UNPUBLISHED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Affirmed by unpublished opinion.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 Met-
calf, 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Unpublished opinions are not binding precedent in this circuit.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 con-
spiracy 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 commu-
nication 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 co-
defendants' 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 intro-
duced 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 intro-
duced 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 [Hew-
          lett, 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 confer-
          ence at which Betemit's counsel raised a Bruton objection,
          the district judge directed the jury "to forget" and "disre-
          gard" the testimony. The court denied Betemit's motion for
          a mistrial.

           2. Carolyn Forte, another unindicted co-conspirator, tes-
          tified on direct examination by the government,"I was pres-
          ent 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 cross-
examination. 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 non-
testifying 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 con-
frontation. 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. Con-
sequently, 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 wit-
nesses 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-

                    4
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 nec-
essary because the declarant is unavailable, and (2) that the hearsay
bears sufficient "indicia of reliability" to enable the factfinder to eval-
uate 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 trust-
worthiness. 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 reason-
able 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 testi-
mony 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,

                     5
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 conversa-
tion, 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 conclud-
ing, for sentencing purposes under U.S.S.G. § 2D1.1, that 1.5 kilo-
grams 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 kilo-
grams, the minimum amount required to impose the maximum penal-
ties under the Sentencing Guidelines. The government had presented
evidence that the conspiracy had distributed in total over 314 kilo-
grams 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 evi-
dence, 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

                     6
States v. Estrada, 42 F.3d 228, 231 (4th Cir. 1993). In proving these
factors, the government may rely upon information found in the Pre-
sentence 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 find-
ings on sentencing factors for clear error. Id .

In this case, the district court clearly credited the testimony of wit-
nesses and government agents that referred to the involvement of
large amounts of crack cocaine, many times in excess of the 1.5 kilo-
gram threshold for maximum sentencing. We cannot conclude, on this
record, that the district court's findings were clearly erroneous, partic-
ularly when Betemit concedes that he can succeed in his challenge as
to the amount of crack involved only if we were to find the govern-
ment'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 pro-
cessed 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-

                     7
over, a kilogram of crack cocaine seized by the government was sub-
jected 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 evi-
dence to conclude that the drug which various witnesses called
"crack" was in fact crack cocaine, particularly when there was evi-
dence 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 find-
ings that Betemit was responsible for at least 1.5 kilograms of crack
cocaine, the minimum amount needed to impose the maximum statu-
tory penalty.

For the foregoing reasons, we affirm Betemit's conviction and sen-
tence.

AFFIRMED

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