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U.S. v. JACKSON

July 12, 1991

UNITED STATES OF AMERICA,
v.
FRANK JACKSON, DEFENDANT.



The opinion of the court was delivered by: Lasker, Senior District Judge.

Frank Jackson is before this court for sentencing pursuant to his plea of guilty to possession with intent to distribute cocaine base or "crack." Based on information that developed between the time of his guilty plea and this sentencing proceeding, Jackson now challenges the application of the statute providing enhanced penalties for offenses involving cocaine base on constitutional grounds as void for vagueness.

The circumstances surrounding Jackson's offense were as follows: In May of 1989, Jackson and another man, Frank Culmer, were passengers in a car that was stopped by the police. A search of the car revealed a brown paper bag containing 125 grams of a substance which was identified by the government as cocaine and 300 grams of a substance which was identified by the government as cocaine base or "crack". The police had observed Culmer attempting to conceal the bag underneath the front seat of the car. Jackson and Culmer were arrested and charged with possession with intent to distribute cocaine and cocaine base. Subsequent to his arrest, Jackson told the police he had agreed to help Culmer complete a drug transaction by standing at a distance and posing as a potential customer in exchange for money. Jackson has stated in a letter to the court that Culmer never told him what type or quantity of drugs were involved, but that he "figured it would be some types of cocaine."

On May 21, 1990, Jackson pled guilty to possession with intent to distribute cocaine base under 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2.

Upon receiving the presentence report prepared after his guilty plea, Jackson learned for the first time that the substance seized at the time of his arrest which had been identified by the government as cocaine base was only 27% pure.

The low level of purity of the substance prompted Jackson's counsel to conduct a further investigation. Jackson moved in November of 1990 for an order that the substance identified as cocaine base be re-tested to determine whether it had been correctly classified. Dr. Morris Zedeck, an expert chemist retained by counsel for Jackson, stated in an affidavit in support of the motion that his review of the DEA chemist's notes indicated that the chief test relied upon by the DEA to differentiate between cocaine base and cocaine hydrochloride had not been properly performed. The motion to retest the substance was granted and Dr. Zedeck performed two sets of tests on samples of the substance. Dr. Zedeck concluded that although the substance in question demonstrated certain qualities sometimes associated with cocaine base or "crack,"

  The form of the material being soft, sticky, oily
  and brownish indicates the presence of
  impurities. Pure cocaine would not have left an
  oily residue after ether extraction. Crack is
  supposed to be a whitish, dried, hard pellet. It
  is difficult to predict whether this material
  could have been used as crack.

On the basis of these findings, Jackson contends that the law punishing offenses involving cocaine base more severely than offenses involving other forms of cocaine violates the Fifth Amendment to the United States Constitution because it is unconstitutionally vague with respect to what constitutes cocaine base.

I. The Void-for-Vagueness Doctrine

  [T]he void-for-vagueness doctrine requires that a
  penal statute define the criminal offense with
  sufficient definiteness that ordinary people can
  understand what conduct is prohibited and in a
  manner that does not encourage arbitrary and
  discriminatory enforcement.

Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

In Kolender, the Supreme Court noted that

  Although the doctrine focuses both on actual
  notice to citizens and arbitrary enforcement, we
  have recognized recently that the more important
  aspect of the vagueness doctrine "is not actual
  notice, but the other principal element of the
  doctrine — the requirement that a legislature
  establish minimal guidelines to govern law
  enforcement." [quoting Smith v. Goguen,
  415 U.S. 566, 574, 94 S.Ct. 1242, 1247-48, 39 L.Ed.2d 605
  (1974)].

As the Court had explained in Grayned v. Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972),

  It is a basic principle of due process that an
  enactment is void for vagueness if its
  prohibitions are not clearly defined. . . . [I]f
  arbitrary and discriminatory enforcement is to be
  prevented, laws must provide explicit standards
  for those who apply them. A vague law
  impermissibly delegates basic policy matters to
  policemen, judges, and juries for resolution on
  an ad hoc ...

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