United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2007 Decided October 5, 2007
No. 05-3202
UNITED STATES OF AMERICA,
APPELLEE
v.
KEVIN H. POWELL, JR.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00061-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III, Thomas J. Tourish, Jr.,
and Patricia Z. Stewart, Assistant U.S. Attorneys.
Before: HENDERSON, RANDOLPH and BROWN, Circuit
Judges.
RANDOLPH, Circuit Judge: Two police officers, patrolling
an area in northeast Washington, D.C., found Kevin H. Powell,
2
Jr. apparently unconscious, sitting behind the steering wheel of
an automobile stopped in an intersection. The only serious
question presented in Powell’s appeal from his conviction for
violating 21 U.S.C. § 841(b)(1)(B)(iii) is whether the jury had
sufficient evidence to find that he possessed crack cocaine,
which United States v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004),
held would certainly be enough to satisfy the “cocaine base”
element of that section.1
The evidence, viewed in the light most favorable to the
government, see United States v. Zeigler, 994 F.2d 845, 848-49
(D.C. Cir. 1993), showed as follows. One officer approached
the automobile from the driver’s side, the other from the
passenger’s side. One of the officers saw a plastic bag sitting on
Powell’s lap; in the bag was a “white-yellowish rock substance.”
This officer had seen crack cocaine on more than fifty occasions
and had no doubt that Powell’s bag contained crack. The other
officer also had no doubt that the substance was crack. He
testified that he encountered crack cocaine at least once a day
and that it is “usually a white rocky substance, white with a
tinge of yellow, a little off-white.” The officers seized the bag,
$2,541 in cash found on Powell, two cell phones and a fully
loaded nine millimeter handgun found in the center console of
the car.
The government introduced, and the court admitted as
government exhibit 10, the substance recovered from Powell.
1
As we explained in Brisbane, punishment for violating § 841
depends on the weight of drugs involved in the offense. A certain
quantity of “cocaine base” will trigger much stiffer penalties than an
equivalent quantity of powdered cocaine – that is, “cocaine, its salts,
optical and geometric isomers, and salts of isomers.” Compare 21
U.S.C. §§_841(b)(1)(A)(ii)(II) & (B)(ii)(II) with 21 U.S.C.
§§_841(b)(1)(A)(iii) & (B)(iii).
3
A Drug Enforcement Administration chemist testified that when
he received exhibit 10 the material was “rock-like” and “off-
white” or “yellowish” in color. He identified a photograph he
had taken of the substance, which showed small pebbles of
various sizes. The chemist had pulverized the material to test it
and found that it weighed 15.4 grams, with 83 percent consisting
of cocaine base. He said that he did not identify the remaining
material in the exhibit. He also testified that he did not test the
material to determine whether it was smokable.
Powell makes much of the government’s failure to show
that exhibit 10 “contained sodium bicarbonate or any other
chemical compound necessary to produce crack cocaine.”
Appellant Reply Br. 12. The point is well-taken but we do not
believe the absence of such evidence is fatal. There are often
many different ways to prove a proposition. Here, in addition to
the testimony of the arresting officers and the chemist, the
government called Sergeant John Brennan, who was accepted
as an expert in the packaging and distribution of controlled
substances, including cocaine. Sergeant Brennan explained how
crack is manufactured and sold on the streets. He reviewed the
photograph of the material that was taken before the chemist
tested it and the chemist’s report. In Sergeant Brennan’s
judgment, the material was crack cocaine, something he sees
“every day on the street.” He was certain that it was not
powdered cocaine, the other form of cocaine found in
Washington.
While not exactly overwhelming, we think the evidence was
enough to enable a rational trier of fact to determine that exhibit
10 was crack cocaine. See Jackson v. Virginia, 443 U.S. 307,
317-19 (1979). The arresting officers had ample experience
with crack cocaine. Their identification of Powell’s material as
crack cocaine was not contradicted. Nor was Sergeant
Brennan’s expert testimony on the subject. Other evidence,
4
such as a cocaine cooking kit, United States v. Johnson, 437
F.3d 69, 75 (D.C. Cir. 2006), or conformance to traditional sale
practices, United States v. Lawrence, 471 F.3d 135, 139 (D.C.
Cir. 2006), would have made the government’s case stronger.
The case would have been stronger still if a chemist or some
other type of expert determined whether the vaporization point
of this particular sample of cocaine base was below the known
decomposition temperature of the cocaine molecule.2 See
United States Sentencing Commission, Special Report to the
Congress: Cocaine and Federal Sentencing Policy 12-13 (Feb.
1995). But the absence of evidence along either of these lines
did not undermine the force of the evidence the government did
present. We cannot say that no rational juror could have found
beyond a reasonable doubt that Powell possessed crack cocaine.
We therefore affirm his conviction for violating 21 U.S.C.
§ 841(b)(1)(B)(iii).
Powell has two further points. The first is that the district
court erred in following our decision in United States v.
Alexander, 331 F.3d 116, 130-31 (D.C. Cir. 2003), and counting
his attempted drug crimes as “serious drug offenses” under 18
U.S.C. § 924(e), which resulted in his designation as an armed
career criminal subject to a mandatory minimum sentence of 15
years’ imprisonment. Powell concedes that Alexander controls.
2
The cocaine molecule begins to decompose around 388º F,
roughly the same temperature at which powder cocaine vaporizes. See
United States Sentencing Commission, Special Report to the
Congress: Cocaine and Federal Sentencing Policy 12-13 (Feb. 1995).
When powder cocaine is vaporized, as such, the cocaine molecule
decomposes, becoming pharmacologically inactive. Id. Cocaine base
by contrast vaporizes at 208º F. Id. This lower temperature means
that the substance vaporizes before the cocaine molecule decomposes.
The fumes from vaporized cocaine base still contain the active cocaine
molecule and inhaling the fumes will produce a high. Id.
5
We therefore affirm the enhancement of his sentence under
§ 924(e). LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir.
1996).
The jury also found Powell guilty of violating 21 U.S.C.
§ 860(a), which enhances the sentence for drug offenses
occurring within 1000 feet of a “public or private elementary,
vocational, or secondary school or a public or private college,
junior college, or university.” As the government concedes, it
did not present evidence to show that the school near the
intersection where the police arrested Powell was of a type
covered by § 860(a). See United States v. Edmonds, 240 F.3d
55, 63-64 (D.C. Cir. 2001). Powell’s conviction for violating §
860(a) must therefore be vacated.3
Affirmed in part, vacated in part and remanded.
3
Powell does not challenge his conviction for using or
carrying a firearm during a drug trafficking offense in violation of 18
U.S.C. § 924(c)(1), or his conviction under 18 U.S.C. § 922(g)(1) for
possessing a firearm or ammunition after having been convicted of an
offense punishable by more than one year.