Argument preview: What is “cocaine base”?
on Feb 25, 2011 at 6:21 pm
The Controlled Substances Act, 21 U.S.C. Â§ 841(b)(1), distinguishes between â€œcoca leaves,â€ â€œcocaine, [and] its saltsâ€ on the one hand, and â€œcocaine baseâ€ on the other.Â As originally passed in 1986, the Act mandated the same minimum ten-year sentence for offenses involving either fifty grams of cocaine base or five kilograms of cocaine in other forms.Â (It was recently amended to raise the trigger to 280 grams of cocaine base.)Â On Monday the Court will hear argument in DePierre v. United States (No. 09-1533), which presents the narrow statutory question of just what Congress meant by â€œcocaine base.â€Â Six circuits have held that this language encompasses all chemically basic forms of processed cocaine, while four have ruled that it refers only to crack cocaine.
In its natural form, cocaine is a molecule found in the coca leaf.Â The parties disagree as to the chemical nature of that molecule but, when it is extracted from coca leaves to make coca paste, the result is by all accounts a base.Â Coca paste is then combined with an acid to produce cocaine hydrochlorideâ€”commonly known as powder cocaineâ€”which is a salt, not a base.Â Powder cocaine can be converted into crack or freebase, both of which are bases.Â The relevant molecule in coca paste, crack, and freebase is identical; only powder cocaine (and, perhaps, coca leaves) is chemically distinct.Â There are also differences in consumption.Â Coca leaves are generally chewed, while crack, coca paste, and freebase can all be smoked.Â Powder cocaine decomposes at relatively low temperatures and is therefore unsuitable for smoking.
Frantz DePierre sold drugs to a government informant on two occasions.Â The first sale involved powder cocaine; the second occurred after the informant asked for crack and DePierre confirmed that he could provide it.Â At trial, DePierre asked that the jury be instructed to determine whether he had in fact sold crack cocaine to the informant.Â Instead, the district court ruled that â€œthe question is cocaine base; that is, the nonhydrochloride form of cocaine, which may or may not manifest itself in some something thatâ€™s been identified as crack cocaineâ€ and instructed the jury that â€œ[c]rack cocaine is a form of cocaine base, so youâ€™ll tell us whether or not what was involved is cocaine base.â€Â DePierre was convicted of selling at least fifty grams of cocaine base, and he received the mandatory minimum sentence of ten yearsâ€™ imprisonment.Â He appealed on a variety of grounds, including the allegedly overbroad jury instruction.Â As relevant here, the First Circuit ruled that â€œthe district courtâ€™s instructions and the jury verdict accorded with our precedent, and the mandatory minimum sentence was properly imposed.â€
DePierre filed a petition for certiorari, which the United States opposed.Â It argued that the First Circuitâ€™s holding was correct; moreover, DePierre had implicitly conceded at trial that he sold crack cocaine and so, the government contended, would not have his sentence altered even if he prevailed on the question of statutory construction. Â The Court granted certiorari on October 12, 2010.
In his brief on the merits, DePierre argues that the statutory provision in question was enacted in response to congressional concern with crack cocaine.Â Because crack was a relatively new drug at the time, he argues, it was known by a variety of namesâ€”including â€œbaseâ€â€”and Congress simply selected one of those colloquial terms.Â (Earlier proposals had distinguished â€œcocaine freebaseâ€â€”which, according to DePierre, is another synonym for crackâ€”from ordinary â€œcocaine.â€)Â The legislative history, DePierre contends, also demonstrates Congressâ€™s intent to combat crack usage. Â He goes on to suggest that by allowing the U.S. Sentencing Commissionâ€™s decision to interpret â€œcocaine baseâ€ as â€œcrackâ€ for the purposes of the Sentencing Guidelines to take effect, Congress implicitly approved of its interpretation.Â He argues that interpreting â€œcocaine baseâ€ as a scientific term that excludes only powder cocaine and other salts, rather than as a colloquial synonym for crack, would lead to absurd results, because all processed non-powder cocaine is basic and coca leaves also contain cocaine in its basic form.Â Thus, on DePierreâ€™s reading, all â€œcocaineâ€ (which the statute distinguishes from â€œ[cocaine] saltsâ€) and â€œcoca leavesâ€â€”statutory terms which trigger a ten-year sentence only when five kilograms are soldâ€”are also, chemically, â€œcocaine base,â€ and therefore rendered superfluous in the statutory scheme.Â DePierre also cites the rule of lenity to argue that because the meaning of â€œcocaine baseâ€ is at least ambiguous, the term should be read narrowly.
The United States counters that â€œcocaine baseâ€ refers to â€œthe chemically basic form of cocaine, which is readily identifiable using standard techniques of chemical analysis,â€ and is not a synonym for â€œcrack.â€Â The government suggests that this is the plain meaning of the term, a reading which it characterizes as being in accord with the Controlled Substances Actâ€™s consistent approach of identifying substances by chemical and botanical terminology rather than using street names. The government acknowledges that the emergence of crack cocaine was a significant congressional concern when the Act was passed, but it argues that other smokeable, chemically identical forms of cocaine were also a concern.Â DePierreâ€™s reading, it contends, would raise difficult questions of how to distinguish â€œcrackâ€ other forms of smokeable cocaine and would moreover encourage drug traffickers to produce those other forms and thereby lower their risk of lengthy imprisonment.Â The government contests DePierreâ€™s claim that its own reading would render statutory language superfluous or lead to absurd results, rejecting the assertion that coca leaves contain â€œcocaine baseâ€ and accepting that all cocaine apart from coca leaves and powder cocaine is encompassed within that termÂ The government concludes by arguing that the Sentencing Commissionâ€™s definition of â€œcocaine baseâ€ applies only to sentencing under the Guidelines and has no role in this statutory question, and moreover that any statutory ambiguity is not so grievous as to justify a resort to the rule of lenity.