                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit

                     ___________________________

                             No. 92-1328
                     ___________________________


                      UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  VERSUS


                          ROLAND EUGENE BUTLER,

                                                      Defendant-Appellant.

       ___________________________________________________

          Appeal from the United States District Court
               For the Northern District of Texas
      ____________________________________________________
                         (April 5, 1993)

Before POLITZ, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

     Roland Eugene Butler makes a number of challenges to his

conviction and sentence on charges of possessing with intent to

distribute both cocaine (Count I) and cocaine base (Count II).             We

find no error except in the court's order refusing to allow Butler

to conduct an independent chemical analysis of the substance

alleged to be cocaine base.       We therefore affirm on the cocaine

charge (Count I), vacate the judgment on the cocaine base charge

(Count II), and remand to the district court with instructions to

allow Butler to test the substance alleged to be cocaine base.

                                    I.

     On August 1, 1991, at approximately 12:45 a.m., Officer Roy

Kaiser,   a   Narcotics   detective      with   the   Los   Angeles   Police

Department,   observed    an   African-American       female   approach   the
American Airlines ticket counter at the Ontario International

Airport in California.           She purchased a ticket with cash and,

without carrying any luggage, hurriedly exited the terminal instead

of approaching the boarding gate.            Officer Kaiser consulted with

airport employees and determined that she purchased the ticket in

the name of Robin Jamerson.             The ticket was for one-way travel

departing    at   1:00    a.m.    to    arrive    in   Washington,    D.C.   via

Dallas/Fort Worth.

       Kaiser's partner, Officer Robert Gartner, followed the woman

and observed her leave the terminal and hand her ticket to the

appellant.    The appellant waited for several minutes and then

entered the terminal.       Officer Gartner followed appellant to the

security    screening     area.        Officer   Kaiser   also   observed    the

appellant, an African-American male wearing a gray, double-breasted

suit and carrying a black briefcase and gray garment bag, enter the

terminal and quickly approach the security screening area. Officer

Kaiser then followed the appellant to the gate area and observed

him board the 1:00 a.m. flight to Dallas.

       Officer Kaiser then telephoned Agent Mike Munday of the

Dallas/Fort Worth DEA Task Force, relayed his observations, and

requested that Agent Munday investigate the appellant upon his

arrival in Dallas.       At the Dallas/Fort Worth Airport, Agent Munday

observed a man fitting appellant's description arrive on the flight

from Ontario, California.         He was carrying a black briefcase and a

gray    garment   bag.      Agent      Munday    approached   the    appellant,

identified himself, and asked for his airline ticket.                The ticket,

paid for in cash and issued to R. Jamerson, was for one-way travel


                                         2
from Ontario to Washington D.C. via Dallas/Fort Worth.                   Agent

Munday asked for identification but appellant, appearing nervous,

denied having any identification.          Agent Munday asked appellant if

his name    appeared   correctly   on      the   ticket   and   the   appellant

responded that he did not know why the name Jamerson appeared on

the ticket.   Appellant then presented a California identification

card bearing the name Roland Eugene Butler.

     Agent Munday asked to search the appellant's briefcase, and

the appellant consented to the search.           Agent Munday then asked to

search the appellant's garment bag. Appellant first responded that

he had found the garment bag on the airplane, but later stated that

Robin, his half-sister, gave him the bag at Ontario Airport.               The

appellant did not consent to the search of the garment bag, and

Agent Munday asked him to follow the officers to have a drug-

detecting canine sniff the bag for the presence of narcotics.              The

appellant followed the officers to the airport lobby area. The dog

gave a positive alert that the garment bag contained narcotics.

Agent Munday then arrested appellant and advised him of his Miranda

rights.    The appellant later gave a written consent to search his

garment bag and Agent Munday searched the bag in his office.             Agent

Munday found a white powdery substance and a brown pasty substance,

both of which tested positive for cocaine after a field test.

Approximately   one    week   later,    Agent    Munday   found   a   hospital

admittance card bearing the name of Roland Butler inside a pocket

of a pair of jeans recovered from the garment bag.

     Butler was charged with knowingly possessing 988.1 grams of

cocaine with the intent to distribute, in violation of 21 U.S.C. §§


                                       3
841(a)(1) and 841 (b)(1)(B); and knowingly possessing 948.4 grams

of cocaine base with the intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A).1

     Prior to trial, appellant filed a motion to suppress the

evidence seized from him at the airport and any statements made

during his interrogation.        The court overruled the motion after a

hearing.      The    appellant   also   filed     a   motion   to   require   the

government to furnish appellant with a sample of the controlled

substances for testing and analysis.             The court denied the motion.

The appellant also filed an application requesting the court to

order issuance of a subpoena to a character witness in California,

which the court also denied.

     After trial, the jury returned a verdict of guilty on both

counts.    The court sentenced appellant to concurrent terms of 240

months imprisonment on each count, and concurrent terms of four

years of supervised release on the cocaine offense and five years

on the cocaine base offense.            Butler filed a timely notice of

appeal.

                                       II.

     Butler first challenges the district court's order denying his

application    for    the   issuance    of   a   subpoena   to   produce   Kerry

Morning, a character witness, and the court's refusal to admit into

evidence portions of that witness's affidavit.                   The affidavit

accompanied Butler's application for the issuance of the subpoena


     1
        Butler was charged on and found guilty of a third count
of knowingly possessing 948.4 grams of cocaine base. After
trial, the court granted the government's motion to dismiss and
set aside the jury's verdict on this count.


                                        4
and demonstrated the nature of the character witness's testimony.

Morning stated that appellant's character and reputation were

inconsistent with that of a drug dealer.       Appellant contends that

the court's ruling violated both his constitutional and statutory

right to compulsory process.

     On   appellant's   statutory   claim,   Fed.   R.   Crim.   P.   17(b)

provides that a court shall order a subpoena on a named witness

upon a satisfactory showing "that the defendant is financially

unable to pay the fees of the witness and that the presence of the

witness is necessary to an adequate defense." A trial court enjoys

wide discretion in determining whether a subpoena should issue

under Rule 17(b).   United States v. Ojebode, 957 F.2d 1218, 1222

(5th Cir. 1992), cert. denied, 122 L. Ed. 2d 683 (1993).              It is

unusual that a character witness's testimony will be essential to

an adequate defense.    This is not such an unusual case.         Cocaine

and cocaine base were recovered from a garment bag that Butler was

carrying.   A card identifying Butler was found in the garment bag.

It is unlikely that Morning's testimony would have undermined this

strong, direct evidence of guilt.        It follows that Morning's

testimony probably would not have changed the verdict in this case.

We are satisfied that the witness was not "necessary to an adequate

defense."

     Similar reasoning persuades us that Butler's constitutional

claim must also fail.     Butler cannot show that he was unable to

obtain a fair trial without Morning's testimony.            See Ross v.

Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).

     Appellant also challenges the court's refusal to allow him to


                                    5
introduce the following passages of Morning's affidavit:

     Roland's character and reputation is not consistent with that
     of a drug dealer. I have never known Roland to possess, use,
     or sell drugs.

     The accusations against Roland are inconsistent                  with    my
     knowledge of his character and reputation.

Appellant's argument is meritless.        The district court facilitated

a stipulation between the parties.        It agreed to admit most of the

affidavit    into   evidence   because    both    the    government   and    the

appellant stipulated to its admission.           The court refused to admit

the above quoted part of the affidavit because the government

declined to stipulate to its admissibility.             The hearsay affidavit

was only admissible to the extent the parties agreed to its

admissibility.      We find no error in the court's refusal to admit

the affidavit in its entirety.

                                   III.

     The appellant next argues that the district court erred in

overruling his motion to suppress evidence because the officers

lacked reasonable suspicion in seizing appellant.             For purposes of

reviewing the district court's ruling at a suppression hearing we

accept the court's factual findings "unless they are clearly

erroneous or are influenced by an incorrect view of the law."

United States v. Simmons, 918 F.2d 476, 479 (5th Cir. 1990).

     Agent    Munday    stopped   appellant       because     he   matched     a

description of an individual who exhibited suspicious behavior in

the Ontario airport.      The court found that the initial contact

between the agents and appellant constituted "mere communication,"

which does not implicate the Fourth Amendment.             See United States

v. Hanson, 801 F.2d 757, 761 (5th Cir. 1986).             We have held that a

                                    6
"simple stop," consisting of a request for identification and a

plane ticket, does not constitute a seizure.           United States v.

Galberth, 846 F.2d 983, 989-90 (5th Cir.), cert. denied, 488 U.S.

865 (1988).

     The court found that a seizure occurred when appellant handed

Agent Munday his airline ticket and identification card bearing two

different names, and that the seizure was justified and supported

by reasonable suspicion.   "[A] district court's determination that

a seizure has or has not occurred is a finding of fact subject to

reversal only for clear error."        United States v. Valdiosera-

Godinez, 932 F.2d 1093, 1098 n.1 (5th Cir. 1991).           Accepting the

court's finding that a seizure occurred, we must determine whether

the officers' detention was supported by reasonable suspicion.

     "Reasonable   suspicion   must   be   supported   by   specific   and

articulable facts which, taken together with rational inferences

from those facts, would warrant a person of reasonable caution in

the belief that the intrusion was appropriate."        Simmons, 918 F.2d

at 481 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).        Agent Munday

knew that in California the ticket was paid for in cash, was for

one-way travel, and was purchased by a woman who did not board the

flight.   Rather, she gave the ticket to appellant, who was hiding

among palm trees outside the airport.          Appellant possessed a

recently purchased cash one-way ticket in another person's name.

Appellant initially denied knowing why the ticket was issued to "R.

Jamerson," but later stated that his half-sister had purchased the

ticket for herself.    Although appellant initially denied having

identification, he later showed an identification card, bearing the


                                  7
name of Roland Butler.            These facts, when taken together, form a

reasonable basis for suspecting that the appellant was engaged in

unlawful activity.          The officers therefore developed reasonable

suspicion       to    justify    detaining     the    appellant.2        Because    the

officers'       detention   of    appellant     was    supported     by   reasonable

suspicion, the court properly overruled appellant's motion to

suppress evidence.

                                         IV.

                                         A.

       Next,     Butler   challenges     his    conviction     of    possession     of

cocaine base and his resulting sentence on three related grounds.

First, he argues that the evidence is insufficient to support the

jury's finding that he possessed cocaine base.

       Butler's       argument    is   meritless.        The   finding     is     amply

supported by the testimony of an experienced DEA chemist.                           The

chemist, Mr. Edwin Albers, testified that he performs a cocaine

base       analysis   approximately     two    to    three   times   a    week.      He

testified in detail about the tests he conducted.                   He tested three

samples of substances that were seized from the appellant and

concluded that the first sample was cocaine hydrochloride, or

cocaine.       He concluded that the second and third samples he tested

were cocaine base.

       The appellant argues that the government produced no evidence

that the chemist tested the substance to see if it was smokeable,


       2
          Appellant raises no challenge to the propriety of the
police action in requesting Butler to accompany them and the
later events that led to the recovery of the controlled
substances from Butler's garment bag.


                                          8
or able to be vaporized and drawn into the lungs.          The appellant

also argues that, at the time the agents seized the substance from

him, it was not hard or rock-like, but was soft, mushy, and a bit

wet.     In other words, the appellant argues that because the

substance was not hard and dry--known properties of crack cocaine--

the substance was not, or had not yet become, cocaine base within

the meaning of § 841(b) and the guidelines.        We disagree.

       Neither the statute, 21 U.S.C. § 841(b), nor the sentencing

guidelines define the term "cocaine base."         This court has found

crack cocaine to be a cocaine base, noting that "[n]umerous cases

have held that crack cocaine is one type of cocaine base."         United

States v. Metcalf, 898 F.2d 43, 46-47 (5th Cir. 1990).           But this

court has not held that crack cocaine is the only form of cocaine

base.      Appellant's   reliance   on   United   States   v.   Thomas   is

misplaced.    See United States v. Thomas, 932 F.2d 1085 (5th Cir.),

cert. denied, 112 S. Ct. 264, and cert. denied, 112 S. Ct. 428

(1991), and cert. denied, 112 S. Ct. 887 (1992)            In Thomas, the

defendant challenged his conviction for possession of cocaine base

on grounds that the term "cocaine base" was unconstitutionally

vague.     For that reason, he contended that he was not placed on

notice that his possession of crack cocaine offended the statute.

In rejecting that argument, we stated that the term "cocaine base,"

when referring to crack cocaine, is not unconstitutionally vague

because:     "even many children on the street know the difference

between powdered cocaine and crack," and "we can fall back on the

common usage and definition of crack cocaine."       Thomas, 932 F.2d at

1090.      In rejecting this constitutional challenge we did not


                                    9
suggest that crack cocaine and cocaine base are synonymous.

       Other courts have found the term "cocaine base" to encompass

more than just crack cocaine.           See, e.g., United States v. Lopez-

Gil, 965 F.2d 1124, 1134 (1st Cir.) (opinion after rehearing)

("Although     we   continue     to    believe   that   Congress    indeed     was

concerned primarily with the crack epidemic in enacting [§ 841(b)],

the Government now persuades us that it does not necessarily follow

that the term 'cocaine base' includes only crack cocaine."), cert.

dismissed, 112 S. Ct. 2959, and cert. denied, 113 S. Ct. 484

(1992); United States v. Reyes, 782 F. Supp. 609, 611 (S.D. Fla.

1992) (rejecting contention that cocaine base means only crack,

finding that "tan, chunky substance" identical in composition and

effect to crack but differing only slightly in physical appearance

was "cocaine base").

      The record in this case supports the conclusion that one of

the substances Butler possessed was cocaine base. "District judges

are   forced   to    rely   on   the   expert    testimony   of    chemists    who

specialize in drug analysis in order to determine the identity of

a substance."        Lopez-Gil, 965 F.2d at 1135.            The DEA chemist

testified    that    cocaine     hydrochloride    becomes    cocaine    base    by

dissolving it in water and treating it with baking soda.                       The

hydrochloride molecule then neutralizes and separates from the

cocaine base.       The cocaine base is not water soluble, so it forms

oily droplets and sinks to the bottom of the container.                After the

water solution is poured off, the cocaine base remains, which cools

and hardens into hard chunks.             The reaction speeds up when the

mixture is heated.          The chemist testified that the "mushy, wet"


                                         10
substance seized from the appellant was cocaine base, presumably

because the critical reaction transforming cocaine to cocaine base

had occurred.

     Based on this testimony, we reject the appellant's argument

that the wet, mushy substance he possessed had not yet become

cocaine base because it had not completed the drying process.

Although a substance does not appear to be crack cocaine, it may

nevertheless be cocaine base within the meaning of § 841(b).                          We

conclude that the evidence supports the jury's verdict and the

court's finding that the appellant possessed "cocaine base" within

the meaning of § 841(b) and the guidelines.

                                          B.

     Second, appellant argues that the statute and guidelines,

which   do   not   include       a    definition      of   "cocaine        base,"   are

unconstitutionally       vague       as   applied     to   him.       We    disagree.

Appellant    correctly    notes       that     this   Circuit     has      rejected   a

challenge that the statute is unconstitutionally vague on its face,

because we can rely on "the common usage and definition of crack

cocaine."    See Thomas, 932 F.2d at 1090.                 He contends, however,

that because he did not possess crack cocaine, and because crack

cocaine is synonymous with cocaine base, the definition of "cocaine

base" is uncertain and unconstitutionally vague as applied to him.

     We have rejected appellant's argument that crack cocaine is

the only form of cocaine base.               We have also concluded that the

government's expert testimony supports a conclusion that the wet,

mushy substance seized from appellant was cocaine base.                      Although

the substance had not completely dried, it was chunky rather than


                                          11
powdery, and was not water soluble.                The term "cocaine base,"

therefore, encompasses the substance that appellant possessed and

is therefore not unconstitutionally vague as applied to appellant's

case.

                                          C.

       Third, the appellant argues that the court erred in refusing

to grant his motion to compel the government to produce samples of

the substance alleged to be cocaine base so that appellant could

conduct an independent chemical analysis of the substance.                 In his

motion,    appellant     cited     Fed.   R.   Crim.   P.   16(a)(1)(C),    which

provides, in pertinent part:

       Upon request of the defendant the government shall permit the
       defendant to inspect . . . tangible objects . . . or portions
       thereof, which are within the possession, custody or control
       of the government, and which are material to the preparation
       of the defendant's defense or are intended for use by the
       government as evidence in chief at the trial, or were obtained
       from or belong to the defendant.

In cases involving a controlled substance, "a concomitant part of

the examination or inspection [is] the right of the accused to have

an     independent      chemical    analysis     performed     on   the    seized

substance."      United States v. Gaultney, 606 F.2d 540, 545 (5th Cir.

1979), rev'd sub nom. on other grounds, Steagald v. United States,

451 U.S. 204 (1981).

       Because the substance alleged to be cocaine base was obtained

from    Butler    and   because    the    government    intended    to    use   the

substance as evidence at trial, we agree that the court erred in

refusing to grant appellant's motion to test a sample of the

substance.       But even if the substance was discoverable under Rule

16(a)(1)(C), we must determine whether the court's error prejudiced


                                          12
appellant's substantial rights. See United States v. Gonzalez, 661

F.2d 488, 494 (1981).   Appellant's rights were prejudiced if his

inability to test the substance affected the verdict.           United

States v. Montemayor, 703 F.2d 109, 119 (5th Cir.), cert. denied,

464 U.S. 822 (1983).

     We conclude that we can not determine from the record whether

appellant's   substantial   rights    were   prejudiced.   Because   no

independent analysis of the substance occurred, we can not evaluate

whether such an analysis could have changed the verdict.             We

therefore vacate appellant's conviction on the cocaine base charge

(Count II).    We remand this case to the district court with

instructions to order the government to produce a sample of the

seized substance alleged to be cocaine base to allow the appellant

to conduct an independent chemical analysis of the substance.        The

testing shall be under the control and supervision of the district

court.   If the analysis raises an issue of fact as to whether the

substance tested is cocaine base, then the district court should

order a new trial on the cocaine base charge.       On the other hand,

if the analysis does not raise a legitimate issue of fact on the

chemical composition of the substance and the court determines that

the appellant suffered no prejudice, then the district court should

reinstate its original judgment.3

                                     V.



     3
        Butler did not limit his Rule 16(a)(1)(C) motion in the
district court to the cocaine base. But his challenge on appeal
is to the court's failure to permit him to test the substance
"alleged to be cocaine base." We therefore do not vacate the
conviction on Count I.


                                 13
       Next, appellant argues that the district court erred when it

enhanced his sentence under § 3C1.1 of the Sentencing Guidelines.

This section provides for a two-level increase for the willful

obstruction of justice during the investigation, prosecution, or

sentencing    of   an   offense.    The    district    court   acknowledged

appellant's constitutional right to a trial and to testify in his

own behalf.    The court found, however, that appellant obstructed

justice not because he declared his innocence under oath, but

because he gave perjured testimony on facts that were material to

the issues to be decided by the jury.         "Though the court may not

penalize a defendant for denying his guilt as an exercise of his

constitutional      rights,     enhancement    based     on     perjury    is

permissible." United States v. Goldfaden, 959 F.2d 1324, 1331 (5th

Cir. 1992).    See also United States v. Dunnigan, 113 S. Ct. 1111,

(1993) ("Upon a proper determination that the accused has committed

perjury at trial, an enhancement of sentence is required by the

Sentencing Guidelines.").

       Also, the record supports the court's finding that appellant

gave    perjured   testimony.      Aside    from   other,     less   material

inconsistencies in appellant's testimony, the appellant testified

that his half-sister asked him to take the garment bag containing

the drugs to her nephew in Washington, D.C, and that he owned no

clothing found in the garment bag.        But the agents found a hospital

admittance card bearing appellant's name in a pocket of a pair of

jeans recovered from the garment bag.         The district court did not

err in enhancing appellant's sentence for obstruction of justice.

                                    VI.


                                    14
     For the reasons stated above, we affirm the conviction on

Count I.   We vacate the conviction on Count II and remand the case

to the district court to permit Butler to conduct an independent

chemical analysis of the substance identified as cocaine base.           If

the district court concludes that Butler suffered no prejudice due

to his inability to test the substance earlier, the court may

reinstate its judgment. If, however, the district court finds that

appellant was prejudiced from his inability to test the substance

it will order a new trial on Count II.

     The judgment of the district court is therefore AFFIRMED in

part,   VACATED   in   part,   and   REMANDED   for   further   proceedings

consistent with this opinion.




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