US v. Davis, Crim. A. No. 1:93-CR-0234-JOF

• Citation: 864 F. Supp. 1303
• Decision Date: 26 August 1994
• Docket Number: 1:94-CR-021-JOF.,Crim. A. No. 1:93-CR-0234-JOF
• Parties: UNITED STATES of America v. Ricky DAVIS and Jerry Deron Jones. UNITED STATES of America v. Jerry Deron JONES.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

864 F. Supp. 1303

UNITED STATES of America v. Ricky DAVIS and Jerry Deron Jones.

UNITED STATES of America v. Jerry Deron JONES.

Crim. A. Nos. 1:93-CR-0234-JOF, 1:94-CR-021-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

August 26, 1994.

Gerrilyn Brill, Janet F. King, U.S. Attorney's Office, N.D. Ga., Atlanta, GA, for the government.

Gregory S. Smith, Suzanne Hashimi, L. Burton Finlayson, Federal Defender Program, Inc., Atlanta, GA, Victoria D. Little, Decatur, GA, for defendants.

ORDER

FORRESTER, District Judge.

This matter is before the court on Defendants' challenge to the sentencing provisions of 21 U.S.C. § 841 which operate to enhance the penalties for offenses involving cocaine base. Jones, who has pled guilty and awaits sentencing, argues that the penalty provisions are void for vagueness, or that they are inapplicable by operation of the rule of lenity because there are two statutory penalties for cocaine. Davis, who has offered to plead guilty conditionally, joins in the latter argument. They are both charged with possession with the intent to distribute cocaine base.

The court held an evidentiary hearing on Defendants' motion on May 31 and June 1, 1994.

Section 841 provides in relevant part:

(b) Penalties

Except as otherwise provided ... any person who violates subsection (a) of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this section involving—

(ii) 1 kilogram or more of a mixture or substance containing a detectable amount of—

(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

. . . . .

(iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base ... such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years....

(Emphasis supplied).¹

I. FINDINGS OF FACT

An evidentiary hearing was held at which four experts² were qualified and testified. The following facts are found by the court based on the testimony at the hearing, and, where noted, are based on the Congressional Record.

Cocaine hydrochloride, that which is often called powdered cocaine, is actually a salt of cocaine. Cocaine is a product which occurs freely in nature in the coca leaf and is the basic building block of other cocaine compounds. Cocaine's molecular formula is C17 H21 N4, it has a molecular weight of 303, and it has a melting point of 98 degrees Centigrade. All of the experts testified that in the scientific community, the term "cocaine base" is synonymous with cocaine. In the scientific community, cocaine base has no other meaning. The term is also synonymous with cocaine free base, which means that it is the cocaine molecule, free of other salts and isomers in its basic form.

There was also unanimous agreement among all four experts that the term "crack" as it relates to cocaine substances does not have a fixed meaning in the scientific community. The term crack has its origins with illicit drug abusers.

The first step in the clandestine manufacture of controlled substances containing cocaine is the production of a cocaine paste from the coca leaf. Cocaine and other alkaloids of cocaine are extracted during the refining process. If the refining process is continued, the alkaloids are all chemically converted to the cocaine building block. According to all the experts but Mr. Clarke, in the early 1980's in some cases the clandestine refining process was stopped after the creation of the paste and this paste was poured out on sheets and allowed to harden. It was then "cracked" with a hammer and distributed. The substance was composed of cocaine and a number of cocaine alkaloids.³ Because cocaine has a low melting point, it can be volatilized and inhaled into the lungs or smoked. It began to be abused in that way. Later, illicit users began producing cocaine or cocaine base from cocaine hydrochloride and exposed the cocaine to organic solvents such as ether during the process. Cocaine or cocaine base is also manufactured by mixing cocaine hydrochloride, water and bicarbonate of soda (baking soda) and heating the mixture. These latter two procedures convert the salt, cocaine hydrochloride, back to the basic form of cocaine. Crack is often seen in chunks or lumps but can be milled to a powder and cocaine hydrochloride can appear lumpy if it is pressed.

In sum, cocaine base describes no other substance than cocaine. It is cocaine which is most readily ingested by inhaling (smoking) because of its low melting point. It is the controlled substance which is intended to be volatilized for smoking.

That which is often identified today in courts as crack is cocaine and perhaps some baking powder.⁴ The DEA chemist, Mr. Clarke, testified that DEA chemists today define crack as a lumpy substance containing cocaine and bicarbonate of soda because this is the usage of the enforcement agents. There was no evidence that the lumpiness contributed anything to the potential for abuse, and, of course, other forms of cocaine and its salts and isomers can also appear in lumpy form unless they are milled into fine particles.

Although the focus of the hearing was not on potential for abuse, the pharmacologists advised the court that there are essentially no differences in the sizes of dosage units for cocaine or cocaine hydrochloride. Testimony indicated, however, that cocaine had a higher potential for abuse because it was more easily ingested in a gaseous state than through intravenous injection, and because the onset of the pharmacological effect was quicker because the lungs had so much greater area to absorb the substance quickly. Although individual pieces of crack are relatively inexpensive for the user, the cost of a daily habit for crack or for cocaine hydrochloride is similar, according to the evidence before the Congress.

II. CONCLUSIONS OF LAW

As can be seen in the statute above, there is one penalty for cocaine and another for cocaine base. It is here contended by the Defendants that in sentencing them, the court should apply the lesser statutory penalties for cocaine rather than hundred-fold greater penalties for the possession of cocaine base. This, it is said, the court is compelled to do, for it must apply the rule of lenity. This rule requires a sentencing court to impose the lesser penalty where there is ambiguity about the reach of a criminal statute or the penalties to be imposed. Bifulco v. United States, 447 U.S. 381, 387, et seq., 100 S.Ct. 2247, 2252, et seq., 65 L.Ed.2d 205 (1980). The policy of lenity is to be applied only where there is actual statutory ambiguity. United States v. Fisher, 6 U.S. (2 Cranch) 358, 386, 2 L.Ed. 304 (1805); United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971).

Bifulco teaches that in determining whether or not there is facial ambiguity and in endeavoring to resolve it, the court, first, should look at the language and form of the statute, and, second, should look at the legislative history and public policy concerns.

Cocaine and cocaine base facially are two separate terms, and a fair first reaction is that the Congress intended to establish different penalties for different substances. The question of course is, what is cocaine base. The Eleventh Circuit in United States v. Rodriguez, 980 F.2d 1375, 1377-78 (11th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 3003, 125 L.Ed.2d 695 (1993), has said that the Congress used the term "cocaine base" in its scientific meaning. As it did not find what that meaning was, this court held the evidentiary hearing in the case at bar and has now determined, based on the total unanimity of opinion of the four experts, that cocaine and cocaine base are synonymous terms referring to the same substance having the same molecular structure, molecular weight, and melting point. Because it turns out that the definitions are identical, there is unquestioned ambiguity on the face of the statute, and, unless it could be said that the legislative history or public policy concerns alter the outcome, the rule of lenity must be applied, the Defendants' motions granted, and the heightened penalties for cocaine base must be ignored. This court thinks that the positions of the Defendants in this regard are correct.

Other points are now evident to this court: (1) There is no scientific meaning for the term "crack," (2) it is a term developed in the streets, and (3) when an abuser seeks crack cocaine, he is seeking a readily inhalable form of the drug. It is now obvious to this court that the physical form of the drug or its means of manufacture has no rational relationship to any legislative intention to impose heightened penalties, as they have nothing to do with potential for abuse.⁵

The "crack" cocaine epidemic was sprung upon the Congress in 1986. The first hearings leading to the passage of the statute now at issue were had by the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs of the United States Senate on July 15, 1986. Senator Chiles of Florida was most instrumental in bringing the matter to the Congress's attention. In his opening statement at the hearings he said that eight months ago he had never heard of crack cocaine.⁶

Ultimately, the statutory provisions that are at issue in this case were passed with much fanfare and little debate during Cocaine/Crack Awareness Month in October of 1986. One of the members of the House observed that the bill was "clumsy"; that "it was put together in the style of a Great Society Program. Its hallmarks are lack of coordination, incomplete consideration, misunderstood compromises."⁷

This court has read so much of the Congressional comment as it could locate that occurred prior to the passage...