231 F.3d 366 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Kevin Wash, a/k/a KeKe, Defendant-Appellant.
No. 00-1217
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 25, 2000Decided November 2,  2000

Appeal from the United States District Court  for the Northern District of Indiana, Hammond  Division.  No. 2 99-CR-46--Rudy Lozano, Judge.[Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Easterbrook  and Diane P. Wood, Circuit Judges.
Flaum, Chief Judge.


1
Kevin Wash was  convicted of several counts related to  distributing cocaine base and carrying a  firearm during a drug trafficking  offense. Wash now appeals his conviction,  arguing that the district court erred in  admitting evidence of prior possessions  of crack cocaine under Fed.R.Evid.  404(b), in allowing his coconspirators to  testify about the identity of the drugs  that they dealt, and holding Wash  responsible for two ounces of crack  cocaine that an informant attempted to  buy from one of his coconspirators. For  the reasons stated herein, we affirm.

Background

2
Wash was indicted on the following four  counts: (1) conspiracy to possess with  intent to distribute 50 grams or more of  cocaine base, in violation of 21 U.S.C.  sec. 846 from at least December of 1998  until approximately February 19, 1999;  (2) knowingly and intentionally  possessing with the intent to distribute  in excess of 5 grams of cocaine base, in  violation of 21 U.S.C. sec. 841(a)(1);  (3) knowingly and intentionally  attempting to possess in excess of 50  grams of cocaine base, in violation of 18  U.S.C. sec. 2; and (4) knowingly  possessing a firearm during and in  relation to a drug trafficking offense,  in violation of 18 U.S.C. sec. 924(c). He  pled not guilty to all four counts.  Originally, the federal complaint was  filed against Wash and his codefendants  Trammell Washington, Consuela Jones, and  Antonio Jones. Washington's trial was  severed and he invoked his Fifth  Amendment right when called as a witness  by Wash. Both Consuela Jones and Antonio  Jones pled guilty to Count 1 pursuant to  a plea agreement and testified as  government witnesses.


3
During December of 1998 until  approximately mid to late February of  1999, Wash and Consuela Jones were  involved in various drug transactions.  Initially, Wash supplied Consuela Jones  with crack cocaine from a house at 10th  and Harrison Street in Gary, Indiana.  When the supply dried up at this  location, Wash began to purchase his  crack through Consuela Jones at her  apartment. Consuela Jones's cousin,  Antonio Jones, supplied Wash with the  crack. Wash's involvement in drug  transactions also led him to assume a  broker role in a drug deal with Trammell  Washington. Unbeknownst to Wash,  Washington was an informant for the  police. Washington had been apprehended  by the police after fleeing a residence  in Gary, Indiana. There is some evidence  that Wash was at the residence because  his fingerprints were found at the scene.  The residence had, among other things, crack cocaine, handguns, a revolver, a  semi-automatic pistol, cellular phones,  sandwich bags, beer bottles, and a razor  blade. One of the cellular phones had  Wash's nickname, KeKe, stored in the  radio function of the phone.


4
The arrest of Washington impacted Wash  because Washington made several telephone  calls that were recorded in an effort to  set up a controlled drug buy. Washington  and FBI Agent Bradley Bookwalter placed a  call to a pager number, put in the number  "1600," which represented the price of  two ounces of crack, and received a  return call from Wash.1 Washington  informed Wash that he needed to see him  about getting some drugs and asked Wash  to put him in contact with Antonio Jones.  This led to an exchange between Wash,  Washington, and Consuela Jones. Wash  called Consuela Jones to tell her that a  friend wanted to get some crack cocaine  from her cousin Antonio Jones. Consuela  Jones proceeded to page her cousin and in  the meantime Washington once again paged  Wash. Wash called back Washington, told  him that he contacted Consuela Jones, and  that she was trying to get the crack  cocaine from Antonio Jones. He then gave  Washington Consuela Jones's phone number.


5
Several more exchanges took place, until  finally an agreement was arrived at  whereby Washington would call Consuela  Jones and she would then page Antonio  Jones when Washington called her back in  ten minutes. The details at this point  are a bit unclear, but it seems as though  Antonio Jones was across the street from  Consuela Jones's apartment and had  planned to bring the drugs over upon  Washington's arrival. Wash set up the  deal and Consuela Jones acted as the  intermediary between Washington and  Antonio Jones. After calling Consuela  Jones, Washington was given 1600 dollars,  fitted with a transmitter, and  transported to the area of Ms. Jones's  apartment. Washington was accompanied by  Gary Police Sergeant Reginald Harris in  an undercover role while police officers  acted in a surveillance capacity in the  vicinity of Consuela Jones's residence at  1720 W. Fifth Avenue. The operation went  awry when Sergeant Harris was recognized  by a homicide suspect that the Sergeant  had previously interviewed. In the  meantime, a person fixing Consuela  Jones's car also detected the police  surveillance of her apartment and told  her about their presence. Consuela Jones  left her apartment with her children as  Washington and Sergeant Harris  approached.


6
Before trial, Wash filed a motion in  limine to exclude from trial the  introduction of prior bad acts evidence  under Rule 404(b) and the introduction of  testimony by his coconspirators  concerning the identity of the drugs  which they dealt. The district court  denied Wash's 404(b) claim and allowed  Consuela Jones and Antonio Jones to  testify during trial regarding the  identity of the drugs they sold. Wash's  initial trial resulted in a mistrial and  his second trial ended in the jury  finding him guilty on all counts. He was  sentenced to a term of imprisonment of  240 months for Counts 1, 2, and 3 and a  consecutive term of imprisonment of 60  months for Count 4.

Discussion
A.  404(b) Challenge

7
Wash claims that the district court  improperly admitted evidence of his prior  bad acts under Fed.R.Evid. 404(b). The  district court allowed the introduction  of two prior occasions where Wash  possessed crack cocaine. In 1996, police  officers observed Wash and three other  individuals apparently conducting drug  sales with some motorists in Gary,  Indiana. The officers confronted Wash and  during a pat-down of Wash, he threw  something on the ground. What he had  thrown down was 23 packets containing a  total of 3.5 grams of crack. On June 5,  1997, a search of Wash was conducted at  the adult detention center in  Minneapolis, Minnesota, which revealed  5.4 grams of crack cocaine hidden in  Wash's anus.


8
We review the district court's decision  to admit evidence for an abuse of  discretion. United States v. Curry, 79  F.3d 1489, 1494 (7th Cir. 1996). "Under  Federal Rule of Evidence 404(b), evidence  of other misconduct is not admissible to  show that the defendant acted in  conformity therewith, but may be  admissible for other purposes, such as  proof of motive, opportunity, intent,  preparation, plan, knowledge, or  identity." United States v. Wilson, 31  F.3d 510, 514 (7th Cir. 1994). A four-  part test must be satisfied for evidence  of prior acts to be admitted under Rule  404(b)


9
(1) the evidence is directed toward  establishing a matter in issue other than  the defendant's propensity to commit the  crime charged; (2) the evidence shows  that the other act is similar enough and  close in time to be relevant to the  matter in issue, (3) the evidence is  sufficient to support a jury finding that  the defendant committed the similar act,  and (4) the probative value of the  evidence is not substantially outweighed  by the danger of unfair prejudice. Id. at  514-15.


10
After considering, during a motion in  limine, the defendant's and government's  arguments concerning the prior bad acts  evidence, the district court concluded  that such evidence aided in proving  Wash's knowledge of and/or intent to  distribute crack cocaine. The prior bad  acts, the district court found, were  similar enough and close enough in time  to be relevant and there was sufficient  evidence to support a finding by the jury  that Wash had committed the similar acts.  Finally, the district court said "the  probative value of the evidence is not  outweighed by the prejudicial effect." As  an additional precaution, the district  court offered to provide a limiting  instruction regarding the 404(b) evidence  while it was being presented and during  the final instructions to the jury.


11
The prior bad acts were admitted to  prove Wash's intent to distribute crack  cocaine under Count 2. "Possession of  cocaine with intent to distribute under  21 U.S.C. sec. 841(a)(1) is a specific  intent crime." United States v. Long, 86  F.3d 81, 84 (7th Cir. 1996). The evidence  was introduced to prove Wash's intent and  "[w]hen a defendant is charged with a  specific intent crime, the government may  present other acts evidence to prove  intent." Id. at 84 (citations and  internal quotation marks omitted).


12
Wash disagrees with the district court's  determination that his prior acts were  relevant to the current charges against  him. According to Wash, the present case  against him centers around his intent to  distribute crack cocaine, which occurred  in a crack house that had within it tele  phones and firearms. In contrast, he  argues his 1996 stop and frisk happened  at a different location and with  different people. The setting in the 1996  incident was also distinguishable in  Wash's view because there was no  completed transaction, Wash did not have  a gun, no telephones were employed, nor  was he inside a dwelling. Wash also  contends that the 1997 Minnesota incident  resulted from a search after Wash was  under arrest. In addition, during the  1997 occurrence the drugs were found in  Wash's anus, no one else was involved,  and the search itself happened in  Minnesota and not in Indiana. Wash  suggests that because the 1996 and 1997  incidents occurred at least 2 or 3 years  prior to the conspiracy this makes them  too remote in time to be relevant.


13
Wash's argument is not convincing. He  focuses upon the factual differences  between his two prior bad acts and his  current convictions and this does not  make for a strong case because "[s]imple  differences in the type of conduct or  charge at issue cannot defeat the  similarity requirement. This prong of our  Rule 404(b) analysis need not be unduly  rigid." Long, 86 F.3d at 84 (citations  and internal quotation marks omitted).  Although Wash would like us to believe  that there is no similarity between the  1996 and 1997 incidents and his current  charges, all of these situations  implicate him in possessing distribution  amounts of drugs. The 1996 incident  involved Wash throwing down 23 packets  containing a total of 3.5 grams of crack  cocaine. According to a government  expert, a "dime bag" contains one-tenth  of a gram of crack cocaine, which is sold  for 10 dollars, and a typical user would  only have 10 dollars to 30 dollars worth  of crack cocaine at a time. Similarly,  the government expert said that a person  possessing an excess of 5 grams of crack  cocaine typically would use this amount  of crack for distribution and not  personal use. The 1997 incident in Minne  sota showed that Wash had 5.4 grams of  crack cocaine. The 1996 and 1997  occurrences, like the current charges  Wash faces, involved more than a small  amount of crack cocaine--they involved  distribution amounts. In United States v.  Hernandez, 84 F.3d 931, 935 (7th Cir.  1996), we concluded that a prior  marijuana conviction was similar enough  to the charged crimes of distributing  cocaine and heroin. What convinced the  court that these prior acts were relevant  was that although "[d]ifferent drugs were  involved, . . . both incidents concerned  distribution amounts of drugs and illicit  transport." Id. at 935.


14
In this case, the common thread between  the prior bad acts and the current  charges is the distribution amounts  involved and this unifying element  overshadows any differences in location  and the number of individuals involved.  Furthermore, Wash's argument concerning  the time lapse between his 1996 and 1997  incidents and his current charges is not  viable under this circuit's precedent.  See, e.g., United States v. Kreiser, 15  F.3d 635, 640-41 (7th Cir. 1994) (seven  years is close enough in time); United  States v. Harrod, 856 F.2d 996, 1002 (7th  Cir. 1988) (five year lapse in time is  permissible); United States v. Tringali,  71 F.3d 1375, 1379 (7th Cir. 1995) (nine  years is not too long). We therefore  affirm the district court's decision to  allow the prior bad acts evidence.


15
B.  Objections to Testimony Regarding  the Use of the Term Crack Cocaine


16
Wash further objects to the district  court's decision to allow Consuela Jones  and Antonio Jones to testify about the  identity of controlled substances at  trial. As part of a pre-trial motion in  limine Wash objected to this type of  testimony, but the district court decided  not to render a decision on the question  at that time. At trial, the district  court allowed Consuela Jones and Antonio  Jones to testify about what they believed  was crack cocaine.


17
We review a district court's decision to  admit evidence for an abuse of  discretion. United States v. Johnson, 137  F.3d 970, 974 (7th Cir. 1998). A  determination made by a district court  judge regarding the admissibility of  evidence "'is treated with great  deference because of the trial judge's  first-hand exposure to the witnesses and  the evidence as a whole, and because of  his familiarity with the case and ability  to gauge the likely impact of the  evidence in the context to the entire proceeding.'"  Id. at 974 (quoting United States v.  Torres, 977 F.2d 321, 329 (7th Cir.  1992)).


18
The record reveals that Wash's attorney  objected several times to the testimony  given by Consuela Jones and Antonio Jones  when they used the term "crack cocaine."  The basic premise of the objection was  that "witness lay persons [were]  testifying as to the chemical composition  and the actual identity of something for  which they are not competent to testify."  Wash contends that neither Consuela Jones  nor Antonio Jones were qualified as  experts on the issue of controlled  substances and therefore the testimony  they presented was lay opinion. According  to Wash, lay opinion needs to be based  upon first-hand knowledge and Rule 701  states that non-expert testimony is  limited to opinions or inferences that  are "(a) rationally based on the  perception of the witness and (b) helpful  to a clear understanding of the witness'  testimony or the determination of a fact  in issue." Fed.R.Evid. 701. According to  Wash, Consuela Jones testified that she  had never used crack and relied upon her  customers' satisfaction to identify her  product as crack. Likewise, Wash argues  Antonio Jones premised his identification  of his product as crack cocaine upon the  fact that none of the people whom he  supplied ever complained that it was not  crack cocaine.


19
Wash's position is not persuasive.  Consuela Jones and Antonio Jones "were no  strangers to crack cocaine." United  States v. Earnest, 185 F.3d 808, 812 (7th  Cir. 1999). Consuela Jones testified that  she had been dealing "dime bags" of crack  cocaine for approximately two years.  Creating these dime bags was not a  haphazard affair, but rather involved a  definite methodology. She would purchase  3.5 grams of crack for 100 dollars and  break it down with a razor blade into  twenty dime bags, which she sold for 10  dollars apiece. She used small ziplock  bags to package the dime bags and when  she ran out of these she would use small  sandwich bags. According to Jones, she  sold to crack addicts, her customers were  satisfied with her product, and they  returned for additional purchases.  Antonio Jones also testified that for  approximately two years he dealt in what  he believed was crack cocaine, including  sales to Consuela Jones and Wash, and had  received no complaints. "[T]hose who  smoke, buy, or sell this stuff are the  real experts on what is crack." United  States v. Bradley, 165 F.3d 594, 596 (7th  Cir. 1999). Clearly, Consuela Jones and  Antonio Jones were in the business of  selling drugs. "[T]he people who  transport, cook, cut up, bag, and sell  crack are the sort of people who tend to  know what crack is." United States v.  Hardin, 209 F.3d 652, 661 (7th Cir.  2000). Wash additionally notes that  Consuela Jones testified that she had  never personally used crack cocaine; this  is an empty argument since "a cashier at  Jewel doesn't have to bite off a piece of  the customer's broccoli to know which  vegetable she is ringing up." Id. at 661-  62. Therefore, we affirm the district  court's determination to allow Consuela  Jones's and Antonio Jones's testimony.

C.  Sentencing Guidelines Challenge

20
Finally, Wash contends that the district  court's inclusion of two ounces of crack  cocaine in determining his offense level  under the Sentencing Guidelines was  clearly erroneous. We review a district  court's conclusions with deference and  "[t]he district court's determination of  the quantity of drugs involved in an  offense is a factual finding which must  be supported by a preponderance of the  evidence. This court must uphold such  findings unless they are clearly  erroneous." Tringali, 71 F.3d at 1381  (citations omitted). We will overturn a  factual determination if we are left  "with the definite and firm conviction  that a mistake has been committed."  United States v. Garcia, 69 F.3d 810, 819  (7th Cir. 1995) (citations and internal  quotation marks omitted).


21
Wash argues that the attempted two ounce  deal between himself, Washington, and  Consuela Jones had no potential of being  completed. Consuela Jones never received  the two ounces nor did she know that the  number "1600" was a code for two ounces,  according to Wash. Furthermore, Consuela  Jones testified that Washington would not  deal with her cousin Antonio Jones and  that she never had dealt in as large an  amount as two ounces. Thus, Wash claims  that there was a lack of intention to  complete the drug deal and therefore the  two ounces should not have been  considered in calculating the quantity of drugs he was responsible for under the  Sentencing Guidelines.


22
The Sentencing Guidelines are not silent  with respect to Wash's contention.  "Application note 12 to U.S.S.G. sec.  2D1.1 . . . indicates that negotiated  quantities from an uncompleted drug  transaction should be included for  purposes of setting an offense level."  United States v. Bonilla-Comacho, 121  F.3d 287, 291 (7th Cir. 1997).  Nevertheless, if "the defendant  establishes that he or she did not intend  to provide, or was not reasonably capable  of providing, the agreed-upon quantity of  the controlled substance, the court shall  exclude from the offense level  determination the amount of controlled  substance that the defendant establishes  that he or she did not intend to provide  or was not reasonably capable of  providing." U.S.S.G. sec. 2D1.1, comment.  (n.12) (Nov. 1998). The burden is on the  defendant to show that he did not have  the intent or capability to provide the  negotiated amount of drugs. Bonilla-  Comacho, 121 F.3d at 292 n.2.


23
The district court's determination that  Wash was involved in setting up the  attempted purchase of two ounces of crack  cocaine with the informant Washington  cannot be disturbed under our highly  deferential standard of review.  Washington had called Wash and expressed  his desire to buy some crack. Wash then  called Consuela Jones and informed her  that he needed to acquire some crack for  a friend. Consuela Jones in turn paged  her source, that is, Antonio Jones. Wash  called Washington and told him that he  had spoken to Consuela Jones, that she  was going to get the crack, and Wash  provided Washington with Consuela Jones's  telephone number. Washington indicated  the amount of crack he desired by putting  in the number "1600" in the pager calls  that he made to Consuela Jones and Wash.  Consuela Jones testified that she did not  know what the number "1600" meant, but  she did speak with Washington directly,  and apparently they reached an  understanding about delivering the drugs  to Washington. This entire process  appears to indicate that "negotiations  and not idle talk" took place between the  parties. Garcia, 69 F.3d at 820. Each  person involved seemed intent about  supplying the drugs and the discussions  were not "mere puffery." Bonilla-Comacho,  121 F.3d at 292.


24
Additionally, Wash did not hesitate to  set up the deal and he had previously  purchased two ounces of crack from  Antonio Jones. Consuela Jones herself was  no stranger to setting up drug deals as  she had in the past arranged deals at her  apartment between Wash and Antonio Jones.  No one acted as if the deal would not  proceed as planned. The deal was  frustrated only by the discovery of the  police outside Consuela Jones's apartment  rather than by a decision of the parties  themselves that the deal could not move  forward. The district court upon allowing  the two ounces to be considered said that  "the deal or the purchase of crack  cocaine . . . had proceeded substantially  and that the fact that the deal did not  go through is not necessarily relevant in  this case, due to the fact that there had  been prior deals. And the evidence in  this case showed that the drugs in  question could have been supplied." The  facts support the district court's  reasoning. Wash has not provided us with  any persuasive evidence that establishes  that he lacked the intent or capability  to go through with the deal and the  burden to prove this is on him. The  district court appropriately included the  two ounces when it determined Wash's  sentence. Therefore, we affirm the  district court's decision to take into  account the two ounces of crack cocaine.

Conclusion

25
For the reasons stated herein, we AFFIRM  the decision of the district court.



Notes:


1
 According to the record, Agent Bookwalter could  not recall if he or Washington placed the page.


