base. Defendant argues that because proof of possession of cocaine base under § 844 requires proof that the substance possessed was cocaine base, and that proof of possession with intent to distribute a controlled substance under 21 U.S.C. § 841(a) does not require proof of the nature or amount of the controlled substance, it is not a lesser included offense.
After reviewing the statutory provisions carefully, the Court is convinced that neither the specific nature of the substance nor the amount of the substance are essential elements of either § 844 or § 841. Both statutory provisions refer in the language describing the unlawful acts to "a controlled substance." The acts described in the statute are unlawful regardless of the amount of the controlled substance involved or the nature of the substance involved. It is only in the penalty provisions that the nature and quantity of the substance becomes relevant. See e.g., United States v. Anthony McDonald, 777 F. Supp. 43 (D.D.C. 1991). Accordingly, the defendant's motion for a new trial on the basis that the lesser included offense instruction was given improperly shall be denied.
2. Expert Testimony on Nature of Substance.
The defendant also argues that the government failed to demonstrate that the substance was cocaine base, as defined in United States v. Brown, 859 F.2d 974 (D.C. Cir. 1988). In Brown, appellant Jim Brown was challenging his conviction and sentence under 21 U.S.C. 841(b) by arguing that the phrase "cocaine base" was unconstitutionally vague. The court rejected appellant's challenge, holding that
the fact that "cocaine base" may have various interpretations on the street does not make it incapable of objective definition by means of chemical analysis.
Unfortunately, the court also included language that created the confusion that resulted in this motion. In that case, the D.C. Circuit stated
the government adopts the nomenclature of organic chemistry which classifies compounds with the hydroxyl radical (OH-) as a base and those with 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. The appellant fails to show why this definition is unreasonable.
A review of the record before the Circuit on the Brown appeal indicates that the definition was not raised by the government or by the defense at the trial level. Additionally, there is no evidence that the government proffered the precise definition that the court states the government adopted at the appellate level. Government counsel in this case indicates that the definition cited by the court in Brown apparently came not from an expert witness at trial or from the government on appeal, but from materials that were not part of the trial court record. Apparently, defense counsel on the Brown appeal referred during oral argument to various definitions propounded by various parties in other proceedings to show variations in the definition of cocaine base. After reviewing the record in Brown, the government's assertion, which was unrebutted by defense counsel, about the source of the definition appears accurate.
Additionally, there is scientific evidence that indicates the definition in Brown is simply incorrect. Although this evidence unfortunately was not developed fully at trial in this case through an expert witness, as might have been preferable, the Southern District of New York recently recognized the error in the Brown definition. See United States v. Jackson, 768 F. Supp. 97 (S.D.N.Y. 1991). In that case, two chemists refuted the claim that cocaine base is defined by the presence of hydroxyl radical. The district court then concluded that "there is sufficient disagreement in the scientific community as to the accuracy" of the definition cited in Brown, that it would be "irresponsible to rely on it." Accordingly, this Court will not adopt the definition of cocaine base as propounded by the court in Brown.1
Even assuming that the Circuit was correct in its definition of cocaine base, the Brown decision clearly did not indicate that that was the sole acceptable definition of cocaine base. An expert is presumed, unless shown otherwise, to know the difference between cocaine base and cocaine hydrochloride. See United States v. Turner, 928 F.2d 956, 960 n.1 (10th Cir. 1990). In this case, the defendant did not demonstrate that the DEA chemist could not distinguish between cocaine base and cocaine hydrochloride or that there was any actual dispute over whether the substance seized and analyzed in this case was cocaine base.
Additionally, the Court notes that although the Brown decision has resulted in some confusion among lawyers and judges who try to interpret scientific information, there is no such confusion when the term is assigned its ordinary meaning. For example, there are differences in the physical properties of cocaine hydrochloride and cocaine base that allow cocaine base to be smoked while cocaine hydrochloride cannot be smoked. These are differences that even a casual, uneducated drug user understands, without the aid of expert testimony. Furthermore, the DEA chemist expressed no doubt that the substance she analyzed in this case was cocaine base. As stated earlier, the Court presumes, absent a showing otherwise, that the DEA chemist who was qualified and testified as an expert without objection by the defendant, knows the difference between cocaine base and cocaine hydrochloride. Therefore, the Court finds that the expert testimony offered by the DEA chemist was sufficient to establish that the defendant possessed cocaine base. Accordingly, the Court shall deny the motion for judgement of acquittal. An appropriate order is attached.
Thomas F. Hogan
United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 788 F. Supp. 1.
ORDER - March 13, 1992, Filed
In accordance with the opinion issued herewith, and for the reasons stated therein, it is this 13th date of March, 1992, hereby
that the motion for a new trial or in the alternative motion for a judgment of acquittal is DENIED.
Thomas F. Hogan
United States District Judge