113 F.

3d 313

UNITED STATES of America, Appellee,

v.
James FIELDS; Christopher Crawley, Defendants-Appellants.
Nos. 431, 432, Dockets 96-1168, 96-1257.

United States Court of Appeals,

Second Circuit.
Argued Oct. 10, 1996.
Decided May 12, 1997.

William M. Bloss, New Haven, CT (Jacobs, Grudberg, Belt & Dow, of

counsel), for Defendant-Appellant Christopher Crawley.
Cheryl J. Sturm, West Chester, PA (Thomas G. Dennis, Federal Public
Defender for the District of Connecticut, Hartford, CT, filed brief), for
Defendant-Appellant James Fields.
Jeffrey A. Meyer, Assistant United States Attorney, New Haven, CT
(Christopher F. Droney, United States Attorney, John H. Durham, Deputy
United States Attorney, John A. Danaher III, Executive Assistant United
States Attorney, Robert O. Hickey, Law Student Intern, on the brief and of
counsel), for Appellee United States of America.
Before: OAKES, CARDAMONE, and MAHONEY* , Circuit Judges.
CARDAMONE, Circuit Judge:

On a dark December night in 1994 two New Haven, Connecticut police

officers, acting on a tip from a reliable informant, stood in the side yard of a
three-family apartment house and peered into a window whose shade was
partially raised. Although the bedroom they observed was that of a nine-yearold boy--decorated in "Sesame Street" style--its occupants were two adults, the
defendants James Fields and Christopher Crawley, who were "bagging"
$40,000 worth of crack cocaine for resale. The police subsequently entered the
apartment, without a warrant, and arrested both defendants.

The question we are called upon to answer is whether the action of the police of
looking in the window constituted an unjustifiable intrusion on defendants'
privacy so as to violate the Fourth Amendment. Although most people prefer
their personal life to remain secret, those who desire privacy must take
reasonable steps to secure it. When a person's activities are conducted with no
sense of privacy, society will not recognize a subjective preference for secrecy
as reasonable. Here, defendants failed to take the minimal steps necessary to
render their expectations of privacy reasonable--the police surveillance,
therefore, does not violate defendants' Fourth Amendment rights.

BACKGROUND
The Setting
3

The New Haven apartment at 381 Edgewood Avenue where Fields and
Crawley were arrested was the primary residence of Carlyn Warner, who
rented it and lived there with her daughter and nine-year-old son. The ground
floor apartment is one of three in the building. In July 1994 defendant Fields
began using it several times a week to cook and cut crack cocaine. Beginning in
the fall of 1994 he started paying Warner $125 per week for the privilege. He
had a key and could come and go as he pleased, even when Warner was absent.
Warner testified that in the six months prior to his arrest, Fields--usually
accompanied by Crawley--came to the apartment 40 or 50 times, and on the
night of their arrests, both defendants were present with her express permission.
Although Fields and Crawley occasionally drank beer and watched television in
the apartment, the primary reason for their presence was business. Neither
defendant lived at that address, kept clothing or personal items on the premises
or was named on the lease.

The defendants conducted their cocaine operations in the bedroom of Warner's

son. Located in the rear of the apartment, it has two windows, both of which
face onto the apartment house's side yard, which is partially enclosed by a chain
link fence. Warner testified that when Fields and Crawley were in the bedroom
with the door shut, she would not disturb them.

The Events of December 15, 1994

5

On the night of the arrests, December 15, 1994, the defendants arrived together
at 7:00 p.m., and went right to the rear bedroom to bag crack cocaine. They
stayed in the bedroom throughout the evening. At 7:45 p.m., some 45 minutes
after the defendants had arrived at the apartment, New Haven Police Lieutenant
William White received a telephone call from a "known and reliable"

informant. Lt. White was leader of the police department's intelligence unit,
specializing in investigations of drug-dealing street gangs.
6

The informant--who had in the past given Lt. White information leading to
arrests--informed him that James Fields and a person known as "Chris" were
bagging crack cocaine at the rear apartment on the first floor of a woman's
house located at 381 Edgewood Avenue. The informant advised Lt. White that
the defendants' activities were visible through the window and that "they were
at the point where they could leave at any time." The informant also identified
the defendants' car as a blue Buick, provided the license plate number, and told
the officer where it was parked.

Fields and Crawley were well-known to the police. Fields had been identified
as the leader of a violent narcotics gang known as the Hurlburt Street Posse,
and previously had been arrested and convicted on narcotics-related charges.
Crawley was known to associate with Fields and lived in the area where Fields'
gang operated. Because the informant said that the defendants would be leaving
shortly, Lt. White did not believe he had time to get a search warrant, even were
this "raw information" sufficient to support its issuance, which he doubted.
Instead, he assembled a team of investigators to check out the tip.

The police arrived at Edgewood Avenue at 8:25 p.m. and examined the area. It
was dark out. In a driveway on an adjacent street, officers found the blue Buick
in the location and with the license plate the informant had described. Lt. White
and another officer set off for the 381 Edgewood Avenue premises. Because
they could not see into the windows of Warner's apartment from the public
sidewalk or from the street, Lt. White and his fellow officer entered the fencedin rear yard and from there went into the fenced-in side yard to see into the
building better. At the rear of the side yard, the officers found a window whose
venetian blinds were raised five or six inches. Upon looking in, they saw Fields
and Crawley in a well-lit bedroom bagging what appeared to be crack cocaine.
Defendants were clearly visible from the side yard and the officers did not need
to stand on tiptoes or to lean against the house to see inside the bedroom.

It was now 9:00 p.m., 75 minutes after the informant had called and advised the
police that the defendants would be leaving "shortly." The district court later
found that it would have taken the police over an hour to get a warrant,
although concededly they did not attempt to do so after looking in the window.
Instead, they devised a plan either to roust the defendants from the building or
to gain entry themselves. Two uniformed officers were to knock at the front
door, while Lt. White and three others would wait in the rear. The occupants of
the bedroom on being discovered would presumably run out the back door with

the drugs right into the hands of the waiting police.

10

The plan did not work. When Lt. White and the other officers entered the rear
yard in order to get into position, a man on the back porch yelled out "5-0," a
slang term for "police," and then went inside the building, closing the door
behind him. The officers, knowing that Fields had a history of violence and that
he might be armed, and believing that the alerted defendants would destroy
evidence, decided to enter the building immediately. They forced open the
locked back door of the building using a battering ram and gained entry to the
apartment through its open door. Shouting "police," the officers proceeded to
conduct a security sweep of the apartment and secured its occupants. Fields and
Crawley attempted to flee, but were apprehended in the front bedroom. In that
bedroom under a mattress, police discovered a loaded semi-automatic weapon
well within Fields' reach. The officers also observed what appeared to be crack
cocaine on a table in the back bedroom.

11

After securing the apartment, two officers left to obtain a search warrant, which
was brought to the house an hour and a half later. Meanwhile, Warner, after her
rights were explained to her, consented in writing to a search of her apartment.
When the officers returned with the warrant, the premises was searched, and
453.76 grams of crack cocaine were seized from the rear bedroom.

Proceedings in the District Court

12

Fields and Crawley were indicted on one count of conspiring to distribute and
one count of possessing with intent to distribute 50 or more grams of cocaine
base, in violation of 21 U.S.C. 846, 841(a)(1). Before trial, they moved to
suppress the evidence seized at the apartment, and in connection with that
motion, moved for disclosure of the informant's identity. The district court then
ordered the government to produce the informant for an in camera interview
outside the presence of defense counsel. After the interview was conducted,
both of the defendants' motions were denied. Fields and Crawley later moved to
dismiss the indictment or to stay proceedings on the ground that the New
Haven jury pool from which the grand and petit juries were drawn was not
selected in conformity with the Fifth and Sixth Amendments and the Jury
Selection and Service Act of 1968, 28 U.S.C. 1861 et seq. The district court
denied this motion as well.

13

Crawley entered a guilty plea to one count of the indictment, conditioned on his
right to appeal from the denial of the motion to suppress. Fields proceeded to
trial, and after four days a jury found him guilty on both counts of the
indictment. Before sentencing, the defendants unsuccessfully moved to

preclude application of both the statutory penalty and the Sentencing

Guidelines for cocaine base. Fields was sentenced to 20 years in prison, eight
years supervised release, a $25,000 fine, and a $100 special assessment.
Crawley received a six year sentence, five years supervised release, and a $50
special assessment. From their judgments of conviction both defendants appeal.
We affirm.
DISCUSSION
14

On appeal defendants assert it was error: (1) not to suppress the seized
evidence, (2) not to reveal the informant's identity, (3) to sentence them to
penalties for "cocaine base," rather than the more lenient penalties applicable to
"cocaine and its salts," (4) to impose a $25,000 fine on defendant Fields, and
(5) to deny the motion to dismiss the indictment based on the procedures used
to select the jury pool. We address each argument in turn.

I The Suppression Motions

15

When reviewing rulings on motions to suppress, we examine the evidence

before the district court in the light most favorable to the government, and will
disturb factual findings only when they are clearly erroneous. United States v.
Fullwood, 86 F.3d 27, 29 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 442, 136
L.Ed.2d 338 (1996). Legal conclusions are reviewed de novo. Here, defendants
contend that their Fourth Amendment rights were violated when the police,
without a warrant, looked into the window and later used a battering ram to
break down the door to gain access to the apartment.A. Standing to Challenge
the Searches

16

The district court denied the defendants' suppression motions after

determining--based on the defendants' relationships to the apartment--that
neither defendant had standing to contest the validity of searches of the
apartment's interior.

17

Fourth Amendment rights are personal, and may be enforced only by persons
whose own protection under the Amendment has been violated. Rakas v.
Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978). To
contest the validity of a search, a defendant must demonstrate that he himself
exhibited an actual subjective expectation of privacy in the area searched, and
that this subjective expectation is one that society is willing to accept as
reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61
L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct.
507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). A defendant

lacks "standing" in the Fourth Amendment context when his contacts with the
searched premises are so attenuated that no expectation of privacy he has in
those premises could ever be considered reasonable. See Rakas, 439 U.S. at
137-38, 99 S.Ct. at 427-28.
18

Although the extent of a defendant's property or possessory interest in the place

searched is a factor generally considered in determining the reasonableness of a
defendant's expectation of privacy, United States v. Osorio, 949 F.2d 38, 40 (2d
Cir.1991), a defendant's lack of such an interest does not rule out the possibility
that he may still show a reasonable expectation of privacy. See Minnesota v.
Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85 (1990)
(houseguest has legitimate expectation of privacy); Rakas, 439 U.S. at 143-44
n. 12, 99 S.Ct. at 430 n. 12. Residence may give rise to an expectation of
privacy, United States v. Babwah, 972 F.2d 30, 35 (2d Cir.1992), but an
individual may also have a "sufficient interest in a place other than his own
home so that the Fourth Amendment protects him." Rakas, 439 U.S. at 142, 99
S.Ct. at 430. For instance, where a guest has permission to use an apartment, is
given a key, and uses the apartment in the owner's absence, society may be
prepared to recognize the guest's privacy, even though no property interest
exists. Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 730, 4 L.Ed.2d
697 (1960). Indeed, society recognizes as legitimate the expectation of privacy
possessed by an overnight guest--even though he has at best a fleeting
connection to his host's home. Olson, 495 U.S. at 98, 110 S.Ct. at 1688-89.

19

With these general principles in mind, we turn to the standing of each

defendant.

20

1. FIELDS. The district court concluded that Fields was incapable per se of
having a legitimate expectation of privacy at 381 Edgewood Avenue because
he was not a tenant or guest, but instead was simply a person who came to the
apartment to cook and to prepare crack cocaine for resale. We are unable to
adopt the trial court's view.

21

Fields had a significant connection to the Edgewood Avenue premises. He had

a key from Warner, paid $125 per week for the privilege of using the
apartment, made use of it on 40 or 50 occasions, could bring guests and, with
minor restrictions, could come and go as he pleased, even if Warner was not
present. We think these contacts sufficient to permit Fields to establish a
legitimate expectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct.
421, 58 L.Ed.2d 387 (reaffirming holding in Jones, 362 U.S. at 259, 267, 80
S.Ct. at 730, 734, that houseguest who has key and uses premises in host's
absence may have legitimate expectation of privacy even though he has no

property interest, pays no rent, and has been in apartment only for a short time).
22

Whether Fields qualified as a tenant or sublessee is not determinative.

Possessory interests defined in the common law, while sometimes helpful,
contain distinctions that are largely historical and do not control the Fourth
Amendment inquiry. Id. at 266, 80 S.Ct. at 733-34. A reasonable expectation of
privacy does not depend upon a showing that a common law interest in property
has been transgressed. See 439 U.S. at 143-44 n. 12, 99 S.Ct. at 430 n. 12.

23

Nor does the fact that Fields did not sleep at the apartment doom his Fourth
Amendment claim. Although Olson establishes that status as an overnight guest
can give rise to a legitimate expectation of privacy, 495 U.S. at 99, 110 S.Ct. at
1689, it does not suggest that such status is required before a guest can have
privacy in the home.

24

We also reject the government's argument that the illegal nature of Fields'
activities made any expectation of privacy regarding the premises
unreasonable. Privacy expectations do not hinge on the nature of defendant's
activities--innocent or criminal. United States v. Taborda, 635 F.2d 131, 138 n.
10 (2d Cir.1980). In fact, many Fourth Amendment issues arise precisely
because the defendants were engaged in illegal activity on the premises for
which they claim privacy interests.

25

2. CRAWLEY. Unlike Fields, Crawley did not possess a key to the apartment
at 381 Edgewood, and he did not pay anything that could be characterized as
"rent." When he visited the apartment, he did so solely as Fields' guest.
Although Crawley spent the night in the apartment on one occasion, no
evidence indicates he planned to do so on the night of the arrests. Rather, he
was a guest in the apartment at Fields' invitation.

26

Based on these contacts, the district court held Crawley a "transient visitor"
with no expectation of privacy. Crawley believes this holding conflicts with the
Supreme Court's decision in Olson, 495 U.S. at 98-99, 110 S.Ct. at 1688-89,
which held that overnight guests have a legitimate expectation of privacy in the
homes of their hosts. We agree. Although the case itself addressed only
overnight guests, we do not think whether a guest spends the night is
dispositive. See 5 Wayne R. LaFave, Search and Seizure 11.3(b), at 137 (3d
ed. 1996) (noting that Olson 's rationale is equally applicable to guests who do
not stay overnight). Instead, Olson stands for the proposition that any guest, in
appropriate circumstances, may have a legitimate expectation of privacy when
he is there "with the permission of his host, who is willing to share his house

and his privacy with his guest." 495 U.S. at 99, 110 S.Ct. at 1689.
27

Here, Fields, whose arrangement with Warner permitted him to bring guests to
the apartment, invited Crawley for a visit that lasted several hours before being
interrupted by the police intrusion, and the circumstances make clear that
Fields intended to share his privacy with Crawley. Society generally recognizes
the legitimacy of privacy expectations held by guests who, like Crawley, have
been invited to the premises by their host for an extended visit. Because Fields,
as discussed above, had a sufficient interest in the apartment to establish a
legitimate expectation of privacy, we believe Crawley, as his invited guest, had
one as well.

B. The Window Search

28

Although both defendants had a sufficient relationship to the premises and each
other to permit them to establish a legitimate expectation of privacy in the
Edgewood Avenue apartment, that does not end the inquiry. Defendants must
also establish that they took advantage of that opportunity for privacy at the
time of the window search by the police. Although society generally respects a
person's expectations of privacy in a dwelling, what a person chooses
voluntarily to expose to public view thereby loses its Fourth Amendment
protection. See California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 181213, 90 L.Ed.2d 210 (1986). Generally, the police are free to observe whatever
may be seen from a place where they are entitled to be. Florida v. Riley, 488
U.S. 445, 449, 109 S.Ct. 693, 696, 102 L.Ed.2d 835 (1989).

29

In the case at hand defendants conducted their illegal activities in plain view of
a bedroom window facing onto the side yard--a common area accessible to the
other tenants in the multi-family apartment building--in which they had no
legitimate expectation of privacy. See United States v. Holland, 755 F.2d 253,
255 (2d Cir.1985) (individual tenants in multi-tenant buildings have no
legitimate privacy expectations in common areas, even when guarded by
locked doors). Although there was a plainly visible five- to six-inch gap
beneath the venetian blinds, defendants took no steps to close it. Their illegal
activities, conducted in a well-lit room after dark, could therefore readily be
seen by anyone standing in the side yard.

30

Citing our decision in Taborda, 635 F.2d at 138 n. 9, defendants assert the
police were trespassing by being in the side yard and that therefore any
observations made from that vantage point were automatically unlawful.
Although police observations made when trespassing are usually improper, it is
not the trespass itself which renders them unlawful. Instead, such observations

generally violate Fourth Amendment rights simply because those observed

cannot reasonably anticipate observation from vantage points obtained by
trespassing. In such circumstances, society frequently respects as reasonable the
expectation that such observations will not occur. The ultimate focus of Fourth
Amendment analysis remains whether the defendant had a reasonable
expectation of privacy in the place searched. Katz, 389 U.S. at 360, 88 S.Ct. at
516 (Harlan, J., concurring). Here, by conducting their activities in plain view
of an area where others were free to come and go, defendants failed to
demonstrate such an expectation.
31

Appellants' heavy reliance on United States v. Blount, 98 F.3d 1489 (5th

Cir.1996), reh'g en banc granted, 104 F.3d 58 (5th Cir.1997), is misplaced.
There a police officer, acting on an informant's tip that a fleeing suspect might
end up at a particular private dwelling, walked into that dwelling's partially
enclosed rear yard, using a path not open to the general public. Id. at 1492-93,
1495. Leaning against the house and placing his face within inches of a small
opening in a sheet of plywood covering a broken window, the officer observed
activities that later led to seizure of evidence used against the inhabitants of the
dwelling, not the fleeing suspect. A Fifth Circuit panel held that the police
officer's actions violated the legitimate privacy expectations of the dwelling's
occupants. Id. at 1495.

32

Two significant factors distinguish the instant case from Blount. First, unlike
the house in Blount, 381 Edgewood Avenue is a multi-family building. While
the inhabitants of the Blount house might have a reasonable expectation that
persons uninvited by them would not visit their fenced back yard, the
defendants here could have no such legitimate expectations, because the
building in which they conducted their operations contained other apartments
whose tenants were entitled to use the side yard without giving notice or having
the defendants' permission. Second, the five- to six-inch opening beneath the
blinds in this case, unlike the narrow gap in the plywood through which the
police peered in Blount, was sufficiently large to be clearly visible from the
interior of the room to anyone who cared enough about his privacy to close the
blinds. Blount 's rationale is therefore inapplicable to the facts before us.

33

In sum, although the defendants could easily have shielded their activities from
public view, they failed to take the simple and obvious steps necessary to do so.
By exposing their illicit cocaine activities to the side yard--a place where they
should have anticipated that other persons might have a right to be--defendants
failed to exhibit a subjective expectation that they intended their dealings in the
bedroom to be private. Hence, the police observations did not violate
defendants' Fourth Amendment rights. Because we uphold the window search

on this ground, we need not consider or decide whether it could also be justified
by exigent circumstances or by Carlyn Warner's after-the-fact consent to the
search of her apartment.
C. Entry Into the Apartment
34

The defendants also moved to suppress the evidence seized at the apartment on
the grounds that the officers (i) made a warrantless entry and (ii) failed to
knock and announce their authority before entering the apartment through its
open door from the common hallway to which they had gained entry using a
battering ram. Judge Dorsey found the police actions justified by exigent
circumstances. Because his finding is fact-specific we review it under the
clearly erroneous standard. United States v. MacDonald, 916 F.2d 766, 769 (2d
Cir.1990) (en banc).

1. Warrantless Entry
35

Although warrantless entries into the home are presumptively unreasonable,

Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639
(1980), warrant requirements must yield when exigent circumstances demand
that police act speedily. Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct.
1642, 1645-46, 18 L.Ed.2d 782 (1967). We use six illustrative guides to aid in
determining the need for quick action:

36 the gravity or violent nature of the offense with which the suspect is to be
(1)
charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear
showing of probable cause ... to believe that the suspect committed the crime; (4)
strong reason to believe that the suspect is in the premises being entered; (5) a
likelihood that the suspect will escape if not swiftly apprehended; and (6) the
peaceful circumstances of the entry.
37

MacDonald, 916 F.2d at 769-70.

38

Analyzing the facts before us in light of those guides it can be seen that: (1)
bagging a large quantity of cocaine crack is a serious crime; (2) Fields had a
reputation for violence and was in fact apprehended with a loaded automatic
weapon within his reach; (3) probable cause was clearly established after the
suspects identified by the informant were found by the police to be engaged in
the commission of a crime; and (4) the suspects were present on the premises;
(5) the police had good reason to believe Fields and Crawley would attempt to
flee or to destroy evidence when they were alerted to the presence of the police;
and (6) although the entry to the apartment through the open door was arguably

peaceful, the entry to the hallway, accomplished by a battering ram, was not.
Taken together, these facts support the exigent circumstances finding. Although
the entry to the common hallway was not peaceful, factors (1) through (5) were
sufficient to justify the district court's finding that immediate entry was
necessary to avoid danger and the destruction of evidence.
2. Failure to Knock-and-Announce
39

Defendants further suggest that the officers' failure to make a peaceable entry
into the apartment building hallway, coupled with their failure to knock-andannounce before entering the apartment through its open door, renders the
evidence seized at the apartment inadmissible. On the contrary, we can
perceive no clear error in the district court's determination that exigent
circumstances in the case at hand excused noncompliance with the knock-andannounce rule. The common law rule requiring police first to knock and
announce their authority and then be refused before entering a private dwelling
is part of the Fourth Amendment inquiry--not the end of it. See Wilson v.
Arkansas, 514 U.S. 927, 934-35, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976
(1995). And, as the Supreme Court has recently reiterated, noncompliance with
the knock-and-announce rule is justified where the police have a reasonable
suspicion that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile, or would lead to the destruction of
evidence. See Richards v. Wisconsin, --- U.S. ----, ----, 117 S.Ct. 1416, 1421,
137 L.Ed.2d 615 (1997). Here, the sounding of the "5-0" alarm, combined with
Fields' known potential for violence and the nature of the bagging operation,
made it reasonable for the officers to believe that complying with the knockand-announce requirement would be futile (because the occupants already
knew the police were there), potentially dangerous (Fields might arm himself),
and might lead to the destruction of evidence (the defendants could easily
dispose of the drugs).

II Non-Disclosure of the Informant's Identity

40
41

The next point we consider is whether it was wrong to deny defendants' motion
for the disclosure of the identity of the confidential informant. The trial judge
determined, after interviewing the informant in camera, that there was no
inconsistency between the informant's testimony and that of the police and that
the informant had no exculpatory information. Prior to the interview, from
which they were excluded, defense counsel were permitted to suggest areas of
possible inquiry. They now declare that disclosure of the informant's identity
was essential because the informant's testimony was relevant on the issue of
probable cause and useful for the resolution of inconsistencies in testimony at

the suppression hearing. In their view, the district court's questioning of the
informant outside defense counsel's presence was inadequate to protect
defendants' rights.
42

The government is not generally required to disclose the identity of confidential

informants. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1
L.Ed.2d 639 (1957). Its interest in protecting the anonymity of informants who
furnish information regarding violations of law is strong--withholding an
informant's identity improves the chances that such a person will continue
providing information and encourages other potential informants to aid the
government. Socialist Workers Party v. Attorney General, 565 F.2d 19, 22 (2d
Cir.1977); United States v. Tucker, 380 F.2d 206, 213 (2d Cir.1967).

43

The defendant bears the burden of showing the need for disclosure of an
informant's identity, United States v. Manley, 632 F.2d 978, 985 (2d Cir.1980),
and to do so must establish that, absent such disclosure, he will be deprived of
his right to a fair trial. Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 627-28. If such is
established, the government's privilege must give way, Cullen v. Margiotta,
811 F.2d 698, 715-16 (2d Cir.1987).

44

Because the need for disclosure varies with the circumstances of each case,
there is no fixed rule. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29. Disclosure is
a matter which lies within the sound discretion of the district court, Manley,
632 F.2d at 985. Speculation that disclosure of the informant's identity will be
of assistance is not sufficient to meet the defendant's burden; instead, the
district court must be satisfied, after balancing the competing interests of the
government and the defense, that the defendant's need for disclosure outweighs
the government's interest in shielding the informant's identity. Roviaro, 353
U.S. at 62, 77 S.Ct. at 628-29.

45

We see no abuse of discretion in the instant case. The need for disclosure is far
less compelling when, as here, it is sought in connection with a pretrial
suppression hearing on issues which do not bear on defendant's guilt. McCray
v. Illinois, 386 U.S. 300, 311-12, 87 S.Ct. 1056, 1062-63, 18 L.Ed.2d 62
(1967). Moreover, even if, as the defendants claim, the informant's information
was uncorroborated and constituted the bulk of the probable cause upon which
the police relied, we think the district court's in camera interview of the
informant, conducted with a view to matters defense counsel identified in
writing as potentially relevant, adequately protected defendants' rights. As noted
in Manley, an in camera interview of informants that finds no inconsistency
with police testimony can mitigate any concern that the informant's testimony
would in fact be useful to the defense. 632 F.2d at 986. Here the district court

probed the areas the defendants thought relevant and found nothing helpful to
their cause. In short, it was not an abuse of discretion to maintain the
informant's anonymity.
III The Rule of Lenity and the Definition of "Cocaine Base"
46
47

We pass to the defendants' contention that it was error to sentence them under
21 U.S.C. 841(b)(1)(A)(iii), which imposes severe penalties for possession of
"cocaine base," rather than under the more lenient provisions of 841(b)(1)(A)
(ii)(II), which applies to "cocaine, its salts, optical and geometric isomers, and
salts of isomers." The crux of the argument is that our decisions in United
States v. Jackson, 968 F.2d 158, 161-62 (2d Cir.1992) and United States v.
Palacio, 4 F.3d 150, 153 (2d Cir.1993), by adopting "an all inclusive, scientific,
definition of cocaine base which envelops not only crack, but all other non-salt
forms of cocaine," have created a statutory ambiguity.

48

Specifically, defendants note that the lower penalty provision applies to both
"cocaine" and "its salts," and aver that in order to give the phrase "its salts"
meaning, the word "cocaine" in the lower penalty provision must be read to
encompass any form of cocaine that is not a salt. They assert that in defining
"cocaine base" for purposes of the higher penalty provision to include all nonsalt forms of cocaine as they think we did in Jackson and Palacio, we have
unwittingly selected a definition of "cocaine base" for purposes of the higher
penalty provision that applies equally to "cocaine" in the lower penalty
provision. They conclude that because the statute, as they believe this Court to
have construed it, imposes different penalties for the same substance, the rule
of lenity requires that they be sentenced under the lower penalty.

49

Simply put, the rule of lenity requires a sentencing court--when faced with an
actual ambiguity over which of two penalties should apply--to select the lesser
penalty. United States v. Canales, 91 F.3d 363, 367 (2d Cir.1996). The rule
comes into play only when--after considering everything from which any help
may be gleaned--a sentencing court still finds itself at a loss to determine which
of two penalties governs under the ambiguous statute. Chapman v. United
States, 500 U.S. 453, 463, 111 S.Ct. 1919, 1926, 114 L.Ed.2d 524 (1991). For
the rule of lenity to apply, the statutory provision must be ambiguous both on
its face and as applied to the particular defendant. United States v. Plaza Health
Labs., Inc., 3 F.3d 643, 646 (2d Cir.1993).

50

The correct definition of "cocaine base" under 841(b)(1)(A)(iii) has been

disputed. Several Circuits have disagreed with the conclusion we reached in
Jackson, 968 F.2d at 162, and Palacio, 4 F.3d at 154, that the term "cocaine

base" is not limited to crack cocaine. See, e.g., U.S. v. Booker 70 F.3d 488, 494
(7th Cir.1995) (explaining that Congress intended the enhanced penalties for
"cocaine base" to apply only to crack cocaine), cert. denied, --- U.S. ----, 116
S.Ct. 1334, 134 L.Ed.2d 484 (1996); United States v. Jackson, 64 F.3d 1213,
1219 (8th Cir.1995) (same), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133
L.Ed.2d 887 (1996); United States v. Fisher, 58 F.3d 96, 99 (4th Cir.) (same),
cert. denied, --- U.S. ----, 116 S.Ct. 329, 133 L.Ed.2d 229 (1995); United States
v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir.1994) (same).
51

Be that as it may, on one issue there is agreement: at a minimum, Congress

planned for the higher penalties to apply to that form of cocaine known on the
street and readily identified as "crack" cocaine. Moreover, it is undisputed that
the substance seized in the instant case was crack cocaine. Hence, regardless of
whether the defendants are correct that our decisions create an ambiguity on the
face of the statute, no doubt exists as to which penalty Congress meant to apply
to their conduct. Because the statute is not unclear as applied to the defendants,
they may not claim the benefits of the rule of lenity. See United States v.
Montoya, 87 F.3d 621, 622-23 (2d Cir.1996) (per curiam) (rejecting arguments
similar to those advanced here), cert. denied, --- U.S. ----, 117 S.Ct. 996, 136
L.Ed.2d 876 (1997).

IV The $25,000 Fine

52

One of the final questions remaining is whether it was proper to fine Fields
$25,000 in light of his claims of indigency. In support of the proposition that it
was improper, defendant notes that he was found eligible for and represented
by assigned counsel and that the presentence report stated he was unable to pay.

53

The Sentencing Guidelines state: "The court shall impose a fine in all cases,
except where the defendant establishes that he is unable to pay and is not likely
to become able to pay any fine." U.S.S.G. 5E1.2(a). The burden of
establishing an inability to pay rests on the defendant, and a sentencing court
should not uncritically accept a defendant's self-serving statements alleging
indigence. United States v. Kassar, 47 F.3d 562, 567 (2d Cir.1995).

54

Although imposition of a fine may not be based upon suspicion that a defendant
has sufficient funds to pay it, circumstantial evidence may be considered to
decide what defendant earns or is capable of earning and what his financial
resources are. United States v. Wong, 40 F.3d 1347, 1383 (2d Cir.1994).
Evidence of lucrative illegal activity may support an inference that such funds,
although hidden, remain at the defendant's disposal. United States v. Orena, 32
F.3d 704, 716 (2d Cir.1994). Of course, in determining ability to pay, the

sentencing court cannot rely on the general notion that drug dealing is often
lucrative; the specific nature of a defendant's illegal scheme and conduct must
be carefully examined.
55

Although a presentence report's view that defendant has no funds to pay a fine
is entitled to weight, and the fact that a defendant is represented by or has been
found eligible for appointed counsel certainly strongly suggests an inability to
pay a fine, United States v. Stevens, 985 F.2d 1175, 1188 (2d Cir.1993), neither
is conclusive. Hence, in Kassar, despite contrary findings in the presentence
report and the presence of assigned counsel, we sustained a district court's
determination that the defendant was capable of paying a fine based upon the
lucrative nature of his specific illegal scheme. 47 F.3d at 567-68.

56

In the instant case the district court concluded that Fields had sufficient funds
to pay a $25,000 fine. In support of that finding, it pointed to the remunerative
nature of Fields' drug operations, his purchase of an expensive automobile for
cash, and his lack of cooperation in furnishing financial reports. This evidence
was sufficient to support its ruling that Fields had failed to carry his burden of
establishing his indigence.

V The New Haven Jury Pool

57

Finally, defendants think it error to deny their motion to dismiss the indictment
or to stay proceedings on the ground that the jury pool in the New Haven
Division was not selected in conformity with the Fifth Amendment, the Sixth
Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C. 1861
et seq. The district court denied the motion for substantially the same reasons
and based on the same proof considered by the district court in United States v.
Rioux, 930 F.Supp. 1558 (D.Conn.1995). On appeal, defendants advance
substantially the same arguments made by the Rioux defendants on appeal,
which we rejected. United States v. Rioux, 97 F.3d 648 (2d Cir.1996). For the
same reasons stated in our opinion in Rioux, we affirm the district court's denial
of the defendants' motion.

CONCLUSION
58

Accordingly, for the reasons stated above, the judgment of the district court is
affirmed.

The Honorable J. Daniel Mahoney, who was a member of the panel, died on

October 23, 1996, and the appeal is being decided by the remaining two
members of the panel, who are in agreement. See Local Rule 0.14(b)