh ether that delay violated the Sixth Amendment requires a highl y factspecific analysis that balances all the relevant circumstances. In conducting this balancing test, t he Supreme Court has emphasized four factors: (1) the length of the delay, (2) the reasons for delay, (3) whethe r, in due course, the defendant asserted his right to a speed y trial and (4) the actual prejudice the defendant suffered as a result. See Barker, 407 U.S. at 530. Although we be gin our analysis with these four factors, we are mindful th at none is "either a necessary or sufficient condition to t he 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.

4Although the first of the Barker factors, the lengt h of the

delay, weighs somewhat in Dent's favor, it is not compelling. Certainly the gap between Dent's Januar y 19, 1992 arrest and his trial on February 3 and 4, 1997 is substantial. However, the seriousness of a postaccu sation delay varies depending on the circumstances, and a waiting period during which the defendant is not detained p resents fewer concerns than a wait accompanied by pretrial incarceration. See id. at 533 (noting serious socie tal disadvantages caused by pretrial incarceration). De nt did not endure any significant pretrial detention assoc iated with the conviction from which he appeals. We there fore do not find the length of the pretrial delay in his ca se to be

intolerable.

More important, Dent's claim stumbles on the second Barker factor, which requires us to consider whethe r Dent or the government caused the delay. Although both p arties contributed to the post-indictment delay, it is cle ar that Dent bears the bulk of responsibility in this regar d. After his arrest, Dent jumped bond and remained a fugitiv e for more than two years. He was listed as a wanted pers on on April 30, 1992 after failing to appear at a state c ourt hearing, and, despite diligent efforts, federal age nts could not locate him until August 1994. Dent argues that he is not to blame for this part of the delay, because fe deral agents had not yet arrested him when he fled, and t hus he did not know of the federal indictment. This argume nt is specious. Dent may not have known that his case had been adopted by federal prosecutors, but he certainly kn ew that he had been arrested by Philadelphia police and rel eased on bond, and that proceedings had commenced against him in state court. As a result, Dent was fully aware o f his fugitive status when he fled to New York sometime i n early

1992.

Inexplicably, after learning that Dent was incarcer ated in New York, the government waited fourteen months bef ore taking further steps to bring him to justice. Begin ning October 17, 1995, however, the prosecution consiste ntly sought to have Dent tried in Pennsylvania. On that date, prosecutors wrote to the U.S. Marshal Service reque sting that Dent's arrest warrant be lodged as a detainer with the

5correctional facility where Dent purportedly was

incarcerated, only to learn that no inmate named Mi chael

Dent was then in residence at that institution. Thi s confusion was not resolved until April 1996, when t he government discovered that Dent was being held at a

different New York correctional institution under h is real name, Isaac Dennis. On April 26, 1996, the governme nt 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 facil ity.

Thus, Dent is wholly responsible for the first 26 m onths of the pre-trial delay, and the government is to bl ame for only 14 months of that delay. Although an additiona l 13 months passed before Dent's trial, the government c annot be faulted for this lag. By all accounts, the Unite d States Attorney's office sedulously attempted to locate De nt in the New York penal system after October 17, 1995. Indee d, it was Dent's use of an alias, not any neglect on the government's part, which largely caused the additio nal delay.

The third Barker criterion--whether the defendant t imely asserted the right to a speedy trial--also weighs a gainst

Dent's Sixth Amendment claim. Dent did not assert h is right to a speedy trial until June 1996, more than four years after his arrest. Although Dent was unaware o f the federal indictment until that date, he certainly kn ew that narcotics charges were pending against him in Phila delphia in connection with his prior arrest, and that he ha d left Pennsylvania just as criminal proceedings against h im were beginning. Had Dent truly wished to expedite his tr ial, he would have remained in Pennsylvania to be tried, or at the very least maintained contact with authorities in t hat state. Moreover, he would not have given arresting officer s 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 pret rial delay prejudiced his defense because witnesses coul d no longer remember important details. Further, Officer Enoch retired before Dent's trial and thus allegedly coul d not be

6located to testify for the defense. Dent also claim s that his

mother, his stepfather and a codefendant, William S cott, all

died before the trial and therefore could not testi fy in his defense. In addition, Dent alleges prejudice becaus e he lost the opportunity to serve his present sentence concu rrently

with his incarceration in New York.

None of these allegations of prejudice is convincin g. First, the passage of time probably helped Dent's case by making Sergeant Cassidy's testimony less detailed and ther efore less convincing. Indeed, one of Dent's principal ar guments at trial was that Cassidy could not recollect seein g 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, D ent has not shown that he seriously attempted to locate Enoch for trial. Nor is it likely that William Scott coul d have offered any useful information not provided by Dent himself, because at all relevant times Scott and De nt 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 C assidy

saw Dent at the crime scene and arrested him there. In any event, Dent's mother died in 1993, during the perio d 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 compromis es the reliability of a trial in ways that neither par ty 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 "cann ot alone carry a Sixth Amendment claim without regard to the other Barker criteria." Id. Here, the presumptive prejudi ce from the government's fourteen month delay simply cannot outweigh the other Barker factors, which do not sup port a conclusion that Dent suffered prejudice from denial of a speedy trial. Accordingly, and because we find no o ther circumstances relevant to this analysis, we hold th at the lag between Dent's arrest and trial did not violate the Sixth

Amendment.

7B.

The IAD, which governs resolution of outstanding criminal charges against suspects serving sentences in other states, also fails to provide Dent a basis fo r relief. Under Article III(a) of the IAD, a defendant must b e tried on outstanding criminal charges within 180 days after authorities receive his or her request for trial. S ee 18 U.S.C. app. S 2, art. III(a); Casper v. Ryan, 822 F.2d 128 3, 1285 (3d Cir. 1987). Furthermore, Article V(c) of the IA D requires that an indictment be dismissed with prejudice if t rial 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 M id-State Correctional Facility ("Mid-State"), the United Sta tes Attorney initiated proceedings to secure Dent's ret urn to Pennsylvania for trial under Article IV(a) of the I AD. That Article permits a prosecutor outside the jurisdicti on where an inmate is incarcerated to lodge a detainer again st the prisoner and procure his presence for trial on pend ing criminal charges. Meanwhile, on June 25, 1996, Dent sent

a letter to the federal district court for the East ern District of Pennsylvania requesting a speedy resolution of h is outstanding federal charges under the Interstate Ag reement

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 hi s letter requesting a speedy trial on July 23, 1996, Article III required the prosecution to initiate his trial on o r before January 19, 1997. However, invocation of Article II I's 180- day time limit generally requires strict compliance with the Article's requirements. Nash v. Jeffes, 739 F.2d 87 8, 884 (3d Cir. 1984), rev'd on other grounds sub. nom., C archman v. Nash, 473 U.S. 716 (1985). Thus the 180-day peri od does not begin until the inmate "shall have caused to be delivered to the prosecuting officer and the approp riate court . . . written notice of the place of his impr isonment 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 cust ody of the

8prisoner, stating the term of commitment under whic h the

prisoner is being held, the time already served, th e 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 relatin g 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 p eriod began to run August 22, 1996 when the prosecution learned that Dent wished to proceed under IAD Artic le III, and did not expire until February 18, 1997, well af ter

Dent's trial.

Dent argues that the circumstances of his case requ ire 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 noncomplian ce was solely the fault of the New York state penal au thorities. Dent repeatedly asked authorities at Mid-State to p rovide him with IAD forms so that he might resolve the fed eral charges pending against him in Pennsylvania. Yet in stead of supplying the necessary forms, the authorities erroroneously informed him that federal warrants "d o not fall under the IAD," because it "is solely an agree ment between states." They further advised Dent that he could expedite his trial by writing the United States Dis trict Court for the Eastern District of Pennsylvania, but that he need "not fill out any papers." In doing so, the New Yor k officials failed to satisfy Article III(c)'s mandate that"[t] he warden, commissioner of corrections, or other official havi ng custody of the prisoner shall promptly inform him o f the source and contents of any detainer lodged against him and shall also inform him of his right to make a reques t for final disposition of the indictment, information, or comp laint on which the detainer is based." 18 U.S.C. app. S 2, a rt. III(c).

In Casper, 822 F.2d at 1293, we recognized that "[s ]trict compliance with Article III may not be required whe n the prisoner has done everything possible, and it is th e custodial state that is responsible for the default ." We also explained, however, that an inmate seeking the bene fit of

9this 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 c redits 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 receiv ed his letter on July 23, 1996, it had already obtained mo st of the necessary information through its own efforts to se cure 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 aler t the government that Article III has been invoked, witho ut requiring the prosecution "to analyze each communic ation

. . . with a fine-tooth comb to determine whether i t should be construed as invoking the IAD." Nash, 739 F.2d a t 884. Under the circumstances, Dent's letter simply was inadequate to alert the government that he sought t o rely on Article III. To hold otherwise would "create`a t rap 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.2 d at 884).

III.

We will review together Dent's various challenges t o 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 deter mine the credibility of the witnesses." United States v. Voi gt, 89 F.3d 1050, 1080 (3d Cir.), cert. denied, ___ U.S. ___, 1 17 S. Ct. 623 (1996) (citation omitted). Rather, we must view the evidence in the light most favorable to the governm ent, see United States v. Thomas, 114 F.3d 403, 405 (3d Cir. 1997), and will sustain the verdict if " `any rational tri er of fact

___________________________________________________ ______________

1. Dent claims that as of July 23, 1996, the govern ment had all of the information that Article III(a) requires him to sup ply, with the exception of details regarding good-time credits. See Appella nt's Reply Br. at 8.

10could have found the essential elements of the crim e

beyond a reasonable doubt.' " Voigt, 89 F.3d at 108 0 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (19 79)). 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) (ci tation 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 participate d in a conspiracy to distribute crack. We disagree.

A.

Testimony from Dent's arresting officer, Sergeant Cassidy, provided the prosecution's principal evide nce at trial. On the witness stand, Cassidy recounted the following events. While patrolling Sharswood Avenue in Philad elphia,

he and Officer Dathon Enoch observed two men exchan ging money for several small, unidentified objects. When Cassidy and Enoch approached, both men fled. Although the m an who received the objects escaped, the other, later identified as Courtney Golden, entered 5411 Sharswood Avenue a nd attempted to close the door of the residence to pre vent the officers from following him inside. The three men s truggled for a moment in a tug-of-war, as Golden sought to k eep 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 insi de 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 bla des, straw. There were vials, some were full. The re were vials in bags that were wrapped up and lined out . .. in a straight line . . . about four or five of them.

11Cassidy observed that "one of [the men] had a razor blade

in his hand," and based on his fifteen years of exp erience 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 cocain e base by performing two tests: (1) a Scott's reagent test , which yielded positive results consistent with the presen ce of cocaine base, and (2) a gas chromatograph ion test, which also indicated the presence of cocaine. Ali also te stified that the Scott Test is 99.9 percent accurate.

We find this evidence sufficient to support a reaso nable inference that Dent and his co-defendants conspired to distribute cocaine base. A conviction for conspirac y requires proof of "unity of purpose, the intent to achieve a common goal, and an agreement to work together towa rd 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. Barro w, 363 F.2d 62, 64 (3d Cir. 1966). A reasonable jury could infer from Dent's proximity to the drugs and paraphernali a, while at least one of the men seated beside him bag ged the crack, that Dent and the other men conspired to dis tribute cocaine. See United States v. James, 40 F.3d 850, 8 67 (7th Cir. 1994), vacated on other grounds sub nom., Jame s v. United States, 516 U.S. 1022 (1995), modified on ot her grounds, 79 F.3d 553 (7th Cir. 1996) (defendant's p resence, proximity and apparent participation during packagi ng of drugs for street sale sufficed to sustain convictio n for drug distribution conspiracy, although arresting officer did not actually see defendant handle cocaine). A jury also reasonably could infer from Golden's actions outsid e the house, his flight into 5411 Sharswood Avenue and th e presence of cocaine in his pockets that Golden had sold drugs as part of a conspiracy in which Dent partici pated. Dent's contention that the evidence also permits a less

sinister conclusion is immaterial. "To sustain the jury's

12verdict, the evidence does not need to be inconsist ent with

every conclusion save that of guilt." United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citat ion 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 misplac ed. In those cases, we explained that a conviction for con spiracy to distribute a controlled substance requires evide nce 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 a t 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 conc lusion that Dent knew his accomplices intended to distribu te cocaine base because he watched them package the dr ugs for sale.

B.

Dent also claims that the cocaine base was inadmiss ible under Federal Rule of Evidence 901, because the government failed to provide a reliable chain of cu stody. To establish a chain of custody, the government need o nly show that it took reasonable precautions to preserv e the evidence in its original condition, even if all pos sibilities of tampering are not excluded. See United States v. Ke lly, 14 F.3d 1169, 1175 (7th Cir. 1994). Absent actual evid ence 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, 973-7 4 (3d Cir.), cert. denied, 454 U.S. 871 (1981). Unless th e trial court clearly abused its discretion, we must uphold its

decision to admit the cocaine base into evidence. S ee Jackson, 649 F.2d at 973.

Here, Cassidy testified that he transported the dru gs directly from the crime scene to the Narcotics Divi sion and observed while laboratory personnel field tested th e drugs

13and assigned them an inventory number. Cassidy's

testimony also clearly distinguished the drugs seiz ed from codefendant Courtney Golden from those found on the

table where Dent was seated at the time of his arre st. Thus, Dent's contention that police commingled the eviden ce 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 differe nt storage bin without the change being entered into t he record log, these discrepancies affect the weight o f the evidence, not its admissibility. Moreover, it is cl ear that the drugs never left the lab except when transported fo r 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 h andling or temperature exposure. Thus, without more, it is ins ufficient to require exclusion of the evidence. The chemist a lso stated that when she tested and weighed the drugs, the bag

contained no tears.

Finally, we do not place great significance on vari ations in the witnesses' descriptions of the cocaine. Cass idy's description of the contraband at trial as "an off w hite chunky substance" differs only slightly from that o n the property receipt, which specifies "a white chunky s ubstance wrapped in foil" and from Ali's statement that she tested "white chunky residue" on a foil-wrapped glass plat e. These minor discrepancies can be attributed to the inevit able differences in human perception, and we will not re quire the police and laboratory chemists to use precisely the same words in referring to evidence before it may b e admitted.

IV.

We turn next to Dent's claim that he should not hav e been sentenced under the crack enhancement provisio ns of

14U.S.S.G. S 2D1.1, because the government failed to prove

by a preponderance of the evidence that the substan ce recovered during Dent's arrest was crack cocaine. W e review for clear error the district court's finding that the substance found in Dent's presence was crack, rever sing only if we are left with a definite and firm convic tion that a mistake has been made. See United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997); United States v. Covi ngton, 133 F.3d 639, 643 (8th Cir. 1998).

The crack enhancement provisions of Sentencing Guidelines S 2D1.1 apply only if the prosecution pr oves by a preponderance of the evidence that the cocaine-ba se involved satisfies the Guidelines' definition of cr ack. See United States v. James, 78 F.3d 851, 858 (3d Cir.), cert. denied, 117 S. Ct. 128 (1996). That definition stat es that " `Cocaine base' for purposes of this guideline, me ans crack. `Crack' is the street name for a form of cocaine ba se, usually prepared by processing cocaine hydrochlorid e and sodium bicarbonate, and usually appearing in a lump y, 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 t est to determine whether it contained sodium bicarbonate, which Dent claims would be present in crack. Therefore, t he sole evidence that Dent conspired to distribute crack ra ther than another form of cocaine base was Sergeant Cass idy'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 D ent based only on Items 2, 3 and 5. Cassidy characteriz ed

these items as follows:

Item number two is a clear glass plate with approximately three grams of white chunky su bstance, cocaine. Item number 3 is 17 clear plastic v ials sealed with red caps containing a white substance, cocaine. . . . Item number 5 is five clear p lastic sandwich bags containing 23 each clear plast ic vials sealed with red caps containing a white subs tance,

crack.

15Thus Cassidy's testimony indicates only that Item 5

contained crack, rather than another form of cocain e base.

Ali testified that all of the items contained cocai ne 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 co mes in chunky powdered form and that can also be packed in ziplock baggies or heat-sealed baggies or in sandwi ch bags [sic] kind bags." When asked more specifically abou t whether the cocaine base she tested was crack, Ali testified that she has "very little experience or no experien ce at all" in distinguishing between different forms of cocain e base, and that she could not say whether the substance wa s crack.

In Roman, 121 F.3d at 141, we held that precise che mical analysis is not necessary to prove that cocaine bas e is crack under the Sentencing Guidelines. There, the government had tested the cocaine base for traces o f sodium bicarbonate, but found none. Id. The prosecu tion explained the absence of sodium bicarbonate by pres enting evidence that if cocaine is cooked carefully, no so dium

bicarbonate residue will remain in the finished cra ck. Id. Thus, the only evidence that the cocaine base was c rack was the statement of a twelve-year veteran of the p olice force that it "was packaged in clear plastic vials with color caps, which is how crack is commonly packaged in th e streets of Philadelphia." Id. (internal quotation m arks omitted). Because the testifying officer had more t han twelve years of experience with the Drug Enforcemen t Agency task force, had participated in more than 10 00 cases involving crack cocaine, attended training se ssions on cocaine conducted by the Philadelphia police chemic al lab

and instructed other narcotics officers about ident ifying crack, we found his testimony "just barely" suffici ent to meet the preponderance of the evidence standard. Id

.

As we stated in Roman, ideally the government shoul d aspire to provide a higher quality of proof than of fered here. Id. at 141 n.4. Nonetheless, we cannot conclude tha t the district court abused its discretion by finding tha t the testimony of Cassidy and Ali satisfied the prosecut ion's burden of proof. Cassidy worked for the police forc e slightly

16longer than the officer in Roman, and although he o nly

testified that Item 5 contained crack, that item we ighed 5.803 grams and therefore suffices to support Dent' s sentence. By her own admission, Ali has virtually n o experience in distinguishing between crack and othe r forms of cocaine base. Thus, her testimony that the cocai ne base taken from the table where Dent was seated was pack aged using the method commonly used to pack crack for st reet sale has substantially less probative value than th e 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 prosecuti on failed to prove the quantity of crack involved in h is crime because it used an unreliable process to calculate the crack's weight. The drugs attributed to Dent were I tem 2, a foil-wrapped lump of crack, and Items 3 and 5, both of

which consisted of several vials of cocaine base. T anweer Ali tested and weighed the single lump. She also individually weighed four of the seventeen vials fr om Item 3

and eleven of the 115 vials in Item 5. She then use d the actual weights of these sample vials to extrapolate the weights of the vials in Items 3 and 115 respectivel y. Ali also

testified that the substance in all of the vials ha d the same general appearance. We upheld this weighing procedu re in United State v. McCutchen, 992 F.2d 22 (3d Cir. 199 3). There, we concluded that "[i]f a defendant challeng es a drug quantity estimate based on an extrapolation from a test sample, the government must show, and the court mus t find, that there is an adequate basis in fact for t he extrapolation and that the quantity was determined in a manner consistent with accepted standards of reliab ility." Id. at 25-26. This standard does not require that t he 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 reliabl e because it was determined using an established proc edure, the vials and their contents were substantially sim ilar in

17appearance, police seized all the drugs at the same time

and place, and Ali randomly selected the vials weig hed.2 See id.; United States v. Scalia, 993 F.2d 984, 989 (1s t 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 we re 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 decisi on denying Dent's motion to subpoena Sergeant Cassidy's person nel files. Before trial, Dent's counsel allegedly learn ed that another drug case in which Cassidy was scheduled to testify had been dismissed amid allegations that Ca ssidy 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 Crimin al Procedure 17(c). After reviewing the personnel file s in camera and concluding that they contained neither exculpatory evidence nor proper impeachment materia l, the district court granted the government's motion to q uash 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 Rul e 17(c)

motion for abuse of discretion. See United States v . Nixon, 418 U.S. 683, 702 (1974). Thus we must uphold the d istrict court's decision "unless it is clearly arbitrary or without support in the record." United States v. Hughes, 89 5 F.2d 1135, 1145 (6th Cir. 1990). "Rule 17(c) was not int ended to be a broad discovery device, and only materials tha t are `admissible as evidence' are subject to subpoena un der the

___________________________________________________ ______________

2. Dent argues that Ali's method of selecting which vials to weigh was not random. We disagree with his characterization o f Ali's testimony, because nothing indicates that she selectively chos e which vials to weigh

in a manner that would increase the estimated total weight.

18rule." 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 disclos e impeachment material that is exculpatory to the def endant, it does not require that the prosecution make thefi le available for the defendant's general perusal. Inst ead, the government need only direct the custodian of thefil es to inspect them for exculpatory evidence and inform th e 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 148 8, 1492 (9th Cir. 1992); United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985). The district court's in camera ins pection of Cassidy's personnel files fully satisfied Brady's d ue process requirements. Moreover, we cannot conclude that its determination that the files contained no impeachme nt or exculpatory material was clearly arbitrary or unsup ported by the record. Accordingly, we hold that the distri ct court did not abuse its discretion by granting the govern ment's motion to quash Dent's subpoena of Cassidy's record s.

VII.

For the reasons set forth in this opinion, we hereb y 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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