2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-12-2002

USA v. Waters

Precedential or Non-Precedential: Precedential

Docket No. 01-3784

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Recommended Citation

"USA v. Waters" (2002). 2002 Decisions. Paper 796.

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PRECEDENTIAL 

 Filed December 12, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-3784 

UNITED STATES OF AMERICA 

v. 

KEITH WATERS, Appellant 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. No. Cr. 00-522-02) 

District Judge: Honorable Robert F. Kelly 

Submitted Under Third Circuit LAR 34.1(a) 

September 18, 2002 

Before: BECKER, Chief Judge, SCIRICA and McKEE, 

Circuit Judges. 

(Filed December 12, 2002) 

 GUILLERMO L. BOSCH, ESQUIRE 

 111 Iron Bark Court 

 Collegeville, PA 19426 

 BRIAN J. McMONAGLE, ESQUIRE 

 McMonagle, Perri & McHugh 

 30 South 15th Street 

 One Penn Square West, Suite 701 

 Philadelphia, PA 19102 

 Counsel for Appellant 

 

 PATRICK L. MEEHAN, ESQUIRE 

 United States Attorney 

 LAURIE MAGID, ESQUIRE 

 Deputy United States Attorney for 

 Policy and Appeals 

 ROBERT A. ZAUZMER, ESQUIRE 

 Assistant United States Attorney 

 Senior Appellate Counsel 

 PATRICK C. ASKIN, ESQUIRE 

 Special Assistant United States 

 Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, PA 19106 

 Counsel for Appellee 

OPINION OF THE COURT 
BECKER, Chief Judge. 

The United States Sentencing Guidelines define "crack" 

cocaine as "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. Sentencing Guidelines S 2D1.1(c), Note 

(D). This appeal by Keith Waters ("Waters") from the 

sentence imposed by the District Court under the 

Sentencing Guidelines range for distributing crack cocaine 

presents the recurring question whether the government 

must show that the drugs seized from a defendant 

contained sodium bicarbonate in order to demonstrate by a 

preponderance of the evidence that they are crack for 

sentencing purposes. Waters maintains that the 

government must make such a showing. 

Although the substance distributed by Waters contained 

cocaine, it contained no traces of sodium bicarbonate -- a 

chemical used to "cut," or dilute, the drugs. We conclude, 

however, that the District Court did not err when it found 

that the government had shown that the substance was 

crack, even though it did not contain sodium bicarbonate, 

for such a showing is not essential. Moreover, there was 

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testimony from a Drug Enforcement Agency ("DEA") 

chemist and a detective with ten years experience in 

narcotics enforcement that the niacinamide, or Vitamin B, 

found in the drugs connected to Waters served the same 

function as sodium bicarbonate -- to cut the drugs, and 

that the substance at issue was, in fact, crack cocaine. 

Accordingly, we will affirm the judgment. 

I. 

Waters was arrested and charged with distributing crack 

cocaine after DEA agents connected him to Clifton Junius 

("Junius"), a man whom the DEA had observed selling 

crack to an informant on three different occasions; the DEA 

had observed Waters meet and enter a residence with 

Junius. After Junius was arrested following the third sale 

to the DEA informant, he told the DEA agents that Waters 

had supplied him with the crack that he had sold to the 

informant. Upon arrest, Waters admitted to the law 

enforcement officers that he had provided crack to Junius 

on many occasions, including four ounces that Junius had 

sold to the DEA informant. 

The indictment charged Waters with the following: (1) 

conspiracy to distribute cocaine base "crack" in violation of 

21 U.S.C. S 846; (2) distribution of cocaine base "crack" in 

violation of 21 U.S.C. S 841(a)(1); and (3) distribution of 

cocaine base "crack" within one thousand feet of a school 

zone in violation of 21 U.S.C. S 860. Waters pled guilty to 

the latter charge (Counts Three, Five and Seven), but he 

reserved the right to argue that some of the drugs were not 
crack. See Fed. R. Crim. P. 11(a)(2) ("With the approval of 

the court and the consent of the government, a defendant 

may enter a conditional plea of guilty . . . reserving the 

right, on appeal from the judgment, to review of the adverse 

determination of any specified pretrial motion."). 

At the sentencing hearing, the District Court heard 

testimony about the amount and identity of the drugs 

which Waters was charged with distributing. The Court 

sentenced Waters for distributing 165 grams of crack, the 

total calculated from the three sales Junius made to the 

DEA informant. However, the 27.2 grams from the first sale 

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to the informant did not contain sodium bicarbonate. It is 

the identity of the drugs from this sale that Waters 

contests; he admits that the rest of the drugs are crack 

since they contained sodium bicarbonate. The contested 

27.2 grams contained cocaine hydrochloride and 

niacinamide, otherwise known as Vitamin B. Waters was 

sentenced to 151 months for Count Seven and 60 months 

each for Counts Three and Five, all three sentences to run 

concurrently. 

The identity of the drugs is significant because a finding 

that the substance is crack subjects an offender to a 

greater penalty than if the drugs were found to be a form 

of cocaine other than crack. Waters was sentenced to 151 

months based on a sentencing range of 151-188 months for 

the possession of 165 grams of crack. If the District Court 

had found that the government did not show by a 

preponderance of the evidence that the 27.2 grams that did 

not contain sodium bicarbonate were crack, Waters would 

have possessed less than 150 grams of crack, which would 

have subjected him to a lesser sentencing range of 121-151 

months. 

The government presented the testimony of DEA chemist 

Charles Cusamano ("Cusamano") to demonstrate that the 

entire 165 grams of the drugs attributed to Waters was 

crack cocaine. Cusamano testified on the basis of a 

laboratory report prepared by another DEA chemist, who 

later left her job at the DEA. Cusamano stated that the 

drugs in question did not contain sodium bicarbonate, the 

most common cutting agent, but rather niacinamide: 

 Niacinimade is a vitamin. It’s a vitamin, Vitamin B, 

 and it’s commonly found as a cut in drug exhibits, 

 mainly in crack exhibits because when one produces 

 cocaine base, the niacinamide follows the conversion 

 from the cocaine hydrochloride through to the base. 

 And it acts as a -- a cut. [A46]. 

Cusamano also testified that sodium bicarbonate might 

have been used to cut the drugs, even if traces of the 

substance were not found in the final drug compound: 

 If the conversion is performed properly and you use 
 the correct amounts of sodium bicarbonate and 

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 powdered cocaine, cocaine hydrochloride, you should 

 have no sodium bicarbonate left when the conversion 

 is complete. However, traditionally, what we find is that 

 out on the street an excess of this bicarbonate is used 

 in the conversion. [A47]. 

In addition, a ten year veteran of narcotics enforcement 

in the Philadelphia Police Department, Detective Andrew 

Callaghan ("Callaghan") who has "spoken with hundreds of 

drug users, drug dealers and persons involved in drug 

organizations" [A55] testified that the 27.2 grams of drugs 

attributed to Waters appeared to be crack cocaine: 

 Q. And could you tell us what you’re looking at, what 

 does the substance look like -- that makes you 

 think [it is crack]? 

 A. It’s an off-white chunky substance. It’s in rock 

 form. It’s the base form. Cocaine hydrochloride or 

 the salt form is generally much whiter than this, 

 and it’s crystalline, the small -- the powder.[A58.] 

Callaghan also testified about the use of niacinamide as 

a cutting agent in making crack: 

 Q. And are there substances used . . . that are used 

 to process the drugs from the powder form, 

 hydrochloride form, into the base form? 

 . . . 

 A. A substance commonly used in Philadelphia is 

 baking soda, which is sodium bicarbonate, and 

 other substances that appear on the streets of 

 Philadelphia a lot are niacinamide, which is 

 commonly known as Vitamin B, or we’ve seen it in 

 cans marked Super B which is available at most 

 stores that you can buy crack cocaine 

 paraphernalia. And what the person does, is they’ll 

 take cocaine hydrochloride and a mixture of 

 sodium bicarbonate or Super B or Vitamin B or 

 both, and depending upon their personal recipe, it 

 could be two parts sodium bicarbonate to one part 

 cocaine. For instance, there would be two ounces 

 of baking soda and one ounce of cocaine or a 

 mixture that might include sodium bicarbonate -- 

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 I’m sorry -- or niacinamide or it could be just 

 niacinamide and the cocaine, and they’ll pour this 

 mixture into a boiling pot of water. And what the 

 dilutents do, what the sodium bicarbonate does, is 

 it attaches itself to the cut. What happens is, the 
 person that’s processing the cocaine scoops, after 

 it’s boiling for a while, scoops the substance off the 

 top and places it into a coffee filter or newspaper 

 and allows the substance to dry. . . . The reason 

 why niacinamide or Vitamin B is used often is it 

 actually sticks to, or a portion of it sticks to, the 

 cocaine hydrochloride, therefore, bulking up the 

 substance so they have more product when the 

 process is done. 

 . . . 

 I’ve executed many, many search warrants and 

 confiscated bottles of niacinamide, different 

 Vitamin B-hydrochloride compounds. [A62-63]. 

The District Court had jurisdiction pursuant to 18 U.S.C. 

S 3231 and we have appellate jurisdiction pursuant to 28 

U.S.C. S 1291 and 18 U.S.C. S 3742(a). We review for clear 

error the determination that the government met its burden 

of proving by a preponderance of the evidence that the 

substance possessed by Waters was crack cocaine. See 

United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997). 

II. Discussion 

In Roman, we explained that "[f]or sentencing purposes, 

the character of the drug substance need not be shown 

beyond a reasonable doubt, but by a preponderance of the 

evidence." 121 F.3d at 141.1 Waters maintains that the 

_________________________________________________________________ 

1. We note that since the Supreme Court’s decision in Apprendi v. New 

Jersey, "any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury and proved 

beyond a reasonable doubt." 530 U.S. 466, 490 (2000). Although a 

finding that the 27.2 grams attributed to Waters was crack would 

increase his penalty under the Sentencing Guidelines, we continue to 

use the preponderance standard since including the 27.2 grams in the 

quantity of crack attributed to Waters would not increase the penalty 

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government has not met its burden of proving by a 

preponderance of the evidence that the contested 27.2 

grams are crack since the Sentencing Guidelines define 

crack as "usually containing sodium bicarbonate." U.S. 

Sentencing Guidelines S 2D1.1(c), Note (D). He, in effect, 

urges us to find that "usually" actually means must under 

the Sentencing Guidelines. We understand Waters’ 

argument to be that since the penalty is significantly 

enhanced for distributing crack versus other forms of 

cocaine, see discussion supra, the chemical composition of 

crack must line up precisely with the language of the 

Sentencing Guidelines. Waters supports this assertion with 

the history of the penalty for crimes involving cocaine base: 

prior to the amendments to the Sentencing Guidelines in 

1993, there was no definition of what constituted cocaine 

base, the form of cocaine subject to the enhanced penalty. 
The amendments made it clear that only the crack form of 

cocaine base deserved a penalty enhancement and that all 

other forms of cocaine base should be treated as cocaine 

hydrochloride, the powdered form of the drug. Waters 

posits that this suggests that the penalty enhancement was 

meant to apply only to a very precise definition of crack, 

namely a form of cocaine base containing sodium 

bicarbonate. 

We take this opportunity to make it clear that the law in 

this Circuit is that it is not necessary for the government 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. We note in 

_________________________________________________________________ 

beyond the statutory maximum of 80 years under 21 U.S.C. S 860(a). The 

80 year statutory maximum is calculated from the following: (1) "Any 

person who violates section 841(a)(1) of this title or section 856 of this 

title . . . is . . . subject to . . . twice the maximum punishment 

authorized by section 841(b) of this title." 21 U.S.C. S 860(a); and (2) "In 

the case of a violation of subsection (a) of this section involving . . . (ii) 

500 grams or more of a mixture or substance containing a detectable 

amount of . . . cocaine . . . (iii) 5 grams or more of a mixture or 

substance described in clause (ii) which contains cocaine base . . . such 

person shall be sentenced to a term of imprisonment which may not be 

less than 5 years and not more than 40 years." 21 U.S.C. S 841(b). 

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this regard that the other Courts of Appeals that have 

addressed the issue have concluded that it is not necessary 

for the government to show that the substance contained 

sodium bicarbonate to prove that it is crack. See United 

States v. Diaz, 176 F.3d 52, 119 (2d Cir. 1999) ("[W]e 

conclude that in proving a substance is crack, the 

government is not required to show that the cocaine was 

processed with sodium bicarbonate."); United States v. 

Brooks, 161 F.3d 1240, 1248 (10th Cir. 1998) (noting that 

"not all forms of ‘cocaine base’ need contain sodium 

bicarbonate to qualify as crack for sentencing purposes"); 

United States v. Jones, 159 F.3d 969, 983 (6th Cir. 1998) 

("[T]he presence of sodium bicarbonate is not a necessary 

prerequisite to a district court’s factual determination that 

cocaine base is crack."); United States v. Abdul, 122 F.3d 

477, 479 (7th Cir. 1997) ("[P]roduction [of crack] with 

sodium bicarbonate is not the exclusive preparation method 

recognized for purposes of S 2D1.1(c)."); United States v. 

Stewart, 122 F.3d 625, 628 (8th Cir. 1997) (finding that the 

use of the word "usually" in the Sentencing Guidelines 

"does not require . . . evidence [of traces of sodium 

bicarbonate] before the district court can conclude that a 

substance is crack cocaine"). 

This conclusion is also consistent with other decisions of 

this Court which, although not presented squarely with the 

question whether the government must prove by a 

preponderance of the evidence that the substance in 

question contains sodium bicarbonate in order to show that 
it is crack cocaine, nonetheless held that a "precise 

chemical analysis is not necessary to prove that cocaine 

base is crack under the Sentencing Guidelines." United 

States v. Dent, 149 F.3d 180, 190 (3d Cir. 1998) (citing 

Roman, 121 F.3d at 141). See also United States v. Holman, 

168 F.3d 655, 658 (3d Cir. 1999) (concluding that the 

government had met its burden of proof where it presented 

the testimony of a forensic chemist and two narcotics 

detectives that the substance was crack cocaine). 

In addition to the case law, the plain language of the 

Sentencing Guidelines and the common understanding of 

what constitutes crack outside the Sentencing Guidelines 

context also support our position. Since the Sentencing 

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Guidelines use the language "usually," it appears from the 

plain language of S 2D1.1(c), Note (D) that the penalty 

enhancement for crack was intended to apply to substances 

that do not contain sodium bicarbonate. We also note that 

there is no precise chemical definition of crack cocaine. 

Rather, crack commonly refers more to the manner in 

which the drug is used. Crack is a form of "free-basing" 

whereby the user converts "sniffable cocaine crystals into a 

smoking ‘base’ form of the drug." 132 Cong. Rec. 4418 

(1986) (statement of Sen. Hawkins). Crack cocaine is"a 

kind of dealer prepared cocaine free-base, in which 

powdered coke is mixed with baking soda and water to form 

a paste. After the concoction hardens, it looks like off-white 

granulated sugar; it is broken into chips or tiny lumps." 

132 Cong. Rec. 9680 ( 1986) (statement of Sen. Chiles). 

Thus, since crack generally refers more to the way the drug 

is prepared and used than the specific chemical 

composition, the presence of sodium bicarbonate is not 

necessary in order for the substance to be considered crack 

for sentencing purposes. 

While we hold that the government does not have to show 

that the substance contained sodium bicarbonate to meet 

its burden of proof, this is not to say that the government 

does not have to provide substantial evidence to support 

the determination that the drugs are crack cocaine. As 

stated in Roman, "the preponderance standard is not 

toothless. It is the district court’s duty to ensure that the 

Government carries this burden by presenting reliable and 

specific evidence." 121 F.3d at 141 (quoting United States v. 

Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995)). Here the 

government presented the testimony of Callaghan, an 

experienced law enforcement officer, that niacinamide is 

commonly used in the Philadelphia area as a substitute for 

sodium bicarbonate. Callaghan also examined the 

substance in question and concluded from the appearance 

of the drug that it was in rock form, was intended to be 

smoked, and that it was thus crack. Additionally, the 

government presented evidence from Cusamano that the 

niacinamide that was found in the 27.2 grams in question 

serves the same purpose as the sodium bicarbonate-- 

namely as a cutting agent. This evidence was sufficient and 
we thus conclude that District Court did not err in finding 

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that the government had shown by a preponderance of the 

evidence that the substance was crack. The judgment of the 

District Court will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 10