United States v. Sharnel Plummer ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-4032 & 08-1469
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S HARNEL P LUMMER AND D ARRYL G RIFFIN,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 638—David H. Coar, Judge.
A RGUED D ECEMBER 10, 2008—D ECIDED S EPTEMBER 4, 2009
Before P OSNER, K ANNE and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. On June 29, 2007, Sharnel
Plummer and Darryl Griffin were convicted of conspiracy
to possess with intent to distribute 50 grams or more
of crack cocaine in violation of 21 U.S.C. § 846, and distri-
bution of crack cocaine in violation of 21 U.S.C. § 841(a)(1),
and Griffin was also convicted of two additional counts
of distribution of at least 5 grams of crack cocaine. The
district court sentenced Plummer to 240 months’ impris-
2 Nos. 07-4032 & 08-1469
onment and 10 years’ supervised release, and sentenced
Griffin to 252 months’ imprisonment and 10 years’ super-
vised release. Both defendants appealed challenging
the conviction and sentence, and we affirm.
In 2006, agents from the Drug Enforcement Agency
(“DEA”) in conjunction with the Chicago Police Depart-
ment (“CPD”) engaged in Operation Englewood aimed at
combating the use of illegal narcotics in Chicago’s
Englewood neighborhood. As part of that operation,
DEA agent Pointer and CPD undercover officer Miller (the
“agents”) went to a neighborhood gas station to seek
contacts to obtain crack cocaine. There, they came into
contact with Gene Brown and told him that they were
seeking to purchase an eight ball of rock. The term
eight ball refers to one-eighth of an ounce, and rock is a
street term for crack cocaine. Brown got into their
vehicle and directed them to another location. Brown
then exited the vehicle and spoke with defendant
Plummer who was in a white vehicle at that location.
Plummer asked the agents whether they wanted more
or less than an eight ball and the agents indicated that
they wanted more. Plummer then gave his phone
number to the agents and provided Brown with a
sample of what appeared to be crack cocaine, which
Brown retained.
Agent Miller later called Plummer and agreed to pur-
chase a half ounce for $350. They met at a prearranged
location and Plummer handed him a plastic bag, knotted
in the corner, with a single chunk rock in the corner
that was the size of a fifty cent piece and was an off-white
Nos. 07-4032 & 08-1469 3
color. The rock-like substance later tested positive for the
presence of cocaine base with a purity level of 54% as
well as sodium bicarbonate (also known as baking soda).
The process was repeated a few day later, with Miller
purchasing an ounce of crack cocaine for $700. The
drugs were similar in appearance to the previous pur-
chase, and subsequent chemical analysis confirmed that
it contained cocaine base with a purity of 63%, as well
as procaine and sodium bicarbonate. The chemist testi-
fied that procaine is a noncontrolled substance used as
a local anesthetic, also known by the trade name novo-
caine, which is commonly used as a filler in cocaine
samples to increase the bulk of the sample so more of it
can be sold.
Two days later, Miller again called Plummer, this time
to set up a purchase for 2½ ounces of crack cocaine for
a purchase price of $1,750. Plummer directed the agents
to a house to complete that deal. When the agents
arrived, Griffin rather than Plummer entered their car.
The agents initially refused to deal with Griffin and
ordered him out of the car. They spoke with Plummer by
cell phone and observed him speak to Griffin in the
doorway of a second-floor porch of the home. Ultimately,
they agreed to deal with Griffin, who had identified
himself as Plummer’s uncle. They gave Griffin the $1,750
and he provided them with a knotted, twisted plastic
bag containing a rock-like substance that was about the
size of a golf ball. That substance tested positive as con-
taining cocaine base of a purity of 60%, procaine, and
sodium bicarbonate.
4 Nos. 07-4032 & 08-1469
Griffin and Plummer raise a number of challenges to
the conviction and sentence. Most of those challenges
center on the identification of the substance involved as
crack cocaine. They argue that the substance was not of
sufficient purity to be crack cocaine for purposes of
the statute. Specifically, the defendants contend that in
increasing the sentence for crack cocaine, Congress was
concerned with the highly addictive nature of crack
cocaine because of its high purity. According to the
defendants, cocaine base with a purity level less than 75-
80% purity should not be considered crack cocaine
under the statute because it does not present that same
danger. They further assert that the statute is unconstitu-
tionally vague if interpreted to include substances of
lower purity. In addition, the defendants’ attorneys at
trial sought a jury instruction that would have distin-
guished crack cocaine from freebase cocaine, which is
a smokeable form of cocaine that is made using ether.
Unlike crack cocaine, freebase cocaine is highly flam-
mable and is dangerous to produce. The defendants
argue that it is indistinguishable in appearance to crack
cocaine, and therefore that the district court erred in
failing to instruct the jury regarding freebase cocaine
and that the statute as applied is void for vagueness.
The defendants have no support for their purity argu-
ment other than reference to legislative history ex-
pounding on the dangers of crack cocaine and its highly
addictive nature. There are many problems with this
reasoning, not the least of which is the absence of any
language in the statute itself setting a minimum
purity level in order for a substance to be considered
Nos. 07-4032 & 08-1469 5
crack cocaine. See 21 U.S.C. § 841. That alone is fatal to
the claim.
And in fact, other courts have upheld convictions for
possession and distribution for crack cocaine where the
purity levels were far less than the 75-80% minimum
proposed by the defendants. For instance, in United
States v. Pettiford, 517 F.3d 584, 593 n. 5, 6 (D.C. Cir. 2008),
the substance identified as crack cocaine was 71%
cocaine base, and the court took note of other cases in
which a determination that a substance was crack cocaine
was upheld with purity levels of 55% and even 36-44%.
In United States v. Eli, 379 F.3d 1016, 1021 (D.C. Cir.
2004), the court rejected an argument similar to the one
made by the defendants here. Eli argued that the sub-
stance could not be crack cocaine in part because the
drugs were relatively impure—between 36 and 44%
cocaine base—and that crack cocaine was usually 70-90%
cocaine base. A chemist in Eli testified, however, that the
typical purity was actually 50-60%, and that he had
tested crack of substantially lower purity than that. Id.
Therefore, the Eli court rejected the same argument
proposed here, both by noting that the typical purity
for crack cocaine was 50-60%—much lower, we note,
than the 75-80% proposed as the minimum by the defen-
dants here—and by recognizing that the purity levels
of crack cocaine sold in the street is variable. The defen-
dants’ proposed purity levels are nothing more than
an arbitrary cut-off without support in the statute or in
caselaw interpreting that statute.
As we noted in United States v. Stephenson, 557 F.3d
449, 453 (7th Cir. 2009), “[t]his circuit has rejected rigid
6 Nos. 07-4032 & 08-1469
definitions of crack, noting that to employ such a rigid
definition would invite those in the drug trade to
make minor changes in structure, processing, or pack-
aging to avoid the increased penalties for selling crack
cocaine.” (citing United States v. Abdul, 122 F.3d 477,
479 (1997). The purity minimums proposed by the defen-
dants would arbitrarily eliminate a great number of
transactions from the reach of the crack cocaine pro-
vision, and would in fact provide an easy means for
drug dealers to avoid the higher sentencing potential by
simply reducing the purity of the crack cocaine they are
producing. The defendants apparently believe that the
less pure crack cocaine will necessarily be less addictive
and therefore is not the type of substance that was of
concern to Congress in enacting the statute. That fails to
take into account that the substance is still smokeable
and therefore delivers a more immediate and intense
high than powder cocaine, and that it therefore is addic-
tive and dangerous even at the lower purity levels.
And, unlike the freebase form that the defendants
mention, crack cocaine can be manufactured fairly
easily with little danger to those making it or using it,
and therefore is much more widely available. In fact,
there was no evidence presented at trial that the
freebase form is even available at all in the Englewood
neighborhood. The agents and the lab technicians all
testified that they had only seen crack cocaine. The de-
fendants’ claim of minimum purity levels lacks any sup-
port whatsoever, and we reject it.
Nor can the defendants succeed on their void-for-vague-
ness challenge—an argument raised and rejected numerous
Nos. 07-4032 & 08-1469 7
times by this court on similar evidence. Stephenson, 557
F.3d at 455. Under the void-for-vagueness doctrine, a
statute is unconstitutionally vague so as to violate due
process if it: “(1) does not provide a person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, or (2) fails to provide explicit standards to
prevent arbitrary and discriminatory enforcement by
those enforcing the statute.” United States v. Lim, 444
F.3d 910, 915 (7th Cir. 2006); Stephenson, 557 F.3d at 455-56.
Such challenges are analyzed as-applied unless First
Amendment interests are threatened, which is not the
case here. Id. The defendants contend that even if the
statute does not contain a purity requirement, there was
no evidence in the record to show that the cocaine base
was crack as opposed to freebase and therefore any
such determination is arbitrary.
We begin by noting the distinction between powder
cocaine, crack cocaine and freebase cocaine as those
terms are used by defendants. Crack and freebase
cocaine are both forms of cocaine base, as distinguished
from the acid form of cocaine, cocaine hydrochloride,
which usually takes the form of powder. United States
v. Kelly, 519 F.3d 355, 363 (7th Cir. 2008). As we ex-
plained in United States v. Edwards, 397 F.3d 570, 574
(7th Cir. 2005) (citations omitted):
Powder cocaine can be converted back into base
cocaine by a process that “frees” the base from the
hydrochloride. . . . Cocaine “freebase,” popular in
the 1970s, is produced by mixing cocaine hydrochlo-
ride with ammonia and ether or another organic
8 Nos. 07-4032 & 08-1469
solvent. . . . “Crack” is the street name for another
form of freebase cocaine, produced by mixing
cocaine hydrochloride with baking soda and water,
boiling the mixture until only a solid substance is
left, and allowing it to dry, resulting in a rocklike
substance. . . . Smokable and therefore more potent
than ordinary powder cocaine, crack rivals freebase
cocaine in terms of its potency while avoiding the
hazards of freebasing, which requires the use of
flammable ether. . . . Freed of the hydrochloride, the
cocaine returns to its base form—whether in the
physical form of crack or otherwise—and is again
chemically identical to “cocaine.”
We have held that cocaine base in the form of freebase is
distinct from crack cocaine and does not fall within
the statute. Id. at 576-77. Because there is no way to chemi-
cally distinguish between crack and freebase cocaine,
courts have recognized other means of distinguishing
the two. The defendants assert that the experts at trial
were unable to distinguish crack from freebase, and
that the substance is never identified as crack by the
participants to the transaction because “the word crack
never appears in the transcript.”
The absence of such language is not dispositive as to
whether a substance is crack, but in this case there was
in fact testimony establishing that the transactions at
issue involved crack and not another form of cocaine
base. When the agents spoke with Gene Brown, they
informed him that they were seeking to purchase crack
cocaine, or “rock,” and he brought them to Plummer for
Nos. 07-4032 & 08-1469 9
that purpose. The drugs then provided by Plummer
were consistent in price, consistency, appearance, and
chemistry with crack cocaine. That is sufficient to
survive a void-for-vagueness challenge, and in fact is
similar to the type of evidence held sufficient in other
cases. For instance, in United States v. Kelly, 519 F.3d 355
(7th Cir. 2008), we upheld a determination that a sub-
stance was crack based on the appearance as an off-
white rock-like substance packaged in a small Ziploc
baggie as was common for crack dealers, and where the
dealer at one point had referred to some of it as “rock,” a
street term for crack. Moreover, in Kelly we rejected the
speculation by the defendants that the drugs could
have been in the form of coca paste which is smoked in
the Andes. In Kelly, we noted the testimony of a DEA
chemist that he had never seen coca paste in his seven-
plus years as a forensic chemist. Id. at 365. Similarly, the
evidence in this case indicated that the forensic chemist
had not seen the freebase form of cocaine in her two
years at the lab in which she reviewed approximately
550 samples. She testified that the process is almost
obsolete largely due to the highly flammable nature of
ether. The defendants did not rebut that testimony, offer-
ing no evidence that freebase was available in the
Englewood neighborhood. Nor did any of the chemical
findings support that, as there was no evidence of the
presence of ether and the expert testified that the amount
of sodium bicarbonate in the sample would not be ex-
pected in freebase cocaine. In effect, the defendants
rely more on the mere speculative possibility that
the drug could have been freebase rather than crack.
That is insufficient to establish a void-for-vagueness claim.
10 Nos. 07-4032 & 08-1469
Finally, the defendants raise myriad challenges to trial
decisions, asserting that in combination those decisions
denied them a fair trial. None of these claims have
merit, as may be seen in our brief examination of the
main claims. The defendants claim that the district court
erred in failing to provide for the appointment of an
expert witness on the issue of the identification of the
substance as crack cocaine. The district court in fact
authorized $2,000 for the retention of such an expert
witness by the defendants. That is the amount requested
by the defendants. Although the defendants now argue
that the amount was inadequate to allow them to secure
an expert witness, they made no such argument to the
district court and did not request additional money
from the court. That alone is dispositive of their claim,
although we further note that the defendants have failed
to identify how such an expert could have aided in
this case.
The defendants additionally challenge the govern-
ment’s expert testimony by asserting that the govern-
ment failed to comply with Federal Rule of Criminal
Procedure 16(a)(1)(G). Rule 16(a)(1)(G) requires the gov-
ernment to supply a written summary of any expert
witness testimony that the government intends to use,
including a description of the witness’ opinions, the
bases for those opinions, and the witness’ qualifications.
That summary was provided, and the defendants’ con-
tention that the summary must be authored by the expert
witnesses themselves is unsupported by either the lan-
guage of the rule or any caselaw. See United States v.
Yoon, 128 F.3d 515, 526-27 (7th Cir. 1997); United States
v. Jackson, 51 F.3d 646, 651 (7th Cir. 1995).
Nos. 07-4032 & 08-1469 11
Finally, the defendants challenge the experts them-
selves, contending that the agents who testified that the
substance they purchased was crack cocaine could not
be properly qualified because they had no basis for deter-
mining that it was crack as opposed to a substance such
as freebase. As we discussed above, the witnesses had
ample basis for determining that the substance was
indeed crack cocaine including evidence that: they in-
formed Brown that they were looking for someone to
sell them crack and he brought them to Plummer;
Plummer sold them a substance that tested as cocaine
base and had the color, consistency, packaging and
pricing common to crack in the area; the substance con-
tained sodium bicarbonate which would not be ex-
pected were it freebase rather than crack cocaine; and
the testimony indicated that crack cocaine was readily
available in the area but freebase was obsolete, with
neither the lab experts nor the undercover agents
having seen any deals involving freebase in their years
of experience. Experts need not rule out any possible set
of circumstances, however unlikely, before they may
give an opinion. The defendants had an opportunity to
cross-examine the experts on the possibility that the
substance was freebase cocaine rather than crack cocaine,
and that is all that is required.
The decision of the district court is A FFIRMED.
9-4-09