May 22, 2002
Chairman Biden, Senator Grassley, Members of the Subcommittee:
I appreciate the opportunity to appear before this Subcommittee today on behalf of the Department of Justice to discuss the important issues of federal drug sentencing policy, generally, and federal cocaine sentencing policy, in particular.
Before turning to drug policy, though, I would like to take this opportunity on behalf of the Department of Justice to commend the Sentencing Commission for being responsive to many of the Department of Justice's concerns regarding federal sentencing policy during this past guideline amendment year. In particular, we want to make special note of amendments to the sentencing guidelines the Commission has forwarded to Congress in response to the passage of the USA-PATRIOT Act. The PATRIOT Act is an excellent example of how hard work and bipartisan cooperation can lead to significant legislation addressing a critical national problem. We thank the Judiciary Committee for all its efforts on the Act, and we deeply appreciate the Commission's work to implement the Act's important new substantive criminal law and sentencing provisions into the sentencing guidelines. The Act and the guideline amendments are both critical parts of the country's ongoing fight against terrorism.
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Mr. Chairman, despite the country's new focus on terrorism, we believe it is critical that we not allow our fight against illegal drug abuse to falter. The Sentencing Commission has sent recommendations to Congress to lower penalties on crack cocaine traffickers. For reasons I will lay out in detail, we believe these recommendations are misguided and that the current federal sentencing policy and guidelines for crack cocaine offenses are proper. We believe it would be more appropriate to address the existing differential between crack and powder penalties by increasing penalties for powder cocaine.
THE PRESIDENT'S NATIONAL DRUG CONTROL STRATEGY
We are guided in all of our work on drug policy by the President's comprehensive national strategy to fight illegal drug use. The strategy seeks to expand the national drug treatment system while recognizing the vital role of law enforcement and interdiction programs. It recognizes that the individual consequences of drug use can be deadly to the user and that the consequences for society are no less serious.
Unfortunately, drug abuse continues to plague this country at unacceptably high levels. According to estimates generated by the National Household Survey on Drug Abuse, 2.8 million Americans are dependent on illegal drugs, and an additional 1.5 million are non-dependent abusers. In 2000, Americans spent $62.9 billion dollars on drugs. Of that, $36.1 billion was spent on cocaine; approximately $12 billion was spent on heroin; and $11 billion on marijuana. Data provided by the Substance Abuse and Mental Health Services Administration indicate that there are roughly 175,000 emergency room incidents annually related just to cocaine, while heroin and marijuana are each implicated in about 97,000 incidents.
Even worse, drug use among high school students is simply unacceptably high. According to the Monitoring the Future study, drug use among our nation's 8th, 10th, and 12th graders remains at levels that are close to record highs. More than 50 percent of our high school seniors experimented with illegal drugs at least once prior to graduation. And during the month prior to the last survey, 25 percent of seniors used illegal drugs.
The President's drug strategy lays out a number of initiatives to reduce drug use in this country. It includes initiatives on drug education and community action to stop drug use before it starts. It includes significant new steps to get treatment resources where they are needed most, recognizing the critical need to heal America's drug users. The strategy also recognizes the critical need to continually disrupt drug markets at international and wholesale levels.
But as the President and the National Drug Control Strategy recognize, meeting the challenge of reducing illegal drug use will require more that just a range of targeted initiatives focused on key elements of the drug problem. It will take more than a five-pronged strategy or a 15-point implementation plan. This is so because, in distinct contrast to the can-do attitude we have seen every day since September 11th in the fight against terrorism, the public's confidence that we can effectively fight illegal drug use has been undermined.
We believe, however, that we can again make real strides in reducing drug use in this country and restore confidence in this important effort. History has shown us that we can succeed. During the late 1980s and early 1990s, an engaged government and citizenry took on the drug issue and forced down drug use, with declines observed among 12th graders in every year between 1985 and 1992. The federal government supplied important leadership, and achieved progress together with parents and clergy, media and community groups, state and local leaders. We in the federal government must once again show the leadership necessary to reinvigorate this effort.
The Commission's recommendations to lower crack cocaine penalties would take the country in the wrong direction. They signal not a rejuvenated and confident effort to reduce drug use, but rather a retreat in our nation's fight against illegal drugs. Unfortunately, the Commission has not recognized the corrosive signal that would be sent by these recommendations, if enacted.
Nor has the Commission focused sufficiently on the victims of those who peddle drugs and on the violent crime that comes hand-in-hand with the drug trade - and especially with the crack trade. The lives of family members and friends are too often shattered by deadly drug violence and by a loved one's addiction to illegal drugs. It is also a fact that minorities are more likely to be victims of violent drug crime. African Americans constitute about 50 percent of this country's homicide victims. That statistic is horrifying. Today we want to give voice to the victims, a group that is all too often overlooked and unheard in the debate over drug penalties.
Sitting behind me today is Shandra Smith, the mother of two bright and beautiful young people who were gunned down in cold blood. Fourteen-year-old Volante Smith asked her 20-year-old brother Rodney, who was home from college, to drive her and two friends to a Christmas party at church. They piled into his tiny 280 ZX and the girls talked about the evening ahead. When they stopped at a light, a man got out of the car behind them, came up to the driver's window, raised a gun, and fired. Six shots ripped through Rodney's body, and three into Volante, killing them both.
Volante and Rodney were killed because they stopped at the light in front of a car driven by Tommy Edelin, the kingpin of the 1-5 Mob, recently convicted and sentenced to life without possibility of release for his role in 4 of the 20 murders committed by his gang. Riding with Edelin that night was an associate who mistakenly thought that the driver of the 280ZX was someone who had previously shot at him. The associate asked Edelin if he could kill the driver of the car. Edelin, in part to find out if the associate had the heart to kill someone, told him to go ahead. In order to make sure that he killed his target, the associate unloaded his 40-caliber Glock into the car. A case of mistaken identity and a total disregard for the sanctity of life. Tommy Edelin, a drug kingpin; the associate, a low-level drug dealer turned hit man.
This city, indeed all of America has been victimized by nearly two decades of drug trafficking violence. We have become accustomed to nightly news stories about drive-by shootings and execution-style killings by ruthless drug gangs. We have been worried by reports of stray or intentional bullets killing children -- like Volante and Rodney -- who were simply in the wrong place at the wrong time.
And the criminal justice system has itself been threatened by violent intimidation and witness retaliation. When I started as a prosecutor in 1984, we could say with confidence to our witnesses who were fearful of retaliation, "We haven't lost anyone yet." Sadly, that day is long gone. The difference: crack cocaine. For example, Tommy Edelin told an acquaintance that if he ever got caught, he had no intention of letting justice take its course. Instead, he intended to "crush" everyone who might testify against him. So, after his arrest, he arranged for the murder of a potential witness against him.
In addition to lay witnesses, many law enforcement officers have sacrificed their lives to rescue communities from the ravages of violent drug trafficking. For example, here in Washington in November 1996, members of the cold case squad were working inside the Headquarters building when Bennie L. Lawson, a low-level drug dealer who had been targeted by their investigation of the First and Kennedy Crew, burst into their room and started firing wildly. FBI agents Martha Dixon-Martinez and Michael Miller, and Metropolitan Police Sargent Henry M. Daily were killed before Lawson turned the gun on himself. Eventually 24 people in the crew were convicted, including eleven members of the crew who were held accountable for 9 homicides. In December 1993, Donzell McCauley, a member of Kentucky Courts Crew, brutally murdered a uniformed police officer, Jason White, who had stopped to ask McCauley a question. When he was arrested, McCauley had 13 ziplock packages of crack cocaine on him. 13 ziplocks would contain, as a general rule, between 1 ½ and 2 ½ grams.
Victims like Volante and Rodney Smith, Martha Dixon-Martinez, Michael Miller, and Henry M. Daily, and Jason White are why the President and the Attorney General have pledged to reinvigorate the battle against drug trafficking.
THE CURRENT SENTENCING GUIDELINES SCHEME FOR DRUG OFFENSES
In 1987, the Sentencing Commission tied the sentencing guidelines for drug trafficking offenses to the quantity of drug associated with the offense. These guidelines, found at §2D1.1 of the sentencing guidelines, call for base offense levels ranging from level 6 to level38, moving in two-level increments determined by the quantity of drugs trafficked by the defendant.
The guidelines are tied - correctly we believe - to the applicable mandatory minimum drug trafficking statutes. Title 21 U.S.C. § 841 specifies the quantity thresholds that trigger mandatory minimum sentences. The amount of controlled substance that triggers a mandatory minimum in a given case corresponds to a particular base offense level. For example, 5 grams of crack cocaine triggers a mandatory minimum sentence of five years and is tied to abase offense level of 26 with a corresponding sentence of 63-78 months for a first offender. Some observers, have criticized the present sentencing guidelines scheme, arguing that this quantity-based scheme does not adequately address other relevant sentencing factors. We disagree with this criticism.
Current law - both in the federal statutes and the guidelines - allows for the consideration of aggravating factors, such as the use of a gun or a defendant's criminal history or bodily injury. Current law also allows for the consideration of mitigating factors, through the "safety valve" exception to mandatory minimums, the guidelines' mitigating role adjustment, and guideline departures when a defendant provides substantial assistance in the investigation or prosecution of another person.
FEDERAL COCAINE SENTENCING POLICY
This year, the Commission reexamined whether the guidelines should be amended with respect to the current quantity ratio between crack and powder cocaine. The Commission has now recommended lowering penalties for crack offenders. The Department of Justice has also reviewed cocaine sentencing policy. After thorough study and internal discussion, the Department has concluded that the current federal policy and guidelines for sentencing crack cocaine offenses are appropriate.
A. Crack Cocaine Is Associated With Much Greater Dangers Than Powder
Higher penalties for crack offenses appropriately reflect the greater harm posed by crack cocaine. We recognize that cocaine base - crack - and cocaine hydrochloride - cocaine powder - are chemically similar. Nonetheless, there are significant differences in the predominant manner the two substances are ingested and marketed. Based on these differences and the resulting harms to society, crack cocaine is an especially dangerous drug. Its traffickers should be subject to significantly higher penalties than traffickers of like amounts of cocaine powder.
Current research shows that crack is a more dangerous and harmful substance for many reasons. The most common routes of administration of the two drugs cause crack to be the more psychologically addictive of the substances.1 This makes crack cocaine more dangerous, resulting in far more emergency-room episodes and public-facility treatment admissions than powder cocaine,2 despite the fact that powder cocaine is much more widely used. The quicker, more intense, and shorter-duration effects of crack contribute to its greater abuse and dependency potential as compared to snorted cocaine powder. Its greater addictive effects cause heavier and more frequent use and greater binging, causing more severe social and behavioral changes than use of cocaine powder.
Further, crack can easily be broken down and packaged into very small and inexpensive quantities for distribution - sometimes as little as single dose quantities, for just a few dollars - thus making it particularly attractive to some of the more vulnerable members of our society. As Professor Randall Kennedy has noted, "[b]ecause it is relatively inexpensive," crack has the "dubious 'achievement'" that it has "helped tremendously to democratize cocaine use."3 Crack dealers have fulfilled its "promise" by marketing it to these vulnerable groups. Additionally, the open-air street markets and crack houses used for the distribution of crack cocaine contribute heavily to the deterioration of neighborhoods and communities. Both the scale of marketing and its open and notorious nature enable many, who would not previously have had access to cocaine powder, to purchase, use, and become addicted to crack cocaine. Moreover, the present crack market is associated with violent crime to a greater extent than that of cocaine powder.
Let me share with you one example of a mother who became addicted to crack cocaine. In order to support her addiction, she became a cooker and later worked for the 1-5 Mob. She also permitted her children to be involved in crack cocaine trafficking. One of the children was about ten when he joined the 1-5 Mob -- and fourteen when he was murdered. When he was killed, the mother was serving a prison sentence for her involvement in crack cocaine trafficking. She credits her prison experience as the catalyst for completely changing her life. She still grieves the loss of her son -- for which she blames herself.
The neighborhood where this family lived was riddled with crack cocaine and violence. People could not sleep peacefully in their beds at night because of the gunfire and the fear that a stray bullet would come in through the window and kill one of their children; gangs of gun-toting crack cocaine dealers on the street kept elderly citizens from going to the grocery store or to church; parents did not let their children play outside; buildings were marred by bullet holes and graffiti; the area, already poor, was deteriorating further.
According to a news account at the time, after the members of the 1-5 mob were arrested and detained pending trial, the neighborhood was transformed. Drug dealers were no longer running up and down the street shooting their guns, overall crime decreased, graffiti faded, children were permitted to go outside to play again, and the neighborhood returned to normal.
The 1-5 Mob is illustrative of the severe, negative impact that crack cocaine has had on families and communities, and in particular, on minority communities. The seller of crack is well aware of its addictive qualities and the familial and community devastation it causes. While much good has been done since the worst days of the crack epidemic in the 1980s, it would be premature to declare victory and relax our efforts. In spite of a number of successful prosecutions of major drug trafficking rings, citizens in other neighborhoods here in the District still complain that they are unable to leave their homes because of rampant drug violence in the streets. Although we have cut in half the all time high of 482 homicides in 1991, the murder of 241 people in 2001 is still unacceptably high. Crack cocaine trafficking remains a major problem here.
Federal cocaine sentencing policy should specifically reflect the greater violence associated with crack as compared to cocaine powder. Although the reasons for the link are not well defined, crack cocaine is clearly more closely associated than powder cocaine with systemic violence. Crack offenders are more frequently associated with weapons use than powder cocaine offenders. For example, in FY 2000, weapons were involved in 10.6% of federal powder convictions, and 21.3% of federal crack convictions (making it the drug offense most likely to involve a weapon4). Federal crack offenses are also more frequently associated with violence and bodily injury than powder cocaine offenses.
Some have argued that the violence can be addressed separately as a sentencing enhancement. That is not enough. It will not be able to account for all of the differences, both because of the systemic nature of some of the harms and the problems of proof in individual cases. Enhancements for violence by individual traffickers would only address a portion of the systemic violence and crime of the crack trade. We cannot know in each individual defendant's case exactly how many of his customers' lives have been destroyed by resorting to prostitution to finance their habit, nor can we know precisely how many innocent neighbors were robbed to buy his wares. But we are certain that is precisely what is happening. The evidence is clear: Crack is associated with an increase in robbery, theft, and prostitution to finance crack use. Let me cite just a few examples:
? One 1998 study concluded from its research that crack is the drug most closely linked to homicide trends. Crack users appear more likely than powder cocaine users to engage in drug transactions in a manner that elevates personal and aggregate risk, including possessing larger dealer networks and being more likely to use sex to finance drug-taking behavior. Also, because of the short high, buyer and seller will still be in the same area when the high wears off. Users coming off a crack high often feel an intense need for more crack, and frequently suffer from dysphoria and extreme agitation. "Combined, these situational factors elevate the potential for violence during crack transactions."5 Again, punishing individual dealers only when they possess a weapon or when they use it does not account for much of the violence they spawn. Moreover, it does not take into account the realities of drug trafficking where the drugs and the guns are often possessed by different people and one member of a gang or crew or mob may retaliate for a real or perceived harm done to another.
? The National Institute of Justice's Arrestee Drug Abuse Monitoring (ADAM) program preliminary 2000 findings reported that urinalysis revealed that high percentages of ADAM arrestees had recently used cocaine - on average, 30 percent of arrestees tested positive for cocaine. NIJ sponsored a study in 1999 to examine whether arrestees testing positive for cocaine had used crack or powder
cocaine. That study looked at six ADAM sites and found that the overwhelming majority of cocaine-positive arrestees - 65 percent - were using crack cocaine.
? In another study, 86.7% of women surveyed were not involved in prostitution in the year before starting crack use; fully one-third became involved in prostitution in the year after they began use. Women who were already involved in prostitution dramatically increased their involvement, with rates nearly four times higher than before beginning crack use.6 Because of the incidence of prostitution among crack users to finance their habit, crack cocaine smokers have been found to have rates of HIV infection as high as those among IV drug users.7
? A 2001 study found that women who used crack cocaine had "much higher than average rates of victimization" than women who did not, and were more likely to be attacked and more likely to be raped. Although the study did not compare the victimization rates with other drug-using groups, it nevertheless starkly reflects the tremendous human toll this drug takes. Among an Ohio sample of 171 non-drug injecting adult female crack users, 62% had been physically attacked since the onset of crack use. Rape was reported by 32% of the women since they began using crack, and among these, 83% reported being high on crack when the rape occurred, as were an estimated 57% of the perpetrators.8
B. Lowering Crack Penalties Will Signal A Retreat From The Battle Against Drug Abuse
But despite all of this data, perhaps the most important factor for us is the signal that lowering crack penalties will send to crack traffickers and to the victims of crack traffickers. Yes, African Americans constitute a disproportionate share of those sentenced for federal crack offenses. But as Professor Kate Stith commented, "it is distressing that [some] recognize only half" of the equation - "the denial of liberty to lawbreakers."9 There is a disparity in the race of the victims of crack offenses. Let me just cite a few illustrative studies:
? A report published by the Substance Abuse and Mental Health Services Administration in July 2001 on women in substance abuse treatment indicated that in 1998, adult women entering public treatment facilities for crack cocaine abuse were disproportionately black - 61 percent compared to 26 percent of all women entering treatment. The 1998 SAMHSA Treatment Episode Data Set indicated that smoked cocaine was the primary substance most frequently reported by black treatment admissions - 28% of black treatment admissions.
? The June 2000 Community Epidemiology Work Group (CEWG) report on trends in drug abuse reported that crack is the predominant form of cocaine in many inner city areas, including in Atlanta, Boston, and Washington D.C.
? In 1999, SAMHSA reported that:
?Blacks admitted to treatment in 1999 for cocaine abuse reported smoking as their method of use in higher proportion than in the total treatment population.
?In 1999, smoked cocaine was the method of use for 81 percent of black male cocaine admissions and 86 percent of black female cocaine admissions.
? The 2000 CEWG report indicated that African Americans predominate among cocaine emergency department mentions - including both powder and crack - in 12 of the 20 CEWG cities in the Drug Abuse Warning Network - ranging from 10% in Phoenix to 72 percent in Washington, D.C.
These and many other statistics and studies tell the story of the devastation that cocaine, and crack cocaine specifically, bring to the nation and particularly its minority communities. Lowering crack penalties now would simply send the wrong message - that we care less about the people and the communities victimized by crack. It is something that we simply cannot support. Further, lowering crack penalties is inconsistent with a rejuvenated national fight against illegal drug use. As we indicate in the National Drug Control Strategy, effective drug control policy, reduced to its barest essentials, has just two elements: modifying individual behavior to discourage and reduce drug use and addiction, and disrupting the market for illegal drugs. Lowering crack penalties fails on both counts.
We recognize that this Commission and many others have been concerned that current federal cocaine sentencing policy tacitly directs federal enforcement resources towards lower-level drug traffickers. We ourselves have been increasingly concerned about ensuring that we invest scarce federal drug enforcement resources wisely. With this in mind, the Attorney General recently announced a new federal drug enforcement strategy that seeks to identify and target the most significant drug and money laundering organizations operating across the country for federal investigation and prosecution. As part of this strategy, the Deputy Attorney General will personally be coordinating all of the Department's drug enforcement efforts which will placed increased emphasis on intelligence based targeting to reach the most significant drug organizations. The new strategy will also redeploy resources towards the most significant nation drug "hot spots," including such locations as the Southwest border, South Florida, Los Angeles, Puerto Rico, and New York. We think this new strategy - together with existing sentencing mechanisms such as the safety valve and substantial assistance departures - will go a long way towards addressing the concerns over less culpable offenders and federal drug sentencing policy.
We believe it would be more appropriate to address the differential between crack and powder penalties by recommending that penalties for powder cocaine be increased. As you know, under current law, a defendant who traffics in 500 grams of powder cocaine faces a five-year mandatory minimum sentences while someone who traffics in 5 grams of crack cocaine faces the same penalty. Five hundred grams of powder cocaine represents between 1,000 and 5,000 doses while 5 grams of crack cocaine represents approximately 50 doses. Comparison of dosage units - as well as price - for the current mandatory minimum levels for powder cocaine with those of other similarly dangerous drugs suggests that increasing powder cocaine penalties is justified to reduce the current sentencing differential.
C. The Realities Of Drug Trafficking Counsel Against Reducing The Penalties For Crack
In a city like ours, crack cocaine is distributed at the street level by gangs, not by individual entrepreneurs. It is simply not safe to be out there alone. Crack cocaine networks are very territorial and independent salesmen would not -- do not -- last long. Several people work together, sometimes sharing a common stash, taking turns waiting on customers, or dividing up the territory into smaller units. They may return to a house where they process the crack cocaine to resupply when they run out or run low, but they generally do not keep quantities in excess of that which would qualify for the mandatory minimum on them. As a consequence, street-level dealers, like Donzell McCauley, are generally caught with relatively low quantities of crack cocaine. This does not tell the whole story of how much they sold on given day or given week, or how much their associates have sold, or how much is in a stash house. Raising the quantity for which a mandatory minimum sentence could be imposed from 5 grams to 25 grams would only put more crack cocaine on the street and would make it more readily available in those neighborhoods that have already suffered the most because of the crack cocaine trade.
It would also make prosecution of gangs and gang violence more difficult. Let me be clear, a 5-year mandatory minimum for someone who has 5 grams (about 50 doses) of crack cocaine for sale is warranted by that conduct alone, a 10-year mandatory minimum for someone who has 50 grams (about 500 doses) of crack cocaine is warranted by that conduct alone.
But beyond that, successful prosecutions of violent crack cocaine distribution networks are built one drug dealer at a time. Without significant punishment available, there is little incentive to provide information to the authorities. If they are not going to prison or not going for any significant amount of time, it does not make sense to risk life and limb to cooperate. 10
In sum, the overall impact of reducing penalties for crack cocaine would be to permit crack cocaine distribution networks to flourish, to reduce the quality of life in those neighborhoods where we have successfully combatted crack cocaine gangs, and to increase the homicide rate and the violence that we have been fighting so hard to reduce. Instead, Congress can reduce the disparity between the penalties for crack and powder cocaine by lowering the threshold quantities for powder cocaine.11
D. Our Position Is Supported By Other Law Enforcement
It significant that our position on federal cocaine sentencing policy is supported by other major law enforcement organizations. At a hearing held by the Sentencing Commission earlier this year, William Nolan, the Chair of the National Legislation Committee of the Fraternal Order of Police, urged the Commission not to reduce federal crack cocaine penalties. Mr. Nolan stressed the need for Federal leadership in the fight against illegal drugs.
"Although our nation has seen an across-the-board reduction in crime rates in recent years, it is still true that illegal drugs have a devastating impact on society as a whole. It is also clear that the Federal Government, which has available resources and policies in place to effectively investigate, apprehend, and punish drug offenders, must continue to take the lead in providing harsh penalties for drug-related offenses. The Administration, Congress, and the Commission must continue to send the message to drug dealers and traffickers that the Federal Government will fiercely protect the most vulnerable members of our society and will severely punish those who seek to exploit them."
The key point of Mr. Nolan's testimony was that the federal government is the leader in the fight against illegal drug abuse, and the reduction in federal crack cocaine penalties would indicate a failure of leadership.
William Berger, the President of the International Association of Chiefs of Police, also commented to the Commission his belief - and that of the IACP - that crack penalties should not be reduced. Mr. Berger, a law enforcement officer, executive, and police chief in the metropolitan Miami area for over 30 years, stressed the devastation and horror suffered by families and communities as a result of the sale and use of crack and powdered cocaine. While recognizing the concerns that have been identified over the difference in the penalty levels for crack and powder cocaine, Mr. Berger concluded,
"I do not believe that the Sentencing Commission should take any steps that would weaken the existing penalties for possession and sale of crack cocaine. Rather, it is my belief that the current threshold limits for powdered cocaine should be reduced so that they more closely track those for crack cocaine. In this fashion, the Commission would achieve the goal of reducing or eliminating any disparity between crack and powdered cocaine, while at the same time ensuring that those who participate in the sale and use of these illegal narcotics are penalized in a manner appropriate to the crime they commit."
The views of Mr. Nolan, Mr. Berger, and the thousands of police officers and chiefs of police they represent - the people on the front lines of the fight against illegal drugs - should carry great weight in this debate over federal cocaine sentencing policy.
We appreciate the chance to share our views on this important subject. We think the Congress should be guided by the words of President Bush: "We must reduce drug use for one great moral reason: Over time, drugs rob men, women, and children of their dignity and of their character. Illegal drugs are the enemies of ambition and hope. When we fight against drugs, we fight for the souls of our fellow Americans." We think all Americans, should continue to fight as hard as we can to reduce illegal drug use. We think the Sentencing Commission's recommendations are misguided and are inconsistent with a vigorous fight to reduce illegal drug use.
Thank you again for inviting me to be here, I would appreciate it you would make my written testimony a part of the record in this case. I'd be happy to answer any questions you may have.