US v. Mosley

• Decision Date: 11 December 1992
• Docket Number: Crim. A. No. 1:92-CR-036-JTC.
• Parties: UNITED STATES of America v. Horace MOSLEY.
• Court: U.S. District Court — Northern District of Georgia

808 F. Supp. 1572

UNITED STATES of America v. Horace MOSLEY.

Crim. A. No. 1:92-CR-036-JTC.

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

December 11, 1992.

COPYRIGHT MATERIAL OMITTED

James Edward Fagan, Jr., Office of U.S. Atty., Atlanta, GA, for U.S.

Suzanne Hashimi, Fed. Defender Program, Atlanta, GA, for defendant.

ORDER

CAMP, District Judge.

The Court has before it a Report and Recommendation # 23-1 by Magistrate Judge Joel M. Feldman; Defendant's Motion # 18-1 to Adopt his Brief in Support of his Motion # 8-1 to declare unconstitutional certain United States sentencing guidelines; and Defendant's Motion # 26-1 to supplement the record. The Court will also consider Defendant's Motion # 27-1 to Adopt his Objections to the Report and Recommendation.

After a careful, de novo review, the Court finds that it agrees with Magistrate Judge Feldman's conclusions. Accordingly, it ADOPTS his Report and Recommendation # 23-1 as its opinion, and DENIES defendant's motion # 8-1 to declare the sentencing guidelines unconstitutional. The Court GRANTS defendant's motion # 18-1 to allow defendant to adopt a brief submitted in another case dealing with the constitutional issues presented here, and GRANTS defendant's motion # 27-1 to adopt objections submitted in another case to Magistrate Judge Feldman's Report and Recommendation. As none of these objections change the result of the magistrate's decision, the Court OVERRULES them.

Defendant has also asked to add to the record a statement made by a co-defendant, James Kendall. Defendant asserts that this statement tends to incriminate him, so that his attorney had a conflict of interest. As the Court invited defendant to provide proof of this statement, the Court GRANTS defendant's motion # 26-1 to supplement the record.

SO ORDERED, this 10th day of Dec., 1992.

REPORT AND RECOMMENDATION

FELDMAN, United States Magistrate Judge.

PART ONE

HISTORY OF THE CASES

In each of the above cases the defendants raise constitutional challenges to the punishments and sentence guidelines mandated for criminal offenses involving cocaine base, to-wit: 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1(a)(3). Specifically, they contend that Congress and the Sentencing Commission had no rational basis to fix the punishment for cocaine base offenses substantially higher than similar offenses involving other forms of cocaine (i.e., cocaine powder, or cocaine hydrochloride);¹ and that, as a consequence the same violates the Due Process Clause of the Fifth Amendment.

They further contend that the statute violates the equal protection component² of the Due Process Clause of the Fifth Amendment because it adversely impacts on non-whites.

They further contend that the statute violates the Due Process Clause because it is unconstitutionally vague (i.e., the statute's failure to define "cocaine base").

They finally contend that the foregoing minimum punishment violates the Eighth Amendment as it is grossly disproportionate to the offense when compared to similar offenses involving cocaine hydrochloride.

On April 15, 1992, this Court conducted an evidentiary hearing to consider the allegations. It received testimony from Michael Hutcheson, an investigator with the Public Defender's office; Dr. Martin M. Shapiro, Ph.D., an expert in, inter alia, Statistics; Dr. George Robert Schwartz, M.D., an expert in inter alia, Medicine, Chemistry, and Toxicology; Drug Enforcement Administration Assistant Special Agent in Charge of the Atlanta Field Office (ASAC) Joseph Sullivan; and Assistant United States Attorney, N.D.Ga., Janet King. The transcript of their testimony will be referred to hereafter as "Tr." This Court also received a number of documentary exhibits, both at the hearing and with pleadings.³ Based thereon, this Court makes the Findings of Fact and Conclusions of Law that follow.

PART TWO

THE ISSUES

A. IS THE PUNISHMENT FOR COCAINE BASE CONSTITUTIONAL;

(i) DID CONGRESS HAVE A RATIONAL BASIS FOR FIXING THE PUNISHMENT SUBSTANTIALLY HIGHER FOR OFFENSES INVOLVING COCAINE BASE THAN FOR SIMILAR OFFENSES INVOLVING OTHER FORMS OF COCAINE;

(ii) IS THE PUNISHMENT FOR COCAINE BASE OFFENSES CRUEL AND UNUSUAL BECAUSE IT IS GROSSLY DISPROPORTIONATE TO SIMILAR OFFENSES INVOLVING OTHER FORMS OF COCAINE;

B. IS THE STATUTE UNCONSTITUTIONAL BECAUSE IT HAS A DISPROPORTIONAL IMPACT ON BLACKS AND OTHER NONWHITES; AND

C. IS THE STATUTE UNCONSTITUTIONALLY VAGUE BECAUSE IT FAILS TO DEFINE COCAINE BASE.

PART THREE

FINDINGS OF FACT

1. At the time Congress enacted the Anti-Drug Abuse Act of 1986 (21 U.S.C. § 841 et seq.), it had been presented with evidence from expert witnesses showing, inter alia:

a. the use of cocaine by young persons had been increasing dramatically;

b. one of the reasons for such use was the conversion of cocaine hydrochloride into cocaine base which resulted in:

(i) convenient packaging;

(ii) a substantially reduced cost per package (i.e., approximately $10.00 per unit rather than $100.00 per unit for cocaine hydrochloride); and

(iii) ease of use.

c. persons operating crack houses were utilizing the services of young persons as guards, lookouts, and street distributors;

d. hospital admissions which implicated cocaine use had increased substantially as had fatalities from such use;

e. cocaine base was very simple to use via smoking (intrapulmonary);

f. unlike snorting (intranasal administration of) cocaine hydrochloride, smoking cocaine base had virtually no physiological restrictions on users;

g. smoking cocaine base created a faster euphoria and a corresponding faster let down;

h. although intravenous injections of powder cocaine created a similar high, very few users chose this method of ingestion;

i. because of the rapid "high" obtained from smoking cocaine base, users tended to seek additional units very rapidly;

j. there was insufficient evidence to conclude that either cocaine powder or cocaine base use resulted in "addiction" as that term is understood scientifically;

k. studies of cocaine base abuse by smoking in two countries (the Bahamas and Peru) showed a substantial increase in significant health problems, including psychiatric hospital admissions.

2. The defendants presented evidence through Dr. Schwartz and documentary exhibits which tended to contradict the evidence presented to Congress, including:

a. Cocaine base was not more dangerous than cocaine hydrochloride, as most fatalities traceable to cocaine use probably involved cocaine hydrochloride.⁴ Tr. 84-85, 89, 92, 93, 101, 104, 112, 148, 151.

b. Cocaine use was declining.⁵ c. There was no scientifically reliable evidence that cocaine base was more addictive than cocaine hydrochloride. Tr. 86, 89, 101, 105, 106, 124, 129, 134, 150.

d. Cocaine base does not cause users to commit more violent crimes than other drug abusers. Tr. 87, 108, 109.

e. A substantial number of states make no distinction in punishment between cocaine base and cocaine hydrochloride.⁶ Indeed, only the United States and the States of California, Maryland, Oklahoma, South Carolina and Wisconsin punish cocaine base offenses more severely than similar cocaine hydrochloride offenses.

PART FOUR

CONCLUSIONS OF LAW

A. THE PUNISHMENT FOR A COCAINE BASE OFFENSE IS NOT UNCONSTITUTIONAL:

(i) CONGRESS HAD A RATIONAL BASIS IN FIXING THE PUNISHMENT FOR COCAINE BASE OFFENSES.

The defendants raise several constitutional challenges to the punishments authorized for cocaine base offenses. First, they contend that Congress had no rational basis⁷ on which to differentiate between the two offenses. They contend secondly that the punishment is disproportionate to similar offenses involving other forms of cocaine (i.e., cocaine hydrochloride, a/k/a powder). Although the Eleventh Circuit has now ruled⁸ that the statutory penalty and guidelines authorized for cocaine base offenses is constitutional (i.e., that Congress and the Sentencing Commission had a rational basis on which to differentiate between the nature of the cocaine involved) and that the punishment for cocaine base offenses is not cruel and unusual, this Court will, nevertheless, endeavor to explain such conclusion in light of the evidence presented before the undersigned.

At the onset it must be acknowledged that the "possession, use, and distribution of illegal drugs represents one of the greatest problems affecting the health and welfare of our population." National Treasury Employees v. Von Raab, 489 U.S. 656, 668, 109 S.Ct. 1384, 1392, 103 L.Ed.2d 685 (1989), as quoted in the concurring opinion of Kennedy, J., in Harmelin v. Michigan, ___ U.S. ___, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). See also United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980) (Powell, J., concurring in part and concurring in the judgment). In addition to the "pernicious effects on the individual who consumes illegal drugs," the drugs also generate substantial additional criminal acts in numerous ways: (1) drug users may commit crimes because of drug-induced changes in physiological functions, cognitive ability and mood; (2) drug users may commit additional crimes⁹ in order to obtain money to purchase additional drugs to feed their need for drugs; and (3) violent crimes may occur as a part of the drug business or culture.¹⁰Harmelin v. Michigan, ___ U.S. at ___, 111 S.Ct. at 2706, 115 L.Ed.2d at 870 (concurring opinion of Kennedy, J.).

It is, therefore, fitting and proper that the legislature seek to deter such acts by raising the ante for those who seek to inflict this cancer on our population. As previously noted, it is precisely such a legislative attempt which is brought in question here — the enactment of the Anti-Drug Abuse Act in 1986 (21 U.S.C. § 841 et seq.).

Furthermore, while these defendants have attempted to isolate two provisions of the Act (i.e., the punishment for cocaine base and the punishment for cocaine powder) as have others,¹¹ it is necessary to evaluate the...