The opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1463WMS
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the
* United States District Court
Steven W. Brown, * for the Western District
* of Missouri
Appellant. *
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Submitted: June 9, 1998
Filed: September 9, 1998
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Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit
Judges, and PANNER1, District Judge
___________
OWEN M. PANNER, District Judge.
A jury in the Western District of Missouri convicted appellant Steven W. Brown
of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846, and
possession, with intent to distribute, a controlled substance in violation of 21 U.S.C. §
841(a)(1). Brown was sentenced to serve 360 months in prison. We affirm the
1
The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.
convictions as well as the district court's denial of Brown's pre-trial motion to suppress
evidence and statements, but remand for resentencing.
BACKGROUND
The police received an anonymous tip that Brown would be arriving from St. Louis
at a certain time with five ounces of "crack" cocaine. The caller described the vehicle that
Brown would be driving, including its license number, and also identified the woman who
would be accompanying Brown. The police previously had received similar tips
concerning Brown. At the appointed hour, they waited along the highway in an unmarked
vehicle until they spotted Brown's car. Except for a few minor details, everything seemed
consistent with the information that had been received.
Police followed Brown's car, intending to stop it once backup units arrived, but he
pulled off the highway into a gasoline station. From this point onward, the police version
diverges sharply from that told by Brown and his companion. It is undisputed, however,
that the police approached Brown, issued him a Miranda warning, and told him that they
suspected he was transporting drugs. Although the police deny that Brown was in
custody, they concede that they would not have let him drive away. Police searched
Brown's vehicle and found a small quantity of marijuana in a jacket on the front seat of
the car. After taking Brown and his companion to jail, a police canine unit searched the
entire car including the engine compartment, and eventually discovered 48.70 grams of
cocaine base hidden beneath the battery. Brown was then interviewed by officers. He
admitted knowledge of the drugs and made statements aimed at exculpating his
companion.
Brown was soon released from jail. The jury heard testimony that he continued
transporting and distributing "crack" cocaine until he was re-arrested the following year.
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PRETRIAL MOTION TO SUPPRESS EVIDENCE AND STATEMENTS
The district court found that although the police had a sufficient basis to stop the
car, they did not actually do so, hence this was only an investigative stop pursuant to
Terry v. Ohio, 392 U.S. 1 (1968). The district court also found that Brown and his
companion voluntarily consented to the search of the car, and therefore denied Brown's
motion to suppress the evidence seized and the statements that he made to police
following his arrest. We review the district court's findings of fact for clear error. United
States v. Garcia, 23 F.3d 1331, 1334 (8th Cir. 1994). Whether Brown was deprived of
his rights under the Fourth and Fifth Amendments is a mixed question of law and fact that
we review de novo. Id. While we are inclined to believe that Brown was in custody, the
end result is the same. The police had a sufficient basis to stop the car, and the district
court's finding that Brown voluntarily consented to the search was not clearly erroneous.
Accordingly, the district court did not err by denying Brown's motion to suppress.
TRIAL
Brown was ordered to furnish a handwriting sample so that it could be compared
to certain incriminating documents which allegedly were in his handwriting. He refused.
At trial, the jury was informed of Brown's refusal. Brown contends that this violated his
Fifth Amendment privilege against self-incrimination. We disagree. A handwriting
exemplar is non-testimonial. Gilbert v. California, 388 U.S. 263, 266-67 (1967).
Brown's refusal to give an exemplar was not privileged, and the jury could properly
consider his refusal as evidence that the results of that testing would have been adverse.
We also hold that the district court did not abuse its discretion in denying Brown's
request for a continuance, at the close of the government's case, so that his counsel could
interview a prospective witness. Based upon the scant information that defense counsel
provided to the court, it was very unlikely that this individual could provide relevant
testimony, let alone evidence that might have affected the outcome of the trial.
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SENTENCE
Brown contends the government failed to prove that he was distributing "crack"
cocaine as opposed to some other form of cocaine base. We review for clear error the
district court's findings as to the identity of the drug, reversing only if we are left with a
definite and firm conviction that a mistake has been made. United States v. Covington,
133 F.3d 639, 643 (8th Cir. 1998).
During Brown's trial, a government chemist testified that the substance seized was
"cocaine base." However, this witness did not expressly state that the substance was
"crack" cocaine and she appeared to be unfamiliar with the process for manufacturing
crack. For purposes of the Sentencing Guidelines the term "cocaine base" is limited to the
particular form of cocaine base known as "crack" and does not include certain other
substances that a chemist would also classify as cocaine base. See United States v.
Montoya, 87 F.3d 621, 623 (2d Cir. 1996) (per curiam); U.S.S.G. Appendix C,
Amendment 487 (effective Nov. 1, 1993). Therefore, testimony that a substance
chemically is "cocaine base" does not entirely exclude the possibility that the substance
may be a form of cocaine base other than "crack."2
We nevertheless affirm the district court's finding that Brown was distributing crack
cocaine. While cocaine base can theoretically include substances other than crack, see
Montoya, 87 F.3d at 623, there was no evidence here that Brown was distributing coca
2
In United States v. Kang, 143 F.3d 379 (8th Cir. 1998), we said that for
purposes of the Sentencing Guidelines the terms "cocaine base" and "crack" are
synonymous. Id at 380. However, the context of that discussion was a plea agreement
in which the defendant admitted possessing "cocaine base" and the question on appeal
was whether he should be sentenced for possession of crack or pursuant to the
guideline that applies to other forms of cocaine. Thus, we were concerned with the
meaning of the term "cocaine base" as it is used in the Sentencing Guidelines. By
contrast, the dispute here concerns the definition of "cocaine base" from the standpoint
of a chemist.
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paste or other exotic forms of cocaine base. In addition, crack cocaine usually has a
distinctive appearance and form that makes it easy to recognize. Cf U.S.S.G. § 2D1.1(D);
United States v. Abdul, 122 F.3d 477, 479 (7th Cir. 1997). Finally, we note that among
the most knowledgeable experts on crack are those who regularly smoke it or sell it. At
trial, the government called a number of users and distributors, who each testified that the
substance they obtained from Brown was crack and offered no complaints about the
quality of the merchandise they had received. The verdict of the marketplace is strong
confirmation that Brown was selling genuine crack. Although the government's chemist
ought to have been better informed about the process for manufacturing crack, the
government was not required to prove that this batch was actually manufactured by the
sodium bicarbonate process. Abdul, 122 F.3d at 479.
Brown also argues that because the penalty for crack is so much more severe than
the penalty for other forms of cocaine,3 the government must prove the identity of the drug
by clear and convincing evidence rather than the preponderance standard applicable to
other factual questions at sentencing. Like many of our sister circuits, we previously have
at least acknowledged "the possibility that the preponderance standard the Court approved
for garden variety sentencing determinations may fail to comport with due process where,
as here, a sentencing enhancement factor becomes 'a tail which wags the dog of the
substantive offense.' " United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991),
quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986). See also United States v.
Watts, 519 U.S. 148, 117 S. Ct. 633, 637 (1997) (acknowledging divergence of opinion
within the lower courts on this question); United States v. Galloway, 976 F.2d 414, 425-
26 (8th Cir. 1992) (en banc) (acknowledging the possibility that due process may require
a higher standard of proof than a mere preponderance "if the punishment meted out
following application of the sentencing factors overwhelms or is extremely
disproportionate to the punishment that would otherwise be imposed").
3
In Brown's case, a finding that the controlled substance was crack rather than
ordinary cocaine adds approximately twenty years to the duration of his sentence, or
about a five-fold increase.
5
In Townley, we did not decide this question because we concluded that the result
in that case would be the same under either standard. Townley, 929 F.2d at 370. For the
same reason, we decline to decide that issue here. There was abundant testimony that
Brown was transporting and distributing crack, and no evidence which suggests that it was
any other substance. Even assuming, arguendo, that the clear and convincing standard
applies, the government has met its burden of proof.
Brown also challenges the district court's finding that he was responsible for
between 150 and 500 grams of crack. We will reverse the district court's determination
of the quantity of drugs only if it is clearly erroneous. United States v. Alexander, 982
F.2d 262, 267 (8th Cir. 1992). The presentence investigation report recommended that the
district court find that Brown was responsible for 150 to 500 grams. At sentencing,
however, the prosecutor told the court:
I believe that the evidence at trial established that the amount of
cocaine base or crack would be 50 grams -- more than 50 grams but
less than 150 grams. So in that respect, I would differ with -- not
differ with the presentence report, but I'm not going to bring in
witnesses to testify to those amounts that would bring it over that
amount.
So I would contend to the Court that the evidence at trial did support
a finding that there were in excess of 50 grams but less than 150
grams . . . .
(Sent. Tr. 11-12). Notwithstanding that concession, the district court entered a finding that
Brown was responsible for 150 to 500 grams.
Although the district court was not bound by the government's concession, the court
did not articulate any reason for rejecting it, or even clearly state that the court was
rejecting that concession. On this record, we have no assurance that the rejection was
intentional rather than inadvertent. We previously have held that once a defendant objects
to a factual allegation in the presentence report, the court must make (i) a finding as to the
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allegation, or (ii) a determination that no such finding is necessary because the matter
controverted will not be taken into account in sentencing. Covington, 133 F.3d at 633;
United States v. Granados, 962 F.2d 767, 771-72 (8th Cir. 1992). If the court chooses to
make a finding as to the factual allegation, the government must introduce evidence
sufficient to convince the Court by a preponderance of the evidence that the fact in
question exists. Id.
In this case, the government did not introduce any evidence to prove that Brown was
responsible for over 150 grams of crack, and further conceded that the testimony at trial
was insufficient to establish that fact. Therefore, we hold that the district court clearly
erred by finding that Brown was responsible for more than 150 grams of crack, and we
remand for resentencing.
Brown's remaining contentions will not detain us long. The district court did not err
in denying Brown a two-level reduction for acceptance of responsibility. Ordinarily, a
defendant who puts the government to its burden of proof at trial by denying the essential
factual elements of guilt, is convicted, and only then admits guilt and expresses remorse,
is not entitled to a reduction for acceptance of responsibility. United States v. Amos, 952
F.2d 992, 995 (8th Cir. 1991). The district court adequately justified its decision not to
give Brown this reduction.
The district court also acted properly by increasing Brown's sentence four levels for
being an organizer or leader of criminal activity involving five or more participants. A
sentencing court's determination of a participant's role in the offense pursuant to U.S.S.G.
§ 3B1.1 is reviewed under the clearly erroneous standard. United States v. Skorniak, 59
F.3d 750, 757 (8th Cir. 1995). There was testimony that Brown had a network of dealers
working under him. While not all were working for him at the same time, and some might
have been merely buying for themselves, the district court reasonably could have found
that at various times during the conspiracy Brown had at least four helpers or underlings,
and that Brown was their leader.
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CONCLUSION
We affirm Brown's convictions as well as the district court's denial of Brown's pre-
trial motion to suppress evidence and statements. We reverse the district court's finding
that Brown was responsible for more than 150 grams of crack and remand for
resentencing.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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