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UNITED STATES v. MASKE

March 31, 1993

UNITED STATES OF AMERICA
v.
CHRISTOPHER MASKE



The opinion of the court was delivered by: THOMAS F. HOGAN

 Pending before the Court is defendant's motion to declare provisions of 21 U.S.C. § 844 unconstitutional. Defendant argues in this motion that 21 U.S.C. § 844(a) violates equal protection and due process principles of the Fifth Amendment of the United States Constitution. Having considered the authorities, arguments and evidence presented by counsel in their briefs and during the hearing held on February 17, 1993, the Court shall deny defendant's motion.

 I. Background

 On March 19, 1992, defendant was charged in a three count indictment with possession with intent to distribute five or more grams of cocaine base, possession of cannabis, and using or carrying a firearm in connection with the offense of possession with intent to distribute cocaine base. Following a four day trial before this Court on June 1-4, 1992, a jury convicted defendant of possession of over five grams of cocaine base *fn1" and possession of cannabis. Defendant presently awaits sentencing before this Court.

 Defendant contends that 28 U.S.C. § 844(a) *fn2" violates equal protection principles of the Fifth Amendment because it treats cocaine base drastically different than other controlled substances. *fn3" Specifically, defendant asserts that the extremely harsh penalty mandated for possession of cocaine base, as compared to that of cocaine hydrochloride, has no valid scientific or medical basis. Defendant argues that cocaine base is a drug abused primarily by African Americans and that enforcement of the mandatory minimums for cocaine base has resulted in grossly disparate treatment of African Americans. Defendant further argues that § 844(a) violates due process principles of the Fifth Amendment because it mandates a conclusive presumption of intent to distribute from the possession of five grams or more of cocaine base. The Court shall address these arguments separately.

 II. Discussion

 A. Equal Protection Claim

 Defendant presents three main arguments to support his equal protection claim. First, defendant argues that the Court should apply a "strict scrutiny" standard to the classification embodied in § 844(a). Alternatively, defendant argues that the Court should subject the classification to an intermediate level of review, similar to the standard applied by the Minnesota Supreme Court in State v. Russell, 477 N.W.2d 886 (Minn. 1991). Finally, defendant argues that even if the Court subjects § 844(a) to a rational basis test, the statutory provision cannot withstand scrutiny under the Equal Protection Clause.

 In response, the government argues that defendant's evidence does not prove his disparate impact theory of race-based cocaine usage. Additionally, the government argues that the Court should not apply any heightened level of scrutiny to § 844(a) because the defendant has made no claim that Congress acted with discriminatory intent in enacting § 844(a), or that the Sentencing Commission acted with discriminatory intent in formulating the Guidelines.

 Numerous federal courts have considered equal protection challenges to 21 U.S.C. § 841(b)(1), a penalty provision which applies to the offense of possession with intent to distribute cocaine base. *fn4" These courts consistently have applied a rational basis test and have held that the disparity in treatment between cocaine base and cocaine powder mandated by § 841(b)(1) does not violate the Equal Protection Clause of the Fifth Amendment. The Minnesota Supreme Court is the only court, of which this Court is aware, that has applied a heightened level of scrutiny to invalidate a similar statute.

 Federal courts which have considered equal protection challenges subsequent to Russell have declined to follow the Minnesota Supreme Court. See, e.g., U.S. v. Willis, 967 F.2d 1220 (8th Cir. 1992); U.S. v. Watson, 953 F.2d 895, 898 n.5 (5th Cir. 1992) (declining to follow Russell and noting that the rational basis test under the Minnesota Constitution is more stringent than its federal counterpart). Most recently, the Ninth Circuit addressed the equal protection issue in United States v. Harding, 971 F.2d 410 (9th Cir. 1992), cert. denied, 122 L. Ed. 2d 170, 113 S. Ct. 1025 (1993). In Harding, the Ninth Circuit applied a rational basis test to § 841(b)(1) and upheld the statute under the Equal Protection Clause. The Court expressly rejected the defendant's argument that the distinction between cocaine base and cocaine powder embodied in § 841(b)(1) is arbitrary and irrational. Id. at 412. The court stated, "although crack and powder cocaine are different forms of the same drug, the routes of administration, their physiological and psychological effects, and the manner in which they are sold set the two forms of the drug apart." Id. at 413. After reviewing the statute's legislative history, the court concluded that Congress' decision to punish the sale of crack cocaine more severely than the sale of powder cocaine was based on a "broad and legitimate basis." Id. at 413.

 This Circuit has also rejected the argument that Congress' decision to distinguish between cocaine powder and cocaine base in § 841(b)(1) is "arbitrary and irrational." See United States v. Cyrus, 281 U.S. App. D.C. 440, 890 F.2d 1245, 1248 (D.C. Cir. 1989). In Cyrus, the D.C. Circuit asserted:

 
Crack is far more addictive than cocaine. It is far more accessible due to its relatively low cost. And it has experienced an explosion of popularity. . . . Any one of these factors ...

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