United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2007 Decided February 22, 2008

No. 05-3007

UNITED STATES OF AMERICA,

APPELLEE

v.

BERNARDO LLOYD,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00457-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued

the cause for the appellant. A. J. Kramer, Federal Public

Defender, was on brief.

Sarah T. Chasson, Assistant United States Attorney, argued

the cause for the appellee. Jeffrey A. Taylor, United States

Attorney, and Elizabeth Trosman and Roy W. McLeese III,

Assistant United States Attorneys, were on brief.

Before: HENDERSON, GARLAND and BROWN, Circuit

Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Appellant

Bernardo Lloyd was convicted of one count each of possessing
2

with intent to distribute five grams or more of cocaine base,

possessing with intent to distribute cannabis, assault with a

dangerous weapon and possessing a firearm during the

commission of a crime of violence. Lloyd contends that all of

his convictions should be reversed because the district judge

delivered a coercive anti-deadlock charge and communicated

with the jurors during their deliberations (including giving the

challenged deadlock instruction) while Lloyd was absent from

the courtroom. In addition, Lloyd challenges his conviction of

possessing with intent to distribute more than five grams of

cocaine base on the ground that the evidence was insufficient to

establish that the substance he possessed was vaporizable

cocaine base, known as “crack,” rather than some other form of

cocaine base. We affirm all of Lloyd’s convictions because we

conclude that the deadlock charge was not coercive, that

conducting the proceedings in Lloyd’s absence caused him no

prejudice and that the evidence was sufficient to establish the

seized substance was “crack” cocaine. 

I.

Viewing the evidence in the light most favorable to the

Government as we must, see United States v. Roy, 473 F.3d

1232, 1233 (D.C. Cir. 2007), we find the record establishes the

following facts.

Around noon on May 17, 2003, while driving a green Ford

Expedition with his young daughter as passenger, Lloyd came

upon a commercial tow truck belonging to Nemr Ibrahim

stopped in the 1600 block of Levis Street N.E. in Washington,

D.C., with the driver-side door open and blocking Lloyd’s

passage. Lloyd honked at Ibrahim, who was securing a disabled

car to the tow truck. The driver of the disabled car responded by

closing the tow truck door and Lloyd pulled alongside the tow

truck and began to curse Ibrahim. Ibrahim approached Lloyd’s

vehicle and an argument ensued until Lloyd retrieved a handgun

from the console area of his vehicle, pointed it toward Ibrahim’s
3

face and threatened to shoot him in the head. Ibrahim then

stepped away from Lloyd’s vehicle and Lloyd drove off.

Ibrahim called the police and reported the incident, along with

Lloyd’s license plate number.

Later the same day, police officers stopped Lloyd driving a

green Expedition, with his daughter and her mother as

passengers. The police explained that a “serious crime” had

occurred in the Expedition and took the vehicle and its

occupants to the Fifth District police station. Trial Tr. 231.

Once there, the police impounded the vehicle but let Lloyd and

his passengers depart. Afterward, Ibrahim was called in to

inspect the vehicle and he identified it as the one in which Lloyd

had drawn the gun on him. A few days later, Ibrahim identified

Lloyd himself from a photo array. 

Based on Ibrahim’s identification, Metropolitan Police

Department (MPD) Detective Dexter E. Martin obtained a

search warrant for the Expedition. During the following vehicle

search, he noticed the console cover between the front seats was

loose. When he lifted it, he found a silver handgun and some

ziplock bags containing “a white rock-like substance” and “a

green weed substance,” along with a scale, a knife and ski

masks. Trial Tr. 151. 

A grand jury indicted Lloyd on five counts: (1) unlawfully

possessing with intent to distribute five grams or more of

cocaine base in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(iii); (2) unlawfully possessing with intent to distribute

cannabis in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); (3)

using, carrying and possessing a firearm during a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(i); (4)

assault with a dangerous weapon in violation of D.C. Code

§ 22-402; and (5) possessing a firearm during the commission

of a crime of violence in violation of D.C. Code § 22-4504(b).

Appellant’s App. (App.) 12. 
4

Lloyd’s trial began on September 8, 2004. To establish the

contents of the seized ziplocks, the Government introduced a

Drug Enforcement Agency (DEA) laboratory analysis, which

identified the substances as 27.8 grams of 52% pure “[c]ocaine

base” in eleven bags, 3.3 grams of 75% pure “[c]ocaine

hydrochloride” in four bags and 32.3 grams of marijuana in

twenty-five bags, App. 15, and which the parties stipulated was

“true and accurate,” Trial Tr. 162. In addition, MPD Sergeant

John J. Brennan, who was qualified as an expert, testified on the

distribution, packaging and use of crack cocaine in the District

of Columbia and identified the white, rock-like substance in the

ziplocks as “crack cocaine.” Id. 194.

The jury began deliberating at 12:15 p.m. on September 9,

2004. Around 4:00 that afternoon, the jury sent a note to the

judge, which note read:

 The jury is having difficulty determining some of the

evidence. We are hung on Counts 1, 2, + 4. We are

close but need some encouragement and instructions

from the bench.

App. 16. It was dated “9-9-04” and signed by the jury foreman.

The judge recalled the jurors and, at the foreman’s request,

instructed them further on “identification,” that is, whether it

was Lloyd who committed the crimes charged, and on the

jurors’ duty not to consider the nature of the crimes

charged—for example, that they involved drugs and a gun. The

judge then addressed the jury as follows: 

[Y]ou indicate in your message that you are hung on

counts one, two, and four. You are close but need

some encouragement and instructions. And certainly

I’m here to provide encouragement; whether the

additional instructions—whether my elaboration on the

instructions is useful or not, I’ll leave to you to decide.
5

But I think it might be useful for you to hear this

additional instruction called partial verdict.

 You do not have to reach unanimous agreement on

all of the charges before returning a verdict on some of

them. If you have reached unanimous agreement on

some of the charges, you may return a verdict on those

charges and then continue deliberating on the others. 

Trial Tr. 290. The jury then resumed deliberating.

A short time later, the jury sent the judge a second note and

asked to speak with him without counsel present. In response,

the judge assembled both counsel and stated as follows:

I want the record to reflect that the clerk has in his

hands a copy of the note that was handed to me from

the jury. The note, which I will place under seal until

this case is completed, begins something to the effect

of, if possible, we would like to meet you in the

courtroom without counsel or the Defendant being

present. And then it goes on to say something to the

fact [sic] like we are hung, and then he begins to spell

out exactly how they are split on which counts.

 I literally averted my eyes when I realized what I was

about to read, and did not read what the splits are. I

don’t know what the splits are on what counts, did not

finish reading the note, will not read the rest of the

note, and believe that what I need to do is to call the

jury back here, tell them that we are placing that note

under seal and that I’m not reading it, tell them that it’s

inappropriate, that I really ought to rub their nose in the

instruction. I don’t think I could have been plainer

about what I told them about not revealing their split.

And tell them that if they have a question for

me—well, I will tell them, A, that I will not meet them

in the absence of counsel, but that if there’s anything in
6

1

The note was apparently misplaced after being placed under seal

and it is not a part of the record on appeal. See Appellant’s Br. 15 n.3.

the rest of the note that I should know, I’ll be happy to

hear it, but that I cannot, will not know or hear

anything about the way they’re split. Any objection to

what I’ve said so far?

Trial Tr. 293-94. He later re-emphasized that he had not read

the actual numerical split: “[L]et the record be perfectly clear,

I did not read, do not know what they told me, but the fact that

they told me is of record, and the note will be under seal until

we have a verdict or some other termination of this case.”1

 Id.

295. Before the judge recalled the jury, Lloyd’s counsel

informed him: “Your Honor, for the record, Mr. Lloyd went

downstairs and I’ll waive his presence.” Id. 

The jury returned to the courtroom at 4:38 and the judge

advised it as follows:

I called counsel in here pretty quickly after getting

your last note, and Mr. Lloyd is downstairs getting a

soft drink or something, and it’s okay with me and it’s

okay with counsel if he not be here for this brief

encounter. And it’s going to be quite brief.

Members of the jury, we have a

communication—what we have here is a failure of

communication. I only read about the first two lines of

the note that I was given from you, and then I literally

closed it up and averted my eyes. Because the note

says quite plainly how you’re divided on issues, and I

thought I made it pretty clear in the instruction that you

are not to tell anybody how you’re divided on anything

until or unless we have a verdict.
7

Now, if you think we’re just sharing information

between the judges of the facts and judges of the jury,

I’m afraid it doesn’t work that way. We cannot—I

cannot have a conference with you out of the presence

of counsel. We just can’t do that. I mean, it’s got to

be—the lawyers on both sides have a stake in this and

they have a right to be here.

 And so I’m going to ask you either to—well, the

answer to the question I did read was can we meet out

of the presence of the lawyers, and the answer is, I’m

afraid not. And then I stopped reading, and I literally

stopped reading, closed it up, stopped reading, and we

placed it under seal for the rest of the proceeding.

Because I can’t know that, I don’t want to know it, I

don’t want to hear it. That’s entirely secret, and for

you to know and nobody else to know, until or unless

you have a unanimous verdict or the case is terminated

in some other way. 

Id. 295-96. After an additional exchange with the jurors, the

judge dismissed them and informed counsel he intended to give

the jury a Thomas anti-deadlock charge—so named because we

endorsed it for use in this Circuit in United States v. Thomas,

449 F.2d 1177 (D.C. Cir. 1971) (en banc)—and to reread his

“function of the jury” and “reasonable doubt” instructions. Trial

Tr. 301-02. He then recalled the jurors and instructed them as

indicated. The deadlock instruction directed them as follows:

 Now, please listen to this instruction. The verdict

must represent the continued [sic] judgment of each

juror. In order to return a verdict, it is necessary that

each juror agree to the verdict; in other words, your

verdict must be unanimous. It is your duty as jurors to

consult with one another and to deliberate with a view

to reaching an agreement, if you can do so without

violence to individual judgment. Each of you must
8

decide the case for yourself, but do so only after an

impartial consideration of the evidence with your

fellow jurors.

 In the course of your deliberations, do not hesitate to

re-examine your own views and change your opinion

if convinced it is erroneous, but do not surrender

honest conviction as to the weight or effect of evidence

solely because of the opinion of your fellow jurors or

for the mere purpose of returning a verdict. You are

not partisans, you are judges, judges of the facts. Your

sole interest is to ascertain the truth from the evidence

in the case.

Id. 301. After giving these instructions, the judge released the

jurors for the day. 

The jury resumed deliberating the following morning and

around 11:00 a.m. reported a unanimous verdict. It convicted

Lloyd of Counts 1, 2, 4 and 5 and acquitted him of Count 3. 

On December 21, 2004, the judge sentenced Lloyd to

concurrent terms of 84 months on Count 1 and 60 months on

each of Counts 2, 4 and 5, to be followed by four years of

supervised release. See App. 19-21. 

Lloyd filed a notice of appeal on January 3, 2005. 

II.

As noted supra, Lloyd asks the court to reverse (1) his

conviction of Counts 1, 2, 4 and 5 based on the judge’s

communications with the deliberating jurors—both because the

Thomas deadlock instruction had a coercive effect on the jurors

and because the communications occurred while Lloyd was

absent from the courtroom; and (2) his conviction of Count 1

because the evidence did not establish that the white substance

in the ziplock bags retrieved from the console was “crack”

cocaine. We address each argument seriatim.
9

2

The Allen charge was “[s]o named after receiving approbation by

the Supreme Court in Allen v. United States, 164 U.S. 492 (1896).”

Thomas, 449 F.2d at 1179 n.3 (parallel citation omitted).

A. Communications with the Jury

First, Lloyd argues that the deadlock instruction was

“impermissibly coercive” in light of the two jury notes and the

judge’s responses to them. “To reverse for coercion, a court

must find that ‘in its context and under all the circumstances the

judge’s statement had the coercive effect attributed to it.’ ”

United States v. Spann, 997 F.2d 1513, 1516 (D.C. Cir. 1993)

(quoting Jenkins v. United States, 380 U.S. 445, 446 (1965)).

We conclude that the Thomas instruction the trial judge gave

was not coercive so as to warrant reversal.

Juror coercion can occur “where the judge, in his

communications to the jury, is unduly coercive,” which typically

arises when “the jury, having been unable to agree, is sent back

by the judge for further deliberations” and “the judge’s

instruction in sending the jury back had a ‘possibly coercive

effect.’ ” (Robert) Williams v. United States, 419 F.2d 740, 750

(D.C. Cir. 1969) (en banc) (quoting (Ronald) Williams, 338 F.2d

530, 533 (D.C. Cir. 1964)) (Wright, J., dissenting in part and

concurring in part). Plainly, that did not occur here. As Lloyd

acknowledges, the deadlock instruction the district court gave

conformed to the language of the model instruction endorsed by

the American Bar Association (ABA), which we adopted in

Thomas “as the vehicle for informing jurors of their

responsibilities in situations wherein judges decide to do so.”2

449 F.2d at 1187; see Reply Br. 4 n.2 (“[T]he government is

correct that Mr. Lloyd does not dispute the language of the

Thomas instruction . . . .”). In Thomas, we adopted the ABA

language precisely because it is not coercive and its use would

therefore eliminate “the volume and complexity of litigation

generated by the Allen charge,” which had theretofore been used
10

in this Circuit. 449 F.2d at 1186; see United States v. James,

764 F.2d 885, 891 (D.C. Cir. 1985) (Thomas instruction “itself

guards against a coerced jury verdict by cautioning that the

jurors should reach a verdict only ‘if [they] can do so without

violence to individual judgment,’ and jurors are not to surrender

‘[their] honest conviction[s] as to the weight or effect of

evidence solely because of the opinion of [their] fellow jurors,

or for the mere purpose of returning a verdict’ ”) (quoting

Criminal Jury Instructions, District of Columbia, No. 2.91 (3d

ed. 1978) (alterations in James)). Because the instruction in this

case conformed to the non-coercive Thomas language, it was not

itself coercive. Nonetheless, Lloyd seeks reversal based on

another type of juror coercion, “often entwined with the first,”

namely “when a jury returns unable to agree, and the numerical

division of the jury is revealed in court.” (Robert) Williams, 419

F.2d at 750 (citing Brasfield v. United States, 272 U.S. 448

(1926); (Ronald) Williams v. United States, supra)) (Wright, J.,

dissenting in part and concurring in part). We find this

circumstance inapplicable as well.

At Lloyd’s trial, the jurors’ numerical division was not

“revealed in court” nor even known to the judge. As the judge

carefully explained to counsel and the jury, he stopped reading

the second note before he reached the numerical division and

therefore did not know what the division was or whether the jury

was leaning toward conviction or acquittal. Thus, we do not

face the “precarious” situation where the judge “give[s] a

supplemental charge to consider each other’s views when he

was already advised that only [a minority of] jurors voted for

acquittal.” Mullin v. United States, 356 F.2d 368, 370 (D.C. Cir.

1966) (holding mistrial was properly declared after jury note

revealed in court only 4 of 12 jurors favored acquittal); cf.

United States v. Daas, 198 F.3d 1167, 1180 (9th Cir. 1999)

(“There is no reason to believe the form of the instruction would

have been perceived as coercive by jurors holding the minority

view, particularly since the district court judge did not inquire as
11

3

Lloyd posits that the judge would have inferred that there were

only one or two hold-outs, that those were holding out for acquittal

and that it was therefore reasonable to believe that the dissenting

jurors felt coerced based on the judge’s hypothetical inferences. We

cannot credit such speculative reasoning.

4

What occurred here is not, as Lloyd asserts, “analogous to” what

occurred in (Ronald) Williams, supra. Appellant’s Br. 16. There, the

to the numerical division and thus did not know whether the

majority was in favor of conviction or acquittal.”).3 

Nor is this case like Smith v. United States, 542 A.2d 823

(D.C. 1988)—which Lloyd cites for “circumstances strikingly

similar to those in the instant case.” Appellant’s Br. 20. In

Smith the trial judge was unaware of the jury’s numerical

division, which was disclosed in two jury notes, because his law

clerk screened the notes and kept the information from him. On

appeal, however, the court reversed the conviction, concluding

that “[t]he judge’s attempt to avoid tainting the [deadlock]

instruction by having his law clerk intercept the jury’s notes was

ineffectual because he failed to let the jury know that he had not

read the notes himself.” 542 A.2d at 825 (emphasis added).

Here, by contrast, the judge repeatedly and emphatically

informed the jurors he had not read and did not know their

numerical split. 

Lloyd also identifies other circumstances at trial that he

claims rendered the deadlock charge coercive but we find none

of them telling. He points, for example, to the first jury note,

which informed the judge that the jury was “close” to a verdict

on three counts but that it “need[ed] some encouragement and

instructions from the bench,” App. 16, and asserts that the

judge’s reference to these words in open court would have

appeared coercive to the minority jurors. We are not

persuaded.4

 After all, the first note here did not, as did the note
12

jury foremen wrote a note asking “[c]an the (two) alternate jurors

replace the minority voters?” and, when questioned by the judge,

disclosed that the jury was divided by “a clear minority,” 338 F.2d at

531. Thus, unlike here, the judge there knew the jury’s numerical

division and the jurors were aware that he knew. Further, there we

found that the formulation of the Allen charge the court gave was itself

“unquestionably . . . impermissible,” id. at 533, while the language of

the Thomas charge here was, as we have explained, unobjectionable.

in (Robert) Williams, reveal the jurors’ actual numerical split.

Nor did the judge (unlike the Smith judge) respond to this note

with a deadlock charge. Instead, he expanded upon his

instructions, at the jury’s specific request, and added a partial

verdict instruction. It was not until after the second jury note,

which specifically stated the jury was “hung” and requested that

the jurors speak with the judge apart from counsel (and which

went on to set out the unread numerical division), that the judge

decided to give a deadlock instruction. Thus, the circumstances

here are similar to those we faced in United States v. Spann, in

which we found no ground for reversal—notwithstanding

comments the trial judge made to the jury after a first deadlock

note were “inappropriate and probably proscribed under

Thomas”—because the improper comments “had no direct effect

on the jury—that is, they did not break the jury deadlock or

cause the guilty verdict.” 997 F.2d at 1518. We there

explained:

When the jurors resumed deliberation on the third day

they again reached deadlock, despite the judge’s

admonition of the previous evening. Thus, we do not

see how any of the cited remarks could have, by

themselves, coerced the jury to return the guilty verdict

so as to warrant reversal. It was only after the judge

delivered the supplemental charge in response to the

second deadlock note that the jury finally reached a

unanimous verdict. 
13

5

In a letter submitted after oral argument pursuant to Federal Rule

of Appellate Procedure 28(j), the Government cited as relevant to the

waiver issue our recent decision in United States v.

Hoover-Hankerson, 511 F.3d 164 (D.C. Cir. 2007), in which we held

that the defendant had waived through counsel her Sixth Amendment

right to be present during voir dire. We find Hoover-Hankerson

distinguishable because the defendant there was aware the proceedings

would continue in her absence and was in the courtroom when her

counsel orally waived her continuing presence on her behalf. See 511

F.3d at 169. In contrast, Lloyd was not present when his counsel

purported to waive his presence and could not have known there

Id. (citation omitted). Here too, the jurors resumed deliberating

after the first jury note and remained unable to reach a verdict.

After the jury sent the second note, the judge gave the Thomas

instruction and recessed court for the day. The jurors did not

resume deliberating and reach a unanimous verdict until the next

day. We therefore see no causal nexus between the exchange

following the first note, even if objectionable, and the jury’s

ultimate verdict. Cf. Thomas, 449 F.2d at 1181 n.19 (noting

court previously rejected claim of coercion where overnight

recess between supplemental deadlock charge and resumption

of deliberations was “less coercive on the jury than a charge

immediately followed by sequestration and deliberation”) (citing

Fulwood v. United States, 369 F.2d 960, 962-63 (D.C. Cir.

1966)). 

Finally, Lloyd asserts that the district court violated his

right under Federal Rule of Criminal Procedure 43 and the Fifth

and Sixth Amendments to the United States Constitution to be

present when the judge discussed the second jury note with

counsel and then communicated with the jurors (with counsel

present), and in particular, when he gave the anti-deadlock

instruction. Assuming that Lloyd had such a right and that he

did not waive it—issues we do not reach—we conclude that any

violation of the right was harmless.5
14

would be a second jury note or additional exchanges between the

judge and the jury during his absence. 

Ordinarily, we review for harmlessness under the standard

set out in Kotteakos v. United States, 328 U.S. 750 (1946), and

determine whether it is “highly probable that the error had

substantial and injurious effect or influence in determining the

jury’s verdict.” 328 U.S. at 776. Lloyd argues, however, that

because he raises a constitutional challenge, we must apply a

stricter standard, namely whether continuing the trial

proceedings in Lloyd’s absence was “harmless beyond a

reasonable doubt.” Appellant’s Br. 29-30 (citing Chapman v.

Cal., 386 U.S. 18, 21-22 (1967); United States v. Washington,

705 F.2d 489, 498 (D.C. Cir. 1983); Wade v. United States, 441

F.2d 1046, 1050 (D.C. Cir. 1971)). We need not choose

between the two standards as the alleged error in conducting the

proceedings in Lloyd’s absence was harmless under either one.

Cf. United States v. Tchibassa, 452 F.3d 918, 929 (D.C. Cir.

2006) (given “overwhelming evidence” of guilt, “any error in

the district court’s evidentiary rulings, whether or not of

constitutional dimension, was harmless”). Any error was

harmless because there was not “ ‘any reasonable possibility of

prejudice’ ” to Lloyd as a result of the proceedings continuing

in his absence. Wade, 441 F.2d at 1050 (where trial judge erred

in repeating jury instructions and giving Allen charge in

defendant’s absence, “[t]he standard by which to determine

whether reversible error occurred . . . is . . . whether there is ‘any

reasonable possibility of prejudice’ ” (quoting Walker v. United

States, 322 F.2d 434, 436 (D.C. Cir. 1963), cert. denied, 375

U.S. 976 (1964)). The only significant event Lloyd missed was

the discussion with counsel about the anti-deadlock instruction

and the judge’s subsequent giving thereof. Because the charge

involved a complex legal issue, it is unlikely Lloyd would have

contributed greatly to the debate. Moreover, Lloyd’s counsel

did not stand mute in Lloyd’s absence; in fact, he argued with
15

the judge about which instruction to use. Finally, as noted, there

was nothing erroneous in the anti-deadlock charge. For these

reasons, we conclude that any error in proceeding in Lloyd’s

absence was harmless. See United States v. Rodriguez, 67 F.3d

1312, 1316 (7th Cir. 1995) (“[F]ailure to secure the defendant’s

presence is harmless if the issue is not one on which counsel

would be likely to consult the defendant, or if it is not one for

which the defendant, if consulted, would be likely to have an

answer that would sway the judge.”). 

Although we have found no ground under the circumstances

of this case to reverse Lloyd’s conviction based on the deadlock

instruction or the judge’s other communications with the jury in

Lloyd’s absence, we nonetheless caution the district court

against expanding on the Thomas script after a jury indicates

deadlock. See Trial Tr. 296 (elaborating on roles of court, jurors

and lawyers). In prescribing the Thomas instruction for use in

this Circuit, we decried “ ‘the large amount of litigation which

the use of the original Allen charge has engendered,’ ” noting in

particular that “ ‘[o]ne of the sources of trouble on appeal has

been that the language actually used tends to vary from judge to

judge, and this lack of uniformity in a delicate context is full of

pitfalls.’ ” 449 F.2d at 1185 (quoting United States v. Johnson,

432 F.2d 626, 632 (D.C. Cir. 1970) (alteration in original)). We

left no room in Thomas for judicial innovation or extemporizing

after deadlock and a trial judge does so at peril of reversal. It is

essential that each trial judge hew to the precise language we

adopted in Thomas—and stop there—to insure against even the

suggestion of juror coercion. 

B. Sufficiency of “Crack” Evidence

Lloyd also challenges the sufficiency of the trial evidence

to establish that the substance in the seized ziplocks was “crack”

cocaine, that is, smokable or vaporizable cocaine base.

Following our recent decision in United States v. Powell, 503

F.3d 147 (D.C. Cir. 2007), we reject this argument as well.
16

In Powell, a DEA forensic chemist testified that the

substance in the ziplock bags seized from the defendant was

83% pure “cocaine base” and his written report to this effect was

admitted into evidence. In addition, the two arresting officers

testified they had seen “crack” many times and the substance

seized was crack cocaine. Finally, Sergeant Brennan, qualified

as an expert in that case as well, testified from a photograph that

the substance was “crack.” The court concluded that the

evidence, “[w]hile not exactly overwhelming, . . . was enough

to enable a rational trier of fact to determine that [the substance]

was crack cocaine.” 503 F.3d at 149. The court explained: “The

arresting officers had ample experience with crack cocaine.

Their identification of Powell’s material as crack cocaine was

not contradicted. Nor was Sergeant Brennan’s expert testimony

on the subject.” Id. In this case, the evidence is likewise

adequate. The chemist’s report, entered into evidence, identified

the substance seized from the console as 52% pure “[c]ocaine

base,” App. 15, and Lloyd stipulated the report was “true and

accurate,” Trial Tr. 162. In addition, Brennan, again without

contradiction, positively identified the “white substance” in the

ziplocks as “crack cocaine” based on his experience and

expertise. Trial Tr. 194; see also id. 197 (“Exhibit Number 1 is

28.5 grams. It’s 11 Ziplock bags, and it contains cocaine base,

crack cocaine.”). Id. 197. Examining a photograph of the drugs,

Brennan testified that their rock-like form looked like crack. Id.

195. Detective Martin, who recovered the substance, also

identified it as “white” and “rock-like.” Id. 151. Brennan further

testified that, given the customary practices of packaging crack

cocaine for sale in the District of Columbia, the “crack cocaine”

was “basically packaged for the wholesale street distribution.”

Id. 197. Finally, he explained that the knife found in the console

“could be used for protection in the drug trade or could be used

to break up the cocaine base, break up the rocks” and that “[t]he

scale is used to measure the amounts” in packaging crack

cocaine for wholesale distribution. Id. at 198.
17

6

Vaporized cocaine in powder form is “pharmacologically

inactive.” Powell, 503 F.3d at 149 n.2 (citing United States

Sentencing Commission, Special Report to the Congress: Cocaine and

Federal Sentencing Policy 12-13 (Feb.1995) (Special Report)). But

cocaine base, and specifically crack cocaine, vaporizes at a lower

temperature so that “[t]he fumes from vaporized cocaine base still

contain the active cocaine molecule and inhaling the fumes”—as

through smoking—“will produce a high.” Id. (citing Special Report

12-13).

Lloyd asserts that Brennan’s testimony “demonstrated a

lack of precision regarding the critical distinction recognized in

[United States v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004)]

between cocaine base generally and the particular form of

cocaine base known as crack” because Brennan testified that

“crack is a ‘street name’ for the same drug that chemists identify

as ‘cocaine base’ ” and “did not testify that the particular

substance seized in this case was smokable.” Appellant’s Br. 35

(citing Trial Tr. 195-96). Nonetheless, Brennan was correct in

identifying “crack” as the street name for the form of cocaine

base commonly distributed in Washington, DC since the 1980s.

See United States v. Brisbane, 367 F.3d at 911-12 (D.C. Cir.

2004). Moreover, while one of the distinctive characteristics of

“crack” is that it can be vaporized and therefore smoked without

losing its narcotic effect,6

 the absence of expert testimony on

vaporizability “d[oes] not undermine the force” of the other

evidence that the seized substance is crack cocaine. Powell, 503

F.3d at 149. As in Powell, we “cannot say that no rational juror

could have found beyond a reasonable doubt”—based on the

DEA analysis and Brennan’s testimony—“that [Lloyd]

possessed crack cocaine.” Id. 

For the foregoing reasons, we affirm the judgment

convicting Lloyd of Counts 1, 2, 4 and 5 of the superseding

indictment.

So ordered.