Opinion
Criminal Action 01-84, Section "T"(3)
July 17, 2001
Before the Court is a Motion in Limine to Dismiss Indictment, or alternatively, to Compel the Government to Amend the Indictment and Motion for Daubert Analysis of Anticipated Scientific Testimony filed on behalf of the defendant, Elvin Pigott. This matter was set for hearing before the Court on July 11, 2001. The parties waived oral argument and the matter was submitted for the Court's consideration on the briefs alone. The Court, having considered the arguments of counsel, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
Co-defendants, Elvin May, III and Elvin Pigott, were charged in a two count indictment. Count One is a charge for conspiracy to possess with the intent to distribute fifty (50) grams or more of cocaine base, a violation of 21 U.S.C. § 841 (a). The sentence that can be imposed for such an offense varies by the weight of the amount of the mixture or substance of the illicit drug. Elvin Pigott contends that the pure amount of the drug, 27.5 grams, as indicated in the Government's own laboratory report, should be used and the indictment should be amended to reflect said weight. In so doing, upon conviction, the defendant's sentence would be drastically reduced.
In a letter written to this Court by Mr. Pigott himself, Mr. Pigott further asserts the fact that the report shows that the crack was only 41% pure. Mr. Pigott contends the notes and commentary of the Sentencing Guidelines provide that when a drug is less than 50% pure, the actual weight of the pure drug should be the amount used.
Pigott argues that the Fifth Circuit Court of Appeals has erred in prior cases where it held that the entire weight of any mixture or substance containing the drugs, not the weight of the drugs alone, is relevant in considering the sentence to impose. The defendant further contends that constitutional issues exist including disparate impact on the defendant and discriminatory application of the Guidelines. Moreover, defendant asserts it is unfair to suggest to the jury that an amount of the pure drug existed when it did not. The indictment as it currently reads is simply not accurate. As such, defendant asks this Court to consider the disparate impact of using a weight-based method in sentencing guidelines. Finally, defendant requests a Daubert analysis to ascertain whether the Government's lab report is able to pass Daubert muster.
In response, the Government submits that the entire weight of crack cocaine is appropriately charged in the indictment. The statute, case law, and United States Sentencing Guidelines all support the Government's contention that the net weight of the entire mixture is appropriately charged in the indictment and should be used for sentencing purposes. Next, the Government asserts that in order to establish a valid equal protection claim, the defendant must show that a disportionate impact exists and that it can be traced to a discriminatory purpose. The defendant has not stated what group he alleges is impacted or explain how that group is impacted. In any event, defendant would not be able to show disparate impact on any group of people because use of the entire weight for sentencing purposes applies to most controlled substances. Those who distribute crack cocaine are not treated any differently than those who distribute other narcotics. Moreover, the defendant has not presented proof of a discriminatory intent by Congress or the Sentencing Commission. Finally, the Government has no objection to the defendant's request for a Daubert analysis at trial.
In Chapman v. United States, 500 U.S. 453, 461, 111 S.Ct. 1919, 1925, 114 L.Ed.2d 524 (1991), the Supreme Court adopted a "market-oriented" approach to punishing drug traffickers, by which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence. The United States Sentencing Guidelines reflect the Congressional intent to reduce the amount of usable drug mixtures reaching the streets. Section 2D1.1 Subsection C note (A) states that "unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectible amount of the controlled substance." U.S.S.G. § 2D1.1 (c) (note A to Drug Quantity Table) (2000). Furthermore, Section 2D1.1 Comment 1 provides that a "mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used." Section 2D1.1 comment (n. 1)(2000). Examples of materials that are excluded from the weight include fiberglass, beeswax, and waste water. However, when crack is the drug involved, the courts have held that it is a mixture that is usable in its blended form and must be weighted in its entirety. United States v. Cartwright, 6 F.3d 294 (5th Cir. 1993); United States v. Tucker, 20 F.3d 242, 244 (7th Cir. 1994); United States v. Coleman, 166 F.3d 428, 432 (2nd Cir. 1999). Specifically,
[c]ocaine base is made by mixing cocaine and baking soda and boiling it in water, and in so doing, the water becomes mixed with the cocaine base. Users of cocaine base need not wait until the water evaporates before using the drug; nor, for that matter, must users separate the cocaine from the baking soda. All three ingredients are part of a whole, blended together, and therefore comport with the common understanding of "mixture" recognized in Chapman.Tucker, 20 F.3d at 244. Accordingly, the indictment in this case which charges Pigott with conspiracy to distribute and distribution of fifty (50) grams or more of crack cocaine is correct. The indictment therefore will not be dismissed or amended in this respect.
Furthermore, this Court finds that defendant's argument that use of the net weight of crack cocaine instead of the pure weight violates his rights to due process of law and equal protection because it creates a disparate impact on a minority group lacks merit. The Fifth Circuit Court of Appeals has repeatedly rejected similar arguments relative to discrepancies in the sentencing guidelines between cocaine powder and crack cocaine. See, United States v. Galloway, 951 F.2d 64, 65 (5th Cir. 1992) (rejecting equal protection argument); United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. 1992) (rejecting due process challenge);United States v. Cooks, 52 F.3d 101, 105 (5th Cir. 1995) (holding that the guidelines' stiffer penalties for cocaine base do not violate equal protection).
Finally, this Court will determine the admissibility of the scientific testimony at trial following the presentation of the analyst's qualifications and methodology.
Accordingly,
IT IS ORDERED that the Motion to Dismiss, or in the alternative, to Amend the Indictment axid for Daubert hearing be and the same is hereby DENIED as to the dismissal or amendment of the indictment and DEFERRED until trial as to hearing.