On April 24, 1997, a federal grand jury returned a three-count indictment charging Joseph A. Charles, Elizabeth Ahart, and Reynard Mason with violations of various federal narcotics and firearms laws. After unsuccessfully litigating a motion to suppress all evidence arising out of a wiretap authorized by a Massachusetts court, see
United States v. Charles,
No. 97-10107-PBS,
For the reasons stated below, we affirm.
BACKGROUND
The district court aptly summarized the facts in this case. See id. at 1-5. We see no need to duplicate that effort. Accordingly, we reiterate the district court’s findings of fact largely verbatim.
I. State Criminal Investigation and Proceedings
A. An Overview
From 1992 through 1995, the Massachusetts State Police conducted an investigation of individuals based in the City of Brockton who were suspected of engaging in the distribution of large quantities of crack cocaine. On July 24, 1995, the police initiated a state-court-authorized wiretap on the telephone located at 21 Field Street, a single family home in Brockton where defendants Charles and Mason were residing. A week-long wiretap investigation yielded over 800 interceptions, the majority of which pertained to the purchase and distribution of crack cocaine. As a result of information gleaned from the wiretap, state police executed consecutive search warrants at 21 Field Street and 26 Allen Street, the Brockton apartment of defendant Ahart. From the latter search, the police seized approximately 221 grams of cocaine base, drug paraphernalia, an Uzi rifle, ammunition, and $1,576 in U.S. currency. In August of 1995, a state grand jury indicted Charles, Ahart, and Mason on various state drug and firearm offenses.
B. Wiretap Warrant and Order
On July 18, 1995, the Plymouth County District Attorney’s Office secured authorization from an associate justice of the Superior Court (Cowin, J.) to intercept communications into and out of 21 Field Street. The application for the wiretap warrant was submitted with a fifty-page affidavit of State Trooper Anthony Thomas, which formed the basis of the court’s probable cause determination that narcot *14 ics transactions were being conducted by way of the telephone line into the home.
In addition to the named targets of the investigation, the application sought permission to intercept the calls of defendant Charles’s attorney, John W. Kelley, though nothing in the accompanying affidavit suggested that Kelley was suspected of criminal activity. According to Trooper Thomas, he told Judge Cowin that the application was unusual in that it sought to intercept phone calls between Charles and Kelley in order to determine whether the conversations were privileged.
The July 18 court order as initially drafted contained a Minimization Notice which prohibited the interception of “privileged communications.” In accordance with the wiretap application, however, it also provided that if any conversations with John W. Kelley of Brockton were intercepted, the police could listen for 30 seconds to determine whether the contents were privileged; if the wiretap monitor on duty determined that the communications were not privileged, the interception would be allowed to continue “an additional 30 seconds, unless and until the conversations become privileged,” at which time the monitoring would cease.
On July 21, three days after issuing the order, the state judge sua sponte amended her order. The “Amended Minimization Notice” eliminated the 30-second window that allowed the police lead time to determine whether the content of a phone call was privileged and specifically prohibited the interception of communications with Attorney Kelley. The order read as follows:
The officers executing this warrant shall not intercept any conversations between persons at the target telephone and incoming callers whom the officers know, or have reason to believe, have an attorney-client relationship with the person to whom they are speaking. This order shall include any telephone conversations between Attorney John W. Kelley of Brockton and Joseph A. Charles, if the intercepting officers know or have reason to believe the speaker is the said Attorney Kelley. There shall be no interception of outgoing telephone calls to ... the office number of Attorney John W. Kelley....
The amended order contained no information regarding Kelley’s residential telephone.
C. Intercepted Phone Calls
The wiretap ran from July 24, 1995 to July 30, 1995. At issue in this appeal are the events of July 29. Trooper Paul Petri-no was the sole officer on monitoring duty in the State Police Middleboro barracks from midnight on Friday, July 29 until 8 A.M. the following morning. Petrino had experience in monitoring wiretaps and in narcotics investigations generally, but had not played any part in the Charles investigation prior to July 28, 1995. 2 Instead, he had been assigned to a highly publicized and intense investigation involving the murder of a state trooper.
As required of all monitoring officers, Petrino signed the minimization order on July 25, 1995, when he was first assigned monitoring duties in this case. He did not, however, re-sign or review the order prior to July 28 or July 29, when he actually began working on this case. Prior to his monitoring assignment, Petrino had never discussed the particulars of the Charles investigation with Trooper Thomas, the officer in charge of the wiretap; nor did he have any knowledge of any role Attorney Kelley played in the investigation, including any suspicions harbored by Thomas of Kelley’s involvement. Specifically, Petrino had no knowledge that Kelley had been included in the original minimization order *15 and was later removed by amendment; and he had no recollection of ever having met or spoken with Kelley. 3
At the evidentiary hearing, Trooper Pe-trino explained the process of how calls were monitored from the Middleboro listening post in some detail. For each call made to and from the 21 Field Street telephone line, the monitoring equipment would display the number that was dialed and begin recording. Upon a determination that a call was non-privileged, monitors would enter information into a computer identifying the parties, nature, and substance of each call in order to create a log of all interceptions. Upon a determination that a call was a privileged communication, monitors were instructed to minimize the call by turning the tape off, signified in the log by the notation “TTO” (Turn Tape Off). In the event that a series of calls were made in rapid succession, or when the noise of the pen register made it difficult to hear the conversations, monitors were instructed to jot down the gist of each of the calls in handwritten notes and later play back the tapes to make complete entries into the log. Monitors were also instructed to contact Trooper Thomas directly upon intercepting any incriminating phone calls. 4 While two monitors were ordinarily assigned to the listening post on any given shift throughout the course of the wiretap, Petrino served as the lone monitor during his eight-hour shift on July 29 because all other law enforcement personnel were needed to execute the search warrant that was anticipated for that night.
Within the first two hours of his shift, between 1:20 and 1:55 A.M., Petrino intercepted seven calls in quick succession; these calls1 mainly involved Mason reassuring callers that Charles would soon be returning home from a short trip to New York City. This period was followed by a fifty minute break without any incoming or outgoing calls. From approximately 2:46 A.M., upon returning home from his trip, Charles made a series of six calls within eight minutes. During the first of this series, Petrino’s entries in the log reflect Charles reporting to an unidentified male, “it was a good night got 6 keys,” inquiring “how much to bring,” and instructing him to call his “boy” and have him bring “12 g’s.” This series of calls and the previous series had been in such rapid succession that Petrino had to play back the tapes to make his log entries. Petrino immediately paged Thomas and informed him of the incriminating interception.
At approximately 3:12 A.M., the police entry team executed a search warrant at 21 Field Street. Expecting to find the cocaine referred to in the intercepted calls, the police found no drugs at all, recovering only a handgun and $4,500 in cash from a car registered to defendant Ahart. Charles was not arrested and the police left the premises just before 5:00 A.M. Because it was a dry run, Thomas told Petrino that the phones were likely to be active. The primary objective was to identify the location of the narcotics.
Immediately following the search, from 4:59 to 5:05 A.M., Charles made a series of five phone calls relating the events that had just taken place. Petrino described this six minute monitoring period as “extremely busy.” At 5:05 A.M., Charles dialed a number that was neither listed in the amended minimization notice nor known to Trooper Petrino. When a man answered, Charles said, “Hello, Mr. Kelley, I’m sorry for calling the house so late. *16 This is Joseph. Yo, I got some problems, man.” Describing the police search, he continued:
Mr. Tony Thomas and them just ran up in my fucking house ... [t]hey ain’t found nothing, though. The only thing they found was a firearm, but he didn’t charge me with that. But he took my money out of the trunk of my car.
The conversation lasted approximately four minutes. Charles and Kelley discussed the possibility of recovering the seized money in court on Monday and suing the police, and the two agreed to speak again after the weekend. As the call was being recorded, Petrino did not hear the words “Mr. Kelley” and did not minimize the conversation. Following standard procedure for the interception of nonprivileged calls, Petrino initially jotted down notes and later played back the tape several times to enter into the computer the substance of the conversation and other pertinent information. “Mr. Kelley” was Charles’ attorney, John W. Kelley, so named in the minimization order. The call was to Kelley’s home in Easton rather than his office in Brockton.
Upon completion of his shift at 8:00 A.M., Petrino went home and went to bed. According to his testimony before the district court, he was oblivious to the fact that he had failed to comply with the wiretap order. Later that morning, Thomas returned to the Middleboro barracks to check the log from Petrino’s shift. Thomas testified that in reviewing Petrino’s entries, he noticed the 5:05 interception, and that Charles had spoken with “a male named Kelley.” Thomas recognized that the number dialed was an Easton number and knew that Attorney Kelley resided in Easton. Upon tracing the number and verifying that it was indeed the home telephone line of Attorney Kelley, Thomas called Petrino at home to inquire about the intercepted phone call. While Petrino recalled the interception, Petrino told Thomas he did not know that the person he identified in his log as “a male named Kelley” was, in fact, Charles’ attorney, John Kelley. Thomas believed it was a good faith mistake.
Thomas immediately informed his supervisor, Sergeant Nagle, of the interception. Nagle was located at the listening post at the time he received the call from Thomas, and responded to the news by writing in large script across the chalkboard in the monitoring room, “No Attorney Calls.” Thomas also notified his commander, Lt. Bruce Gordon, who in turn notified the case prosecutor on Sunday, July 30, after the wiretap and investigation had been terminated. Thomas’s actions conformed with the Amended Minimization Notice, which required that “[a]ny inadvertent interception of a privileged communication must be reported forthwith to the officer in charge, Trooper Anthony E. Thomas, Jr., and the supervising Assistant District Attorney, Geline W. Williams.” The police did not inform the Superior Court of the violation of the minimization order because they believed they were not required to do so once the wiretap terminated.
That same day, subsequent to the interception of the conversation between Charles and Kelley, the police intercepted two incriminating conversations between Charles and Ahart at approximately 9:24 A.M. and 9:55 A.M., which resulted in the execution of the Allen Street search warrant and the subsequent arrests of defendants Charles, Ahart, and Mason. All subsequent, post-arrest calls to Kelley and other counsel were properly minimized.
II. Federal Criminal Proceedings
A. Dismissal of the State Court Indictment & Initiation of Federal Proceedings
The defendants were initially indicted by a Plymouth County Grand Jury in August 1995 for narcoties-related offenses. On *17 March 18, 1997, after a hearing, 5 an associate justice of the Superior Court (DelVec-chio, J.) issued a memorandum and order suppressing the entire wiretap and all physical evidence derived therefrom based on Trooper Petrino’s interception of the July 29, 1995 privileged Charles/Kelley phone call. , See Commonwealth v. Charles, Nos. 96995-96997, 96998-97000, slip op. at 13-14 (Plymouth Super. Ct., Mar. 18, 1997). The state court found that “the government deliberately attempted, to intercept a private communication between Kelley and Charles in direct contravention of the attorney-client privilege” and that “in light of this finding, an across-the-board suppression of all evidence derived from the wiretap is appropriate.” Id. at 13. On March 19, 1997, the Commonwealth filed a notice of appeal.
That same day, the Plymouth County District Attorney’s Office contacted the United States Attorney’s Office to review the case with the Federal Bureau of Investigation (FBI) for possible federal prosecution. The United States Attorney’s Office decided to file federal charges based upon the FBI’s recommendation and the following factors: (1) the large quantity of drugs allegedly involved; (2) the dangerous nature of crack cocaine; (3) the large number of unindicted members of the suspected drug organization, as indicated by intercepted phone conversations; (4) the defendants’ alleged use of firearms, including an Uzi semi-automatic firearm with an obliterated serial number; (5) the criminal records of defendants Ahart and Mason; (6) defendant Mason’s apparent propensity for violence; (7) evidence that the drug conspiracy dated back to at least 1992; (8) the broad scope of the enterprise, including evidence of a drug supplier in New York City and confederates in Boston and Brockton; (9) the likelihood that defendants would continue to engage in drug trafficking if acquitted on state charges; and (10) the significant problems that Brockton had suffered in recent years due to narcotics trafficking and related violence. John Woudenberg, a Special Agent with the FBI, said that the possibility of a New York supply connection for the crack was particularly, significant.
On March 21, 1997, a federal magistrate issued complaints charging defendants Charles, Mason, and Ahart with conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 (Count 1); charging Charles and Ahart with possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count 2); and charging Ahart with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 3). A grand jury indictment followed on April 24, 1997. The Commonwealth terminated its prosecution by filing a Notice of Nolle Prosequi.
B. Appellants’ Motions for Suppression of the Evidence and Dismissal of the Indictment
Proceeding before the federal district court, Charles and Ahart filed motions to dismiss the indictment based on the doctrines of abstention, collateral estoppel, and prosecutorial vindictiveness; to suppress the wiretapped conversations and all evidence derived therefrom, pursuant to federal and state wiretap law and the Fourth Amendment to the United States Constitution; and to suppress all physical evidence, on the ground that the relevant search warrants were invalid. After a three-day evidentiary hearing held on September 2, 4, and 8, 1997, the district court granted defendants’ motion to suppress the Charles-Kelley phone conversation on grounds that it was protected by the attorney-client privilege and subject to a minimization order, but denied the motion to suppress with respect to all other evidence derived from the wiretapped conversations.
See Charles,
In reaching this determination, the district court specifically found that Petrino’s interception of the Charles-Kelley phone call was inadvertent and unintentional, albeit negligent. See id. at 4. The court also found that overall the state law enforcement officials managed the implementation of the minimization order in good faith and in an objectively reasonable manner. See id.
DISCUSSION
I. Standard of Review
In this Circuit, appellate review of a suppression motion is bifurcated. “In reviewing a denial of a suppression motion, the district court’s ultimate legal conclusion, including the determination that a given set of facts constituted probable cause, is a question of law subject to de novo review.”
E.g., United States v. Khounsavanh,
II. Motion to Suppress the Wiretap Evidence
Appellants raise two arguments in support of their motion to suppress the wiretapped conversations and the evidence arising therefrom: (1) the evidence gleaned from the wiretap of the 21 Field Street phone line is not admissible pursuant to the Federal Wiretap Statute, 18 U.S.C. §§ 2510 et seq., and (2) the state court’s suppression ruling collaterally estops the government from using the wiretap evidence. Neither argument prevails. Instead, we hold that the district court’s limited suppression of the Charles/Kelley phone call was an appropriate remedy for the state police’s violation of the amended minimization order.
A. 18 U.S.C. § 2516(2)
In support of their argument for suppression appellants cite 18 U.S.C. § 2516(2), which provides authority for receipt in federal court of state authorized wiretaps. The statute provides, in relevant part:
The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made....
18 U.S.C. § 2516(2). According to appellants, § 2516(2) requires federal courts to defer to state law in circumstances where, as here, the federal prosecution attempts to make use of wiretap evidence obtained through use of a state court warrant. If state law applies, appellants reason, the *19 district court was required to suppress the evidence arising out of the 21 Field Street wiretap because the state court had done so in the prior state proceeding. Appellants misconstrue the statute.
The district court correctly ruled that federal law governs the admissibility of evidence in federal prosecutions.
See, e.g., United States v. Wilson,
In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.
Elkins v. United States,
Against this background, we turn to three decisions that are directly on point and foreclose appellants’ argument. In
United States v. Miller,
[T]he state court’s suppression order did not foreclose consideration of the wiretap evidence by the grand jury, and it was not binding on the district court. The latter court properly held an evi-dentiary hearing on defendants’ suppression motion and considered the motion on its merits.
Id.
at 663. The
Miller
Court reasoned that “ ‘state court rulings in a criminal trial are not binding on a federal court’” because “ ‘state and national sovereignty are separate and distinct from one another.’ ”
Id.
(quoting
United States v. Miller,
An identical result was reached in
United States v. Williams,
Finally, in
United States v. Padilla-Pena,
Miller, Williams,
and
Padilla-Pena
foreclose appellants’ argument that § 2516(2) requires a federal court to apply state law in determining the admissibility of state wiretap evidence. While we need look no further, we find additional support for our conclusion in
United States v. Sutherland,
In
Sutherland,
state law enforcement personnel utilized an informant to procure incriminating tape recordings without a warrant.
See id.
at 769. Under Massachusetts law, warrantless interception of oral and wire communications is prohibited absent consent of all the parties, except in two circumstances which did not apply to the case.
See
Mass. Gen. Laws ch. 272, § 99. The Commonwealth conceded that the tape recordings had been obtained in violation of state law and consequently that testimony derived therefrom could not be used as substantive evidence in a Massachusetts prosecution. The Commonwealth, however, moved in limine for a determination that it would be allowed to use the tapes as impeachment evidence. The question was presented to the Supreme Judicial Court, which held that the recorded conversations were not admissible for any purpose.
See Sutherland,
A federal indictment followed. Prior to trial, the defendants moved to suppress on the ground that the tape recordings were obtained by state law enforcement personnel in violation of the Massachusetts wiretap law. The district court denied the motion and this Court affirmed, stating “we hold that in federal criminal prosecutions, the admissibility of wiretap evidence is a question of federal law.” Id. at 771. Today, we reaffirm the holding of Sutherland and apply it with equal force to this case.
In so doing, we once again leave open the possibility that “in an extreme case of flagrant abuse of the law by state officials, where federal officials seek to capitalize on that abuse, this court might choose to exercise its supervisory powers by excluding ill-gotten evidence.”
Id.
at 770. Here, however, the district court found that “overall, the state law enforcement officials managed the implementation of the minimization order in good faith and in an objectively reasonable manner.”
Charles,
Finally, in rejecting appellants’ § 2516(2) argument, we recognize that several courts have concluded that § 2516(2) may require the application of state law where the state wiretap statute contains standards that are more protective of privacy than the corresponding provisions of the Federal Wiretap Statute.
See, e.g., United States v. McNulty,
[Wjhether the proceedings be federal or state, interpretation of a state wiretap statute can never be controlling where it might impose requirements less stringent than the controlling standard of Title III. If a state should set forth procedures more exacting than those of the federal statute, however, the validity of the interceptions and the orders of authorization by which they were made would have to comply with that test as well.
Marion,
In other words, appellants’ reliance on the
Marion
line of cases is misplaced.
*21
The Massachusetts wiretap statute does not contain a higher standard for assessing minimization violations. To the contrary, the state statute does not contain any express minimization provisions. Instead, Massachusetts courts consult
federal law
in ruling on violations of minimization orders.
See, e.g., Commonwealth v. Vitello,
As indicated, “in federal criminal prosecutions, the admissibility of wiretap evidence is a question, of federal law.”
Sutherland,
B. Collateral Estoppel
Appellants next allege that the state court suppression ruling should collaterally estop the federal government from using the wiretap evidence. This argument was not presented to the district court. Instead, appellants took the position before the lower court that collateral estoppel should bar the entire prosecution. Appellants apparently now recognize, as the district correctly observed in its astute opinion, that even if collateral estoppel applied, it nevertheless would not operate to require dismissal of the indictment.
See Charles,
Moreover, even if appellants’ collateral estoppel argument were properly before this Court, we see no merit in it. “In this circuit it is well established that a ruling in a state prosecution will collaterally estop the federal government only if federal authorities substantially controlled the state action or were virtually represented by the state court prosecutor.”
Sutherland,
C. Limited Suppression
In the alternative, appellants argue that the district court’s remedy for the violation of the amended minimization order was inadequate. We reject this argument.
The district court ruled that the interception of the July 29 Charles/Kelley phone call was in clear violation of the amended minimization order, entitling appellant Charles to a suppression remedy under § 2518(l)(a)(iii). See Charles, 1998 *22 WL 204696, at *12. The district court, however, declined to invalidate the entire wiretap. Instead, the court ruled that the appropriate remedy was the limited suppression of the Charles/Kelley call because the totality of the circumstances demonstrates that the state police’s minimization efforts were reasonably managed. See id. at 13-14. The district court’s ruling is amply supported by both the law and the record.
The Federal Wiretap Statute requires the government to conduct electronic suiweillance “in such a way as to minimize the interception of communications not otherwise subject to interception.” 18 U.S.C. § 2518(5). In
Scott v. United States,
Our opinion in
Hoffman,
which involved a minimization violation far more significant than the one in this case, is instructive. In
Hoffman,
federal agents monitoring a wiretap in a narcotics- investigation intercepted 22 calls between a suspect’s wife and her attorney. The defendants moved to suppress the entire wiretap on the ground that the agents had flagrantly disregarded both federal law,
see
18 U.S.C. § 2518(5), and the district court’s minimization order. The district court denied the motion, electing instead to suppress only the offending calls. This Court affirmed on the basis that “[t]he minimization effort, assayed in light of the totality of the circumstances, was managed reasonably.”
Hoffman,
Here, the record is replete with evidence supporting the district court’s findings that the state police managed the wiretap in an objectively reasonable manner, took due precautions not to overreach, and minimized non-pertinent calls as soon as practicable. Accordingly, we pause only briefly to highlight some of the more salient facts.
As in Hoffman, this was a lengthy and complex investigation involving a significant number of drug traffickers engaged in interstate narcotics activity. During the seven days that the wiretap was active, the state police intercepted over 800 telephone calls, most of which involved drug activity. *23 They minimized 62 calls, including, four calls involving attorneys. The inadvertent interception of the July 29 Charles/Kelly call was the only minimization error that occurred; notably, the monitors correctly minimized all other calls involving attorneys. In addition, the state police terminated the wiretap after achieving their objective and did not rely on any information gleaned from the Charles/Kelley call during any aspect of the investigation. Equally important, judicial supervision over the wiretap was pervasive. First, the wiretap application was supported by a detailed, fifty-page affidavit of Trooper Thomas. Second, the Superior Court carefully reviewed the application and issued an amended minimization order three days after issuing the initial order. Third, the court order was limited to a single telephone for a period of 15 days.
As indicated, given this record we see no error in the district court’s determination that “the electronic surveillance was managed reasonably.”
Charles,
III. Abstention
In yet another iteration of their argument that the state court decision should have precluded the government from using the wiretap evidence, appellants invoke the abstention doctrine. This argument misses the mark, and we need not discuss it in depth.
. There are several well-known doctrines of abstention.
See Bath Mem’l Hosp. v. Maine Health Care Fin. Comm’n,
Moreover, it is equally clear that none of the recognized doctrines of abstention apply in this case.' First,
Pullman
abstention is inapplicable because this case did not involve a federal constitutional issue that would be mooted or placed in a different posture upon construction of a state law.
See Railroad Comm’n of Texas v. Pullman Co.,
IV. Franks Violation
Appellants allege that the evidence seized at Allen Street must be suppressed because the state police intentionally omitted material information from the warrant affidavit in order to mislead the magistrate judge. Appellants cite
Franks v. Delaware,
In
Franks,
the Supreme Court held that a defendant was entitled to a hearing at which he could challenge the truthfulness of statements made in an affidavit supporting a search warrant if the defendant made a substantial showing that (1) a statement in the affidavit was knowingly and intentionally false, or made with reckless disregard for the truth, and (2) the falsehood was necessary to the finding of probable cause.
See id.
In this Circuit, material omissions by an affiant are sufficient to constitute the basis for a
Franks
hearing.
See United States v. Parcels of Land,
Here, appellants allege that Trooper Thomas’s failure to include information pertaining to the violation of the amended minimization order was a material omission in the affidavit for the Allen Street search warrant. We disagree. The district court correctly ruled that interception of the Charles/Kelly telephone call did not invalidate the entire wiretap and warranted only suppression of that one call. Further, Thomas did not include any information from the Charles/Kelley call in the affidavit. The magistrate judge, therefore, did not rely on any evidence that was obtained due to the state police’s failure to comply with the minimization order. Consequently, we conclude that the omission was immaterial to the validity of the search warrant. This conclusion is fatal to appellants’ argument.
V. The District Court’s Ruling that the Narcotic Involved in this Case Constitutes Crack Cocaine
Appellants argue that the cocaine base involved in this case is not crack cocaine for the purposes of the sentencing guidelines.
See
U.S.S.G. § 2Dl.l(e). In support of this argument, appellants cite the low purity of the cocaine and complain that the government produced no evidence regarding the melting point or water solubility of the seized narcotic. In the First Circuit, whether contraband is crack is a question of fact which, once found, is reviewed only for clear error.
See United States v. Robinson,
First, appellants’ allegations regarding water solubility and melting point have been squarely rejected by this Circuit.
See United States v. Ferreras,
[0]nce the government laid a proper foundation “by introducing a chemical analysis ... proving that, chemically, the contraband was cocaine base,” no further scientific evidence was needed. Instead, the government could bridge the evidentiary gap between cocaine base and crack cocaine by presenting lay opinion evidence (or an opinion proffered by an expert who possessed practical as opposed to academic credentials) from “a reliable witness who possesses specialized knowledge” (gained, say, by experience in dealing with crack or familiarity with its appearance and texture).
Appellants’ drug purity argument is also contrary to well established law. In
Chapman v. United States,
Congress clearly intended the dilutant, cutting agent, or carrier medium to be included in the weight of [cocaine] for sentencing purposes. Inactive ingredients are combined with pure heroin or cocaine, and the mixture is then sold to consumers as a heavily diluted form of the drug. In some cases, the concentration of the drug in the mixture is very low....
By measuring the quantity of the drugs according to the “street weight” of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute [21 U.S.C. § 841] and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme.
Id.
at 460, 465,
Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.
U.S.S.G. § 2Dl.l(c) note A. Consequently, we conclude that the district court properly based appellants’ sentence on the total weight of the narcotic without regard to the purity of the cocaine base.
See Chapman,
CONCLUSION
For the reasons stated above, we AFFIRM appellants’ convictions and the corresponding sentences imposed by the district court.
Notes
. Reynard Mason is not a party to this appeal.
. There is some confusion in the record regarding whether Petrino served as a monitor on July 28 as well as July 29. The government’s trial brief stated he was a monitor only once, on July 29; however, both the duly log and testimony before the district court indicated that Petrino served on July 28 as well.
. Kelley testified at the state suppression hearing that he had "met” Petrino prior to the date of the hearing. When pressed on cross-examination, however, Kelley admitted to having no specific memory of ever being introduced to Petrino or ever having directly spoken to Petrino in any capacity.
. That a call was designated incriminating versus nonincriminating would be reflected in the log by the notations "I” or "N.” Other columns within the log reflect the time the call was dialed, the number dialed, and whether the call was incoming or outgoing, signified by the notations "I" or "O.”
. The transcript of that hearing was submitted to the district court and is part of the record in this case.