                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2003

USA v. Brigman
Precedential or Non-Precedential: Precedential

Docket No. 03-1655




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                       PRECEDENTIAL

                           Filed November 18, 2003

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 03-1655


        UNITED STATES OF AMERICA
                      v.
           CLARENCE D. BRIGMAN,
                             Appellant

On Appeal from the United States District Court
          for the District of New Jersey
         (D.C. Crim. No. 00-cr-00636-1)
  District Judge: Honorable Joseph E. Irenas

  Submitted Under Third Circuit LAR 34.1(a)
             October 15, 2003
  Before: SLOVITER, ROTH AND CHERTOFF,
               Circuit Judges.

          (Filed: November 18, 2003)
               EDWARD J. CRISONINO
               210 Haddon Avenue
               Westmont, NJ 08108
               Attorney for Appellant
               GEORGE S. LEONE
               GLENN J. MORAMARCO
               Assistant U.S. Attorney
               Camden Federal Bldg. & Courthouse
               401 Market Street, Fourth Floor
               Camden, New Jersey 08101
               Attorneys for Appellee
                             2



                OPINION OF THE COURT

CHERTOFF, Circuit Judge.
   In this appeal from his conviction for distribution and
possession with intent to distribute cocaine in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C), Appellant Clarence D.
Brigman alleges that the Government failed to prove the
cocaine in his possession was “crack” for purposes of
Section 2D1.1 of the United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”). We determine that there was
sufficient evidence for the District Court to find that
Brigman possessed “crack,” and we will affirm his sentence.

                             I.
  On August 12, 1999, Brigman and co-defendant Frank
Jennings were arrested after Camden, New Jersey police
found a quantity of drugs in a vehicle they were driving. On
September 27, 2000, both men were indicted on federal
drug charges. On April 27, 2001, while Brigman remained
a fugitive, Jennings pled guilty to a superseding
information charging him with distribution and possession
with intent to distribute crack cocaine in violation of 21
U.S.C. § 841(a)(1). Brigman was arrested on April 11, 2002,
and six months later, on October 9, 2002, Brigman pled
guilty to a superseding information charging him with
distribution of and possession with intent to distribute a
Schedule II narcotic drug controlled substance, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). At the time of his
plea, Brigman reserved the right to argue that the drugs in
his possession were not crack cocaine.
  On January 10, 2003, the District Court held an
evidentiary hearing to determine the identity of the
controlled substance in Brigman’s possession at the time of
the arrest. At the hearing, a Drug Enforcement Agency
(“DEA”) chemist testified that the drugs seized from
Brigman’s possession were cocaine base. The DEA case
agent also testified, and said that Brigman’s cocaine was
“crack.” Further, the Government offered the statements of
                             3


co-defendant Jennings, who admitted that the drugs he
and Brigman possessed were “crack.” On February 21,
2003, the District Court determined that the drugs in
Brigman’s possession were crack cocaine. Brigman was
sentenced to a 188 month term, the bottom of his
Sentencing Guideline range of 188 to 235 months.
   Jurisdiction in the District Court rested on 18 U.S.C.
§ 3231. This Court has jurisdiction over the challenge to the
sentence because the judgment is a final order under 28
U.S.C. § 1291, and Brigman has a statutory right to appeal
under 18 U.S.C. § 3742(a).

                             II.
   Cocaine is a naturally occurring substance that is derived
from the leaves of the erythroxylon plant. United States
Sentencing Commission, Special Report to the Congress:
Cocaine and Federal Sentencing Policy, at vi (1995)
[hereinafter “Special Report”]. There are five basic forms of
the drug: coca leaves, coca paste, powder cocaine, freebase
cocaine, and crack cocaine. Id. at 11. There are three base
forms of cocaine: coca paste, freebase cocaine, and crack
cocaine. Id. Coca paste, not usually imported into the
United States, is “a chunky, off-white to light-brown, putty-
like substance that exists primarily as an intermediate
product in the processing of coca leaves into powder
cocaine.” Id.
   Both freebase cocaine and crack cocaine are forms of
cocaine base produced from powder cocaine. Id. at 13. In
this form, the powder cocaine has been “freed” from the salt
substrate and is once again in a base form similar to that
of coca paste. Id. To create freebase cocaine, powder
cocaine is dissolved in water and a strong alkaloid solution,
typically ammonia is added, along with another organic
solvent like ether. Id. The use of this process was first
documented in the 1970s, but “many resisted the
freebasing process because of its complexity and potential
danger. Ether, a highly volatile and flammable solvent, will
ignite or explode if the freebase cocaine is smoked before
the ether has evaporated entirely.” Id. Cocaine base
prepared using the freebase method was replaced by the
                                     4


crack method. See, e.g., United States v. Johnson, 976 F.
Supp. 284, 290 (D. Del. 1997) (“[F]reebase cocaine . . .
seems to have outlived its utility with the emergence of
crack cocaine.”)
  To produce crack cocaine, the powder cocaine is
dissolved in a solution of sodium bicarbonate1 and water,
which is then cooked, leaving a solid substance called crack
cocaine. Special Report at 14. “The crack cocaine is broken
or cut into ‘rocks,’ each typically weighing from one-tenth to
one-half a gram.” Id. This method is considered to be the
most common method of producing cocaine base. See
United States v. Barbosa, 271 F.3d 438, 462 (3d Cir. 2001).
“Crack” is not a chemical term; it describes a substance
that results from a general method for making cocaine base
out of powder cocaine. See United States v. Waters, 313
F.3d 151, 156 (3d Cir. 2002). The Sentencing Guidelines
note, “ ‘[c]rack’ is 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.S.G. § 2D1.1(c), Note D. See also
Waters, 313 F.3d at 156.2
  This Court has noted that, “[t]he Sentencing Commission
defines cocaine base for sentencing purposes to mean the
form of cocaine base commonly known as crack.” United
States v. James, 78 F.3d 851, 858 (3d Cir. 1996); see also
Barbosa, 271 F.3d at 462. Whether a substance is crack
cocaine is a finding of fact subject to review for clear error.
United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997).
Under this standard, “[f]actual findings are clearly
erroneous if the findings are unsupported by substantial
evidence, lack adequate evidentiary support in the record,
are against the clear weight of the evidence or where the
district court has misapprehended the weight of the
evidence.” Id. (internal citations omitted). The District

1. Typically known as baking soda.
2. To be sure, Brigman’s cocaine did not contain sodium bicarbonate;
however, the government is not required 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. Waters, 313 F.3d at 155.
                               5


Court’s factual findings during sentencing cannot be
disturbed unless this Court is “left with a definite and firm
conviction that a mistake has been made.” United States v.
Dent, 149 F.3d 180, 189 (3d Cir. 1998).
  The Government must prove, by a preponderance of the
evidence, that a substance is “crack” when applying
U.S.S.G. § 2D.1.1 for cocaine base. See James, 78 F.3d at
858. To satisfy its burden, this Court has held that the
government must present “reliable and specific evidence”
that the substance in question is crack. Roman, 121 F.3d
at 141 (internal quotations omitted).

                              III.
   In this case, the Government met this burden. At the
evidentiary hearing to determine the identity of Brigman’s
controlled substance, Carolyn Roche, a forensic chemist
with the DEA, analyzed the drug samples seized from
Brigman and Jennings’s vehicle. She described Brigman’s
first sample, amounting to 228 grams, as “compressed tan
material” that was “like chunks of cookie, like hard, but not
rock hard, not cement hard, but, you know, you can break
it and grind it, but compressed. It’s not a loose powder.”
(App. 76-77). Jennings’s sample, weighing 0.72 grams, was
in nine separate little baggies and consisted of “off-white
chunky, chunky substance”. (App. 77-78) Based on her lab
analysis of the samples, Roche concluded that both
samples were cocaine base.
   Brigman suggests that his cocaine should not be deemed
“crack” cocaine because Roche did not specifically testify
that his cocaine was “crack” per se. But Roche testified,
“[c]rack isn’t a scientific term so we don’t call anything
actual crack. We just determine it’s cocaine base and crack
is left up to the street individual knowing what it looks like,
individual or on a street level which we’re not on. We
established it’s cocaine base.” (App. 87)
   Roche also testified that the shape of Brigman’s cocaine
sample, a “cookie” shape, suggested that it was crack
cocaine. She noted, “[g]enerally when cocaine hydrochloride
is processed into cocaine base the container that is used in
the processing is usually a round, is usually a round cup
                                   6


or beaker or bucket or something along those lines. And
when it’s processed the cocaine takes the shape, the
cocaine base takes the shape of the container so it’s usually
seen in a round form . . . you can see the round flat shape.”
(App. 94)
  The second Government witness was DEA Special Agent
Sam Trotman, the case agent for the investigation. Trotman
served as a special agent for the DEA for 13 years and also
spent five years as an investigator with the Camden County
Prosecutor’s Office, where he worked for three years in the
narcotics unit. Over his career, he had been involved in
several thousand drug arrests, with several hundred of
them involving “crack” cocaine.
  Trotman testified that the cocaine seized from both
Brigman and Jennings was crack cocaine. He related that
while cocaine powder is a white powdery substance, “crack”
cocaine is more of a tan hard chunky substance — a
description which matches Brigman’s cocaine. Like DEA
chemist Roche, Trotman also testified that the cocaine
seized from under Brigman’s car seat had a round beveled
edge, which, he stated, suggested that the cocaine had been
“cooked” in a manner that crack is “cooked.”3 He also
stated that in his experience working in law enforcement,
he had never heard of coca paste being in the Philadelphia
or Camden area. Given Trotman’s experience as a law
enforcement officer involved in drug transactions, it was
reasonable for the District Court to rely on his testimony.
See, e.g., Roman, 121 F.3d at 141-42; see also Waters, 313
F.3d at 156; Dent, 149 F.3d at 190.
  Trotman also testified that Jennings had told him that
Brigman had sold him “crack” on a regular basis. Jennings
testified at his guilty plea hearing that the nine baggies of
drugs found in his pocket were “crack” cocaine, and that he
got it from Brigman. Jennings also stated that the drugs
under Brigman’s seat belonged to Brigman and that they
were “crack.”

3. Agent Trotman testified that when cooked, crack takes the form of the
vessel in which it is cooked; the cocaine seized from Brigman had a
round beveled edge, which would indicate that it was cooked in a pot or
some other similar round object, as crack is normally cooked.
                              7


   Brigman argues that the District Court erred in
considering Jennings’s testimony because it was hearsay,
was self-serving, and deflected blame on Brigman. Hearsay
is fully admissible at a sentencing hearing, so long as it has
sufficient indicia of reliability. See U.S.S.G. § 6A1.3(a);
United States v. Deaner, 1 F.3d 192, 199 n.3 (3d Cir. 1993).
  In this case, the record appears to provide more than
sufficient indicia of reliability. First, as the District Court
noted, Jennings’s statements during his guilty plea were
given under oath. Second, all the statements he gave were
against his penal interest, since admitting to possessing
“crack” cocaine is significantly more serious than admitting
to possessing powder cocaine. Cf. United States v. Moses,
148 F.3d 277, 280 (3d Cir. 1998); see also United States v.
Szakacs, 212 F.3d 344, 352-53 (7th Cir. 2000).
   The District Court’s factual conclusion that the drugs
were “crack” cocaine was also supported by the drugs’
physical appearance: the contraband had a lumpy, rock-
like appearance characteristic of crack, and had a round,
beveled edge, another common marker of crack.

                              IV.
   Brigman also argues that the District Court committed
legal error by misapprehending the distinctions between
cocaine base that is produced by the freebase method and
cocaine base that is produced by the crack method. The
District Court speculated that the cocaine base created by
the freebase method would be treated the same as cocaine
base produced by the crack method, so long as the cocaine
produced from freebasing was otherwise indistinguishable
from crack. Based on this rumination, Brigman urges that
the    District  Court    sentenced    him    under    the
misapprehension that cocaine base produced by freebase is
legally the same as cocaine base produced by the crack
method.
  While the issue has not been resolved, the existing cases
suggest that cocaine produced by the freebase method is
not treated as “crack” under the Guidelines. See James, 78
F.3d at 857-58; United States v. Booker, 70 F.3d 488, 493-
94 (7th Cir. 1995); Johnson, 976 F. Supp. at 290 & n.8.
                                  8


   Nevertheless, the District Court’s thoughts on how
freebase-produced cocaine base would be treated under the
Guidelines have no import here. As the District Court
found, there were no facts in the record that would permit
an inference that Brigman’s drugs were produced by the
freebasing process.4 Brigman did not present evidence,
scientific or otherwise, which suggested that his cocaine
was the product of the freebasing technique. The District
Court’s musings concerning how cocaine base produced by
the freebase method would be treated under the Guidelines
were irrelevant and did not lead to any error in sentencing
Brigman.

                                  V.
  For the reasons set forth, we will affirm the judgment of
conviction and sentence.

A True Copy:
        Teste:

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




4. DEA chemist Roche testified that the chemical composition of
Brigman’s drugs was that of cocaine base. The likelihood of the seized
cocaine base being coca paste or freebase cocaine is small. First, coca
paste is not usually found in the United States. Second, freebasing
cocaine is considered to be highly dangerous and not conducive for
producing large amounts of cocaine, like Brigman’s 228 grams.
