Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2002

USA v. Waters
Precedential or Non-Precedential: Precedential

Docket No. 01-3784




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Recommended Citation
"USA v. Waters" (2002). 2002 Decisions. Paper 796.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/796


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PRECEDENTIAL

       Filed December 12, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3784

UNITED STATES OF AMERICA

v.

KEITH WATERS, Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. Cr. 00-522-02)
District Judge: Honorable Robert F. Kelly

Submitted Under Third Circuit LAR 34.1(a)
September 18, 2002

Before: BECKER, Chief Judge, SCIRICA and McKEE,
Circuit Judges.

(Filed December 12, 2002)

       GUILLERMO L. BOSCH, ESQUIRE
       111 Iron Bark Court
       Collegeville, PA 19426

       BRIAN J. McMONAGLE, ESQUIRE
       McMonagle, Perri & McHugh
       30 South 15th Street
       One Penn Square West, Suite 701
       Philadelphia, PA 19102

       Counsel for Appellant




       PATRICK L. MEEHAN, ESQUIRE
       United States Attorney
       LAURIE MAGID, ESQUIRE
       Deputy United States Attorney for
       Policy and Appeals
       ROBERT A. ZAUZMER, ESQUIRE
       Assistant United States Attorney
       Senior Appellate Counsel
       PATRICK C. ASKIN, ESQUIRE
       Special Assistant United States
        Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106

       Counsel for Appellee

OPINION OF THE COURT
BECKER, Chief Judge.

The United States Sentencing Guidelines define "crack"
cocaine as "the street name for a form of cocaine base,
usually prepared by processing cocaine hydrochloride and
sodium bicarbonate and usually appearing in a lumpy,
rocklike form." U.S. Sentencing Guidelines S 2D1.1(c), Note
(D). This appeal by Keith Waters ("Waters") from the
sentence imposed by the District Court under the
Sentencing Guidelines range for distributing crack cocaine
presents the recurring question whether the government
must show that the drugs seized from a defendant
contained sodium bicarbonate in order to demonstrate by a
preponderance of the evidence that they are crack for
sentencing purposes. Waters maintains that the
government must make such a showing.

Although the substance distributed by Waters contained
cocaine, it contained no traces of sodium bicarbonate -- a
chemical used to "cut," or dilute, the drugs. We conclude,
however, that the District Court did not err when it found
that the government had shown that the substance was
crack, even though it did not contain sodium bicarbonate,
for such a showing is not essential. Moreover, there was

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testimony from a Drug Enforcement Agency ("DEA")
chemist and a detective with ten years experience in
narcotics enforcement that the niacinamide, or Vitamin B,
found in the drugs connected to Waters served the same
function as sodium bicarbonate -- to cut the drugs, and
that the substance at issue was, in fact, crack cocaine.
Accordingly, we will affirm the judgment.

I.

Waters was arrested and charged with distributing crack
cocaine after DEA agents connected him to Clifton Junius
("Junius"), a man whom the DEA had observed selling
crack to an informant on three different occasions; the DEA
had observed Waters meet and enter a residence with
Junius. After Junius was arrested following the third sale
to the DEA informant, he told the DEA agents that Waters
had supplied him with the crack that he had sold to the
informant. Upon arrest, Waters admitted to the law
enforcement officers that he had provided crack to Junius
on many occasions, including four ounces that Junius had
sold to the DEA informant.

The indictment charged Waters with the following: (1)
conspiracy to distribute cocaine base "crack" in violation of
21 U.S.C. S 846; (2) distribution of cocaine base "crack" in
violation of 21 U.S.C. S 841(a)(1); and (3) distribution of
cocaine base "crack" within one thousand feet of a school
zone in violation of 21 U.S.C. S 860. Waters pled guilty to
the latter charge (Counts Three, Five and Seven), but he
reserved the right to argue that some of the drugs were not
crack. See Fed. R. Crim. P. 11(a)(2) ("With the approval of
the court and the consent of the government, a defendant
may enter a conditional plea of guilty . . . reserving the
right, on appeal from the judgment, to review of the adverse
determination of any specified pretrial motion.").

At the sentencing hearing, the District Court heard
testimony about the amount and identity of the drugs
which Waters was charged with distributing. The Court
sentenced Waters for distributing 165 grams of crack, the
total calculated from the three sales Junius made to the
DEA informant. However, the 27.2 grams from the first sale

                                3


to the informant did not contain sodium bicarbonate. It is
the identity of the drugs from this sale that Waters
contests; he admits that the rest of the drugs are crack
since they contained sodium bicarbonate. The contested
27.2 grams contained cocaine hydrochloride and
niacinamide, otherwise known as Vitamin B. Waters was
sentenced to 151 months for Count Seven and 60 months
each for Counts Three and Five, all three sentences to run
concurrently.

The identity of the drugs is significant because a finding
that the substance is crack subjects an offender to a
greater penalty than if the drugs were found to be a form
of cocaine other than crack. Waters was sentenced to 151
months based on a sentencing range of 151-188 months for
the possession of 165 grams of crack. If the District Court
had found that the government did not show by a
preponderance of the evidence that the 27.2 grams that did
not contain sodium bicarbonate were crack, Waters would
have possessed less than 150 grams of crack, which would
have subjected him to a lesser sentencing range of 121-151
months.

The government presented the testimony of DEA chemist
Charles Cusamano ("Cusamano") to demonstrate that the
entire 165 grams of the drugs attributed to Waters was
crack cocaine. Cusamano testified on the basis of a
laboratory report prepared by another DEA chemist, who
later left her job at the DEA. Cusamano stated that the
drugs in question did not contain sodium bicarbonate, the
most common cutting agent, but rather niacinamide:

        Niacinimade is a vitamin. It’s a vitamin, Vitamin B,
       and it’s commonly found as a cut in drug exhibits,
       mainly in crack exhibits because when one produces
       cocaine base, the niacinamide follows the conversion
       from the cocaine hydrochloride through to the base.
       And it acts as a -- a cut. [A46].

Cusamano also testified that sodium bicarbonate might
have been used to cut the drugs, even if traces of the
substance were not found in the final drug compound:

        If the conversion is performed properly and you use
       the correct amounts of sodium bicarbonate and

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       powdered cocaine, cocaine hydrochloride, you should
       have no sodium bicarbonate left when the conversion
       is complete. However, traditionally, what we find is that
       out on the street an excess of this bicarbonate is used
       in the conversion. [A47].

In addition, a ten year veteran of narcotics enforcement
in the Philadelphia Police Department, Detective Andrew
Callaghan ("Callaghan") who has "spoken with hundreds of
drug users, drug dealers and persons involved in drug
organizations" [A55] testified that the 27.2 grams of drugs
attributed to Waters appeared to be crack cocaine:

       Q. And could you tell us what you’re looking at, what
       does the substance look like -- that makes you
       think [it is crack]?

       A. It’s an off-white chunky substance. It’s in rock
       form. It’s the base form. Cocaine hydrochloride or
       the salt form is generally much whiter than this,
       and it’s crystalline, the small -- the powder.[A58.]

Callaghan also testified about the use of niacinamide as
a cutting agent in making crack:

       Q. And are there substances used . . . that are used
       to process the drugs from the powder form,
       hydrochloride form, into the base form?

       . . .

       A. A substance commonly used in Philadelphia is
       baking soda, which is sodium bicarbonate, and
       other substances that appear on the streets of
       Philadelphia a lot are niacinamide, which is
       commonly known as Vitamin B, or we’ve seen it in
       cans marked Super B which is available at most
       stores that you can buy crack cocaine
       paraphernalia. And what the person does, is they’ll
       take cocaine hydrochloride and a mixture of
       sodium bicarbonate or Super B or Vitamin B or
       both, and depending upon their personal recipe, it
       could be two parts sodium bicarbonate to one part
       cocaine. For instance, there would be two ounces
       of baking soda and one ounce of cocaine or a
       mixture that might include sodium bicarbonate --

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       I’m sorry -- or niacinamide or it could be just
       niacinamide and the cocaine, and they’ll pour this
       mixture into a boiling pot of water. And what the
       dilutents do, what the sodium bicarbonate does, is
       it attaches itself to the cut. What happens is, the
       person that’s processing the cocaine scoops, after
       it’s boiling for a while, scoops the substance off the
       top and places it into a coffee filter or newspaper
       and allows the substance to dry. . . . The reason
       why niacinamide or Vitamin B is used often is it
       actually sticks to, or a portion of it sticks to, the
       cocaine hydrochloride, therefore, bulking up the
       substance so they have more product when the
       process is done.

       . . .

         I’ve executed many, many search warrants and
       confiscated bottles of niacinamide, different
       Vitamin B-hydrochloride compounds. [A62-63].

The District Court had jurisdiction pursuant to 18 U.S.C.
S 3231 and we have appellate jurisdiction pursuant to 28
U.S.C. S 1291 and 18 U.S.C. S 3742(a). We review for clear
error the determination that the government met its burden
of proving by a preponderance of the evidence that the
substance possessed by Waters was crack cocaine. See
United States v. Roman, 

, 140 (3d Cir. 1997).

II. Discussion

In Roman, we explained that "[f]or sentencing purposes,
the character of the drug substance need not be shown
beyond a reasonable doubt, but by a preponderance of the

.1 Waters maintains that the
_________________________________________________________________

1. We note that since the Supreme Court’s decision in Apprendi v. New
Jersey, "any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt." 

, 490 (2000). Although a
finding that the 27.2 grams attributed to Waters was crack would
increase his penalty under the Sentencing Guidelines, we continue to
use the preponderance standard since including the 27.2 grams in the
quantity of crack attributed to Waters would not increase the penalty

                                6


government has not met its burden of proving by a
preponderance of the evidence that the contested 27.2
grams are crack since the Sentencing Guidelines define
crack as "usually containing sodium bicarbonate." U.S.
Sentencing Guidelines S 2D1.1(c), Note (D). He, in effect,
urges us to find that "usually" actually means must under
the Sentencing Guidelines. We understand Waters’
argument to be that since the penalty is significantly
enhanced for distributing crack versus other forms of
cocaine, see 

, the chemical composition of
crack must line up precisely with the language of the
Sentencing Guidelines. Waters supports this assertion with
the history of the penalty for crimes involving cocaine base:
prior to the amendments to the Sentencing Guidelines in
1993, there was no definition of what constituted cocaine
base, the form of cocaine subject to the enhanced penalty.
The amendments made it clear that only the crack form of
cocaine base deserved a penalty enhancement and that all
other forms of cocaine base should be treated as cocaine
hydrochloride, the powdered form of the drug. Waters
posits that this suggests that the penalty enhancement was
meant to apply only to a very precise definition of crack,
namely a form of cocaine base containing sodium
bicarbonate.

We take this opportunity to make it clear that the law in
this Circuit is that it is not necessary for the government to
show that a substance contains sodium bicarbonate in
order to demonstrate by a preponderance of the evidence
that the drugs in question are crack cocaine. We note in
_________________________________________________________________

beyond the statutory maximum of 80 years under 21 U.S.C. S 860(a). The
80 year statutory maximum is calculated from the following: (1) "Any
person who violates section 841(a)(1) of this title or section 856 of this
title . . . is . . . subject to . . . twice the maximum punishment
authorized by section 841(b) of this title." 21 U.S.C. S 860(a); and (2) "In
the case of a violation of subsection (a) of this section involving . . . (ii)
500 grams or more of a mixture or substance containing a detectable
amount of . . . cocaine . . . (iii) 5 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." 21 U.S.C. S 841(b).

                                7


this regard that the other Courts of Appeals that have
addressed the issue have concluded that it is not necessary
for the government to show that the substance contained
sodium bicarbonate to prove that it is crack. See United
States v. Diaz, 

, 119 (2d Cir. 1999) ("[W]e
conclude that in proving a substance is crack, the
government is not required to show that the cocaine was
processed with sodium bicarbonate."); United States v.
Brooks, 

, 1248 (10th Cir. 1998) (noting that
"not all forms of ‘cocaine base’ need contain sodium
bicarbonate to qualify as crack for sentencing purposes");
United States v. Jones, 

, 983 (6th Cir. 1998)
("[T]he presence of sodium bicarbonate is not a necessary
prerequisite to a district court’s factual determination that
cocaine base is crack."); United States v. Abdul, 

, 479 (7th Cir. 1997) ("[P]roduction [of crack] with
sodium bicarbonate is not the exclusive preparation method
recognized for purposes of S 2D1.1(c)."); United States v.
Stewart, 

, 628 (8th Cir. 1997) (finding that the
use of the word "usually" in the Sentencing Guidelines
"does not require . . . evidence [of traces of sodium
bicarbonate] before the district court can conclude that a
substance is crack cocaine").

This conclusion is also consistent with other decisions of
this Court which, although not presented squarely with the
question whether the government must prove by a
preponderance of the evidence that the substance in
question contains sodium bicarbonate in order to show that
it is crack cocaine, nonetheless held that a "precise
chemical analysis is not necessary to prove that cocaine
base is crack under the Sentencing Guidelines." United
States v. Dent, 

, 190 (3d Cir. 1998) (citing

). See also United States v. Holman,

, 658 (3d Cir. 1999) (concluding that the
government had met its burden of proof where it presented
the testimony of a forensic chemist and two narcotics
detectives that the substance was crack cocaine).

In addition to the case law, the plain language of the
Sentencing Guidelines and the common understanding of
what constitutes crack outside the Sentencing Guidelines
context also support our position. Since the Sentencing

                                8


Guidelines use the language "usually," it appears from the
plain language of S 2D1.1(c), Note (D) that the penalty
enhancement for crack was intended to apply to substances
that do not contain sodium bicarbonate. We also note that
there is no precise chemical definition of crack cocaine.
Rather, crack commonly refers more to the manner in
which the drug is used. Crack is a form of "free-basing"
whereby the user converts "sniffable cocaine crystals into a
smoking ‘base’ form of the drug." 132 Cong. Rec. 4418
(1986) (statement of Sen. Hawkins). Crack cocaine is"a
kind of dealer prepared cocaine free-base, in which
powdered coke is mixed with baking soda and water to form
a paste. After the concoction hardens, it looks like off-white
granulated sugar; it is broken into chips or tiny lumps."
132 Cong. Rec. 9680 ( 1986) (statement of Sen. Chiles).
Thus, since crack generally refers more to the way the drug
is prepared and used than the specific chemical
composition, the presence of sodium bicarbonate is not
necessary in order for the substance to be considered crack
for sentencing purposes.

While we hold that the government does not have to show
that the substance contained sodium bicarbonate to meet
its burden of proof, this is not to say that the government
does not have to provide substantial evidence to support
the determination that the drugs are crack cocaine. As
stated in Roman, "the preponderance standard is not
toothless. It is the district court’s duty to ensure that the
Government carries this burden by presenting reliable and
specific 

(quoting United States v.
Lawrence, 

, 1566 (11th Cir. 1995)). Here the
government presented the testimony of Callaghan, an
experienced law enforcement officer, that niacinamide is
commonly used in the Philadelphia area as a substitute for
sodium bicarbonate. Callaghan also examined the
substance in question and concluded from the appearance
of the drug that it was in rock form, was intended to be
smoked, and that it was thus crack. Additionally, the
government presented evidence from Cusamano that the
niacinamide that was found in the 27.2 grams in question
serves the same purpose as the sodium bicarbonate--
namely as a cutting agent. This evidence was sufficient and
we thus conclude that District Court did not err in finding

                                9


that the government had shown by a preponderance of the
evidence that the substance was crack. The judgment of the
District Court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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