ORAL ARGUMENT NOT YET SCHEDULED
BRIEF FOR APPELLANT
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 92-3229
UNITED STATES OF AMERICAAPPELLEE,
v.
xxxxxxx E. xxxxxxx APPELLANT,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
A.J. KRAMER
Federal Public Defender
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
Michael C. Wallace, Sr.
Assistant Federal Public Defender
Counsel for Appellant
Criminal No. 92-0135-01
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
In accordance with this Court's General Rule 11(a)(1), appellant hereby certifies the following:
Defendant-appellant xxxxxxx xxxxxxx and the United States of America appeared below and are the only parties before this Court.
Mr. xxxxxxx seeks review of the following rulings made during the trial of this case before the Honorable Norman Holloway Johnson, United States District Judge for the District of Columbia:
First, that the evidence was legally sufficient to support an inference of intent to distribute beyond a reasonable doubt [Tr. 122-124].
Second, that the substance in question was cocaine base, despite testimony that it lacked the hydroxyl radical [Tr. 120-121].
This case on review has never been before this Court or any other court. Counsel is unaware of any other related cases pending in this court or any other court.
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES i
TABLE OF AUTHORITIES iii
STATUTES 1
JURISDICTION 1
ISSUES PRESENTED 1
STATEMENT OF THE CASE 2
STATEMENT OF FACTS 2
ARGUMENT 8
I.THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL JUDGE'S FINDING OF INTENT TO DISTRIBUTE, WHICH WAS EXPLICITLY BASED UPON NOTHING MORE THAN MR. xxxxxxx'S POSSESSION OF 24 GRAMS OF ALLEGED COCAINE BASE AND PURE SPECULATION ABOUT WHAT HE MIGHT HAVE DONE WITH IT. 8
II.THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FINDING THAT THE SUBSTANCE IN QUESTION WAS COCAINE BASE, WHERE THE GOVERNMENT CHEMIST TESTIFIED THAT IT LACKED THE HYDROXYL RADICAL, WHICH THIS COURT HAS HELD IS THE DISTINGUISHING CHARACTERISTIC OF COCAINE BASE, AND THE GOVERNMENT FAILED TO PROVE THAT THE SUBSTANCE FIT ANY OTHER SCIENTIFICALLY ACCEPTED DEFINITION OF COCAINE BASE OR THAT THE CHEMIST PERFORMED ANY SCIENTIFICALLY ACCEPTED TEST IN FINDING COCAINE BASE. 13
CONCLUSION 18
CERTIFICATE OF SERVICE 19
TABLE OF AUTHORITIES
CASES
Austin v. United States, 382 F.2d 129 (D.C. Cir. 1967)8
Craig v. United States, 528 A.2d 567 (D.C. App. 1987)13
Kolender v. Lawson, 461 U.S. 352 (1983)17
Schmuck v. United States, 489 U.S. 705 (1989)13
Turner v. United States, 396 U.S. 398 (1970)11, 16
United States v. Brown, 859 F.2d 974 (D.C. Cir. 1988)Passim
United States v. Cyrus, 890 F.2d 1245 (D.C. Cir. 1989)14
United States v. Espinosa, 827 F.2d 604 (9th Cir. 1987)11
United States v. Foster, 783 F.2d 1087 (D.C. Cir. 1986)8
United States v. Franklin, 728 F.2d 994 (8th Cir. 1984)11, 12
United States v. Jackson, 968 F.2d 158 (2d Cir. 1992)17
United States v. Lam Kwong-Wah, 966 F.2d 682 (D.C. Cir. 1992)12
United States v. Latham, 874 F.2d 852 (1st Cir. 1989)12
United States v. Long, 905 F.2d 1572 (D.C. Cir.),
cert. denied, 111 S.Ct. 365 (1990)8
United States v. Mather, 465 F.2d 1035 (5th Cir. 1972)11
United States v. Mendoza, 722 F.2d 96 (5th Cir. 1983)11
United States v. Michael, 788 F.Supp. 1 (D. D.C. 1992)13, 15, 16
United States v. Owens, 344 F. Supp. 1355
(E.D. Wis. 1972), aff'd, 475 F.2d 759 (5th Cir. 1973)12
United States v. Puryear, 940 F.2d 602 (10th Cir. 1991)13
United States v. Teffera, No. 91-3223, Slip Op. at 5
(D.C. Cir., February 19, 1993)8
United States v. Turner, 928 F.2d 956 n.1 (10th Cir. 1991)16
STATUTES
18 U.S.C. § 32311
21 U.S.C. § 841(a)(1)2, 17
21 U.S.C. § 844 12, 13
28 U.S.C. § 12911
RULES
Fed. R. App. P. 4(b)1
Fed. R. App. P. 28(f)1
D.C. Cir. Rule 11(a)(3)1
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
xxxxxxx E. xxxxxxx,
Defendant-Appellant.
_____________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________________
BRIEF FOR DEFENDANT-APPELLANT
_____________________________________________
Pursuant to Fed. R. App. P. 28(f) and D.C. Cir. Rule 11(a)(3), pertinent statutes and rules are set forth in the Addendum to this brief.
The District Court had jurisdiction under 18 U.S.C. § 3231. A timely notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction under 28 U.S.C. § 1291.
1. Whether the evidence was legally insufficient to support the trial judge's finding of intent to distribute, which was explicitly based upon nothing more than Mr. xxxxxxx's possession of 24 grams of alleged cocaine base and pure speculation about what he might have done with it.
2. Whether the evidence was legally insufficient to support the finding that the substance in question was cocaine base, where the government chemist testified that it lacked the hydroxyl radical, which this Court has held is the distinguishing characteristic of cocaine base, and the government failed to prove that the substance fit any other scientifically accepted definition of cocaine base or that the chemist performed any scientifically accepted test in finding cocaine base.
A. Proceedings below
Appellant, xxxxxxx xxxxxxx, was charged in a one-count indictment alleging possession with intent to distribute of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The case was tried without a jury, the Honorable Norman Holloway Johnson, United States District Judge for the District of Columbia, presiding.
The court denied appellant's motion for judgment of acquittal at
the conclusion of the government's case in chief and again when the
defense rested. The court rendered a verdict of guilty and Mr.
xxxxxxx was adjudged convicted of possession with the intent to
distribute cocaine base. [Tr. 125; A. 53]
On September 25, 1992, Mr. xxxxxxx appeared for sentencing. The court sentenced him to a period of sixty months in the custody of the Bureau of Prisons, to be followed by five years of supervised probation. He was also ordered to pay a special assessment fee of $50.00; no fine was imposed. [A. 53]
On February 10, 1992, Mr. xxxxxxx was detained and subsequently
arrested at the Hope Village halfway house, in the District of
Columbia [Tr. 10, 33] for possessing a controlled substance.
Mr.
xxxxxxx was a resident-inmate (on work-release) at the facility.
[Tr. 127] Wayne Bostic, a security officer employed at Hope
Village, testified that around 7:45 on the evening of February 10,
he was in charge of quarters at building 2840. [Tr. 11, 12] In
charge of quarters, he explained, meant being responsible for the
count and the search of the residents as they returned to the
facility. [Tr. 11-12] Bostic stated that when Mr. xxxxxxx
returned to the halfway house from work that evening, Bostic
instructed him to "empty his pockets" and take off his coat, and
Mr. xxxxxxx complied. [Tr. 13] After Mr. xxxxxxx emptied his
pockets, the officer searched the coat and found "contraband" in
its pocket. [Tr. 13]
Bostic testified that he found a white, hard substance, "one big one and a few small ones," and that they were all inside a single plastic bag. [Tr. 14, 15, 20] Bostic acknowledged that the substance appeared to have been broken up. [Tr. 29] When the substance was found, Mr. xxxxxxx looked surprised and said it was soap and was not his. [Tr. 15] Bostic thought it was crack cocaine because of "where [he] grew up" and because he had seen the substance on television programs such as "Forty-eight Hours," "Prime Time Live," and "Sixty Minutes." [Tr. 28] Administrative Officer Bell took charge of the suspected narcotics until the police arrived. [Tr. 17, 19]
Officers Walker and Patterson, of the Metropolitan Police Department, went to Hope Village and took custody of the narcotics and Mr. xxxxxxx. [Tr. 18, 22] Officer Walker testified that the plastic bag contained six rocks of the white substance. [Tr. 38] He took the substance to the Seventh District police station where it was tested by Vice Officer Ward. [Tr. 38] The substance was sent to the Drug Enforcement Administration laboratory for analysis. [Tr. 104]
Elizabeth Bechtold, a forensic chemist with the Drug Enforcement Administration, testified that she analyzed the substance in question and found it to be cocaine base, eighty-seven percent pure, weighing 24.33 grams. [Tr. 76, 77] Ms. Bechtold acknowledged on cross-examination, however, that the substance she analyzed did not contain a hydroxyl radical. [Tr. 80] She did not state what she had found to be the substance's chemical composition, offer any definition of cocaine base, or specify what test she had performed.
The government called Officer David Stroud of the Metropolitan Police Department. Before trial, the defendant had filed a motion in limine to preclude Stroud's testimony or to curtail certain aspects of it. [A.2] The motion in limine was denied. [Tr. 88] During the trial, Mr. xxxxxxx stipulated to Mr. Stroud's expertise with respect to the processing, packaging, and sales of illicit drugs. [Tr. 90] Counsel objected to any testimony by Stroud on drug use, primarily because it would be irrelevant. [Tr. 90-92]
Over objection that it was speculative and irrelevant, Stroud testified that cocaine base is usually sold in $20 pieces at street level and that the 24 grams indicated in the lab report could be divided into 162 such pieces. [Tr. 84, 93]. He then was permitted to state, over the same objection, that those rocks "would be packaged in ziplock plastic bags." [Tr. 94] He went on to assert that the 162 ziplocks would have a street value of $3240. [Tr. 94] He concluded this line of testimony by opining, in response to a question based on this hypothetical packaging, that the drugs were "not meant for personal use," but rather, "for possession with intent to distribute." [Tr. 94]
Officer Stroud explained that that amount of cocaine (apparently in bulk) would have cost between $1200 and $1300, with the buyer-reseller standing to make a profit of about $2200 on street level distribution. [Tr. 95] He gave his opinion that "hard core crack addicts" would purchase for personal use at most four to five grams at a time, for $400 to $500, because in his experience they would not have "regular jobs in a lot of cases" and thus would not have enough money to buy more. [Tr. 95-95] The court apparently sustained counsel's objection to the testimony about jobs, but deemed the rest of it "all right." [Tr. 95] Stroud then was permitted to testify that in his experience hard core crack addicts had to sell drugs for somebody else to get money to buy their own crack. [Tr. 97]
Officer Stroud admitted on cross-examination that it was cheaper to purchase cocaine base in bulk form. [Tr. 101] He further admitted that he did not know the defendant, his consumption habits, or the facts and circumstances of this case. [Tr. 101-102] And he acknowledged that the most common packaging for street level distribution of cocaine base is in little individualized ziplock bags [Tr. 102], none of which had been found in Mr. xxxxxxx's possession.
At the conclusion of the government's case, the defense submitted a written motion for judgment of acquittal, which counsel renewed after resting (without presenting additional evidence). [Tr. 100, 118; A. 4] In oral argument of the motions, defense counsel pointed out that the government had elicited no expert testimony about possession of drugs inside a prison system, and that there was no evidence apart from quantity, which has been held insufficient in itself, to support the inference of intent to distribute. [Tr. 111-113] Defense counsel also cited United States v. Brown, 859 F.2d 974 (D.C. Cir. 1988) in support of the argument that by definition, cocaine base must contain the hydroxyl radical, which the government chemist testified was not present in the substance tested. [Tr. 110-111, 113-114]
The prosecutor contended that the hypothetical packaging and profit to be made from the quantity of the substance seized was sufficient to support the inference of intent to distribute, and he argued that the chemist's finding of cocaine base was sufficient because the legal definition of cocaine base was "still in a state of flux." [Tr. 115-116]
In orally denying the motions and finding Mr. xxxxxxx guilty, the trial court made the following significant findings:
1. that the trained chemist's testimony was sufficient to prove
beyond a reasonable doubt that the seized substance was cocaine
base unless the Court of Appeals should state otherwise [Tr. 120-121]
;
2. that quantity standing alone would be insufficient to prove intent to distribute, but that this case presented "a lot more than that," including "all of the circumstantial evidence" and "some direct evidence" [Tr. 122];
3. that the six pieces of the substance as it was found constituted "more than just quantity" [Tr. 122];
4. that the fact that the six pieces were in a "plastic baggie" was "circumstantial evidence that this is designed for distribution" [Tr. 122];
5. that defense counsel had been correct in arguing that Stroud's testimony was unnecessary and added nothing to the case [Tr. 122-123]; but, nevertheless,
6. that the court, "being fully aware of how some drugs are sold in the city," was "inclined to believe" that the more than $1000 bulk value of the rocks was "circumstantial evidence that this substance was designed to be distributed" [Tr. 123];
7. that the potential of 24 grams to be distributed in about 170 $20 rocks was also "good circumstantial evidence" of intent to distribute [Tr. 123];
8. that neither large sums of money nor seeing 170 individual packages were necessary for the court to "know that 24 grams would normally result in that" [Tr. 124]; and
9. that "it was clearly an amount that this Court would find would not be consistent with personal use," but, rather, with intent to transfer, with or without "financial interest" [Tr. 124].
The court entered a verdict of guilty against Mr. xxxxxxx. [Tr. 125]
POINT I
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL JUDGE'S FINDING OF INTENT TO DISTRIBUTE, WHICH WAS EXPLICITLY BASED UPON NOTHING MORE THAN MR. xxxxxxx'S POSSESSION OF 24 GRAMS OF ALLEGED COCAINE BASE AND PURE SPECULATION ABOUT WHAT HE MIGHT HAVE DONE WITH IT.
A motion for judgment of acquittal "must be granted when the
evidence . . . is such that a reasonable juror must have a
reasonable doubt as to the existence of any of the essential
elements of the crime." Austin v. United States, 382 F.2d 129, 138
(D.C. Cir. 1967) (emphasis in original); see also United States v.
Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986). While a reviewing
court assesses the evidence in the light most favorable to the
government, it must at the same time ensure that the fact finder's
inferences are based on evidence, and not "mere speculation."
United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.), cert.
denied, 111 S.Ct. 365 (1990); quoted in United States v. Teffera,
No. 91-3223, Slip Op. at 5 (D.C. Cir., February 19, 1993). In this
case, the only actual evidence supporting a possible inference of
intent to distribute was the weight of the alleged cocaine base--about 24 grams--found in Mr. xxxxxxx's coat pocket. All the
ostensibly additional factors discussed by the judge were simply
conjectural, based on that weight,
which was too small to permit
reasonable rejection of the possibility of possession for personal
use. Absent from this case were any of the other commonly alleged
indicia of drug dealing--apparent transactions, small ziplock bags,
a large amount of cash, a scale, a telephone pager--but the judge
took no account of this conspicuous lack of proof. The judge also
ignored significant facts that pointed to the possibility of
possession for personal use and that now compel the conclusion that
the evidence was legally insufficient to support Mr. xxxxxxx's
conviction.
Mr. xxxxxxx was not at all like the typical possessor of drugs intended for street distribution--the subject of Officer Stroud's expert testimony. Mr. xxxxxxx was not free to come and go on the streets as he pleased. He was an inmate in a work release program, a resident in a correctional facility. Wayne Bostic, the security officer, was responsible for making sure that the inmates did not flee from custody and did not bring contraband into the facility when they returned from work. In these circumstances, it was most unlikely that Mr. xxxxxxx was operating as a seller of drugs on the streets, which would have required risking discovery and arrest every time he returned to Hope Village and was searched. And given the routine searches and the fact of Mr. xxxxxxx's custody, the drugs found in his coat were far more likely meant for his own use than for distribution within the facility.
Officer Stroud testified that in his experience, the largest quantity a hard core crack user would buy for his own use was four to five grams at a time. Stroud explained this, however, not by suggesting that such a user would be disinclined to want more, but by surmising that he would be unable to afford more, because he probably would not have a job. The witness did not consider the very different factors that would influence addicted inmates in work release facilities, who not only have jobs, but also have a particular motivation to keep enough drugs "stashed" in their places of confinement to enable them to pass through most of the daily entry searches without risk.
Of course, the prosecutor was content to have Stroud hypothesize
merely about street distribution, although, as defense counsel
argued, it was totally irrelevant. The judge ultimately seems to
have acknowledged that Stroud's testimony had practically no
evidentiary value in this case, but then, inexplicably, she failed
to see beyond the narrow limits of that testimony. She supported
her verdict solely by speculation about how the 24 grams, which
happened to have been broken up into six pieces of no apparently
significant size, might have cost more than $1000 and "would
normally" have been distributed as about 170 rocks selling for $20
apiece. She took no account of the fact that the conditions of Mr.
xxxxxxx's custody could have given him both the incentive and the
means to buy drugs in bulk for his own use.
In short, she based
the verdict on nothing more in the evidence than the weight of the
drugs.
In Turner v. United States, 396 U.S. 398, 422-423 (1970), the Supreme Court held that a heroin dealer's possession of a tinfoil package containing 14.68 grams of a mixture containing cocaine was insufficient to support the inference that he intended to sell it rather than use it himself. Here, there was no evidence of drug trafficking apart from the substance itself, and the weight of 24 grams was far from great enough, particularly in light of Mr. xxxxxxx's circumstances, to compel an inference of intent to distribute. Contrast, e.g., United States v. Espinosa, 827 F.2d 604, 615 (9th Cir. 1987) (69 pounds of cocaine); United States v. Mendoza, 722 F.2d 96, 103 (5th Cir. 1983) (30 pounds of cocaine); United States v. Mather, 465 F.2d 1035, 1038 (5th Cir. 1972) (198 grams of cocaine).
In a case where the defendant possessed 35 grams of cocaine,
potentially divisible into about 140 dosage units with a street
value of $3000, the weight was held insufficient as a matter of law
to prove intent to distribute. United States v. Franklin, 728 F.2d
994, 1000 (8th Cir. 1984).
And more recently, the First Circuit
held that mere possession of an ounce (about 28 grams) of cocaine
did not warrant an inference of such intent. United States v.
Latham, 874 F.2d 852, 863 (1st Cir. 1989). We have found no
decisions of this Circuit that hold otherwise with respect to
comparable weights of narcotics, where other evidence of intent to
distribute is lacking. Accordingly, the judgment convicting Mr.
xxxxxxx of possession of a controlled substance with intent to
distribute must be reversed.
The government may contend that even if Mr. xxxxxxx's conviction
for the charged offense cannot stand, judgment may be entered
convicting him of simple possession of cocaine base as a lesser
included offense. See Franklin, supra, 728 F.2d at 1001. We would
argue to the contrary that because this Court has held that weight
is not a definitional element but a sentencing factor under 21
U.S.C. § 841,
it must logically follow that the identity of the
controlled substance is not a statutory element of that offense,
either, and, therefore, that simple possession of more than five
grams of cocaine base, which is a distinct felony requiring proof
of both weight and identity of the substance under 21 U.S.C. § 844
as amended since Franklin, is not a lesser included offense.
The
only lesser offense that would be included in the instant
conviction would be the misdemeanor of simple possession of a
controlled substance, which is defined in the first part of § 844.
POINT II
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FINDING THAT THE SUBSTANCE IN QUESTION WAS COCAINE BASE, WHERE THE GOVERNMENT CHEMIST TESTIFIED THAT IT LACKED THE HYDROXYL RADICAL, WHICH THIS COURT HAS HELD IS THE DISTINGUISHING CHARACTERISTIC OF COCAINE BASE, AND THE GOVERNMENT FAILED TO PROVE THAT THE SUBSTANCE FIT ANY OTHER SCIENTIFICALLY ACCEPTED DEFINITION OF COCAINE BASE OR THAT THE CHEMIST PERFORMED ANY SCIENTIFICALLY ACCEPTED TEST IN FINDING COCAINE BASE.
In United States v. Brown, 859 F.2d 974 (D.C. Cir. 1988), this Court rejected a challenge to the term "cocaine base" as used in 21 U.S.C. § 841(b) as unconstitutionally vague. The Court relied on the government's adoption of "the nomenclature of organic chemistry which classifies compounds with the hydroxyl radical (OH-) as a base and those with the hydrogen nucleus (H+) as an acid. 'Cocaine base' therefore is any form of cocaine with the hydroxyl radical; 'cocaine base' excludes, for example, salt forms of cocaine." Id. at 975-76. In a later decision rejecting other constitutional challenges to the cocaine/"cocaine base" distinction, United States v. Cyrus, 890 F.2d 1245 (D.C. Cir. 1989), the Court reiterated that "'the fact that "cocaine base" may have various interpretations on the street does not make it incapable of objective definition by chemical analysis.'" Id. at 1248 (quoting Brown, 859 F.2d at 976).
Here, the indictment charged possession of cocaine base, but the government chemist merely testified on direct examination that she had performed unspecified tests and determined that the substance in question was 87 percent pure cocaine base. [Tr. 75-76] She did not testify that the substance had any particular chemical characteristics, or that she was aware of any particular chemical definition of cocaine base. On cross-examination, she acknowledged that the substance did not have a hydroxyl radical. [Tr. 80] She commented, "That is not relevant with an alkaloid," and "It's impossible to have a hydroxyl radical." [Tr. 79-80] However, although she said, "I do an identification procedure that identifies exactly what the molecular structure is," she did not specify the procedure or describe the molecular structure found in this instance. [Tr. 80]
The prosecutor did not take the opportunity to let the chemist explain her findings further on redirect examination. In opposing counsel's argument on the insufficiency of the proof that the substance was cocaine base, he merely relied on the chemist's conclusion as an expert. [Tr. 115-116] He questioned whether the Brown decision was applicable, commenting that it "set a legal definition that is still in a state of flux." [Tr. 116]
The judge acknowledged that defense counsel had "rightfully" argued "that since this substance did not contain a substance that a panel of judges in our Court of Appeals said all cocaine base must contain that this must not be cocaine base" [Tr. 120], but she did not agree with that conclusion. Instead, she reasoned as follows:
I would take the same position as Judge Hogan. In fact, I wouldn't go as -- I really wouldn't go that far. I would simply say that I am more inclined to accept the testimony of a forensic chemist who has been specifically trained in analyzing illegal narcotic substances or controlled substances and who knows the appropriate tests and how those tests affect his or her determination as to whether or not it is a controlled substance and what the controlled substance is. I would accept that person's testimony and I do accept her testimony here.
But if that is insufficient, then I would go along with Judge Hogan and take the position that it's cocaine base, and only if the Court of Appeals says it isn't cocaine base, that it must contain that additional substance that you are talking about, this is cocaine base, all right.
So I would say that the first element has been proved by the government beyond a reasonable doubt.
[Tr. 120-121]
The judge below obviously had in mind Judge Hogan's decision in United States v. Michael, 788 F.Supp. 1 (D. D.C. 1992) which, as noted above, is being reviewed by this Court in a pending appeal. We contend that Michael was wrongly decided, but in any event, this case is clearly distinguishable in Mr. Galteau's favor. In Michael, the government chemist testified that she used "Fourier transform infrared spectroscopy," which she described, to determine that the substance was cocaine base, and she testified that although she did not test for hydroxyl radical bases, she did find hydrogen molecules. [Brief for Appellee at 6, United States v. Michael, Appeal No. 92-3108] Here, there was not even such a minimal showing that the chemist had based her conclusion on a scientific alternative to determining that the hydroxyl radical was present, so the judge's reliance on Michael was not factually justified.
Nor was the judge below correct in believing that she could simply rely on the unexplained opinion of an expert as to the identity of the substance. Defense counsel's explicit questions eliciting the absence of the hydroxyl radical, the very chemical characteristic this Court has recognized as being peculiar to cocaine base, manifestly called the identity of the substance into question. Under these circumstances, the government clearly had the burden to establish that identity as cocaine base by some evidence more substantial than a perfunctory conclusion. In Michael, the judge declared that the expert was "presumed, unless shown otherwise, to know the difference between cocaine base and cocaine bichloride" 788 F.Supp. at 4. But he cited for that proposition United States v. Turner, 928 F.2d 956, 960 n.1 (10th Cir. 1991), where there was no evidence presented to support the conclusion that the substance might have been inaccurately classified. Here (as in Michael), the testimony that the hydroxyl radical was absent constituted, under Brown, at least prima facie evidence of inaccuracy, and it precluded reliance on any abstract presumption of the correctness of expert testimony.
If the government did not have the obligation to prove the
presence of scientifically recognized chemical characteristics in
alleged cocaine base when its identity was challenged in good
faith, it follows that 21 U.S.C. § 841 is unconstitutionally vague
both on its face and as applied to Mr. xxxxxxx, because it gave
him far from adequate notice of the nature of the prohibited
conduct and the charge against which he had to defend. See
Kolender v. Lawson, 461 U.S. 352, 357-358 (1983). It was the
capability of "objective definition by means of chemical analysis"
found by the Brown Court that justified its rejection of the
defendant's vagueness claims. 859 F.2d 976. Similarly, in United
States v. Jackson, 968 F.2d 158, 163 (2d Cir. 1992), the court
held, "we believe that 'cocaine base' has a chemical definition
that should prevent arbitrary and discriminatory enforcement by
courts or prosecutors." The Jackson court did not purport to carve
a definition in stone, but its conclusion clearly rested on the
evidence presented in that case, which included expert testimony
about the agreement within the scientific community as to the
definition of "cocaine base," about a particular chemical formula,
and about the particular tests used to identify the substance in
question. Id. at 161-163.
Here, in dramatic contrast, there was
no such evidence; the prosecutor apparently believed he was excused
from presenting any because the Brown definition was "in a state of
flux." That belief, and the court's effective adoption of it, were
erroneous.
For the foregoing reasons, Mr. xxxxxxx respectfully urges the Court to reverse his conviction and direct the entry of an acquittal, or, in the alternative, to direct the entry of a judgment convicting him of misdemeanor possession of a controlled substance and resentencing him to the prison time he has already served.
Respectfully submitted,
A.J. Kramer
Federal Public Defender
___________________________
Michael C. Wallace, Sr.
Assistant Federal Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20001
(202) 208-7500
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two copies of the foregoing Brief for Appellant and one copy of the Joint Appendix for Appellant was served upon John Fisher, United States Attorney's Office, Appellate Division, Room 4229, 555 4th Street, N.W., 20001 on this 10th day of March, 1993.
________________________
Michael C. Wallace, Sr.
Assistant Federal Defender
ADDENDUM
TABLE OF CONTENTS
STATUTES
18 U.S.C. § 32311
21 U.S.C. § 841(a)(1)2
21 U.S.C. § 844 3
28 U.S.C. § 12914
RULES
Fed. R. App. P. 4(b)5
Fed. R. App. P. 28(f)6
D.C. Cir. Rule 11(a)(3)7
APPENDIX
TABLE OF CONTENTS
IndictmentA-1
Motion in LimineA-2
Motion for Judgment of AcquittalA-4
Transcript TrialA-7
JudgmentA-53
Notice of AppealA-57
Docket SheetA-62
ORAL ARGUMENT NOT YET SCHEDULED
APPENDIX FOR APPELLANT
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. xx-3229
UNITED STATES OF AMERICA APPELLEE,
v.
xxxxxxx xxxxxxx APPELLANT,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
A.J. KRAMER
Federal Public Defender
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
Michael C. Wallace, Sr.
Assistant Federal Public Defender
Counsel for Appellant
Criminal No. 92-0135-01