Of the District of Massachusetts, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 05-1872

UNITED STATES OF AMERICA,

Appellee,

v.

DWAYNE J. ANDERSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella and Lynch, Circuit Judges,

and Young, District Judge. *

Peter J. Cyr, with whom Law Offices of Anthony J. Sineni, III,

LLC, was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief, for appellee.

June 29, 2006
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TORRUELLA, Circuit Judge. On October 23, 2003, a onecount indictment was filed in the United States District Court for

the District of Maine charging Dwayne J. Anderson with knowingly

and intentionally distributing five or more grams of cocaine base

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). After a

two-day jury trial in April 2004, Anderson was convicted and

sentenced. In this appeal, Anderson contests both his conviction

and sentence. After careful consideration, we affirm.

I. Background

A. The offense

On July 31, 2003, Eric Besore ("Besore") contacted Steven

Thibodeau ("Thibodeau"), a policeman of eight years' experience,

who, at the time, was working for the High-Intensity DrugTrafficking Task Force (HIDA) of the Drug Enforcement

Administration (DEA). Prior to this contact, Besore had agreed to

assist Thibodeau with investigating drug trafficking by providing

Thibodeau with information and by making controlled purchases of

drugs under Thibodeau's supervision. In exchange for this

assistance, Thibodeau assisted Besore with having a criminal

speeding charge dismissed by the state court. On the morning of

July 31, Besore called Thibodeau to say that he might be able to

purchase drugs that day from an individual nicknamed "Hoot."

Following a brief phone conversation, Besore agreed to

meet with Thibodeau at the DEA office in Portland, Maine to set up
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a controlled purchase. Once Besore arrived, Thibodeau and other

agents proceeded to instruct Besore on how they wanted the

controlled purchase to take place. They gave Besore $1,000 to

purchase the drugs and outfitted him with an electronic

transmitting device that looked and sounded like a pager. They

told Besore they would be monitoring his conversations. Finally,

Thibodeau conducted a pat-down search of Besore to ensure that

Besore did not have any drugs or money of his own on his person.

Besore's vehicle was also searched.

Once these preliminary steps were completed, Besore set

out in his car to Westbrook, Maine to meet Hoot. He was

accompanied by an entire surveillance team sent to observe the

purchase and ensure his safety. Two members of this team were

Thibodeau and Barry Kelly ("Kelly"). Kelly was charged with

listening to and recording the transmissions coming from Besore's

electronic transmitting device. Thibodeau, driving his own car,

followed Besore.

Besore eventually stopped at a parking lot at the corner

of King and Brown Streets in Westbrook. To hear the transmissions

coming from Besore's electronic transmitting device, Kelly had to

be within 200 feet of Besore's car. He therefore parked his own

car a block away. Thibodeau, trying to avoid arousing suspicion,

moved his car often but kept in contact with Besore by cell phone.
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Shortly after arriving at the parking lot in Westbrook,

Thibodeau and Kelly noticed that a uniformed Westbrook police

officer driving an unmarked cruiser had stopped a car nearby for

speeding. Fearing the prospective drug seller might be frightened

away by the flashing blue lights, Thibodeau approached the police

officer while other surveillance team members kept watch on Besore.

At this point, Kelly learned, from monitoring the transmissions,

that Hoot planned to meet Besore up the street. Accordingly,

Besore moved his car up the street, and Kelly followed.

When Thibodeau finished talking with the police officer,

he noticed that Besore's car had moved. However, he heard by radio

that Besore was headed to pick up his seller. Moments later,

Thibodeau found Besore at an intersection. A green Subaru occupied

by a lone female was parked behind Besore; Kelly was parked behind

the Subaru. When Thibodeau slowly passed Besore's car, he observed

Besore in the driver's seat and a black male, whom he later

identified as Anderson, in the passenger seat. Thibodeau could not

see what took place in the car but when he reversed direction,

Besore and Anderson were still in Besore's car.

As Thibodeau was driving by Besore and Anderson, Kelly

remained parked behind the Subaru and continued to listen to and

record the transmissions received from Besore's electronic

transmitting device. As he did this, Kelly also observed Besore's

vehicle. He soon saw Anderson exit Besore's car and enter the
 In several previous cases, we have noted that crack cocaine is 1

merely one form of cocaine base. See, e.g., United States v.

Robinson, 144 F.3d 104, 107-09 (1st Cir. 1998); United States v.

López-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992) (opinion on panel

rehearing).

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Subaru parked directly behind Besore's vehicle. Besore then drove

away, and Kelly ended his surveillance. Kelly, however, retained

possession of the tape used to record the transmissions from

Besore's electronic transmitting device. At some point subsequent,

Kelly also made a copy of the tape.

After the controlled purchase was completed, Thibodeau

headed toward where Besore had agreed to meet him. Besore made a

U-turn and followed Thibodeau, who kept Besore's car in sight until

the two met a few minutes later. At the meeting place, Besore

exited his vehicle and gave Thibodeau a plastic bag filled with a

certain substance. Thibodeau then conducted the same search of

Besore that he had carried out prior to the controlled purchase.

No contraband or cash was found on Besore.

Thibodeau then conducted a field test on the substance in

the plastic bag. The field test came back positive for cocaine

base and appeared to be in crack form. Thibodeau put the 1

substance in an evidence envelope marked 159263, which he took to

the DEA office and locked in the safe. Following standard

procedure, he then mailed the drugs in a bag with his initials to

the DEA laboratory in New York to validate the identity of the

substance, as well as its weight and purity. Brian O'Rourke
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("O'Rourke"), a DEA forensic chemist, tested the substance given by

Besore to Thibodeau. After testing, O'Rourke confirmed that the

substance was cocaine base and determined its net weight to be 6.1

grams.

B. The trial

On October 23, 2003, the grand jury returned its

indictment against Anderson. On April 7, 2004, a trial commenced

in the district court. For the purposes of this appeal, there were

a number of key flashpoints during the trial. We relate them here

in turn.

1. The transcript

The day before trial, on April 6, 2004, the government

filed a motion in limine requesting that the district court rule on

whether the jury would be allowed to view a transcript of the

recording containing the transmissions from the electronic

transmitting device worn by Besore. The recording was a copy made

from the original. The government argued that it would be

permissible for the transcript to be used as an aid to the jury

while the actual tape was being played. The defense argued that

the transcription was inaccurate, that it was not notarized, that

the date was incorrect, and that there was no indication on the

transcript as to who prepared it.

Having listened to the tape, the court asked the defense

to identify any inaccuracies in the transcript. The defense merely
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responded that words were missing, the conversation did not flow,

and parts of the tape were unintelligible. Noting that the defense

had not identified specific inaccuracies in the transcript, the

court ruled as follows:

We all know that it's the tape itself that --

that the jury should be directing themselves

to in terms of what should guide their

deliberations. The transcript is merely an

aid.

To the extent that the defense has an

alternative transcript, I will provide that to

the jury at the same time and inform them that

they can use either one, if they wish, for an

aid, whichever helps them the best.

Based on my review of the tape compared to the

transcript, I'm going to permit the transcript

provided by the government to go to the jury.

I am going to give them the standard

instruction, however, with regard to the use

of the transcripts.

At trial, the defense argued that the transcript had not

been authenticated. The court said that it assumed that the

transcript would be authenticated by whomever prepared it.

However, the individual who actually transcribed the tape and made

the transcript was the prosecutor, who would not be able to take

the stand as he was representing the government at trial. The

government therefore took the position that the transcript could be

authenticated by having the agent who made the recording, Kelly,

compare the contents of the tape with the transcript to determine

that the transcript accurately reflected the contents of the tape.
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The defense also argued that since the conversations documented in

the transcript were hearsay, the testimony of Besore, who actually

took part in the conversations, was required to properly

authenticate the transcript. However, the defense conceded that it

would no longer have any hearsay objections to the transcript if

the defendant's voice could be identified on the tape. The

district court then informed the parties that it would wait to rule

on whether the transcript could be properly authenticated until

after Kelly took the stand.

On direct examination, Kelly testified that his primary

role was to record any and all conversations relating to the

electronic transmitter worn by Besore. He testified that he was

able to hear what was being transmitted from Besore's electronic

transmitting device at the same time that it was being recorded.

Kelly also said that he could identify the defendant's voice on the

tape. Finally, Kelly testified that he compared the tape to a

transcript that the prosecutor's office had given him and concluded

that the transcript accurately reflected the conversation.

The defense objected, disputing the foundation for

Kelly's ability to recognize the defendant's voice on the tape.

This objection, however, was overruled, and the transcript was

admitted into evidence.

The government then moved to play the tape and give the

jury the transcript as an aid in listening. The defense once again
 The tape that was played for the jury was a copy, not the 2

original. The government had offered to play the original.

However, the district court had previously ruled that if Besore did

not appear to give testimony at the trial, the government would

have to edit the tape and make another transcript to eliminate any

hearsay. (The court was concerned in particular about any remarks

Besore made while he was alone.) After Besore did fail to appear,

the government realized that it would have to edit the tape.

However, it discovered that the original could not be redacted.

The government therefore decided to play a redacted version of the

copy.

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objected but was overruled, and the transcript was distributed.

The court told the jury:

You are going to be given a transcript of

certain tape recordings that are going to be

played for you. I want to caution you -- this

is important -- that the transcript is being

given to assist you in listening to the tape.

The tape, not the transcript, is the evidence

in this case, and any difference that you see

between the transcript and the tape must be

resolved in favor of what you hear on the

recording.

Let me repeat that so that you're clear. The

tape recording is the evidence. So if you

hear -- let me just make something up --

brown, the color brown on the tape, and the

transcript says green, the tape -- it's what

you hear on the tape that governs and you are

to disregard . . . what you see on the

transcript if you see it's different.

Obviously, if it's the same, it makes no

difference. The transcript is merely to

assist you, but it's the tape recording that

governs. I guess I've said that three

different ways, three different times, so I

think it's probably pretty clear.

There was no objection to the instruction. The tape was then

played for the jury. However, it was garbled and not at all 2
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clear. After the tape ended, at the court's direction, the

transcripts were collected. The court did not allow the

transcripts to go into the jury room.

At the close of all the evidence, the court provided the

following limiting instruction to the jury:

During the course of this trial, you listened

to a tape recording and were provided a

transcript to assist you. Remember, the tape

recording, and not the transcript, is the

evidence in this case, and any difference

between the transcript and the tape must be

resolved in favor of what you heard on the

recording.

The jury, after deliberating for nearly two hours, sent

a note to the court requesting that it be provided with the

original tape recording. The jury further requested that the court

provide it with a copy of the transcript to help it in listening to

the tape. When the court proposed to explain that the original was

not available but to exercise its discretion to provide the

transcript, the defense objected that the jury would rely too

heavily on the transcript. Specifically, the defense argued:

Our basis, Judge, is that at this point in

time, where the jury is obviously having some

difficulty in listening to the tape because of

the quality of the tape, the transcript is

really essentially going to be substituted for

the tape itself. Just reading the transcript,

we believe, at this time is going to leave an

imprint upon the jurors' minds as to exactly

what is said, and they are certainly the best

arbiter as to what's said on that tape, Judge.

So we would object to the transcript going in

because at this point there's no difference
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between the transcript and the tape as being

evidence.

The court directed counsel to United States v. Ademaj, 170 F.3d 58

(1st Cir. 1999), in which we held that a jury could be given access

to an authenticated transcript subject to a limiting instruction.

On the basis of this case, the court concluded that while it would

not merely hand over the transcript to the jury, it was within its

discretion to "permit the jury to listen -- to have the transcript

while they listen to the tape recording that's been admitted

already into evidence." The court would also provide a limiting

instruction. When the defense challenged the authenticity of the

transcript, the court replied, "I've ruled on that . . . That's

in." After the parties were given time to read Ademaj, the defense

agreed that the jury be returned to the courtroom to listen to the

tape again with the transcript and another limiting instruction.

When the jury returned, the court announced that the

original recording was not available but that the parties had

agreed that the copy would be played while the jury followed with

the transcript. The court reminded the jury that

the transcript is only being provided to

assist you. The tape, and not the transcript,

is the evidence in the case, and any

difference that you hear between the

transcript and the tape is to be resolved in

favor of what you hear on the recording,

period.

After the tape was played again, the transcripts were collected,

and the jury returned to its deliberations.
 Besore had a prior felony conviction for tampering with a 3

witness.

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2. Admission of Besore's prior conviction

During the cross-examination of Thibodeau, the defense,

on two occasions, asked him about his relationship with Besore. On

the first occasion, Thibodeau testified that he had worked with

Besore on several occasions, that Besore was reliable, and that

Besore was a trustworthy individual. When Thibodeau was asked if

he was aware if Besore had a criminal record, he answered in the

affirmative. The following exchange then took place: 3

Defense: Okay. Were you aware that he was

convicted of --

Prosecutor: Objection. This is Rule 609

information, and it's for cross-examination of

the witness [i.e., Besore].

***

Prosecutor: Your Honor, Rule 609 is one of

the rules which you use to impeach a witness,

but you have to impeach the witness. [i.e.,

Besore; emphasis added]. You can't impeach

him through a third witness before -- there's

no cross-examination of this witness, of Mr.

Besore.

***

Defense: It is allowed, Your Honor. Pursuant

to Rule 404, a witness [i.e., Thibodeau] may

testify with respect -- to give an opinion as

to the truthfulness or untruthfulness

character of an individual [i.e., Besore], and

then he can give that opinion. And I'm also -

- and I'm allowed to use extrinsic evidence in

the form of convictions to -- to cross examine
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that witness [Thibodeau] with respect to that

opinion.

Prosecutor: He [Thibodeau] hasn't given an

opinion about the guy's [Besore's]

truthfulness.

Defense: He just did.

Prosecutor: He did not. He said he was

trustworthy.

The court: To him, that's all he [Thibodeau]

said [i.e., that Besore was trustworthy]. I'm

not going to allow the question under rule 403

and under rule 609.

Second, later in the cross-examination of Thibodeau,

Thibodeau testified that he could not recall what Besore said when

they met after the controlled purchase but that Besore turned over

what he had bought. The defense then asked, "[a]nd you believed

. . . that that was true . . . do you believe Besore and trust

him?" Thibodeau replied, "Absolutely." Although acknowledging the

court's earlier ruling, the defense once again argued that Besore's

prior conviction should be admitted because "we should be able to

show that as it relates to this officer's [Thibodeau's] credibility

how credible this person is." The following exchange then ensued:

The court (clarifying): "You want to impeach

this witness's [Thibodeau's] credibility

because he believes somebody you say he

shouldn't be believing?"

Defense: This officer is saying that Mr.

Besore's believable. There is extrinsic

evidence that we have with respect to

convictions that would demonstrate that Mr.

Besore is not believable.
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The court: All right. Go ahead.

Prosecutor: Judge, it's improper impeachment

of this witness [Thibodeau], plus the agent

has already testified about the basis for --

the only thing that's changed since the last

[ruling] is this agent's described what he

observed during the transaction and said, when

Besore got out of the car and handed him the

drugs, he believed that he got these drugs

during the transaction. His [Thibodeau's]

testimony says, I don't remember what Besore

told me.

The court: I'm not going to allow it -- same

basis.

3. Chain of custody

Prior to the commencement of trial, the defense -- at the

same time the government had made its motion in limine regarding

the transcript -- orally moved in limine to exclude the drugs

Thibodeau recovered from Besore, on the basis that the government

would be unable to establish a clear chain of custody absent

Besore's testimony. The court declined to rule on the defense's

motion at that time, indicating that it was not yet certain that

Besore was not going to testify at trial.

At trial, on the redirect examination of Thibodeau, the

government sought to admit into evidence the drugs that were given

to Thibodeau by Besore. The defense objected, claiming that the

government had not established a clear chain of custody. The court

overruled this objection and allowed the drugs to be admitted into

evidence.
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4. Missing witness instruction

On April 7, 2004, at the start of the trial, the

government informed the defense and the court that, despite its

attempts to subpoena Besore to testify, Besore was not present.

Moreover, Besore never appeared during the remainder of the trial.

At the close of all the evidence, in a meeting in

chambers, the defense requested that the court give the following

"missing witness" instruction to the jury:

If it is peculiarly within the power of the

government to produce a witness who could give

material testimony, or if a witness, because

of his relationship to the government, would

normally be expected to support the

government's version of the events, the

failure to call that witness may justify an

inference that his testimony would in this

instance be unfavorable to the government.

You are not required to draw that inference,

but you may do so. No such inference is

justified if the witness is equally available

to both parties, if the witness would normally

not be expected to support the government's

version of the events, or if the testimony

would merely repeat other evidence.

The defense requested this instruction relying in part on

United States v. Pérez, 299 F.3d 1 (1st Cir. 2002). The government

filed a "Memorandum of Law Regarding Missing Witness Instruction"

in which it set forth its opposition to the charge being given.

The government's response included a copy of Besore's subpoena, his

grand jury testimony, and the affidavit of Nancy Evans, a paralegal

specialist for the government, describing communication with Besore

about his duty to appear, Besore's statement to the government that
 As we discuss in greater detail below, a defendant seeking a 4

"missing witness" instruction must demonstrate that the uncalled

witness is "favorably disposed" or "peculiarly available" to the

government. Pérez, 299 F.3d at 3. If the defendant satisfies that

threshold burden, the court must then "consider the explanation (if

any) for the witness's absence and whether the witness, if called,

would likely provide relevant, non-cumulative testimony." Id.

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he feared his testimony would endanger his family, and information

about his general inability to keep interview appointments.

Using the framework for "missing witness" instructions

set out in Pérez and other cases, the court ruled as follows: 4

The witness here appears to be a, what I call,

independent contractor, confidential

informant. He worked when he wanted to work

for the government, and at other times, God

knows what he was doing, but he certainly

wasn't a government agent, nor was he a

government employee, nor was he a quasi-fulltime government informant working undercover.

And that sets a different relationship to the

government than a police officer or DEA agent

who fails to appear.

Second, it's unclear to me that this fellow

was favorably disposed to testify totally on

behalf of the government . . . there are

probably some issues he'd testify favorably

and some issues he'd testify not favorably.

And, clearly, the relationship he has with the

government . . . doesn't, in my view, make him

fully favorably disposed, nor do I find he's

peculiarly available to the government as to

be within their control, exclusive or

otherwise. The defendant in this case had the

same ability to seek out and subpoena this

individual as anybody else; they did not . . .

there certainly was no requirement that the

government even put this individual on even if

he was available, making the defendant's

ability to subpoena him and put him on even

more important.
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I also note that . . . no subpoena was served

by anyone in this case other than the

government, and if he was such a key witness,

the subpoena certainly would have been served

by both sides. I'm going to deny the request

for the missing witness instruction.

C. Sentencing

At the conclusion of the two-day jury trial, Anderson was

convicted. On July 27, 2004, the United States Probation Office

completed Anderson's Presentence Report (PSR). The PSR identified

the drug quantity as 6.1 grams of crack cocaine, which produced a

base offense level of 26. However, the PSR also explained that

Anderson stood convicted of a drug offense and had previously been

convicted of drug offenses, as described in PSR ¶26 and ¶28: a 1994

Massachusetts conviction and a 2002 Massachusetts conviction. This

made him a Career Offender. His total offense level, therefore,

became 34.

Anderson was initially assessed six criminal history

points, which placed him at a criminal history category (CHC) III.

However, because he was classified as a Career Offender, his CHC

was automatically increased to VI.

According to the PSR, the statutory term of imprisonment

was at least five years and no more than 40, pursuant to 21 U.S.C.

§ 841(b)(1)(B). At a total offense level of 34 and CHC VI,

Anderson's Guideline range was 262 to 327 months in prison.
 Anderson's statement that "there is nothing chemically different 5

from [i.e., between] cocaine base and cocaine [powder]" is

factually incorrect. The two substances are chemically different.

See United States v. Isler, 429 F.3d 19, 29 (1st Cir. 2005);

Robinson, 144 F.3d at 108.

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Anderson raised a number of specific objections to the

PSR. First, he contested the initial assignment of a base offense

level of 26, noting that such an assignment was based on the fact

that he had been convicted for possessing crack cocaine. Anderson

pointed out that he was convicted for possessing not crack cocaine,

but cocaine base. Second, Anderson objected to the conclusion

reached by the PSR that he qualified as a Career Offender, on the

grounds that the PSR ¶26 and ¶28 convictions did not qualify.

Finally, he disputed being placed preliminarily in CHC III as a

result of the six criminal history points he was assessed.

A presentence conference took place on December 7, 2004.

At this conference, Anderson continued to press his objection to

the base offense level of 26, disputing any references to crack

cocaine in the PSR. He again noted that the substance found at

trial was cocaine base, not crack cocaine. Then, he argued that

since the substance found was cocaine base, and because "there is

nothing chemically different from [i.e., between] cocaine base and

cocaine [powder]," he should be sentenced on the basis of 6.1 grams

of cocaine [powder], which would produce a base offense level of

12. He also reiterated his objection to the PSR's conclusion that 5

he be classified as a Career Offender.
 As we discuss below, the "Career Offender" issue was resolved in 6

Anderson's favor, and it is not in dispute in this appeal.

Therefore, we do not discuss it further.

 We have held that "[t]he rule of lenity requires that 7

ambiguities in the scope of a criminal statute must be resolved in

favor of the criminal defendant." United States v. Luna-Díaz, 222

F.3d 1, 3 n.2 (1st Cir. 2000).

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The district court ordered both parties to submit

sentencing memoranda indicating objections and the grounds for the

objections with supporting case law. These sentencing memoranda,

once submitted, focused primarily on two issues. First, the

parties discussed whether Anderson was indeed a Career Offender;

second, they discussed Anderson's argument relating to the

distinctions between crack cocaine, cocaine base, and cocaine

powder.

Regarding the second issue, Anderson argued that the 6

government had failed to make any showing that the substance

recovered by Thibodeau from Besore was crack cocaine. He also

reiterated his argument that there is no chemical distinction

between cocaine base and cocaine powder. Relying on United States

v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004), he then pointed out

that an ambiguity existed in the governing statute, 21 U.S.C.

§ 841. As a result, he argued that the district court, following

the example of the D.C. Circuit, should apply the rule of lenity7

and sentence him under the statute governing the applicable amount

of cocaine powder, 21 U.S.C. § 841(b)(1)(C). In other words, he
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argued that rather than face a five-year mandatory minimum under 21

U.S.C. § 841(b)(1)(B), he should face only the default maximum of

20 years under 21 U.S.C. § 841(b)(1)(C).

In response, the government first pointed out that the

district court was not bound by the D.C. Circuit's opinion in

Brisbane. In addition, the government contended that this Court's

opinion in United States v. López-Gil, 965 F.2d 1124 (1st Cir.

1992) (opinion on panel rehearing), was more on point and

controlling on the issue.

On April 27, 2005, the district court conducted a

sentencing hearing. At the outset, the government resolved the

issue of whether Anderson was a Career Offender, conceding that he

did not have the two predicate offenses required under U.S.S.G.

§ 4B1.1(a) and that he should have been placed in CHC III. With

respect to the appropriate classification of the drugs recovered

from Besore following the controlled purchase (crack cocaine,

cocaine base, or cocaine powder), the court held that the PSR

correctly concluded that the drugs were crack cocaine. Summing up

and noting that Anderson was "accountable for the distribution of

6.1 grams of cocaine base, crack," that his base offense level was

26, and that he was placed in CHC III, the court determined that

Anderson had a Guideline range of 78 to 97 months.

The court then sentenced Anderson to 78 months of

imprisonment, five years of supervised release, and a $100
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assessment. A timely notice of appeal was filed, objecting to both

the conviction and the sentence.

II. Discussion

A. The transcript issue

We review the district court's decision to allow the use

of the transcript for abuse of discretion. United States v.

Panzardi-Lespier, 918 F.2d 313, 318 (1st Cir. 1990); United States

v. Campbell, 874 F.2d 838, 849 (1st Cir. 1989).

The appellant makes two separate arguments about the

transcript used by the jury at trial. His first argument is that

the individual who prepared the transcript did not take the stand

to authenticate it. In this case, the individual who actually

transcribed the tape and made the transcript was the prosecutor,

who was not able to take the stand as he was representing the

government at trial. The government therefore took the position

that the transcript could be authenticated by having the agent who

made the recording, Kelly, compare the contents of the tape with

the transcript to determine that the transcript accurately

reflected the contents of the tape. This was deemed sufficient by

the district court to authenticate the transcript. The appellant,

however, contends this decision was erroneous.

We, however, discern no problem with Kelly authenticating

the transcript. In United States v. Carbone, 798 F.2d 21 (1st Cir.

1986), we wrote that "when transcripts are offered for use, either
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as evidence or a jury aid, they should be authenticated in the same

manner as tape recordings that are offered in evidence, i.e., by

testimony as to how they were prepared, the sources used, and the

qualifications of the person who prepared them." Id. at 26. In

this case, the government could not provide this testimony because

the individual who could best offer such information was prohibited

from providing it. That, however, did not mean that the transcript

could not be authenticated. In other cases, we have approved the

use of transcripts that were authenticated by individuals other

than the transcribers. For example, in Ademaj, 170 F.3d at 65 n.8,

we approved the authentication of transcripts where the transcripts

were authenticated by an individual other than the transcriber. In

that case, a cooperating witness listened to the tapes of

conversations in Greek and orally translated them into English. A

DEA agent then reduced the cooperating witness's oral translations

to writing. At trial, a Greek-language interpreter testified that

she had reviewed and compared these tape-recorded conversations

with the transcripts prepared by the cooperating witness and the

DEA agent and found the transcripts to be accurate.

The instant case presents a similar situation. Kelly --

like the Greek-language interpreter in Ademaj -- compared the

transcript to the tape recording and testified that the transcript

fairly and accurately represented the conversation on the tape. In

fact, we think that Kelly was in an even better position than the
-23-

interpreter in Ademaj to authenticate the transcript, as he himself

had listened to the conversation between Anderson and Besore while

monitoring the controlled purchase.

We also wish to point out that if the appellant was so

concerned about the authenticity of the government's transcript, he

could have submitted his own. The district court specifically

invited Anderson to submit his own transcript. Anderson, however,

failed to do so. In a number of cases, we have rejected a party's

claim about the admissibility of a transcript when the district

court had invited the party to submit a transcript of its own, and

the party declined to take up this invitation. See, e.g., Ademaj,

170 F.3d at 65; United States v. Pion, 25 F.3d 18, 21, 26-27 (1st

Cir. 1994). This case is no different.

Anderson's second argument relating to the transcript is

that because of the poor quality of the tape, the transcript --

which was to serve merely as an aid in interpreting the real

evidence, the tape -- became the actual evidence that the jury

relied upon in handing down its conviction. We encountered a

nearly identical argument in United States v. DeLeón, 187 F.3d 60,

66 n.3 (1st Cir. 1999). However, as in that case, we reject the

appellant's claim.

First, we note that the district court reminded the jury

at least three separate times that the tape, not the transcript,

constituted the evidence in this case and that any discrepancies
-24-

between the two were to be resolved in favor of the tape. In

DeLeón, we found such a limiting instruction to be an important

factor in rejecting the appellant's argument. In this case, we

think that such an instruction -- especially given the fact that it

had been repeated several times by the district judge -- ensured

that the jury did not rely on the transcript to convict the

appellant.

In United States v. Robinson, 707 F.2d 872 (6th Cir.

1983), the Sixth Circuit provided relief to an appellant making an

argument similar to the one made here by Anderson. In that case,

the district court had likewise provided a limiting instruction,

telling the jury to only consider the tape, not the transcript, as

evidence. The Sixth Circuit, however, held the following:

This Court is keenly aware that there is a

distinct difference between evidence and an

aid used to assist the jury in understanding

the evidence. However, the distinction

becomes nebulous where, as here, the evidence

is unintelligible. The practical effect of

using an aid to comprehend unintelligible

matter is that the aid becomes the evidence.

. . . While [the district court provided] an

adequate [limiting] instruction, its

directives are only viable when the tape is

clear enough for a juror to detect that the

tape is at variance with the transcript. But

where, as here, the tapes are partially

inaudible, the juror is precluded from making

an intelligent comparison. Hence, the likely

result is that the transcript becomes the

evidence.

Id. at 878. We, however, believe that this case is different from

Robinson in one key respect. In Robinson, the prosecution
-25-

submitted recordings that were in many portions so greatly

inaudible as to render any attempt at transcription speculative.

Nevertheless, the prosecution provided the jury with what it

purported to be transcripts of the recorded conversations. In this

case, however, the government never attempted to interpret portions

of the tape that were unintelligible. Rather, the transcript

specifically noted those portions of the tape that were unclear.

Thus, the jury in this case was not able to turn to the transcripts

to comprehend the unintelligible portions of the conversation, as

the transcript likewise provided no assistance. Accordingly, we

find Robinson to be inapposite here.

Second, even if there was error in the use of the

transcript, we believe that it was harmless. See United States v.

Andiarena, 823 F.2d 673, 677 n.5 (1st Cir. 1987). The tape and the

accompanying transcript constituted only a small part of the

government's case. There was other, overwhelming circumstantial

evidence that Anderson had engaged in the drug transaction in

question. Thibodeau and Kelly, two members of the surveillance

team that observed the transaction, testified in detail about the

following: 1) the constant electronic monitoring of Besore's

conversations; 2) the constant visual surveillance of Besore's car

by team members; and 3) the thorough searches of both Besore and

his vehicle before and after the controlled purchase. Thus, even
-26-

without the tape and the transcript, there was strong

circumstantial evidence of guilt.

B. Admission of Besore's prior conviction

The appellant's next argument is that the district court

erred by not allowing him to introduce evidence of Besore's felony

conviction. A challenge to a limitation on the scope of crossexamination is reviewed for abuse of discretion. See United States

v. Kaplan, 832 F.2d 676, 684 (1st Cir. 1987).

For a number of reasons, we reject Anderson's argument.

Before we discuss our reasoning, we wish to point out that the

parties, in their briefs, disagree about exactly whose credibility

would be attacked if the appellant were permitted to introduce

evidence of Besore's felony conviction -- Besore's or Thibodeau's.

Because the appellant's claim fails in either case, we address both

scenarios.

We begin with the scenario in which it is Besore's

credibility that is being attacked. Fed. R. Evid. 608 reads as

follows:

(a) Opinion and reputation evidence of

character. The credibility of a witness may

be attacked or supported by evidence in the

form of opinion or reputation, but subject to

these limitations: (1) the evidence may refer

only to character for truthfulness or

untruthfulness, and (2) evidence of truthful

character is admissible only after the

character of the witness for truthfulness has

been attacked by opinion or reputation

evidence or otherwise.
-27-

(b) Specific instances of conduct. Specific

instances of the conduct of a witness, for the

purpose of attacking or supporting the

witness' character for truthfulness, other

than conviction of a crime as provided in rule

609, may not be provided by extrinsic

evidence. They may, however, in the

discretion of the court, if probative of

truthfulness or untruthfulness, be inquired

into on cross-examination of the witness (1)

concerning the witness' character for

truthfulness or untruthfulness, or (2)

concerning the character for truthfulness or

untruthfulness of another witness as to which

character the witness being cross-examined has

testified.

Fed. R. Evid. 608. As support for his position that the prior

conviction evidence should have been permitted, the appellant cites

to Fed. R. Evid. 608(b)(2), i.e., the provision that states that

extrinsic evidence, such as evidence of a prior conviction, may be

inquired into on cross-examination "concerning the character for

truthfulness or untruthfulness of another witness as to which

character the witness being cross-examined has testified." See

Fed. R. Evid. 608(b)(2). The appellant argues that because

Thibodeau testified about Besore's trustworthiness, the appellant

should have been allowed to present Thibodeau with evidence of

Besore's prior conviction, a conviction that is probative of

Besore's character for untruthfulness.

Anderson's argument, however, contains a fundamental

weakness -- namely, the fact that Besore cannot be considered a

witness. As the government correctly points out, Besore never

testified. Rule 608(b)(2) makes clear that evidence of a prior
-28-

conviction may be inquired into on cross-examination "concerning

the character for truthfulness or untruthfulness of another witness

as to which character the witness being cross-examined has

testified" (emphasis added). Here, however, Besore was not a

witness, so proof of his prior conviction is not permitted.

The appellant counters that since Thibodeau was allowed

to discuss Besore and his positive interactions with Besore under

Rule 608(a), it is only fair that he (the appellant) be allowed to

rebut that testimony and provide proof of Besore's prior

conviction. This argument fails. Rule 608(a), like Rule 608(b),

states that "the credibility of a witness may be attacked or

supported . . . ." In discussing his view that Besore was

trustworthy, Thibodeau was not attacking or supporting the

credibility of a witness, because, as discussed above, Besore did

not testify.

Rule 608(b) forecloses the appellant from arguing that it

was really Thibodeau, the witness, whose credibility was being

attacked, and that he could get into evidence Besore's felony

conviction through the back door when the front door was barred.

Rule 608(b) refers to "specific instances of the conduct of a

witness" as appropriate for inquiry through cross-examination. As

discussed above, Besore was not a witness. Therefore, the district

court was correct in finding that specific instances of his conduct

were not admissible during Thibodeau's cross-examination.
-29-

C. Chain of custody

Anderson's third argument is that there is a gap in the

chain of custody for the drugs that the government sought to admit

into evidence. Anderson notes that although Thibodeau testified

that he received the drugs from Besore, Besore did not take the

stand to testify that he in fact received the drugs from Anderson.

Thus, it was possible, suggests Anderson, that Besore hid drugs on

his person or in his vehicle in an effort to frame Anderson. He

argues that without Besore's testimony, there was no way for the

district court to determine that Besore had not exchanged, tampered

with, or contaminated the evidence since the meeting with Anderson

in Besore's car. To Anderson, then, Besore represents a gap in the

government's chain of custody. In light of this gap, Anderson

contends that the district court erred in admitting the drugs.

We review the district court's chain of custody

determination for abuse of discretion. See United States v.

Cartagena-Carrasquillo, 70 F.3d 706, 715 (1st Cir. 1995). In

United States v. Abreu, 952 F.2d 1458 (1st Cir. 1992), we set forth

the standards to be applied by the district court in such cases:

In determining whether the evidence is

admissible, the trial court must conclude that

it was reasonably probable that the evidence

had not been altered since the occurrence of

the crime. The evidence in question is

properly admitted if it is readily

identifiable by a unique feature or other

identifying mark. On the other hand, if the

offered evidence is of the type that is not

readily identifiable or is susceptible to
-30-

alteration, a testimonial tracing of the chain

of custody is necessary. The purpose of

testimonial tracing is to render it improbable

that the original item either has been

exchanged with another or has been tampered

with or contaminated.

Id. at 1467 (internal quotation marks and citations omitted). We

also noted that "[e]ven though there may be gaps in the chain of

custody for a certain piece of evidence, such gaps factor into the

weight given to the evidence rather than its admissibility." Id.

In this case, because the drugs that the government

sought to admit were not readily identifiable in any way, a

testimonial tracing of the chain of custody was required. At

trial, the government endeavored to provide the necessary tracing.

Thibodeau testified that after the controlled purchase, he met

Besore at a pre-arranged spot, where Besore gave him the drugs he

had purchased from Anderson. Thibodeau then conducted a field test

that proved positive for cocaine. Thibodeau then put the drugs in

an evidence envelope, marked it with an identifying number that he

recited at trial, took the envelope to the DEA office, and locked

it in the safe. Thereafter, following standard procedure, he

mailed the drugs in a bag that contained his initials to the DEA

laboratory in New York. At that point, O'Rourke, the forensic

chemist who analyzed the drugs, forged the next custody link. He

identified the bag by his initials, by the date he received it, and

by the date he sealed it again. O'Rourke also established that
-31-

until the bag was returned to Maine for the trial, it remained in

the custody of the DEA laboratory in New York.

Anderson contests the strength of the first link in this

chain -- namely, he argues that there is no proof that the drugs

Besore gave to Thibodeau were the same ones Besore had purchased

minutes earlier from Anderson. However, we think that the district

court was correct in finding that the chain of custody provided by

the government was sufficient for admitting the drugs into

evidence. We have held that "the prosecution's chain-of-custody

evidence must be adequate -- not infallible." United States v.

Ladd, 885 F.2d 954, 957 (1st Cir. 1989). In this case, there was

sufficient evidence for the district court to find that the drugs

the government sought to admit were indeed the ones that Anderson

had given to Besore. Both Besore and his vehicle were searched

extensively prior to the controlled purchase. Moreover, after the

controlled purchase was completed and Besore left to meet Thibodeau

at the pre-arranged meeting place, Besore remained in Thibodeau's

sight during the drive. Thus, there was no way that Besore could

possibly have contaminated or exchanged the evidence. Thibodeau's

testimony was sufficient to establish that the drugs were what the

government claimed them to be. See Fed. R. Evid. 901(a) (noting

that for authentication purposes, sufficient evidence is required

"to support a finding that the matter in question is what its

proponent claims"). Moreover, as the appellant himself points out,
-32-

even if information about the origin of the drugs provided to

Thibodeau did represent a gap in the chain of custody, such a gap

factored into the weight given to the evidence rather than its

admissibility. See Abreu, 952 F.2d at 1467. Accordingly, we hold

that the district court did not abuse its discretion in admitting

the drugs into evidence.

D. Missing witness instruction

Anderson's fourth argument is that the district court

erred in refusing to issue to the jury the "missing witness"

instruction he desired. We review the district court's decision

for abuse of discretion. See Pérez, 299 F.3d at 3; United States

v. DeLuca, 137 F.3d 24, 38 (1st Cir. 1998).

In Pérez, we set forth the requirements for a "missing

witness" instruction:

[A]s a preliminary requirement to the

consideration of a missing witness

instruction, a criminal defendant must

demonstrate that the uncalled witness is

either "favorably disposed" to testify on

behalf of the government by virtue of status

or relationship or "peculiarly available" to

the government. United States v. DeLuca, 137

F.3d 24, 38 (1st Cir. 1998). Once past that

point, the court must consider the explanation

(if any) for the witness's absence and whether

the witness, if called, would be likely to

provide relevant, non-cumulative testimony.

United States v. Lewis, 40 F.3d 1325, 1336

(1st Cir. 1994).

Pérez, 299 F.3d at 3. In this case, Anderson failed to satisfy his

threshold burden. He did not show that Besore was "favorably
-33-

disposed" or "peculiarly available" to the government. With regard

to demonstrating that Besore was "favorably disposed" to testify on

behalf of the government, the district court noted that Besore was

not a government agent who was in the government's employ.

Instead, he was a private citizen, who, in the court's view, was an

"independent contractor." Although Besore had cooperated in

exchange for Thibodeau's recommendation that Besore's criminal

speeding charges be dismissed, we have made clear that the mere

fact of cooperation does not make a witness "favorably disposed" to

the government. See DeLuca, 137 F.3d at 38. Here, moreover, it

was far from clear to the court that Besore "was favorably disposed

to testify totally on behalf of the government." Instead, as the

court explained, "there are probably some issues [on which] he'd

testify favorably and some issues [on which] he'd testify not

favorably." Thus, the district court was justified in finding that

Besore was not "favorably disposed" to the government.

Nor did Anderson demonstrate that Besore was "peculiarly

available" to the government. The government explained in detail

its efforts to secure Besore's presence at trial and how it had

failed. See United States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st

Cir. 1981). Not only had the government served Besore with a

subpoena to appear, but the government's paralegal specialist had

reminded him of that obligation. The paralegal specialist's

affidavit described her communications with Besore and his reply
-34-

that he feared his testimony would endanger his family.

Notwithstanding these contacts, by the time of trial, it appeared

the government did not even know where Besore could be found. That

the government could not get Besore to appear, despite such

efforts, demonstrates conclusively that he was not available to the

government, much less "peculiarly available."

Moreover, Anderson had the same ability as the government

to seek a subpoena to require Besore's appearance at trial.

Anderson clearly knew Besore might be a witness and indeed had

reason to believe he might be important to his defense. As the

defense conceded, however, it never tried to subpoena Besore.

Neither did Anderson seek a continuance to press his search for

Besore. See id. at 12. Instead, he simply requested the "missing

witness" instruction. See id. (pointing out that absent some

effort to secure witness's appearance, request for "missing

witness" instruction "indicates that defense counsel is more

interested in exploiting the witness's absence than seeing him

produced" (quoting United States v. Díaz, 535 F.2d 130, 135 n.5

(1st Cir. 1976)). The fact that Anderson was able to subpoena

Besore yet failed to do so gives us additional reason to believe

that the district court was correct in finding that Besore was not

"peculiarly available" to the government.

With Anderson's failure to satisfy his threshold burden

for the issuance of the "missing witness" instruction, it is
-35-

irrelevant whether Besore would have provided relevant, noncumulative information. Anderson goes on at length about how

Besore, had he testified, would have provided important information

about the conversation that he had with Anderson during the

controlled purchase, about whether the drug evidence had been

contaminated or exchanged, and about any motive that he had to

frame Anderson. That Besore could have provided such information,

however, does not matter, since Anderson was unable to show during

the preliminary inquiry that Besore was "favorably disposed" or

"peculiarly available" to the government.

Anderson likewise ignores the importance of this

threshold inquiry in his attempt to distinguish Pérez -- a case in

which we upheld the district court's decision to deny a defendant's

request for a "missing witness" instruction. In Pérez, a

confidential government informant who took part in a drug deal with

the defendant did not testify at the defendant's trial. To

Anderson, our decision to affirm the district court's denial of the

"missing witness" instruction in that case was based on the fact

that the government possessed a qualified privilege to withhold the

identity of confidential informants. Anderson argues that this

case is different, as the government disclosed the identity of

Besore prior to trial. He contends that the government possesses

no "qualified privilege" in this case, and the rationale

undergirding the Pérez decision is inapplicable here.
-36-

Anderson's reasoning, however, is flawed. Although we

did note in Pérez that the government possessed a qualified

privilege with respect to disclosing the identity of its

confidential informants, it was not the government's interest in

confidentiality that led us to uphold the district court's denial

of the "missing witness" instruction. Rather, it was the fact that

the defendant in Pérez had made no attempt to force the government

to disclose the confidential informant's identity prior to trial,

despite being able to do so. We wrote that "[i]nstead . . . he

waited until both sides had rested and then, despite having made no

effort to obtain the informant's identity in the usual manner,

implored the court to instruct the jurors that they could draw an

adverse inference from the government's failure to offer the

[confidential informant's] testimony." Pérez, 299 F.3d at 4.

Thus, rather than presenting a set of facts different

from this case, Pérez is actually quite similar. That the

defendant in Pérez could have taken steps to obtain the informant's

identity yet chose not to do so meant that he did not satisfy his

burden in demonstrating that the missing witness was "peculiarly

available" to the government. The same is true in this case. As

we have discussed, Anderson could have issued a subpoena to Besore

but elected not to do so. The result of such inaction on

Anderson's part is that he failed to satisfy his burden in

demonstrating that Besore was "peculiarly available" to the
-37-

government. As the government correctly points out, then, the

critical issue here is not whether the government possesses a

qualified privilege as to its confidential informants, but instead

whether the witness is "favorably disposed" or "peculiarly

available" to the government. Because Anderson failed to satisfy

his burden as to this threshold showing, we hold that the district

court did not abuse its discretion in denying the sought-after

"missing witness" instruction.

E. Sentencing

1.

Anderson next contests two aspects of his sentencing.

First, he argues that the district court erred in computing his

sentence under the Guidelines. The district court found that

Anderson was responsible for the distribution of 6.1 grams of crack

cocaine. Accordingly, the court, taking into account that Anderson

was placed in CHC III, found that Anderson's Guidelines range was

78-97 months. Anderson, however, claims that the district court

erred in its finding that he had distributed crack cocaine. He

contends that the trial had only established that he was

responsible for distributing cocaine base, not crack cocaine in

particular. This distinction is important because we have noted

that "[f]orms of cocaine base other than crack are treated as

cocaine hydrochloride [cocaine powder] for purposes of calculating

the GSR [Guidelines sentencing range]." United States v. Robinson,
-38-

144 F.3d 104, 108 (1st Cir. 1998) (citing U.S.S.G. App. C, Amend.

487). Anderson therefore states that his base offense level should

have been calculated based on 6.1 grams of cocaine hydrochloride

(cocaine powder). The Guidelines establish a base offense level of

12 for a quantity involving less than 25 grams of cocaine

hydrochloride (cocaine powder). See U.S.S.G. §2D1.1(c)(14) (2003).

At a total offense level of 12 and a criminal history category of

III, Anderson contends that his GSR should have been 15-21 months.

We have held that "[w]hether a particular substance is

crack or cocaine for purposes of the sentencing guidelines is a

question of fact to be determined by the court." Robinson, 144

F.3d at 109. The sentencing court's fact-finding must be accepted

unless it is clearly erroneous. See United States v. St. Cyr, 977

F.2d 698, 701 (1st Cir. 1992). When the nature of an illicit

substance is material at sentencing, the government has the burden

to prove the substance's identity by a preponderance of the

evidence. See United States v. Legarda, 17 F.3d 496, 499 (1st Cir.

1994).

We believe that the government has satisfied its burden.

At trial, Thibodeau testified that minutes after the conclusion of

the controlled purchase, Besore turned over to him the substance he

had bought from Anderson. Without objection, Thibodeau identified

the substance as "rock cocaine or crack cocaine in what we call

Dominican-tie plastic bags" and explained that the bags were cut
-39-

and twisted "to keep the rock clean." See Robinson, 144 F.3d at

108 (noting that crack is "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") (quoting U.S.S.G. § 2D1.1(c)(n.(D))). Twice more in his

testimony, Thibodeau referred to the drug Besore gave him as the

rock form of cocaine base.

Similarly, the government's expert, the DEA chemist Brian

O'Rourke, testified that he had received from Maine 16 small bags

each of which contained a yellowish-white, rock-like substance, and

that the net weight was 6.1 grams. Describing the procedure he

followed, O'Rourke explained that he ground the rocks into powder

so that they could be evaluated through three separate tests.

Based on his professional experience and the test results, without

objection, O'Rourke identified the drugs as cocaine base. Crossexamination confirmed that when the drugs arrived they were in the

rock form that is characteristic of crack cocaine. See id.

Anderson challenges this testimony in two ways. First,

he claims that Thibodeau lacked the training and experience needed

to identify the drug as crack cocaine. He points out that

Thibodeau testified that he had been working as a HIDA agent for

only 18 months. Although this is true, Thibodeau had also worked

as a policeman for eight years. Both in his work as a police

officer and as a HIDA agent, he had participated in hundreds of
-40-

controlled purchases. See id. (noting that "we often have

permitted law enforcement officers, not formally trained as

'experts,' to furnish opinions based on their real-world

experience"). Moreover, we note that at trial, Anderson never

disputed Thibodeau's qualifications in making a visual

identification of the drug or in performing the field test that

proved positive for crack cocaine. See United States v. Díaz, 300

F.3d 66, 74 (1st Cir. 2002) (noting that "litigants must raise a

timely objection . . . to preserve a challenge on appeal").

To drive home his point that Thibodeau lacked the

exprience needed to identify the drugs as crack cocaine, Anderson

points out how Thibodeau seemed to confuse the terms "crack

cocaine" and "cocaine base" and use them interchangeably in his

testimony as though there was no difference between the two. For

example, Anderson points to the following exchange:

Q: Okay. Did -- based on your conversation

with Mr. Besore, what kind of drugs did you

think you might be buying that day?

Thibodeau: Crack cocaine.

Q: All right. Cocaine base?

Thibodeau: Correct.

We, however, see no confusion on Thibodeau's part in this exchange.

Rather, we think that he is demonstrating his knowledge of cocaine

base and its different forms, since, as we noted above, crack

cocaine is a kind of cocaine base.
-41-

Anderson's second challenge is based on the fact that the

government did not elicit any testimony from O'Rourke pertaining to

the different forms of cocaine base or whether the cocaine base he

tested was the type of cocaine base referred to as crack. This

argument, however, is unavailing, because even though O'Rourke did

not explicitly identify the drugs he tested as crack cocaine,

O'Rourke mentioned several times during his testimony that he had

tested the rock form of cocaine base. As we noted in Robinson,

cocaine base in a rock form is usually considered to be crack

cocaine. See Robinson, 144 F.3d at 108.

Moreover, we have encountered a nearly identical argument

in previous cases. See, e.g., United States v. Ferreras, 192 F.3d

5 (1st Cir. 1999); United States v. Martínez, 144 F.3d 189 (1st

Cir. 1998); Robinson, 144 F.3d at 104. For example, in Ferreras,

the defendant argued that the government had failed to prove that

the cocaine base in his possession was in fact crack cocaine. In

response, we wrote:

[O]nce the government laid a proper foundation

by introducing a chemical analysis proving

that, chemically, the contraband was cocaine

base, no further scientific evidence was

needed. Instead, the government could bridge

the evidentiary gap between cocaine base and

crack cocaine by presenting lay opinion

evidence (or an opinion proffered by an expert

who possessed practical as opposed to academic

credentials) from a reliable witness who

possesses specialized knowledge (gained by

experience in dealing with crack or

familiarity with its appearance and texture).
-42-

192 F.3d at 11 (internal citations and quotation marks omitted).

In this case, the government followed this framework to the letter.

As we discussed above, the government, through O'Rourke, introduced

chemical test results demonstrating that the drugs recovered from

Besore were indeed cocaine base. This, combined with Thibodeau's

testimony, was sufficient for the district court to find that

Anderson had distributed crack cocaine. Therefore, we hold that

the district court did not err in finding that Anderson was

responsible for the distribution of 6.1 grams of crack cocaine and

computing his sentence accordingly under the Guidelines.

2.

Anderson's second argument regarding his sentence is that

the district court violated his constitutional rights in

determining that a five-year mandatory minimum sentence applied to

him pursuant to 21 U.S.C. § 841(b)(1)(B)(iii). The

constitutionality of a sentence is a question of law subject to de

novo review. See Mistretta v. United States, 488 U.S. 361 (1989).

Anderson's entire argument is based on a May 2004 case

decided by the D.C. Circuit, United States v. Brisbane, 367 F.3d

910 (D.C. Cir. 2004). Brisbane related to the proper manner of

interpreting the sentencing scheme in 21 U.S.C. §§ 841(b)(1)(A),

(B), and (C). That scheme is considered to establish two tiers of

penalties for offenses involving cocaine, with higher penalties for

crack cocaine and other forms of cocaine base and lesser penalties
-43-

for cocaine powder. See 21 U.S.C. §§ 841(b)(1)(A), (B), and (C);

see also United States v. Richardson, 225 F.3d 46, 49 (1st Cir.

2000); Robinson, 144 F.3d at 107.

For example, § 841(b)(1)(B)(iii) provides for a mandatory

minimum five-year sentence for an offense involving "5 grams or

more of a mixture or substance . . . which contains cocaine base."

21 U.S.C. § 841(b)(1)(B)(iii). Section 841(b)(1)(B)(ii)(II), by

contrast, provides for a mandatory minimum five-year sentence for

offenses involving "500 grams or more of a mixture or substance

containing a detectable amount of cocaine, its salts, optical and

geometric isomers, and salts of isomers." 21 U.S.C. § 841(b)(1)

(B)(ii)(II). Importantly, no mandatory minimum sentence applies to

an amount of cocaine base that is less than 5 grams or an amount of

cocaine that is less than 500 grams. See 21 U.S.C. § 841(b)(1)(C).

In Brisbane, the D.C. Circuit ruled that such a

sentencing scheme was ambiguous. See 367 F.3d at 912. Anderson

notes that the ambiguity lies in the fact that references to

"cocaine base" and "cocaine" in § 841(b)(1) involve the same

substance. He leads us to this conclusion by pointing out that

cocaine in its naturally occurring form is a base. Therefore, the

phrase "cocaine base," in scientific terms, is redundant. In other

words, to a scientist, "cocaine" and "cocaine base" are synonymous;

they both refer to a substance with the same chemical formula.
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According to Anderson, to understand the statutory terms

in this way creates an ambiguity in the statute. For example, if

one is to read the mention of "cocaine" in § 841(b)(1)(B)(ii)(II)

as referring to "cocaine base," then the statute would be read in

such a way that a mandatory minimum five-year sentence applies for

an offense involving 500 grams or more of cocaine base. This,

however, is contrary to the scheme set forth in § 841(b)(1)

(B)(iii), which states that a mandatory minimum five-year sentence

applies for an offense involving five grams or more of cocaine

base. See United States v. Isler, 429 F.3d 19, 28-29 (1st Cir.

2005).

As a result of such an ambiguity, the D.C. Circuit in

Brisbane decided to apply the rule of lenity and ordered the lower

court to sentence the defendant in that case under the more

forgiving penalty provisions relating to cocaine powder (discussed

in 21 U.S.C. § 841(b)(1)(B)(ii)(II) and 21 U.S.C. § 841(b)(1)(C))

and not cocaine base (discussed in 21 U.S.C. § 841(b)(1)(B)(iii)).

In this case, Anderson urges us to follow the lead of the D.C.

Circuit and find an ambiguity in the statute. He asks us to

likewise apply the rule of lenity and sentence him on the basis of

an offense involving cocaine powder. If we were to follow such an

approach, no mandatory minimum sentence would apply to Anderson,

since the statute states that no mandatory minimum applies for an

amount of cocaine powder that is less than 500 grams. Anderson
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would only face the default maximum of 20 years under 21 U.S.C.

§ 841(b)(1)(C).

We, however, decline Anderson's invitation. In Isler,

429 F.3d at 29, we were presented with the opportunity to adopt the

position that the D.C. Circuit articulated in Brisbane. We elected

not to do so, noting that Brisbane was "a case from another circuit

that concedes it is expressing a minority view and is explicitly at

odds with this circuit's precedent." Id. Moreover, even if we

were now inclined to disregard Isler and adopt the approach of the

D.C. Circuit in Brisbane, we would not be free to do so. See

United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) ("[w]e

have held, time and again, that in a multi-panel circuit, prior

panel decisions are binding upon newly constituted panels in the

absence of supervening authority sufficient to warrant disregard of

established precedent").

As a last point, we only wish to point out that rather

than follow the approach articulated by the Brisbane court, we have

consistently interpreted § 841(b)(1) in a more "literal" manner.

We have held that "the term 'cocaine base' clearly defines a

substance differing from other forms of cocaine." United States v.

Barnes, 890 F.2d 545, 552 (1st Cir. 1989); see also Isler, 429 F.3d

at 29; Robinson, 144 F.3d at 108-09. Moreover, although § 841

(b)(1) does not define "cocaine base," we held in López-Gil, 965

F.2d at 1134, that the term, as used in the statute, includes all
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forms of cocaine base, including but not limited to crack cocaine.

Since, as discussed above, the district court found that Anderson

was found guilty of distributing 6.1 grams of crack cocaine, it is

clear that Anderson was properly sentenced under the "cocaine base"

provision of § 841(b)(1). Therefore, the district court was

correct in finding that the five-year mandatory minimum applied in

Anderson's case.

III. Conclusion

For the reasons stated above, we affirm the judgment of

the district court.

Affirmed.