452 F.3d 66 (1st Cir. 2006)
On July 31, 2003, Eric Besore contacted DEA task force officer Steven Thibodeau to arrange a controlled purchase of drugs from an individual nicknamed Hoot.1 Besore had previously agreed to assist Thibodeau with drug investigations in exchange for help dismissing a criminal speeding charge.2 Thibodeau and other agents gave Besore $1,000, equipped him with an electronic transmitting device resembling a pager, searched him and his vehicle, and sent a surveillance team including Thibodeau and Barry Kelly to monitor the transaction in Westbrook, Maine.3
Besore drove to a parking lot at King and Brown Streets. Kelly parked nearby to record transmissions from the device while Thibodeau maintained contact by cell phone.4 After a uniformed officer stopped a nearby vehicle, Besore moved his car up the street. Thibodeau later observed Besore in the driver's seat of his car with a black male later identified as Dwayne J. Anderson in the passenger seat.5 Kelly saw Anderson exit Besore's car and enter a green Subaru parked behind it. Besore then drove away and met Thibodeau, handing him a plastic bag containing a substance that field-tested positive for cocaine base.6
Thibodeau placed the substance in evidence envelope 159263, locked it in the DEA safe, and mailed it to the DEA laboratory in New York. Chemist Brian O'Rourke later confirmed the substance was cocaine base weighing 6.1 grams.7 On October 23, 2003, a grand jury indicted Anderson for 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). A two-day jury trial began on April 7, 2004, in the District of Maine.8
At trial the government introduced a copy of the recording from Besore's transmitting device along with a transcript prepared by the prosecutor. Kelly authenticated the transcript by comparing it to the tape. The court gave limiting instructions that the tape was the evidence and any discrepancies must be resolved in favor of the tape.9 Besore did not appear despite a government subpoena. The defense requested a missing witness instruction, which the court denied. The court also excluded evidence of Besore's prior felony conviction for tampering with a witness during cross-examination of Thibodeau and admitted the drugs over a chain-of-custody objection.10
The jury convicted Anderson after nearly two hours of deliberation. The PSR calculated a base offense level of 26 based on 6.1 grams of crack cocaine. It classified Anderson as a career offender, though the government later conceded he lacked the required predicate offenses and should be placed in criminal history category III.11 At sentencing on April 27, 2005, the district court found the substance was crack cocaine, set the Guidelines range at 78 to 97 months, and imposed a sentence of 78 months' imprisonment, five years of supervised release, and a $100 assessment. Anderson timely appealed both conviction and sentence.12
Whether the district court abused its discretion by allowing the jury to use a transcript of a recorded conversation as an aid while listening to the tape?13
No. Kelly authenticated the transcript by comparing it directly to the tape he had recorded and testifying that it accurately reflected the conversation.16 The district court delivered limiting instructions at least three times during trial and again when the jury replayed the tape, emphasizing that the tape governed and the transcript was merely an aid.17 The transcript itself marked unintelligible portions rather than speculating about their content.18
The district court did not abuse its discretion in permitting the jury to use the transcript as an aid.19
Whether the district court erred by excluding evidence of the confidential informant's prior felony conviction during cross-examination of the supervising officer?20
No. Besore never testified at trial and therefore was not a witness whose credibility could be impeached under Rule 608 or 609.23 Thibodeau's statements that Besore was trustworthy did not open the door to extrinsic evidence of Besore's conviction because Besore himself never took the stand.24 The district court correctly excluded the evidence under both Rule 403 and Rule 609.25
The district court did not err in excluding evidence of Besore's prior felony conviction.26
Whether the district court abused its discretion by admitting the recovered drugs into evidence despite an alleged gap in the chain of custody?27
No. Thibodeau testified that he received the plastic bag directly from Besore after the controlled purchase, field-tested it, placed it in evidence envelope 159263, locked it in the DEA safe, and mailed it to the New York laboratory.30 O'Rourke confirmed receipt and testing of the same envelope.31 Besore and his vehicle had been searched before and after the transaction, and Besore remained in Thibodeau's sight until the handoff, rendering any tampering improbable.32
The district court did not abuse its discretion in admitting the recovered drugs into evidence.33
Whether the district court abused its discretion by denying the defendant's request for a missing witness instruction regarding the confidential informant?34
A missing witness instruction is warranted only when the defendant first demonstrates that the uncalled witness is either favorably disposed to testify for the government by virtue of status or relationship or peculiarly available to the government.35
No. Besore was an independent contractor confidential informant rather than a government agent or employee, and the district court found it unclear whether he would have testified entirely favorably to the government.36 The government had served a subpoena yet could not locate Besore by trial, and Anderson made no attempt to subpoena Besore himself despite knowing his potential importance.37
The district court did not abuse its discretion in denying the missing witness instruction.38
Whether the district court clearly erred by finding that the substance distributed was crack cocaine for sentencing purposes?39
No. Thibodeau testified without objection that the substance was rock cocaine or crack cocaine in Dominican-tie bags and performed a positive field test.42 O'Rourke confirmed the substance was cocaine base in rock form weighing 6.1 grams after laboratory testing.43 This combination of chemical analysis and testimony identifying the characteristic rock form satisfied the government's burden.44
The district court did not clearly err in finding that the substance was crack cocaine.45
Whether the district court erred by applying the five-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B)(iii) rather than the default penalty provision?46
No. The district court found Anderson accountable for 6.1 grams of crack cocaine, which falls within the plain language of § 841(b)(1)(B)(iii).49 This circuit has consistently rejected the minority view expressed in Brisbane and instead follows its own precedent treating cocaine base as distinct from cocaine powder for sentencing purposes.50
The district court did not err in applying the five-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B)(iii).51