concerns undoubtedly motivated the Sentencing
Commission when it adopted the distinction between
cocaine and cocaine base for the purposes of the
guidelines. Thus, we hold that the sentencing
provisions for “cocaine” and “cocaine base” are not
ambiguous because although the terms have the same
scientific meaning, both Congress and the Sentencing
Commission intended “cocaine base” to mean crack
cocaine.

That could perhaps have been read as a possible alignment on

the Eleventh Circuit's side of the division (as against the
Second Circuit's view) as to the construction of the statutory
provision (indeed, the Second Circuit itself read Booker just

that way in United States v. Fields, 113 F.3d 313, 325 (2d Cir.

1997)). But in our Court of Appeals' later opinion in
Adams--while it reached the already-described conclusion as to
the proper reading of the Guideline--it has expressly reserved
ruling on the meaning of “cocaine base” in the statute (125 F.3d
at 591 n.4):

The court went on to discuss whether the term “cocaine
base” found in 21 U.S.C. §960(b)° (mandating a ten year
minimum sentence for a person convicted of importing 50
grams or more of a mixture or substance containing
cocaine base) was amended through the amendment to the
Sentencing Guidelines. The Eleventh Circuit found that
it was. The Second Circuit disagreed, in United States
yv. Palacio, 4 F.3d 150 (2d Cir. 1993). See also United
States v. Jackson, 59 F.3d 1421, 1423-24 (2d Cir.
1995) (reaffirming Palacio), cert. denied, U.S.
116 S.Ct. 1428, 134 L.Ed.2d 551 (1996). The
interpretation of “cocaine base” within 21 U.S.C.
§960(b) is not at issue in the present case and we

5 [Footnote by this Court] Because Section 841 (b)

parallels Section 960(b) in all respects, Adams' reservation of
the statutory issue for the future applies with equal force to
the statute now under consideration.

13


nature of the actual controlled substances with which Edwards had
dealt. That hearing occupied the entire available portion of
that day (just two days earlier a special meeting of the judges
of this District Court had been called for December 4, knocking
out a material part of the day that would otherwise have been
devoted to the hearing and to the post-hearing arguments and
imposition of sentence). Accordingly the sentencing was set for
December 8, and this Court then imposed the custodial sentence
described hereafter.
Potential Apprendi Implications

Before this opinion turns to the substantive resolution of
questions as to, and flowing from, the nature of the controlled
substances themselves, a moment should be spent in identifying

the possible interaction of the analysis here with the teaching

of Apprendi v. New Jersey, 530 U.S. 466 (2000). As the ensuing
discussion will reflect, there is no question that the substances
at issue contained cocaine--instead the question to be resolved
will be just what type of coca leaf derivative they were. And if
it were possible that the statutory maximum sentence that could
be imposed would be increased by reason of the answer to that
issue (compare, e.g., Section 841(b) (1) (C), with its 20-year
maximum, with Section 841(b) (1) (A), with its life imprisonment
maximum), Apprendi would require that the facts underpinning that

answer must have been submitted to a jury and proved beyond a



persuasively that the substances involved were not crack.?

Unlike Dr. DeFrancesco, Dr. Evans testified to the accepted
proposition that while all crack is cocaine base, not all cocaine
base is crack (see, e.g., our Court of Appeals' statement in
United States v. Adams, 125 F.3d 586, 591 (7° Cir. 1997) that
“cocaine base is a more generic and inclusive term, also applied
to other forms of cocaine”). And with that understanding, Dr.
Evans testified lucidly and convincingly why his examination,
testing and analysis of the portion of the controlled substances
that had been delivered to him by the government established that
those substances did not come within the “crack” portion of the
cocaine base spectrum--as to both substances, the results of his
laboratory analysis (D. Ex. 3) read:

Positive for Cocaine: Negative for Crack Cocaine.

3 In response to questions by government counsel, Dr.
DeFrancesco testified that he had reviewed Dr. Evans' curriculum
vitae and then attempted to denigrate the latter's level of
expertise by pointing to his Ph.D. in toxicology, in contrast to
Dr. DeFrancesco's own Ph.D. in chemistry. For shame. In point
of fact, Dr. Evans' credentials and vast experience far better
qualify him to render the opinion that was potentially critical
to the hearing--whether or not crack cocaine was involved--than
Dr. DeFrancesco. It is unnecessary to recite chapter and verse
on that score--simply a reading of both Dr. Evans' cv and his
testimony describing his extensive background and experience
delivers that message powerfully. It is also worth pointing out
that Dr. Evans is far removed from any pejorative label of “hired
gun”: the professional witness for criminal defendants who may
tailor his or her testimony to whatever is requested. To the
contrary, among other things that confirm Dr. Evans' impeccable
credibility, some 90% of his work in testifying and in providing
professional opinions is in being called as a witness or retained
by the prosecution rather than by the defense.

9



With the knowledge of a possible Apprendi implication always
thus being kept in mind, it is appropriate for this Court to
consider the key issues posed by the parties' evidentiary
presentations and the relevant authorities. This opinion turns
to that task.

Cocaine, Cocaine Base and Crack Cocaine

With no actual mention of “crack” having been made by
Edwards or by others in his presence as to either of the two
transactions charged in the indictment--whether in any recorded
or testified-to conversation, or in his Mirandized admissions
after he was apprehended--and having been put before this Court,
the issue of crack cocaine vel non has come down to a battle of
experts. On the government's part this Court heard from Dr.
James DeFrancesco (his Ph.D. was in chemistry), while Edwards'
counsel called Dr. Michael Evans (his Ph.D. was in toxicology) to
the stand.

Before the battle lines between the opposing experts are
drawn, it should of course be said that the omission of specific
use of the term “crack” in drug transactions is not necessarily a
weighty factor, for drug dealers may well use other terms to
describe their wares, whether in an effort to avoid detection or
simply as a matter of employing other street lingo (thus Edwards
was recorded as having referred to his “shit”). On the other

side of the coin, a factor that this Court also finds to have


reasonable doubt--not decided by a judge in a sentencing hearing

(see, e.g., United States v. Behrman, 235 F.3d 1049, 1054 (7

Cir. 2000)).

It is of course true that a guilty plea involves the waiver
of a jury trial, so that a defendant's full acknowledgment of the
requisite criminal conduct in such a plea would eliminate any
potential Apprendi problem (cf. Behrman, id.). But in this case
Edwards' guilty plea did not reach to the full extent charged in
the indictment as the government would read it, so that if the
gap between Edwards' acknowledgment and the charges (if they were
properly so read) would give rise to an increase in the statutory
maximum punishment, Apprendi would rear its head after all.

But--and there always seems to be a but--one more refinement
must be added. Suppose arguendo that Apprendi were indeed
implicated by this Court's resolution in the sentencing process
of a fact that should have gone to a jury (or, as a legal
equivalent, that should have been admitted by Edward in the
course of his waiver of jury trial and proposed guilty plea).

But even so, if Edwards' actual conduct would trigger the
possibility of a maximum life sentence beyond a reasonable doubt
in any event, our Court of Appeals teaches that any possible
Apprendi error in the course of sentencing would be harmless

(United States v. Arocho, 305 F.3d 627, 638-39 (7 Cir. 2002)

and cases cited there).



substances were indeed cocaine base (and not cocaine
hydrochloride) .

But the fundamental problem that devalues entirely Dr.
DeFrancesco's attempted extension of his convincing determination
that the substances were cocaine base to a conclusion that they

were also crack cocaine is that he did so, as his answers to more

than one question repeatedly revealed, solely on the basis of his
understanding that the Sentencing Guidelines equate the two. In

that respect he acknowledged, in response to a follow-up question
by this Court, that his opinion was based on Guideline

§2D1.1(c) (D):

“Cocaine base,” for the purposes of this guideline,

means “crack.” “Crack” 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.

What neither Dr. DeFrancesco nor the government counsel have
recognized is that such total reliance renders Dr. DeFrancesco's
opinion--beyond his admittedly reliable proof that the substances
involved were some type of cocaine base in chemical terms--wholly
worthless on the question of crack vel non. Any opinion of the
type that he expressed--one that derives from simply assuming the
conclusion that it reaches--obviously rests on a foundation of
sand (or more accurately, no foundation at all).

By contrast, Dr. Evans' testimony (which conformed in all

respects to the demands of Daubert. and Kumho Tire) demonstrated



‘Minute Order Form (06/97)

United States District Court, Northern District of linois

‘Name of Assigned Judge ; Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 02 CR 1047 DATE 12/8/2003
CASE USA vs. Carl Edwards
TITLE
[Ia the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY: ~“
qd) go Filed motion of [ use listing in “Motion” box abov. :

(2) QO Brief in support of motion due :

() QO Answer brief to motion due . Reply to answer brief due

(4) Oo Ruling/Hearing on set for at

(5) Qo Status hearing[held/continued to] [set for/re-set-for].on set for at

(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at

(a) o Trial[set for/re-set for] on at —

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(¢m) O Local Rule 41.1 OO FRCP41(a)(1).” D-FRCP41(a)(2).

ao) if {Other docket entry] Enter Memorandum Opinion and Order. Edwards’ Guideline “range” is
therefore a single number - - 120 months - - and this Court has sentenced him accordingly. None of the
other aspects of his sentence have implicated any questions of law, and they have therefore been left to
this Court’s oral pronouncement of sentence and its judgment and commitment order.

a1) ff {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices Gag

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

SN

SN

- Datertirhe eocivedigt

cs
Ucentral Clerk's Office mailing deputy iitials



thorough and careful discussion and analysis of the subject in
Adams, 125 F.2d at 590-92, the Court of Appeals announced its
conclusion (id. at 592):

We find the reasoning of the Munoz-Realpe opinion
[United States v. Munoz-Realpe, 21 F.3d 375, 377 (11%
Cir. 1994)] persuasive and agree with the Eleventh
Circuit that under the new definition of “cocaine base”
found in the guidelines only the form of “cocaine base”
which is “crack” is eligible for the enhanced sentence.
Thus the government must prove by a preponderance of
the evidence that the defendant possessed “crack.”

In Edwards' case, an aggregate of slightly over 100 grams of
the controlled substance was involved in the two instances
charged in Counts One and Two. If the substances had been crack,
the Probation Officer's calculation of a total offense level of
29 (level 32 less a three-level reduction for acceptance of
responsibility) and criminal history category III (from his
December 1, 2003 supplemental report modifying the PSI) would
have prescribed a range of 108 to 135 months. By sharp contrast,
just over 100 grams of cocaine base other than crack call for a
total offense level of 15 under Guideline §2D1.1(c) (level 18 less
the three-level reduction for acceptance of responsibility),
which with Edwards' criminal history category III would produce a
range of only 24 to 30 months.’

That however is not the end of the story. It is after all

the statutory definition of the controlled substances, not the

4 Both sets of figures in this paragraph are without

reference to the mandatory minimum sentence discussed later.

11


It is true that the substances delivered to Dr. Evans were
not in their original form, having been ground into powder form
to carry out the government's analysis before portions of both
substances were sent to him for analysis and testing. But his
testimony that the products did not exhibit the color
differential from pure white or near-white that invariably
results from the addition of sodium bicarbonate to produce crack,
as well as his other differentiating testimony (a conclusion also
reflected in his report, D. Ex. 3), carries the day. And it will
be remembered that Dr. DeFrancesco's opinion to the contrary was
based solely on the fact that the Guidelines equate the terms
"cocaine base” and “crack” purely as a definitional matter, not
as a scientific fact--a usage that has no probative force as
against Dr. Evans' professional and scientifically sound opinion.
This Court therefore finds by a preponderance of the evidence
that both controlled substances involved in this case were
cocaine base (a determination not contested by either side) --but
that they were not crack.

Why does the distinction between crack and other forms of
cocaine base make a difference in Guideline sentencing? Like
other courts that have looked at the Guidelines in that respect,
our Court of Appeals has held that Guideline §2Di.1(c)(D) should
be read as making the more severe sentencing range that is

prescribed for “cocaine base” applicable only to crack. After a

10


carried no particular force was the evidence proffered by the
government as to Edwards having been a buyer and seller of crack
in the past. Nothing in such proffered evidence identified him
as having dealt exclusively in that commodity. Moreover, drug
dealers have frequently been known to have passed off one
substance for another--one of the many ways in which a variant on
the old saying that “there is no honor among thieves” is
demonstrated.

In all events, the question for determination here is of

course what Edwards did this time, not in the past.* And as to

that question, the best kind of objective evidence exists: the
controlled substances themselves.

As to that evidence, the government's forensic drug chemist
Dr. DeFrancesco testified that in his view his laboratory tests
had established that the substances were indeed crack, which he
described accurately as a street term that is not used
scientifically. And he also testified accurately that chemists
use the technical term “cocaine base” instead, and he then
proceeded to. establish--in a manner that certainly passes muster

under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)

and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)--that both

® If the Federal Rules of Evidence (*Rules”) circumscribed
sentencing proceedings, as they do not, testimony about such
prior dealings would collide with Rule 404(b). But even in the
absence of such a rule of exclusion, not much if anything is to
be made of the proffered testimony as to earlier events.

7


812--see subparagraph (a) (4) in the Schedule II listing.

Because the United States did not seek Edwards' immediate
detention upon his acknowledgment of guilt at the time of his
proposed guilty plea, this Court followed its regular practice in
such situations by then finding only (1) that Edwards was fully
competent and capable of entering an informed plea, (2) that he
was aware of the nature of the charges and the consequences of
the proposed plea and (3) that the proposed guilty plea was both
knowing and voluntary and was supported by an independent basis
in fact containing each of the essential elements of the
offense--but it did so without actually accepting the proposed
plea (a step that would have triggered Edwards' immediate
detention under 18 U.S.C. §3143(a)(2)). Instead this Court
deferred consideration of such acceptance until the prospective
sentencing date. And to avoid the potential Catch-22 that could
be created by the Fed. R. Crim. P. 32(e) (1) prohibition against
judicial consideration of the anticipated presentence
investigation report (“PSI”) before such acceptance, this Court
requested and obtained the agreement of Edwards and his counsel
to its review of the PSI before sentencing.

After the PSI had indeed been generated, and after both
sides had then staked out their respective positions on the
perceived factual and legal issues involved, this Court conducted

the required evidentiary hearing on December 4, 2003 as to the


decline to express any opinion on that issue.
In light of that most recent statement, this Court believes that
it must deal with the statutory question as one of first
impression in our Circuit.

For that purpose this Court holds that it cannot improve on
the lucid and convincing treatment provided by the Third Circuit

in United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001). Early

in its discussion Barbosa pointed out that both the Eleventh
Circuit and the Second Circuit were looking at the question of
statutory meaning in terms of how the Sentencing Guideline
amendment would impact on earlier decisions by those courts, so
that--at least in part--considerations of stare decisis drove the
conclusions reached there (271 F.3d at 463-64). But Barbosa then
concluded for its own part that the Third Circuit was writing on
a clean slate (id. at 464-65), and it then proceeded to examine
the question afresh.

It would be both pointless and wasteful simply to reproduce
the ensuing Barbosa analysis (id. at 465-67). Instead this Court
wholeheartedly embraces all that is said there, and it therefore
arrives at the identical conclusion as did Barbosa (id. at 467):

Therefore, we hold that, while the term “cocaine base”

means only crack when a sentence is imposed under the

Sentencing Guidelines, “cocaine base” encompasses all

forms of cocaine base with the same chemical formula

when the mandatory minimum sentences under 21 U.S.C.
§841(b) (1) are implicated.

14


faulted at all for the fact that the law has turned out to
provide neither party with total victory or total defeat.
Case History

Edwards was charged in a two-count indictment with virtually
identical offenses, differing only in their operative dates
(about two weeks apart) and with each involving just over 50
grams of a controlled substance. So Count One can fairly be
viewed as representative of both charges:

On or about October 28, 1999, at Evanston, in the

Northern District of Illinois, Eastern Division, CARL

EDWARDS, defendant herein, knowingly and intentionally

possessed with intent to distribute in excess of 50

grams of mixtures containing cocaine base, a Schedule

II Narcotic Drug Controlled Substance; in violation of

Title 21, United States Code, Section 841(a) (1).

On October 2, 2003 Edwards proffered a blind guilty plea to
both charges of violating 21 U.S.C. §841(a)(1).+ What he did not
acknowledge, however, was the government's characterization of
the controlled substance involved: Both his counsel at the
inception of the plea proceeding and Edwards in his own oral
acknowledgment of what he had done (something that this Court
always requires of any defendant proposing to plead guilty, even
when a written acknowledgment has been included in a lawyer~
prepared plea agreement) stated only that the controlled

substance in each instance was cocaine. And cocaine in all its

varied forms is a Schedule II controlled substance under Section

* All further references to Title 21's provisions will

simply take the form “Section--.”

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

)
)
Plaintiff, )
)
Vv. ) No. 02 CR 1047
) Lop .
CARL EDWARDS, Len “py
Defendant. ) ?9 »
Cs

MEMORANDUM OPINION AND ORDER

This memorandum opinion and order is issued to memorialize
the sentence just imposed on Carl Edwards (“Edwards”) following
his guilty plea to two narcotics offenses. Although this Court
most frequently deals with criminal sentencing through oral
rulings (even though such oral rulings may on occasion be
extended in form), in this instance the combination of a full
day's sentencing hearing plus the existence of several complex
legal questions (one of first impression in this Circuit)
occasions this written treatment.

It is worth remarking at the outset that Edwards has
benefited from the extraordinarily creative and well-presented
representation afforded him by his counsel, Nishay Sanan, Esq.
(this should not at all be viewed as casting any aspersions on
the very able representation provided on the government's behalf
by the two Assistant United States Attorneys assigned to the
case, who also did the best that could be done on their side of

the issues). In summary, neither side's counsel should be


Guideline definition, that must control the legal consequences of
Edwards' conduct. And that is a subject on which an intercircuit
split exists, exemplified by the different approaches taken by
the Eleventh Circuit and the Second Circuit. As for the former,
Munoz-Realpe, 21 F.3d at 377 has held that Congress' action in
permitting the Sentencing Commission's 1993 ameliorating
amendment to the Guidelines to take effect also served to define
the meaning of “cocaine base” in Section 841(b) (1) (A) (iii). As

for the latter, United States v. Palacio, 4 F.3d 150, 154-55 (2d

Cir. 1993) has rejected the Guideline amendment as controlling
the substantive meaning of the term in the criminal statute.

In our own Circuit the situation is a bit muddied. In the
course of our Court of Appeals' analysis in United States v.
Booker, 70 F.3d 488, 492-94 (7° Cir. 1995) that distinguished
between crack and all other forms of cocaine for Guideline
purposes, it agreed with the Fourth Circuit's reasoning in United
States v. Fisher, 58 F.3d 96, 99 (4 Cir. 1995) “holding that
the enhanced penalties applied to crack and the lesser penalties
applied to all other forms of cocaine.” And in so doing Booker,
id. at 494 (footnotes omitted) said that the distinction between
the two substances was one shared by Congress as well as the
Sentencing Commission:

But whatever the merits of the distinction, it is clear

that Congress intended the enhanced penalties to apply

to crack cocaine and the lesser penalties to apply to
all other forms of cocaine. Likewise, the same

12


Conclusion

Guideline §5G1.1(b) explicitly provides that a statutory
mandatory minimum sentence trumps any lesser Guideline maximum:

Where a statutorily required minimum sentence is

greater than the maximum of the applicable Guideline

range, the statutorily required minimum sentence shall

be the Guideline sentence.
That is the case here: Dr. Evans has not challenged Dr.
DeFrancesco's compelling proof that the substances with which
Evans dealt were cocaine base, and under Barbosa that triggers
the ten-year mandatory minimum sentence under Section
841(b) (1) (A) because the quantity involved meets the level
described in clause (iii) of that subsection.®

Edwards' Guideline “range” is therefore a single number--120
months--and this Court has sentenced him accordingly. None of
the other aspects of his sentence have implicated any questions

of law, and they have therefore been left to this Court's oral

pronouncement of sentence and its judgment and commitment order.

Milton I. Shadur
Senior United States District Judge

Date: December 8, 2003

* Thus the conduct acknowledged by Edwards, coupled with

the undisputed (and indisputable) fact that the substances
involved were cocaine base, brings him within Section 841(b) (1)'s
maximum potential sentence of life imprisonment. Hence any
possible Apprendi implication, as discussed earlier, is dispelled
under the analysis in Behrman, 235 F.3d at 1054.

15