The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Robert Collins was indicted by a grand jury on three narcotics
charges. Each of the charges alleged that on a particular date,
Collins knowingly and intentionally distributed a specified
quantity of a Schedule II controlled substance, specifically
cocaine base in the form of crack cocaine, in violation of
21 U.S.C. § 841(a)(1). On May 5, 2005, Collins pled guilty to all
three charges. Before Collins entered his guilty plea, the
parties explained to the Court that Collins desired to plead
guilty to each of the charges but reserve the question of the
specific Schedule II controlled substance involved:
MR. YOUNG (defense counsel): . . . [I]f I could,
before we get into the factual basis, Mr. Collins'
desire is to plead to the indictment but to reserve
argument on the nature of the controlled substance
and ask the Court to have a hearing at sentencing or
prior to make a determination as to the nature of the
THE COURT: Let me ask you this. When we get to the
factual basis, what is the factual basis going to be
as to what the substance was?
MR. YOUNG: A Schedule 2 [sic] controlled substance is
what he would admit to, and the issue is whether or
not it's crack cocaine or not basically.
MR. HOTALING (prosecutor): So going through my
factual basis, what I intend to do is just to at
every point in time when we have this particular drug
is to indicate a Schedule 2 controlled substance. THE COURT: All right. So, in other words, what you
are saying is that the gravamen of the charge is the
possession [sic] of a Schedule 2 controlled
substance, and so he is pleading to that, and it can
be determined at some later ponit what particular
Schedule 2 controlled substance it was.
Tr. May 5, 2005 at 2-3. It was further explained that
determination of whether the substance involved was crack cocaine
would impact both the maximum and minimum offenses. Id. at 3-4.
During the plea colloquy, the Court explained to Collins that
the sentence on the charges to which he was pleading guilty would
depend on the nature of the substance involved: if it was crack
cocaine, the maximum on each charge would be life imprisonment
and the minimum would be ten years; if it was not crack cocaine,
the maximum would be thirty years and there would be no mandatory
minimum. Id. at 11.
The Court also explained to Collins, clearly and unequivocally,
that he had the right to have the issue of the nature of the
substance involved determined by proof that would have to
establish beyond a reasonable doubt that the substance was crack
THE COURT: Now, you have a right to have the nature
of the substance, in other words, what type of
Schedule 2 controlled substance it is you have the
right to have that determined at a trial by a jury.
Do you know that?
THE DEFENDANT: Yes, sir.
THE COURT: As I understand what you are doing here is
you are going to be admitting that you distributed on
each one of these dates the particular quantities of
a Schedule 2 controlled substance, and you are going
to leave it to be to decide later on, after hearing
from both sides, what particular type of Schedule 2
controlled substance it was. Am I right about that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that when you are doing
that, you are going to be asking me to decide it
rather than a jury, and so it's just going to be up
to me to make that decision? Do you understand that? THE DEFENDANT: Yes, sir.
THE COURT: Do you understand you have a right to have
that decision made by a jury?
THE DEFENDANT: Yes, sir.
THE COURT: I am going to go through your right to a
jury again more particularly, but I want to just
focus on this one thing. Has there been a discussion
of how the burden of proof is going to be determined?
MR. HOTALING: Your Honor, I think I was going to
interject on that. I believe the standard at
sentencing would be that you would be able to make
those findings by a preponderance. So he would be
waiving his right.
THE COURT: Let me just go through that part of it. If
you were to go to trial, the jury would be told that
they would have to determine each one of the things
that the government has to prove by a standard of
proof that is called beyond a reasonable doubt. In
other words, the government would have to prove
beyond a reasonable doubt each one of the things that
they have to prove, and they would also have to prove
that it was the particular substance they were
talking about, crack cocaine, in order for you to be
sentenced under those more serious sentencing
provisions with the 10-year minimum and the life
Since you are going to be giving that to me to
determine, it is going to be determined as a
sentencing issue by a different standard, by what is
called preponderance of the evidence. In other words,
I am going to have to look at the evidence and decide
whether it's more likely true than untrue that the
substance is crack cocaine. The government will still
have the burden of proof, but they will have to prove
simply that it is more likely than not that the
substance was crack, and they won't have to prove it
beyond a reasonable doubt. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Are you willing to give up your right to
have that particular issue on each one of these
charges determined by a jury, with the government
being required to prove it beyond a reasonable doubt,
and have me decide it instead?
THE DEFENDANT: Yes, sir.
Id. at 11-14. The Court thereafter heard and accepted Collins'
guilty plea to the three charges. Following entry of the guilty plea, the Court conducted an
evidentiary hearing at which the government undertook to prove
that the substance Collins had distributed was crack cocaine. We
will discuss later the evidence adduced at the hearing. Following
the hearing, the Court questioned the propriety of a guilty plea
in which the defendant admits to some, but not all of the
elements of an offense and agrees to a lower burden of proof as
to the remaining elements. The Court requested further briefing.
The government filed a brief in which it argued that the issue of
the type of narcotic was a sentencing issue, not an element of
the offense, and that a defendant may waive both judicial fact
finding and application of the reasonable doubt standard. Collins
filed a brief in which he argued that the government's burden of
proof cannot properly be waived, and that even if it can, he "was
misinformed and his waiver of the standard of proof was therefore
not knowingly made." Dfdt. Suppl. Mem. at 3.
Since Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact
that subjects the defendant to a higher maximum sentence must be
proven to a jury beyond a reasonable doubt. In a § 841 case,
determination of whether the narcotic the defendant distributed
was crack cocaine is such a fact. But that does not make the type
of narcotic an element of a § 841 offense. As the government
argues, the Seventh Circuit has held that "drug type and quantity
remain sentencing issues," though the fact finder and the burden
of proof have changed as a result of Apprendi. See United States
v. Knight, 342 F.3d 697, 710 (7th Cir. 2003); Horton v. United
States, 244 F.3d 546, 552 (7th Cir. 2001).
A defendant's rights under Apprendi that is, his rights to
have factors that increase a sentence determined by a jury,
pursuant to the standard of proof beyond a reasonable doubt are
subject to waiver. In Blakely v. Washington, 542 U.S. 296,
124 S.Ct. 2531, 2541 (2004), the Court made it clear that "nothing prevents a defendant from
waiving his Apprendi rights." Though the notion of a
defendant's waiver of the reasonable doubt standard of proof
gives the Court pause, Collins has offered no compelling reason
why this important right should be treated any differently from
other equally important rights such as the right to counsel and
the right to trial by jury that are unquestionably subject to
waiver. See Illinois v. Tovar, 541 U.S. 77, 80 (2004) (right to
counsel); Faretta v. California, 422 U.S. 806, 835 (1975)
(same); Brady v. United States, 397 U.S. 742, 748 (1970) (right
to trial by jury).
The Court also rejects the belated claim that Collins did not
knowingly waive his right to have the issue of the type of
narcotic proved beyond a reasonable doubt. During the plea
colloquy, quoted at length earlier, the Court carefully explained
to Collins that he had the right to have the issue proved by that
standard, closing with the specific and unambiguous admonition
that the government "will have to prove simply that it is more
likely than not that the substance was crack, and they won't have
to prove it beyond a reasonable doubt." When the Court asked
Collins whether he understood this, he unequivocally said that he
did. Tr. May 5, 2005 at 13-14. Under the circumstances, the
unsupported contention of counsel that Collins "was misinformed
and [that] his waiver of the standard of proof was not knowingly
made," Collins Suppl. Mem. at 3, simply does not hold water.
Collins' waiver of the reasonable doubt standard was knowing and
intelligent and was made with awareness of the circumstances and
possible consequences. See Brady, 397 U.S. at 748.
The Court therefore proceeds to discuss the evidence presented
at the hearing. The government offered a tape recording of a
conversation between Collins and an informant in which
arrangements were made for the purchase of narcotics. The
recorded conversation reflected that the informant asked to purchase, and Collins
agreed to sell, crack cocaine. Following that meeting and other,
later meetings between Collins and the informant at which money
and suspected narcotics were exchanged, government agents
recovered quantities of a substance that they said, based on
their training and experience, had the appearance (color and
texture) and smell of crack cocaine. One of the agents admitted
on cross examination that crack cocaine can vary in color, and
another testified that powder cocaine, like crack cocaine, can be
chunky in texture.
The government also called Heather Miller, a Drug Enforcement
Administration forensic chemist with a doctorate in analytical
chemistry who had analyzed the substances recovered following the
three transactions at issue. Miller testified that there are
three distinct substances that fall under the heading of "cocaine
base": coca paste, the substance produced during the extraction
of cocaine from coca leaves; "freebase" cocaine, a substance
produced by dissolving powder cocaine in water and adding a base
(such as ammonia) until a precipitant is produced, which in turn
is dissolved in ether and filtered out; and crack cocaine, the
street term for a substance produced by mixing powder cocaine
with a base (usually sodium bicarbonate) and water, and then
applying heat. Miller said she had never had an occasion to test
or work with coca paste or freebase cocaine.
On cross examination, Miller testified that there is no
chemical distinction between "cocaine base" and crack cocaine
in other words, both have the same chemical formula. She also
testified that she would not rely on visual inspection or smell
to conclude that a particular substance was cocaine base.
Miller testified that it is possible to find traces of sodium
bicarbonate in samples of crack cocaine. This occurs when too much sodium bicarbonate is used in
the preparation process and not all of it is used up in the
reaction. If, however, the correct proportions are used, no trace
of sodium bicarbonate will be found in the end product. Miller
testified that each of the three samples she tested included
"cocaine base" and that each tested negative for sodium
Collins called Michael Evans, who has a doctorate in toxicology
and has testified in a number of federal criminal cases on the
subject of identification of crack cocaine. Evans explained the
differences between powder cocaine, freebase cocaine, and crack
cocaine. Powder cocaine (cocaine hydrochloride) is water soluble
and is not volatile; it is injected or inhaled, but not smoked.
Freebase cocaine is prepared by dissolving powder cocaine in
water and adding a base (such as sodium hydroxide). The resulting
substance is dissolved in ether and then is desiccated to produce
freebase, an extremely volatile substance which is smoked. Crack
cocaine is made by mixing powder cocaine with sodium bicarbonate
and adding water, and heating the mixture. Evans testified that
crack can be distinguished from other forms of cocaine base by
the presence of bicarbonate and also by the fact that when
burned, a crackling sound can be heard.
Evans testified that Miller's laboratory reports did not
establish that the substances she tested were crack cocaine, as
there was no indication of the presence of bicarbonate. Evans
stated that it is not possible for all the sodium bicarbonate
used in making crack cocaine to be used up in the preparation
process and thus that the absence of bicarbonate in a particular
substance means that it is not crack cocaine. Evans, like Miller,
testified that determination of whether a particular substance is
crack cocaine cannot be made by visual inspection or smelling;
indeed, he testified, the odor of crack (in and of itself, as
distinguished from other substances mixed in with it) is not
different from that of other forms of cocaine base. On cross examination, Evans admitted that he does not have a
doctorate in chemistry (though his undergraduate degree was in
chemistry and biology) and that he had not analyzed the
substances at issue in this case. He also agreed that crack
cocaine is not chemically distinguishable from other forms of
cocaine base. Evans also testified that crack cocaine can vary in
color and texture.
Neither Miller's nor Evans' testimony entirely made sense to
the Court. The predicate for Miller's testimony was that the
person(s) who made the substances tested somehow managed to use
precisely the exact amount of sodium bicarbonate needed to make
crack cocaine, without any excess. In view of the fact that the
alleged crack was being produced by amateurs without chemical
degrees not working in a laboratory, this seems extraordinarily
unlikely. Cf. United States v. Waters, 313 F.3d 151, 153 (3d
Cir. 2002) (quoting the testimony of a DEA chemist to the effect
that "traditionally, what we find is that out on the street an
excess of this bicarbonate is used in the conversion," thus
leaving traces in the tested sample). Evans' references to
"bicarbonate" likewise did not entirely make sense to the Court;
from the Court's relatively rudimentary understanding of
chemistry, "bicarbonate" ...