350 F.

3d 310

UNITED STATES of America

v.
Clarence D. BRIGMAN, Appellant.
No. 03-1655.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) October 15, 2003.
Filed November 18, 2003.

Edward J. Crisonino, Westmont, for Appellant.

George S. Leone, Glenn J. Moramarco, Assistant U.S. Attorney, Camden
Federal Bldg. & Courthouse, Camden, for Appellee.
Before SLOVITER, ROTH and CHERTOFF, Circuit Judges.
OPINION OF THE COURT
CHERTOFF, Circuit Judge.

In this appeal from his conviction for distribution and possession with intent to
distribute cocaine in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C), Appellant
Clarence D. Brigman alleges that the Government failed to prove the cocaine in
his possession was "crack" for purposes of Section 2D1.1 of the United States
Sentencing Guidelines ("U.S.S.G." or "Guidelines"). We determine that there
was sufficient evidence for the District Court to find that Brigman possessed
"crack," and we will affirm his sentence.

I.
2

On August 12, 1999, Brigman and co-defendant Frank Jennings were arrested
after Camden, New Jersey police found a quantity of drugs in a vehicle they
were driving. On September 27, 2000, both men were indicted on federal drug
charges. On April 27, 2001, while Brigman remained a fugitive, Jennings pled
guilty to a superseding information charging him with distribution and
possession with intent to distribute crack cocaine in violation of 21 U.S.C.

841(a)(1). Brigman was arrested on April 11, 2002, and six months later, on
October 9, 2002, Brigman pled guilty to a superseding information charging
him with distribution of and possession with intent to distribute a Schedule II
narcotic drug controlled substance, in violation of 21 U.S.C. 841(a)(1) and
(b)(1)(C). At the time of his plea, Brigman reserved the right to argue that the
drugs in his possession were not crack cocaine.
3

On January 10, 2003, the District Court held an evidentiary hearing to

determine the identity of the controlled substance in Brigman's possession at
the time of the arrest. At the hearing, a Drug Enforcement Agency ("DEA")
chemist testified that the drugs seized from Brigman's possession were cocaine
base. The DEA case agent also testified, and said that Brigman's cocaine was
"crack." Further, the Government offered the statements of co-defendant
Jennings, who admitted that the drugs he and Brigman possessed were "crack."
On February 21, 2003, the District Court determined that the drugs in
Brigman's possession were crack cocaine. Brigman was sentenced to a 188
month term, the bottom of his Sentencing Guideline range of 188 to 235
months.

Jurisdiction in the District Court rested on 18 U.S.C. 3231. This Court has
jurisdiction over the challenge to the sentence because the judgment is a final
order under 28 U.S.C. 1291, and Brigman has a statutory right to appeal under
18 U.S.C. 3742(a).

II.
5

Cocaine is a naturally occurring substance that is derived from the leaves of the
erythroxylon plant. United States Sentencing Commission, Special Report to
the Congress: Cocaine and Federal Sentencing Policy, at vi (1995) [hereinafter
"Special Report"]. There are five basic forms of the drug: coca leaves, coca
paste, powder cocaine, freebase cocaine, and crack cocaine. Id. at 11. There are
three base forms of cocaine: coca paste, freebase cocaine, and crack cocaine. Id.
Coca paste, not usually imported into the United States, is "a chunky, off-white
to light-brown, putty-like substance that exists primarily as an intermediate
product in the processing of coca leaves into powder cocaine." Id.

Both freebase cocaine and crack cocaine are forms of cocaine base produced
from powder cocaine. Id. at 13. In this form, the powder cocaine has been
"freed" from the salt substrate and is once again in a base form similar to that of
coca paste. Id. To create freebase cocaine, powder cocaine is dissolved in water
and a strong alkaloid solution, typically ammonia is added, along with another
organic solvent like ether. Id. The use of this process was first documented in

the 1970s, but "many resisted the freebasing process because of its complexity
and potential danger. Ether, a highly volatile and flammable solvent, will ignite
or explode if the freebase cocaine is smoked before the ether has evaporated
entirely." Id. Cocaine base prepared using the freebase method was replaced by
the crack method. See, e.g., United States v. Johnson, 976 F.Supp. 284, 290
(D.Del.1997) ("[F]reebase cocaine ... seems to have outlived its utility with the
emergence of crack cocaine.")
7

To produce crack cocaine, the powder cocaine is dissolved in a solution of

sodium bicarbonate1 and water, which is then cooked, leaving a solid substance
called crack cocaine. Special Report at 14. "The crack cocaine is broken or cut
into `rocks,' each typically weighing from one-tenth to one-half a gram." Id.
This method is considered to be the most common method of producing
cocaine base. See United States v. Barbosa, 271 F.3d 438, 462 (3d Cir.2001).
"Crack" is not a chemical term; it describes a substance that results from a
general method for making cocaine base out of powder cocaine. See United
States v. Waters, 313 F.3d 151, 156 (3d Cir.2002). The Sentencing Guidelines
note, "`[c]rack' 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." U.S.S.G. 2D1.1(c), Note D. See also
Waters, 313 F.3d at 156. 2

This Court has noted that, "[t]he Sentencing Commission defines cocaine base
for sentencing purposes to mean the form of cocaine base commonly known as
crack." United States v. James, 78 F.3d 851, 858 (3d Cir.1996); see also
Barbosa, 271 F.3d at 462. Whether a substance is crack cocaine is a finding of
fact subject to review for clear error. United States v. Roman, 121 F.3d 136,
140 (3d Cir.1997). Under this standard, "[f]actual findings are clearly erroneous
if the findings are unsupported by substantial evidence, lack adequate
evidentiary support in the record, are against the clear weight of the evidence or
where the district court has misapprehended the weight of the evidence." Id.
(internal citations omitted). The District Court's factual findings during
sentencing cannot be disturbed unless this Court is "left with a definite and firm
conviction that a mistake has been made." United States v. Dent, 149 F.3d 180,
189 (3d Cir.1998).

The Government must prove, by a preponderance of the evidence, that a

substance is "crack" when applying U.S.S.G. 2D1.1 for cocaine base. See
James, 78 F.3d at 858. To satisfy its burden, this Court has held that the
government must present "reliable and specific evidence" that the substance in
question is crack. Roman, 121 F.3d at 141 (internal quotations omitted).

III.
10

In this case, the Government met this burden. At the evidentiary hearing to
determine the identity of Brigman's controlled substance, Carolyn Roche, a
forensic chemist with the DEA, analyzed the drug samples seized from
Brigman and Jennings's vehicle. She described Brigman's first sample,
amounting to 228 grams, as "compressed tan material" that was "like chunks of
cookie, like hard, but not rock hard, not cement hard, but, you know, you can
break it and grind it, but compressed. It's not a loose powder." (App.76-77).
Jennings's sample, weighing 0.72 grams, was in nine separate little baggies and
consisted of "off-white chunky, chunky substance". (App.77-78) Based on her
lab analysis of the samples, Roche concluded that both samples were cocaine
base.

11

Brigman suggests that his cocaine should not be deemed "crack" cocaine
because Roche did not specifically testify that his cocaine was "crack" per se.
But Roche testified, "[c]rack isn't a scientific term so we don't call anything
actual crack. We just determine it's cocaine base and crack is left up to the
street individual knowing what it looks like, individual or on a street level
which we're not on. We established it's cocaine base." (App.87)

12

Roche also testified that the shape of Brigman's cocaine sample, a "cookie"
shape, suggested that it was crack cocaine. She noted, "[g]enerally when
cocaine hydrochloride is processed into cocaine base the container that is used
in the processing is usually a round, is usually a round cup or beaker or bucket
or something along those lines. And when it's processed the cocaine takes the
shape, the cocaine base takes the shape of the container so it's usually seen in a
round form ... you can see the round flat shape." (App.94)

13

The second Government witness was DEA Special Agent Sam Trotman, the
case agent for the investigation. Trotman served as a special agent for the DEA
for 13 years and also spent five years as an investigator with the Camden
County Prosecutor's Office, where he worked for three years in the narcotics
unit. Over his career, he had been involved in several thousand drug arrests,
with several hundred of them involving "crack" cocaine.

14

Trotman testified that the cocaine seized from both Brigman and Jennings was
crack cocaine. He related that while cocaine powder is a white powdery
substance, "crack" cocaine is more of a tan hard chunky substance a
description which matches Brigman's cocaine. Like DEA chemist Roche,
Trotman also testified that the cocaine seized from under Brigman's car seat

had a round beveled edge, which, he stated, suggested that the cocaine had been
"cooked" in a manner that crack is "cooked."3 He also stated that in his
experience working in law enforcement, he had never heard of coca paste being
in the Philadelphia or Camden area. Given Trotman's experience as a law
enforcement officer involved in drug transactions, it was reasonable for the
District Court to rely on his testimony. See, e.g., Roman, 121 F.3d at 141-42;
see also Waters, 313 F.3d at 156; Dent, 149 F.3d at 190.
15

Trotman also testified that Jennings had told him that Brigman had sold him
"crack" on a regular basis. Jennings testified at his guilty plea hearing that the
nine baggies of drugs found in his pocket were "crack" cocaine, and that he got
it from Brigman. Jennings also stated that the drugs under Brigman's seat
belonged to Brigman and that they were "crack."

16

Brigman argues that the District Court erred in considering Jennings's

testimony because it was hearsay, was self-serving, and deflected blame on
Brigman. Hearsay is fully admissible at a sentencing hearing, so long as it has
sufficient indicia of reliability. See U.S.S.G. 6A1.3(a); United States v.
Deaner, 1 F.3d 192, 199 n. 3 (3d Cir.1993).

17

In this case, the record appears to provide more than sufficient indicia of
reliability. First, as the District Court noted, Jennings's statements during his
guilty plea were given under oath. Second, all the statements he gave were
against his penal interest, since admitting to possessing "crack" cocaine is
significantly more serious than admitting to possessing powder cocaine. Cf.
United States v. Moses, 148 F.3d 277, 280 (3d Cir.1998); see also United States
v. Szakacs, 212 F.3d 344, 352-53 (7th Cir.2000).

18

The District Court's factual conclusion that the drugs were "crack" cocaine was
also supported by the drugs' physical appearance: the contraband had a lumpy,
rocklike appearance characteristic of crack, and had a round, beveled edge,
another common marker of crack.

IV.
19

Brigman also argues that the District Court committed legal error by
misapprehending the distinctions between cocaine base that is produced by the
freebase method and cocaine base that is produced by the crack method. The
District Court speculated that the cocaine base created by the freebase method
would be treated the same as cocaine base produced by the crack method, so
long as the cocaine produced from freebasing was otherwise indistinguishable

from crack. Based on this rumination, Brigman urges that the District Court
sentenced him under the misapprehension that cocaine base produced by
freebase is legally the same as cocaine base produced by the crack method.
20

While the issue has not been resolved, the existing cases suggest that cocaine
produced by the freebase method is not treated as "crack" under the Guidelines.
See James, 78 F.3d at 857-58; United States v. Booker, 70 F.3d 488, 493-94
(7th Cir.1995); Johnson, 976 F.Supp. at 290 & n. 8.

21

Nevertheless, the District Court's thoughts on how freebase-produced cocaine

base would be treated under the Guidelines have no import here. As the District
Court found, there were no facts in the record that would permit an inference
that Brigman's drugs were produced by the freebasing process.4 Brigman did
not present evidence, scientific or otherwise, which suggested that his cocaine
was the product of the freebasing technique. The District Court's musings
concerning how cocaine base produced by the freebase method would be
treated under the Guidelines were irrelevant and did not lead to any error in
sentencing Brigman.

V.
22

For the reasons set forth, we will affirm the judgment of conviction and
sentence.

Notes:
1

Typically known as baking soda

To be sure, Brigman's cocaine did not contain sodium bicarbonate; however,

the government is not required 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 cocaineWaters, 313 F.3d at 155.

Agent Trotman testified that when cooked, crack takes the form of the vessel in
which it is cooked; the cocaine seized from Brigman had a round beveled edge,
which would indicate that it was cooked in a pot or some other similar round
object, as crack is normally cooked

DEA chemist Roche testified that the chemical composition of Brigman's drugs
was that of cocaine base. The likelihood of the seized cocaine base being coca
paste or freebase cocaine is small. First, coca paste is not usually found in the

United States. Second, freebasing cocaine is considered to be highly dangerous

and not conducive for producing large amounts of cocaine, like Brigman's 228
grams