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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

United States of America,

Plaintiff,

v. Honorable Sean F. Cox

James Lee Crews (D-2), Criminal Case No. 08-20482

Defendant.

__________________________/

MEMORANDUM OPINION

Defendant James Lee Crews (“Crews”) was charged with two counts in the four-count

indictment in this case: 1) possession with intent to deliver five grams or more of cocaine base in

violation of 21 U.S.C. § 841 (Count III); and 2) conspiracy to distribute cocaine base in violation

of 21 U.S.C. § 846 (Count IV). After Crews pled guilty to Count III, the parties sought an

evidentiary hearing so that, for purposes of sentencing, the Court could determine whether the

substance at issue in Count III was crack cocaine. The Court conducted the requested evidentiary

hearing on September 4, 2009. As set forth below, having considered the evidence presented at

the hearing, the Court concludes that the Government has established, by a preponderance of the

evidence, that the controlled substance that Crews possessed with intent to deliver, was CRACK

COCAINE.

BACKGROUND

Crews was charged with two counts in the four-count indictment in this case. Count III

of the Indictment alleges that, on or about January 8, 2007, Crews possessed with intent to

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deliver five grams or more of cocaine base in violation of 21 U.S.C. § 841. Count IV alleges

that, on that same date, Crews conspired with others to possess with intent to distribute five

grams or more of cocaine base.

On January 30, 2009, Crews pled guilty to Count III, pursuant to a Rule 11 Plea

Agreement with the Government. At the plea hearing, Crews admitted that he possessed with

intent to deliver 43-45.3 grams of “cocaine base,” without specifically identifying the form of the

cocaine base. (1/40/09 Tr. at 14). Sentencing, with respect to Count III, was originally

scheduled to take place on May 29, 2009.

On February 4, 2009, Crews signed a written statement titled “Defendant’s Version of

Offense” that was provided to the Probation Department. In that statement, Crews stated that he

unconditionally accepted personal responsibility for his “commission of Count Three of the

Indictment – my possession with the intent to distribute more than five grams of cocaine base

(crack) on January 8, 2007.” The statement that Crews signed indicates that it was drafted by

Defense Counsel.

A Presentence Investigation Report (“PIR”) was prepared by the Probation Department

on April 28, 2009. Paragraphs 10, 11, and 12 of the PIR state that the cocaine base Crews

possessed was in the form of “crack cocaine.”

Crews did not file any objections to the PIR, but on April 24, 2009 filed a Sentencing

Memorandum. That Memorandum noted that “[a]t his presentence interview conducted at the

Sanilac County Jail on February 4, 2009, [Crews] submitted his brief written version of the

offense to Joan M. Pigott, Senior U.S. Probation Officer,” which included that Crews possessed

“with intent to distribute more than five grams of cocaine base (crack) on January 8, 2007.” 

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(Docket Entry No. 32 at 2). 

On or about April 28, 2009, Counsel for the Government advised Defense Counsel of the

opinion in United States v. Higgins, 557 F.3d 381 (6th Cir. 2009) and asked Defense Counsel to

stipulate to amend all pleadings to include that the cocaine base was in the form of crack cocaine. 

(See Ex. B to Docket Entry No. 41). Defense Counsel declined to stipulate and on May 6, 2009,

filed objections to the PIR in an amended sentencing memorandum (Docket Entry No. 34)

wherein he claimed that the sentencing guideline for power cocaine rather than cocaine base

should apply. On May 8, 2009, Crews filed a Motion for Downward Guideline Sentence

Departure, wherein he asserted that his guideline range should be determined as if he were

involved with powder cocaine. (Docket Entry No. 35).

On May 26, 2009, the Government filed a motion seeking to withdraw from the Rule 11

Plea Agreement. (Docket Entry No. 36). The Government asserted that Crews violated the

terms of the plea agreement by objecting to the agreed upon guideline range. 

This Court was scheduled to sentence Crews, with respect to Count III, on May 29, 2009. 

Given the recent events and the filing of the motion to withdraw from the Rule 11 Plea

Agreement, however, the Court held a status conference with the parties on May 29, 2009 to

discuss these issues. Immediately after the status conference, the Court went on the record and

granted the parties’ joint Motion to Withdraw from the Rule 11 Plea Agreement. The Court also

granted Defendant’s Motion to Adjourn Sentencing as to Count III. 

In an Order dated June 1, 2009, the Court directed the parties to brief several issues that

had been discussed at the May 29, 2009 status conference. Crews filed his brief in response to

the Court’s order on June 24, 2009. The Government filed its brief on June 26, 2009. 

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In the Government’s brief, it asserted that it is not required to amend the indictment under

Higgins because Higgins only applies to enhanced penalties under § 841 and the Government is

not seeking enhanced penalties under § 841 in this case. The Government further asserted that it

was entitled to an evidentiary hearing to establish, for purposes of sentencing, that the substance

at issue was crack cocaine.

After reviewing the Government’s brief, Counsel for Crews advised the Court that Crews

agreed that the Court should hold an evidentiary hearing to determine if the substance at issue is

crack cocaine. (See Ex. A to this Opinion).

The Court held another status conference with the parties on August 7, 2009. At that

conference, Counsel for Crews took the position that Crews believed that he had possessed

“cocaine base,” not “crack cocaine.” Counsel for Crews requested that his client be permitted to

take a polygraph examination for purposes of establishing that he believed he possessed cocaine

base, not crack cocaine. The Government agreed that Crews should be permitted to take the

requested polygraph examination and arranged for the examination to be conducted on

September 1, 2009.

On September 1, 2009, however, Crews did not take the polygraph examination that his

counsel had requested. Rather, on September 1, 2009, Crews signed an Affidavit that states:

I was asked to take a polygraph test on weather [sic] or not I had in my possession

crack cocaine on Jan 8 2007. Based on the Higgins case an issue came up th

involving the phrase cocaine base my lawyer was under the impression that I

possessed cocaine base. I plead guilty to cocaine base because it was what my

indictment read If the indictment had charged me with crack cocaine I would have

pled guilty to that charge as well. I never knew there was a difference but to my

knowledge and understanding, I possessed crack. Samuel Upchurch gave me the

(“work”) crack and told me to hold it and pretend it was mine. He told me that he

would give me a “few dollars” off the $1600 that he expected to make for doing

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On September 4, 2009, after the evidentiary hearing had concluded, Crews pled guilty to 1

Count IV of the indictment, conspiracy to possess with intent to distribute five grams or more of

cocaine base on January 7, 2007. During that plea, Crews stated on the record that the substance

he possessed was “crack cocaine” and that there was “no doubt in his mind” that the substance

was crack cocaine. (9/4/09 Tr. at 44-45).

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him the favor of holding the 45 grams of crack.

(Crews Affidavit).

Counsel for Crews submitted the Affidavit to the Court the day prior to the scheduled

sentencing date of September 4, 2009. Upon reviewing the Affidavit from Crews, this Court

believed that Crews no longer contested that the substance at issue with respect to Count III was

crack cocaine.

When the Court met with Counsel prior to the September 4, 2009 sentencing that had

been scheduled, however, Counsel for Crews asserted that despite the Affidavit from Crews, the

Government was still required to prove that the substance at issue was crack. Accordingly, the

Court held the requested evidentiary hearing on September 4, 2009.1

ANALYSIS

“At sentencing, whether a particular substance is crack or another form of cocaine is a

question of fact to be determined by the district court.” United States v. Jones, 159 F.3d 969,

981-82 (6th Cir. 1998). “For sentencing purposes, the Government is required to prove by a

preponderance of the evidence the type of controlled substances related to an offense.” Id.

(emphasis added).

The Court held the requested evidentiary hearing on September 4, 2009. The sole issue

before this Court is whether the Government proved, by a preponderance of the evidence, that the

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controlled substance related to Count III was crack cocaine.

At the evidentiary hearing, the Government presented four exhibits: Exhibit No. 1: the

Laboratory Report relating to the substance seized from Crews; Exhibit No. 2: the actual

controlled substance at issue; Exhibit No. 3: Crews’s Affidavit dated September 1, 2009; and

Exhibit No. 4: Crews’s February 4, 2009 Statement to Probation. In addition, the Court heard

testimony from one witness, Special Agent Mark Kloostra.

After consideration of the testimony and exhibits presented by the parties, weighing the

evidence and assessing the credibility of the witnesses, this Court finds that the Government has

shown by a preponderance of the evidence that the substance possessed by Crews was crack

cocaine.

The Laboratory Report submitted as Exhibit 1 states that the “white material” analyzed

“showed the presence of cocaine base, a controlled substance as listed in Schedule 2.” (Govt.’s

Ex. 1). Although the Laboratory Report does not describe the appearance of the substance

beyond stating that it is “white material,” the actual substance seized from Crews was admitted at

the hearing and thus this Court was able to visually observe the substance during the evidentiary

hearing. See United States v. Reed, 1998 WL 773998 at *5 (6th Cir. 1998). Exhibit No. 2 is the

actual controlled substance seized from Crews. The Court notes that the substance is white in

color. The substance is hard, lumpy and rock-like. Based on this Court’s visual observation of

the substance, and this Court’s own previous participation in numerous trials involving crack

cocaine, the substance seized from Crews appears to be crack cocaine.

As its Exhibit 4, the Government submitted Crew’s “Version of the Offense” given to the

probation department on February 4, 2009. In that written and signed statement, Crews stated

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that he unconditionally accepted personal responsibility for his “possession with the intent to

distribute more than give grams of cocaine based (crack) on January 8, 2007.” Although his

counsel drafted the statement, Crews signed this statement describing the controlled substance he

possessed as “crack.”

In addition, Crews’s September 1, 2009 Affidavit, submitted as the Government’s Exhibit

3, states:

I was asked to take a polygraph test on weather [sic] or not I had in my possession

crack cocaine on Jan 8 2007. Based on the Higgins case an issue came up th

involving the phrase cocaine base my lawyer was under the impression that I

possessed cocaine base. I plead guilty to cocaine base because it was what my

indictment read If the indictment had charged me with crack cocaine I would have

pled guilty to that charge as well. I never knew there was a difference but to my

knowledge and understanding, I possessed crack. Samuel Upchurch gave me the

(“work”) crack and told me to hold it and pretend it was mine. He told me that he

would give me a “few dollars” off the $1600 that he expected to make for doing

him the favor of holding the 45 grams of crack.

(Crews Affidavit) (emphasis added). Thus, Crews himself believes that the substance he

possessed was crack cocaine. 

Crews also presented his September 1, 2009 Affidavit as an exhibit, Defense Exhibit F. 

No other exhibits offered by Crews were admitted as exhibits.

Crews called Mark Kloostra, a Special Agent with the Bureau of Alcohol, Tobacco and

Firearms, as a witness at the hearing and the Government cross-examined him. Agent Kloostra

testified that he has approximately 19 years of experience in narcotics investigations. He has

been involved in numerous cases involving crack cocaine and has observed crack cocaine on

hundreds of occasions. (9/4/09 Tr. at 24). He personally observed the substance that was seized

from Crews on January 8, 2007, the day that Crews was arrested. In addition, during his

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The Court notes that during the hearing, Defense Counsel asked Agent Kloostra whether 2

he agreed with the following definition of crack: “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, rock-like form.” (9/4/09 Tr. at 22). To the extent that Defense Counsel

was attempting to argue that the Government has not met its burden because it did not present

evidence that the substance at issue contained sodium bicarbonate, the Court rejects that position. 

That argument has been repeatedly rejected because “the presence of sodium bicarbonate is not a

necessary prerequisite to a district court’s factual determination that cocaine base is crack.”

Jones, supra, at 983; see also United States v. Monroe, 90 Fed.Appx. 460, 464-65 (6th Cir.

2004).

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testimony on September 4, 2009, Agent Kloostra was asked to visually observe the

Government’s Exhibit 2, the actual controlled substance at issue. (9/4/09 Tr. at 23 & 24). Agent

Kloostra testified that, based upon his knowledge, training and experience, he is of the opinion

that the substance seized from Crews is crack cocaine. See United States v. Nailor, 1999 WL

357763 (6th Cir. 1999). This Court found Agent Kloostra to be a credible witness and fully

credits his testimony.2

CONCLUSION

Accordingly, having considered the testimony and exhibits presented by the parties at the

September 4, 2009 evidentiary hearing, this Court finds that the Government has shown by a

preponderance of the evidence that the substance possessed by Crews was crack cocaine.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: September 22, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record on

September 22, 2009, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager

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