United States v. Brisbane, George

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 20, 2004 Decided May 11, 2004

No. 03-3057

UNITED STATES OF AMERICA,

APPELLEE

v.

GEORGE BRISBANE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(02cr00315–01)

Adam H. Kurland, appointed by the court, argued the

cause and filed the briefs for appellant.

John P. Mannarino, Assistant U.S. Attorney, argued the

cause for appellee. On the briefs were Roscoe C. Howard,

Jr., U.S. Attorney, and John R. Fisher, Barbara J. Valliere,

and Mary B. McCord, Assistant U.S. Attorneys.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: SENTELLE, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: This appeal from a criminal

conviction exposes a problem in the provisions setting penal-

ties for cocaine offenses. A jury found George Brisbane

guilty of distributing five or more grams of ‘‘cocaine base,’’ in

violation of 21 U.S.C. § 841. Because of Brisbane’s status as

a career offender, the district court sentenced him to 360

months’ imprisonment. Punishment for violating § 841 de-

pends on the weight of drugs involved in the offense. A

certain quantity of ‘‘cocaine base’’ will trigger much stiffer

penalties than an equivalent quantity of ‘‘cocaine, its salts,

optical and geometric isomers, and salts of isomers.’’ Com-

pare 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (B)(ii)(II) (‘‘subsection

(ii)’’) with 21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii) (‘‘subsection

(iii)’’). The problem is that, chemically, ‘‘cocaine’’ and ‘‘co-

caine base’’ mean the same thing.

Cocaine is a naturally occurring alkaloid – that is, a base –

found in the leaves of the coca plant.1 The leaves typically

undergo extensive processing before reaching the United

States. Processors shred the leaves and mash them with a

strong alkali (like lime), a solvent (like kerosene), and sulfuric

acid. The result is a light brown paste containing cocaine

base (cocaine in its natural alkaloid form) and a number of

other chemicals. The cocaine paste is processed with hydro-

chloric acid to create a salt, cocaine hydrochloride, a white or

1 The following sources, from which we have drawn, provide

scientific and technical information on cocaine: EDITH FAIRMAN

COOPER, THE EMERGENCE OF CRACK COCAINE ABUSE (2002); Marian

W. Fischman, Coca Paste, in ENCYCLOPEDIA OF DRUGS, ALCOHOL &

ADDICTIVE BEHAVIOR 264 (2d ed., Rosalyn Carson–DeWitt ed., 2001)

(‘‘Drug Encyclopedia’’); Marian W. Fischman, Coca Plant, in Drug

Encyclopedia at 265; Marian W. Fischman, Cocaine, in Drug

Encyclopedia at 267; PAUL M. GAHLINGER, ILLEGAL DRUGS: A

COMPLETE GUIDE TO THEIR HISTORY, CHEMISTRY, USE AND ABUSE 239–61

(4th ed. 2004); THOMAS NORDEGREN, THE A–Z ENCYCLOPEDIA OF

ALCOHOL AND DRUG ABUSE 180–85 (2002); United States Sentencing

Commission, COCAINE AND FEDERAL SENTENCING POLICY (2002).

3

off-white powder. It is usually this powder that is shipped to

the United States, where it is known colloquially as ‘‘cocaine.’’

Users generally consume powdered cocaine by snorting it.

Since cocaine hydrochloride is water soluble, the nasal mu-

cous membranes absorb the chemical, allowing it to enter the

blood stream and eventually reach the brain. Users can also

apply the powder to other mucous membranes, or dissolve it

in water and inject it intravenously. But they cannot smoke

it. The temperature at which cocaine hydrochloride evapo-

rates is higher than the temperature at which its active

ingredient breaks down.

Cocaine base, on the other hand, can be smoked. The

ability to smoke the drug is important because smoking

produces a quicker, shorter, and more intense high than

snorting. This makes it much more addictive. Smoking

cocaine paste, which contains cocaine base, is common in the

Andes but rare in the United States because cocaine is

generally imported in its powdered, nonsmokable form.

Beginning in the early 1970s, American drug dealers devel-

oped several methods to free cocaine base from cocaine

hydrochloride so that it could be smoked. The most common

method used to produce this ‘‘freebase’’ cocaine involved

flammable substances and could result in dangerous explo-

sions. This danger, along with the high price of cocaine,

limited freebase’s popularity.

In the mid–1980s, a new form of smokable cocaine became

widely available. Known by the street name ‘‘rock’’ or

‘‘crack,’’ this form was much easier to manufacture than other

forms of freebase because the process did not involve volatile

chemicals. Also, unlike the ‘‘traditional’’ method of making

freebase, the ‘‘baking soda method’’ used to make crack did

not remove impurities and adulterants present in the powder.

These characteristics combined to produce a highly addictive

form of smokable cocaine that was far cheaper than either

powder or freebase had ever been. While cost had previously

limited cocaine use to people of means, crack made it avail-

able to large numbers of young and low-income users.

4

Crack spread rapidly through several large cities. In 1986,

Congress passed the Anti–Drug Abuse Act of 1986, Pub. L.

No. 99–570, 100 Stat. 3207, without such normal deliberative

processes as committee hearings and reports. See United

States Sentencing Commission, COCAINE AND FEDERAL SEN-

TENCING POLICY 5–6 (2002) (‘‘Sentencing Commission Report’’).

Among other measures, the statute purported to impose

much higher sentences for crack than for powdered cocaine.

Id. at 4–5.

The statute established the quantities of ‘‘cocaine, its salts

TTT’’ that would trigger various penalty tiers. But rather

than describing crack by street name or manufacturing pro-

cess, the statute established lower thresholds for any ‘‘mix-

ture containing cocaine base.’’ Because ‘‘cocaine’’ and ‘‘co-

caine base’’ carry the same chemical meaning (the word

‘‘base’’ merely refers to the fact that cocaine is a base), the

statute appears ambiguous, providing two different sets of

penalties for the same offense. If the ambiguity remains

unresolved, the rule of lenity would suggest imposition of the

lower sentence. See, e.g., United States v. Ray, 21 F.3d 1134,

1140 (D.C. Cir. 1994).

Despite the fact that § 841 is the frequent subject of

judicial opinions, the issue just identified has rarely arisen,

for two reasons. The first is that the vast majority of cocaine

base prosecutions involve crack. Whatever Congress meant

by ‘‘cocaine base,’’ there can be no doubt that it meant to

include crack. United States v. Brown, 859 F.2d 974, 976

(D.C. Cir. 1988). Second, the Sentencing Guidelines define

‘‘cocaine base’’ as meaning only crack, and apply the lower

penalties to other forms of cocaine base. U.S.S.G.

§ 2D1.1(c)(D). In most cases involving cocaine base that is

not crack, the ambiguity therefore has no practical conse-

quence.

Brisbane’s case is different. After the government rested,

Brisbane moved for a judgment of acquittal, arguing that the

government had not proven the substance was crack as

alleged in the indictment. (The indictment alleged that he

distributed ‘‘cocaine base, also known as crack.’’) The gov-

5

ernment’s expert witness, a forensic chemist, testified that

the substance was 49 percent cocaine base, but she had done

no tests to determine whether it was crack and could not say

that it was. The district court ruled that the government had

failed to prove that the substance was crack, a ruling it later

characterized as a partial judgment of acquittal. But the

court ruled that the government had offered enough evidence

to support a guilty verdict for distribution of ‘‘cocaine base,’’

rejecting the defendant’s argument that ‘‘cocaine base’’ as

used in § 841 meant crack only.

Had Brisbane been sentenced under the drug sentencing

guidelines, he would have received the lower sentence for

distribution of ‘‘cocaine.’’ But Brisbane is a career offender.

The career offender guidelines determine the sentencing

range by reference to the statutory maximum sentence for

the offense of conviction. See U.S.S.G. § 4B1.1. The district

court calculated Brisbane’s sentence using 21 U.S.C.

§ 841(b)(1)(B)(iii), which provides for a maximum life sen-

tence for defendants with prior drug offenses convicted of

distributing five or more grams of ‘‘cocaine base.’’ To deter-

mine whether the evidence presented at Brisbane’s trial was

sufficient to support his conviction, we therefore must con-

front the ambiguity in § 841.

Four of the courts of appeals to consider this issue read

‘‘cocaine base’’ to include all base forms of cocaine and

‘‘cocaine, its salts TTT’’ to mean only cocaine hydrochloride.

See United States v. Barbosa, 271 F.3d 438, 461–67 (3d Cir.

2001); United States v. Butler, 988 F.2d 537, 542–43 (5th Cir.

1993); United States v. Jackson, 968 F.2d 158, 161–63 (2d

Cir. 1992); United States v. Easter, 981 F.2d 1549, 1558 (10th

Cir. 1992). Similar statements appear in dicta in this court’s

opinion in Brown, 859 F.2d at 975–76. As a purely textual

matter, this interpretation is far from convincing. Since

cocaine hydrochloride is a salt, it is covered by subsection

(ii)’s reference to ‘‘its salts.’’ Unless the word ‘‘cocaine’’ in

subsection (ii) has no meaning of its own, it must refer to

cocaine in its natural form – cocaine base. If the words in

subsection (ii) carry their ordinary scientific meaning, the

statute is unquestionably ambiguous.

6

As we have said, the rule of lenity suggests that we should

resolve ambiguities in a defendant’s favor. But before we

may apply that doctrine, we must examine the statute’s

‘‘structure, legislative history, and motivating policies.’’ Mos-

kal v. United States, 498 U.S. 103, 108 (1990) (citations

omitted). There is much evidence that Congress intended

‘‘cocaine base’’ to mean something different from ‘‘cocaine’’ –

it was targeting crack. See United States v. Edwards, 98

F.3d 1364, 1369 (D.C. Cir. 1996); Brown, 859 F.2d at 976;

Sentencing Commission Report at 4–5 & n.17; Cooper, supra

note 1, at 60–62. The legislative debates suggest that at least

some members of Congress had in mind two characteristics

that distinguished crack from older forms of cocaine. First,

unlike powdered cocaine, crack could be smoked, making it

more potent and addictive. See, e.g., Sentencing Commission

Report at 9–10. Second, crack’s low cost and ease of manu-

facture made it more widely available than other forms of

smokable cocaine, especially among the nation’s youth. See,

e.g., United States v. Booker, 70 F.3d 488, 494 n.21 (7th Cir.

1995); Sentencing Commission Report at 9–10.2

In this light, a ‘‘literal’’ approach to interpreting ‘‘cocaine

base’’ would be problematic. Congress could hardly have

intended to apply the enhanced penalties to forms of cocaine

base that are not smokable or even consumable without

further processing, while imposing the lesser penalties on

defendants dealing in similar amounts of ready-to-snort co-

caine hydrochloride. United States v. Lopez–Gil, 965 F.2d

1124 (1st Cir. 1992), illustrates the point. The defendant was

arrested with cocaine base secreted within the fibers of his

suitcase. He was using this ‘‘mixture containing cocaine

base’’ only for transport; the substance could not be con-

sumed without further processing. Id. at 1132 (Brown, J.,

concurring and dissenting in part). Nevertheless, under a

‘‘literal’’ approach, the defendant would receive a far higher

2 The Sentencing Commission Report lists five congressional

purposes for targeting crack for harsher treatment, but they all

amount to some version of these two important ones. See Sentenc-

ing Commission Report at 9–10.

7

sentence than if he had been caught with powdered cocaine

ready for retail distribution.3 See also Butler, 988 F.2d at

542 (cocaine base ‘‘soft, mushy, and a bit wet’’); United States

v. Munoz–Realpe, 21 F.3d 375, 376 (11th Cir. 1994) (cocaine

base ‘‘in liquid form’’).

In light of these unusual circumstances we therefore reject

the ‘‘literal’’ approach. There are two other options. First,

‘‘cocaine base’’ could mean only crack. By focusing on the

only form of cocaine that is both smokable and widely avail-

able, this approach comes closest to matching what appears to

be the purpose of the statute. It also aligns the statutory

definition with the guidelines definition, eliminating the po-

tential for gross disparities between the guidelines range and

both mandatory minimums and career offender sentences.

But this approach may be too narrow. At this point, crack

appears to be the only form of smokable cocaine that is cheap

and easy to manufacture. Yet as the development of crack

itself demonstrates, it is hazardous to predict what this illicit

‘‘industry’’ will come up with next. It may be that tomorrow

someone will invent a method of preparing smokable cocaine

to replace the ‘‘baking soda method’’ used to prepare crack.

See Lopez–Gil, 965 F.2d at 1134–35 (on rehearing). Given the

statute’s use of the broad term ‘‘cocaine base,’’ it is unlikely

Congress intended to limit the enhanced penalty provisions to

one manufacturing method.

The second option is that ‘‘cocaine base’’ means any cocaine

that is smokable. This is the approach the Ninth Circuit took

in United States v. Shaw, 936 F.2d 412 (1991). In addition to

crack, it includes in the definition ‘‘traditional’’ freebase co-

caine and cocaine paste.4 The Ninth Circuit’s approach

3 The Lopez-Gil court originally ruled that ‘‘cocaine base’’ meant

only crack, vacating the defendant’s sentence. 965 F.2d at 1130–31.

The court reversed itself on rehearing. Id. at 1134–35 (on rehear-

ing).

4 It is true that cocaine paste may be made into cocaine powder,

and that a defendant caught just before the conversion would

receive a higher penalty under the Ninth Circuit’s approach. This

difference comports with what we perceive to have been Congress’

8

avoids the difficulties inherent in the ‘‘literal’’ approach while

not unduly narrowing the operation of the statute. Also,

there is no question that smokability was extremely impor-

tant in distinguishing crack from powdered cocaine. But it is

also fairly clear that smokability alone would not have made

crack as compelling a legislative target. Wide availability

was also critical in distinguishing crack from its chemical

cousins. Smokable cocaine existed long before the mid–

1980s. Yet before the advent of crack, Congress did not

punish it more severely than powdered cocaine. Congress

also has never distinguished between snorting cocaine hydro-

chloride and injecting it, even though injection produces the

same short, intense, and addictive high as smoking cocaine

base. This is probably because the potential market for these

drug-taking methods is limited. Traditional freebase (smoka-

ble) cocaine is dangerous to manufacture and, like powdered

cocaine, extremely expensive; cocaine paste smoking never

caught on in the United States; and there may be a social

stigma against injecting drugs intravenously, even among

drug users.

But we need not choose between the two options because

both lead to the same result. Here the government did not

prove that the substance distributed was smokable and it did

not prove that it was crack.5 Brisbane’s conviction for violat-

ing § 841(b)(1)(B)(iii) therefore cannot stand.

There remains the issue of remedy. Distribution of ‘‘co-

caine’’ is a lesser included offense of distribution of ‘‘cocaine

base.’’ The elements of the latter offense include all the

elements of the former, plus proof that the type of cocaine is

‘‘cocaine base’’ within the meaning of subsection (iii). See

Kelly v. United States, 370 F.2d 227, 228 (D.C. Cir. 1966).

There is no doubt that the government’s evidence sufficiently

intent. The defendant would be rendering cocaine paste into a

form that Congress treated as less dangerous.

5The government argues that the chemist’s testimony, along with

other evidence, did prove the substance was crack. But the govern-

ment cannot appeal the district court’s partial judgment of acquittal.

See Sanabria v. United States, 437 U.S. 54, 64 (1978).

9

supported Brisbane’s conviction for distributing ‘‘cocaine,’’

although the evidence did not support his conviction for

distributing ‘‘cocaine base’’ as that term may be understood

under either of the options discussed above.

A court of appeals ‘‘may TTT modify TTT any judgment TTT

lawfully brought before it for review, and may remand the

cause and direct the entry of such appropriate judgment TTT

as may be just under the circumstances.’’ 28 U.S.C. § 2106.

We therefore have ‘‘the power to modify a criminal judgment

to reduce the conviction to that of a lesser included offense,

where the evidence fails to support one element of the crime

of which appellant was charged and convicted but sufficiently

sustains all the elements of the included offense.’’ Austin v.

United States, 382 F.2d 129, 142 (D.C. Cir. 1967). ‘‘[T]his

power should be exercised only when it is clear that no undue

prejudice will result to the accused.’’ Id. There is no

prejudice here. By convicting Brisbane of distributing ‘‘co-

caine base,’’ the jury necessarily concluded that the drugs

involved were some form of cocaine. The jury’s conclusion

would not have changed even if the district court had given

instructions directed at subsection (ii) instead of subsection

(iii).6

6 Brisbane has three other arguments for reversing his conviction,

none of which are persuasive. He claims the district court erred in

dismissing two jurors during the trial. The court found that one

juror had prejudged an issue in Brisbane’s favor, and that both had

discussed the case in violation of the court’s instructions and then

lied to the court about doing so. In light of the district court’s

detailed explanations for its decision and its credibility findings,

there was no abuse of discretion. Compare United States v.

Johnson, 657 F.2d 604, 606 (4th Cir. 1981) (upholding similar

dismissal), with United States v. Donato, 99 F.3d 426, 429 (D.C. Cir.

1996) (reversing when district court did not provide adequate

explanation).

Brisbane argues the district court should not have considered his

past attempt at a ‘‘walk-away’’ escape in determining his career

offender status because such an escape is not a ‘‘crime of violence’’

under the sentencing guidelines. See U.S.S.G. § 4B1.2. But noth-

10

Accordingly, we vacate Brisbane’s conviction for distribut-

ing ‘‘cocaine base’’ and remand the case to the district court

with instructions to enter a judgment of conviction for distrib-

uting ‘‘cocaine’’ and to sentence accordingly.

So ordered.

ing in the record indicates the district court relied on the escape to

determine whether Brisbane was a career offender.

Brisbane challenges the use of his two other convictions in

sentencing, arguing that Apprendi v. New Jersey, 530 U.S. 224

(1998), required the government to allege the existence of the

convictions in the indictment and to prove them to the jury beyond

a reasonable doubt. The law is otherwise. United States v. Webb,

255 F.3d 890, 897–98 (D.C. Cir. 2001).