UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4755

ALBERT BETEMIT, a/k/a Juan Lopez,

a/k/a Jose Ivan Torres, a/k/a Jose

Frias,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CR-95-64)

Argued: October 1, 1997

Decided: November 12, 1997

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

MAGILL, Senior Circuit Judge for the

United States Court of Appeals for the Eighth Circuit,

sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,

in which Judge Murnaghan and Senior Judge Magill joined.

_________________________________________________________________

COUNSEL

ARGUED: Sa'ad El-Amin, EL-AMIN & CRAWFORD, Richmond,

Virginia, for Appellant. Patrice Marie Mulkern, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

ON BRIEF: Helen F. Fahey, United States Attorney, N. George Metcalf, Assistant United States Attorney, Richmond, Virginia, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Albert Betemit was the organizer and leader of a large crack

cocaine and cocaine powder distribution network, involving at least

ten co-conspirators, that operated in Virginia and South Carolina.

Members of the conspiracy transported cocaine from New York to

Virginia and South Carolina, "cooked" it into crack, and sold both

crack cocaine and powdered cocaine on the street. The government

offered evidence that during the period from 1987 to 1993 the conspiracy was involved in the distribution of over 314 kilograms of

cocaine in crack and powder form.

Following a jury trial, Betemit was convicted on multiple counts of

conspiracy, distribution, and possession of crack cocaine and cocaine

powder, two counts of carrying a firearm during the commission of

a drug trafficking crime, and one count of unlawful use of a communication facility. The district court subsequently dismissed the firearm

convictions. The court sentenced Betemit to life imprisonment.

On appeal, Betemit contends (1) that certain non-testifying codefendants' statements were introduced in violation of Bruton v.

United States, 391 U.S. 123 (1968); (2) that the grand jury testimony

of unindicted co-conspirator LaMorris Ellis was admitted in violation

of the Confrontation Clause of the Sixth Amendment; and (3) that the

evidence was insufficient, both as to amount and as to the nature of

the cocaine, to support a sentence based on 1.5 kilograms of crack

cocaine. Finding no merit to these claims, we affirm.

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I

Betemit contends that certain co-defendants' statements were introduced at trial in violation of Bruton v. United States, 391 U.S. 123

(1968). In Bruton, the Supreme Court held that a defendant is

deprived of his Sixth Amendment right of confrontation when the

incriminating confession of a non-testifying co-defendant is introduced at their joint trial, even if the trial court instructs the jury to

consider the confession only against the co-defendant.

During Betemit's trial, the following statements were made by

Betemit's non-testifying co-defendants in the presence of the jury:

 1. Bedford Forte, an unindicted co-conspirator, testified

on direct examination by the government that "Janet [Hewlett, a co-defendant] had told me that Albert[Betemit] had

left a gun in the apartment, and she wasn't really particular

about guns. And he wasn't there as much as he had been

coming through the house. So I said, well, give me the gun.

I'll get rid of it. I can use the money." After a bench conference at which Betemit's counsel raised a Bruton objection,

the district judge directed the jury "to forget" and "disregard" the testimony. The court denied Betemit's motion for

a mistrial.

 2. Carolyn Forte, another unindicted co-conspirator, testified on direct examination by the government,"I was present at a conversation that [Janet Hewlett] had with Chip

about a gun that she purchased for Albert [Betemit]." The

judge directed the jury to "disregard the entire question and

entire answer."

 3. Cammy Lowery, also an unindicted co-conspirator,

testified on cross-examination by co-defendant's counsel

that "she [Shenita Banks, a co-defendant] said that Al

[Betemit] gave [a car] to her to use" and that Banks "told me

that she got [a large amount of money] from Al[Betemit],

that he gave her the money." The judge directed the jury to

"just disregard the question and the answer."

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We agree with Betemit that where a non-testifying co-defendant's

statement implicates a defendant, a limiting instruction by the court

does not provide an adequate substitute for confrontation and crossexamination. See Bruton, 391 U.S. at 137. But a "Bruton problem

exists only to the extent that the codefendant's statement in question,

on its face, implicates the defendant." United States v. Locklear, 24

F.3d 641, 646 (4th Cir. 1994) (emphasis added). In this case, once the

district court dismissed the gun charges against Betemit, the three

statements are, at best, only inferentially incriminating in that they

deal generally with guns, cars, and money. They do not, however,

actually address the buying or selling of illegal drugs. Accordingly,

we conclude that the statements cannot "fairly be understood to

incriminate" Betemit and therefore do not violate the principles of

Bruton. Locklear, 24 F.3d at 646; see also United States v. Brooks,

957 F.2d 1138, 1146 (4th Cir. 1992) (Bruton applies only where nontestifying co-defendant's statement is "facially incriminating"

(emphasis added)).

II

Betemit also contends that the admission of LaMorris Ellis' grand

jury testimony under the residual hearsay exception of Federal Rule

of Evidence 804(b)(5) violated his Sixth Amendment right of confrontation. Ellis was an unindicted co-conspirator who agreed to

cooperate with the government and who had testified before a federal

grand jury regarding the details of Betemit's cocaine distribution

operation. Prior to Betemit's trial, the government issued a subpoena

for Ellis to appear as a witness. Ellis, however, had disappeared and,

despite the government's reasonable efforts, could not be found. Consequently, the government moved to admit Ellis' grand jury testimony

under Federal Rule of Evidence 804(b)(5). Based on its finding that

the testimony possessed sufficient indicia of reliability, the district

court permitted the introduction of redacted portions of the testimony.

The Sixth Amendment provides that "[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him." Despite its absolute language, the Confrontation

Clause "permits, where necessary, the admission of certain hearsay

statements against a defendant despite the defendant's inability to

confront the declarant at trial." Maryland v. Craig, 497 U.S. 836, 847-

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48 (1990). Under the two-part test articulated by the Supreme Court

in Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), before a declarant's

hearsay testimony may be admitted, the Confrontation Clause

requires the government to show (1) that the use of the hearsay is necessary because the declarant is unavailable, and (2) that the hearsay

bears sufficient "indicia of reliability" to enable the factfinder to evaluate the truth of the hearsay. See United States v. McHan, 101 F.3d

1027, 1036-37 (4th Cir. 1996). For hearsay statements to be admitted

under Rule 804(b)(5), a showing of "particularized guarantees" of

their trustworthiness must be made. Roberts, 448 U.S. at 66; McHan,

101 F.3d at 1036-37. There is no "mechanical test" for determining

whether a hearsay statement possesses sufficient guarantees of trustworthiness. Idaho v. Wright, 497 U.S. 804, 822 (1990). Rather, such

a determination is to be made "from the totality of circumstances that

surround the making of the statement and that render the declarant

particularly worthy of belief." Id. at 820. Evidence extrinsic to the

making of the hearsay statement itself, however, may not be relied

upon to provide a guarantee of trustworthiness. Roberts, 448 U.S. at

822.

Beginning with the first part of the Roberts test, the district court

in this case found that Ellis was unavailable and that the government

had made reasonable efforts to locate him before trial. These findings

were not clearly erroneous. See United States v. Thomas, 705 F.2d

709, 712 (4th Cir. 1983) (holding that government had made reasonable efforts to locate witnesses where government had maintained

contact with witnesses following their grand jury testimony, had no

indication witnesses would disappear, and had attempted to locate

witnesses by service of process before trial). And on the second part

of the test, we believe that there were numerous guarantees to assure

the trustworthiness of Ellis' statements. First, the statements were part

of Ellis' testimony voluntarily given under oath in the solemn context

of a grand jury proceeding. Second, an official transcript of his testimony was made. Third, Ellis had received a grant of immunity for

giving truthful testimony. Fourth, Ellis' testimony was based on his

personal knowledge. Fifth, there was temporal proximity between

Ellis' testimony and the events it described. And sixth, the testimony

was developed without excessive reliance on leading questions. See

McHan, 101 F.3d at 1038 (identifying factors supporting a finding of

trustworthiness under Roberts); United States v. Shaw, 69 F.3d 1249,

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1254 (4th Cir. 1995) (same). Even though the district court also

referred, improperly, to the fact that extrinsic evidence corroborated

Ellis' testimony, doing so was harmless in light of the various other

factors supporting a finding of trustworthiness.

Betemit contends nonetheless that in this case Ellis recanted his

grand jury testimony during a telephone call that he made from an

unknown location to detective David Miller sometime near the end of

Betemit's trial. The district court, after questioning the detective out

of the presence of the jury concerning the contents of this conversation, concluded that the terms of Ellis' recantation, if any, were

unclear, and its circumstances were suspect. Accordingly, the court

did not find that the telephone call undermined the reliability of Ellis'

prior grand jury testimony, and we cannot say that the court's findings

were clearly erroneous.

III

Finally, Betemit contends that the district court erred in concluding, for sentencing purposes under U.S.S.G. § 2D1.1, that 1.5 kilograms of crack cocaine were involved and that the"crack" referred to

by various witnesses was in fact crack cocaine.

During Betemit's sentencing hearing, the district court found that

the quantity of powder and crack cocaine involved in the conspiracy

was "enormous" and that the amount of crack well exceeded 1.5 kilograms, the minimum amount required to impose the maximum penalties under the Sentencing Guidelines. The government had presented

evidence that the conspiracy had distributed in total over 314 kilograms of cocaine powder and crack, including 26-52 kilograms of

crack in 1990, 26-156 kilograms of crack in 1991, and 981.6 grams

of crack in 1993. Moreover, in response to the government's evidence, Betemit conceded that "if the Court believes the testimony of

the witnesses identified by the government by a preponderance of the

evidence, then there was in excess of 1.5 kilograms of crack cocaine

possessed and distributed during the entire period of the conspiracy."

The government has the burden of proving by a preponderance of

the evidence sentencing factors, including the type and quantity of

drugs for which the defendant should be held accountable. See United

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States v. Estrada, 42 F.3d 228, 231 (4th Cir. 1993). In proving these

factors, the government may rely upon information found in the Presentence Report unless the defendant affirmatively shows that the

information found there is inaccurate or unreliable. See United States

v. Gilliam, 987 F.2d 1009, 1114 (4th Cir. 1993). A "mere objection"

to the Presentence Report's findings "is not sufficient" to challenge

a Presentence Report. United States v. Terry, 916 F.2d 157, 162 (4th

Cir. 1990). When, however, the defendant effectively puts a finding

of the Presentence Report into dispute, the district court is required

to make an independent determination on the issue. Estrada, 442 F.3d

at 231; U.S.S.G. § 6A1.3. In making this determination, the district

court may assess the credibility of witnesses. United States v. Fisher,

58 F.3d 96, 100 (4th Cir. 1995). We review the district court's findings on sentencing factors for clear error. Id .

In this case, the district court clearly credited the testimony of witnesses and government agents that referred to the involvement of

large amounts of crack cocaine, many times in excess of the 1.5 kilogram threshold for maximum sentencing. We cannot conclude, on this

record, that the district court's findings were clearly erroneous, particularly when Betemit concedes that he can succeed in his challenge as

to the amount of crack involved only if we were to find the government's witnesses incredible.

Betemit contends additionally that even if the court believed the

witnesses who testified to distributing more than 1.5 kilograms of

crack cocaine, the government failed to introduce sufficient evidence

to confirm that the crack to which they were referring was in fact

crack cocaine. Betemit contends that under the definition of "crack"

supplied by the Sentencing Guidelines, the government was required

to present evidence that the drugs had been processed using sodium

bicarbonate and had appeared in a lumpy, rocklike form. See U.S.S.G.

§ 2D1.1 Note (D).

While Betemit is correct in noting that there was no testimony that

the specific crack cocaine to which the witnesses referred was processed by combining cocaine hydrochloride and sodium bicarbonate

and that the product appeared "in a lumpy, rocklike form," there is

ample testimony from numerous witnesses that the substance being

sold and distributed by Betemit's co-conspirators was "crack." More-

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over, a kilogram of crack cocaine seized by the government was subjected to laboratory analysis and identified as"cocaine base," which

we have held refers to crack cocaine. See Fisher , 58 F.3d at 99. We

conclude that any additional chemical analysis of the sort Betemit

proposes is not required and that the district court had sufficient evidence to conclude that the drug which various witnesses called

"crack" was in fact crack cocaine, particularly when there was evidence that powder cocaine had been transported from New York to

Virginia, cooked into crack cocaine, and sold as crack on the street.

In summary, we can find no clear error in the district court's findings that Betemit was responsible for at least 1.5 kilograms of crack

cocaine, the minimum amount needed to impose the maximum statutory penalty.

For the foregoing reasons, we affirm Betemit's conviction and sentence.

AFFIRMED

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