United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2007 Decided February 22, 2008
No. 05-3007
UNITED STATES OF AMERICA,
APPELLEE
v.
BERNARDO LLOYD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00457-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for the appellant. A. J. Kramer, Federal Public
Defender, was on brief.
Sarah T. Chasson, Assistant United States Attorney, argued
the cause for the appellee. Jeffrey A. Taylor, United States
Attorney, and Elizabeth Trosman and Roy W. McLeese III,
Assistant United States Attorneys, were on brief.
Before: HENDERSON, GARLAND and BROWN, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Appellant
Bernardo Lloyd was convicted of one count each of possessing
2
with intent to distribute five grams or more of cocaine base,
possessing with intent to distribute cannabis, assault with a
dangerous weapon and possessing a firearm during the
commission of a crime of violence. Lloyd contends that all of
his convictions should be reversed because the district judge
delivered a coercive anti-deadlock charge and communicated
with the jurors during their deliberations (including giving the
challenged deadlock instruction) while Lloyd was absent from
the courtroom. In addition, Lloyd challenges his conviction of
possessing with intent to distribute more than five grams of
cocaine base on the ground that the evidence was insufficient to
establish that the substance he possessed was vaporizable
cocaine base, known as “crack,” rather than some other form of
cocaine base. We affirm all of Lloyd’s convictions because we
conclude that the deadlock charge was not coercive, that
conducting the proceedings in Lloyd’s absence caused him no
prejudice and that the evidence was sufficient to establish the
seized substance was “crack” cocaine.
I.
Viewing the evidence in the light most favorable to the
Government as we must, see United States v. Roy, 473 F.3d
1232, 1233 (D.C. Cir. 2007), we find the record establishes the
following facts.
Around noon on May 17, 2003, while driving a green Ford
Expedition with his young daughter as passenger, Lloyd came
upon a commercial tow truck belonging to Nemr Ibrahim
stopped in the 1600 block of Levis Street N.E. in Washington,
D.C., with the driver-side door open and blocking Lloyd’s
passage. Lloyd honked at Ibrahim, who was securing a disabled
car to the tow truck. The driver of the disabled car responded by
closing the tow truck door and Lloyd pulled alongside the tow
truck and began to curse Ibrahim. Ibrahim approached Lloyd’s
vehicle and an argument ensued until Lloyd retrieved a handgun
from the console area of his vehicle, pointed it toward Ibrahim’s
3
face and threatened to shoot him in the head. Ibrahim then
stepped away from Lloyd’s vehicle and Lloyd drove off.
Ibrahim called the police and reported the incident, along with
Lloyd’s license plate number.
Later the same day, police officers stopped Lloyd driving a
green Expedition, with his daughter and her mother as
passengers. The police explained that a “serious crime” had
occurred in the Expedition and took the vehicle and its
occupants to the Fifth District police station. Trial Tr. 231.
Once there, the police impounded the vehicle but let Lloyd and
his passengers depart. Afterward, Ibrahim was called in to
inspect the vehicle and he identified it as the one in which Lloyd
had drawn the gun on him. A few days later, Ibrahim identified
Lloyd himself from a photo array.
Based on Ibrahim’s identification, Metropolitan Police
Department (MPD) Detective Dexter E. Martin obtained a
search warrant for the Expedition. During the following vehicle
search, he noticed the console cover between the front seats was
loose. When he lifted it, he found a silver handgun and some
ziplock bags containing “a white rock-like substance” and “a
green weed substance,” along with a scale, a knife and ski
masks. Trial Tr. 151.
A grand jury indicted Lloyd on five counts: (1) unlawfully
possessing with intent to distribute five grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii); (2) unlawfully possessing with intent to distribute
cannabis in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); (3)
using, carrying and possessing a firearm during a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(i); (4)
assault with a dangerous weapon in violation of D.C. Code
§ 22-402; and (5) possessing a firearm during the commission
of a crime of violence in violation of D.C. Code § 22-4504(b).
Appellant’s App. (App.) 12.
4
Lloyd’s trial began on September 8, 2004. To establish the
contents of the seized ziplocks, the Government introduced a
Drug Enforcement Agency (DEA) laboratory analysis, which
identified the substances as 27.8 grams of 52% pure “[c]ocaine
base” in eleven bags, 3.3 grams of 75% pure “[c]ocaine
hydrochloride” in four bags and 32.3 grams of marijuana in
twenty-five bags, App. 15, and which the parties stipulated was
“true and accurate,” Trial Tr. 162. In addition, MPD Sergeant
John J. Brennan, who was qualified as an expert, testified on the
distribution, packaging and use of crack cocaine in the District
of Columbia and identified the white, rock-like substance in the
ziplocks as “crack cocaine.” Id. 194.
The jury began deliberating at 12:15 p.m. on September 9,
2004. Around 4:00 that afternoon, the jury sent a note to the
judge, which note read:
The jury is having difficulty determining some of the
evidence. We are hung on Counts 1, 2, + 4. We are
close but need some encouragement and instructions
from the bench.
App. 16. It was dated “9-9-04” and signed by the jury foreman.
The judge recalled the jurors and, at the foreman’s request,
instructed them further on “identification,” that is, whether it
was Lloyd who committed the crimes charged, and on the
jurors’ duty not to consider the nature of the crimes
charged—for example, that they involved drugs and a gun. The
judge then addressed the jury as follows:
[Y]ou indicate in your message that you are hung on
counts one, two, and four. You are close but need
some encouragement and instructions. And certainly
I’m here to provide encouragement; whether the
additional instructions—whether my elaboration on the
instructions is useful or not, I’ll leave to you to decide.
5
But I think it might be useful for you to hear this
additional instruction called partial verdict.
You do not have to reach unanimous agreement on
all of the charges before returning a verdict on some of
them. If you have reached unanimous agreement on
some of the charges, you may return a verdict on those
charges and then continue deliberating on the others.
Trial Tr. 290. The jury then resumed deliberating.
A short time later, the jury sent the judge a second note and
asked to speak with him without counsel present. In response,
the judge assembled both counsel and stated as follows:
I want the record to reflect that the clerk has in his
hands a copy of the note that was handed to me from
the jury. The note, which I will place under seal until
this case is completed, begins something to the effect
of, if possible, we would like to meet you in the
courtroom without counsel or the Defendant being
present. And then it goes on to say something to the
fact [sic] like we are hung, and then he begins to spell
out exactly how they are split on which counts.
I literally averted my eyes when I realized what I was
about to read, and did not read what the splits are. I
don’t know what the splits are on what counts, did not
finish reading the note, will not read the rest of the
note, and believe that what I need to do is to call the
jury back here, tell them that we are placing that note
under seal and that I’m not reading it, tell them that it’s
inappropriate, that I really ought to rub their nose in the
instruction. I don’t think I could have been plainer
about what I told them about not revealing their split.
And tell them that if they have a question for
me—well, I will tell them, A, that I will not meet them
in the absence of counsel, but that if there’s anything in
6
the rest of the note that I should know, I’ll be happy to
hear it, but that I cannot, will not know or hear
anything about the way they’re split. Any objection to
what I’ve said so far?
Trial Tr. 293-94. He later re-emphasized that he had not read
the actual numerical split: “[L]et the record be perfectly clear,
I did not read, do not know what they told me, but the fact that
they told me is of record, and the note will be under seal until
we have a verdict or some other termination of this case.”1 Id.
295. Before the judge recalled the jury, Lloyd’s counsel
informed him: “Your Honor, for the record, Mr. Lloyd went
downstairs and I’ll waive his presence.” Id.
The jury returned to the courtroom at 4:38 and the judge
advised it as follows:
I called counsel in here pretty quickly after getting
your last note, and Mr. Lloyd is downstairs getting a
soft drink or something, and it’s okay with me and it’s
okay with counsel if he not be here for this brief
encounter. And it’s going to be quite brief.
Members of the jury, we have a
communication—what we have here is a failure of
communication. I only read about the first two lines of
the note that I was given from you, and then I literally
closed it up and averted my eyes. Because the note
says quite plainly how you’re divided on issues, and I
thought I made it pretty clear in the instruction that you
are not to tell anybody how you’re divided on anything
until or unless we have a verdict.
1
The note was apparently misplaced after being placed under seal
and it is not a part of the record on appeal. See Appellant’s Br. 15 n.3.
7
Now, if you think we’re just sharing information
between the judges of the facts and judges of the jury,
I’m afraid it doesn’t work that way. We cannot—I
cannot have a conference with you out of the presence
of counsel. We just can’t do that. I mean, it’s got to
be—the lawyers on both sides have a stake in this and
they have a right to be here.
And so I’m going to ask you either to—well, the
answer to the question I did read was can we meet out
of the presence of the lawyers, and the answer is, I’m
afraid not. And then I stopped reading, and I literally
stopped reading, closed it up, stopped reading, and we
placed it under seal for the rest of the proceeding.
Because I can’t know that, I don’t want to know it, I
don’t want to hear it. That’s entirely secret, and for
you to know and nobody else to know, until or unless
you have a unanimous verdict or the case is terminated
in some other way.
Id. 295-96. After an additional exchange with the jurors, the
judge dismissed them and informed counsel he intended to give
the jury a Thomas anti-deadlock charge—so named because we
endorsed it for use in this Circuit in United States v. Thomas,
449 F.2d 1177 (D.C. Cir. 1971) (en banc)—and to reread his
“function of the jury” and “reasonable doubt” instructions. Trial
Tr. 301-02. He then recalled the jurors and instructed them as
indicated. The deadlock instruction directed them as follows:
Now, please listen to this instruction. The verdict
must represent the continued [sic] judgment of each
juror. In order to return a verdict, it is necessary that
each juror agree to the verdict; in other words, your
verdict must be unanimous. It is your duty as jurors to
consult with one another and to deliberate with a view
to reaching an agreement, if you can do so without
violence to individual judgment. Each of you must
8
decide the case for yourself, but do so only after an
impartial consideration of the evidence with your
fellow jurors.
In the course of your deliberations, do not hesitate to
re-examine your own views and change your opinion
if convinced it is erroneous, but do not surrender
honest conviction as to the weight or effect of evidence
solely because of the opinion of your fellow jurors or
for the mere purpose of returning a verdict. You are
not partisans, you are judges, judges of the facts. Your
sole interest is to ascertain the truth from the evidence
in the case.
Id. 301. After giving these instructions, the judge released the
jurors for the day.
The jury resumed deliberating the following morning and
around 11:00 a.m. reported a unanimous verdict. It convicted
Lloyd of Counts 1, 2, 4 and 5 and acquitted him of Count 3.
On December 21, 2004, the judge sentenced Lloyd to
concurrent terms of 84 months on Count 1 and 60 months on
each of Counts 2, 4 and 5, to be followed by four years of
supervised release. See App. 19-21.
Lloyd filed a notice of appeal on January 3, 2005.
II.
As noted supra, Lloyd asks the court to reverse (1) his
conviction of Counts 1, 2, 4 and 5 based on the judge’s
communications with the deliberating jurors—both because the
Thomas deadlock instruction had a coercive effect on the jurors
and because the communications occurred while Lloyd was
absent from the courtroom; and (2) his conviction of Count 1
because the evidence did not establish that the white substance
in the ziplock bags retrieved from the console was “crack”
cocaine. We address each argument seriatim.
9
A. Communications with the Jury
First, Lloyd argues that the deadlock instruction was
“impermissibly coercive” in light of the two jury notes and the
judge’s responses to them. “To reverse for coercion, a court
must find that ‘in its context and under all the circumstances the
judge’s statement had the coercive effect attributed to it.’ ”
United States v. Spann, 997 F.2d 1513, 1516 (D.C. Cir. 1993)
(quoting Jenkins v. United States, 380 U.S. 445, 446 (1965)).
We conclude that the Thomas instruction the trial judge gave
was not coercive so as to warrant reversal.
Juror coercion can occur “where the judge, in his
communications to the jury, is unduly coercive,” which typically
arises when “the jury, having been unable to agree, is sent back
by the judge for further deliberations” and “the judge’s
instruction in sending the jury back had a ‘possibly coercive
effect.’ ” (Robert) Williams v. United States, 419 F.2d 740, 750
(D.C. Cir. 1969) (en banc) (quoting (Ronald) Williams, 338 F.2d
530, 533 (D.C. Cir. 1964)) (Wright, J., dissenting in part and
concurring in part). Plainly, that did not occur here. As Lloyd
acknowledges, the deadlock instruction the district court gave
conformed to the language of the model instruction endorsed by
the American Bar Association (ABA), which we adopted in
Thomas “as the vehicle for informing jurors of their
responsibilities in situations wherein judges decide to do so.”2
449 F.2d at 1187; see Reply Br. 4 n.2 (“[T]he government is
correct that Mr. Lloyd does not dispute the language of the
Thomas instruction . . . .”). In Thomas, we adopted the ABA
language precisely because it is not coercive and its use would
therefore eliminate “the volume and complexity of litigation
generated by the Allen charge,” which had theretofore been used
2
The Allen charge was “[s]o named after receiving approbation by
the Supreme Court in Allen v. United States, 164 U.S. 492 (1896).”
Thomas, 449 F.2d at 1179 n.3 (parallel citation omitted).
10
in this Circuit. 449 F.2d at 1186; see United States v. James,
764 F.2d 885, 891 (D.C. Cir. 1985) (Thomas instruction “itself
guards against a coerced jury verdict by cautioning that the
jurors should reach a verdict only ‘if [they] can do so without
violence to individual judgment,’ and jurors are not to surrender
‘[their] honest conviction[s] as to the weight or effect of
evidence solely because of the opinion of [their] fellow jurors,
or for the mere purpose of returning a verdict’ ”) (quoting
Criminal Jury Instructions, District of Columbia, No. 2.91 (3d
ed. 1978) (alterations in James)). Because the instruction in this
case conformed to the non-coercive Thomas language, it was not
itself coercive. Nonetheless, Lloyd seeks reversal based on
another type of juror coercion, “often entwined with the first,”
namely “when a jury returns unable to agree, and the numerical
division of the jury is revealed in court.” (Robert) Williams, 419
F.2d at 750 (citing Brasfield v. United States, 272 U.S. 448
(1926); (Ronald) Williams v. United States, supra)) (Wright, J.,
dissenting in part and concurring in part). We find this
circumstance inapplicable as well.
At Lloyd’s trial, the jurors’ numerical division was not
“revealed in court” nor even known to the judge. As the judge
carefully explained to counsel and the jury, he stopped reading
the second note before he reached the numerical division and
therefore did not know what the division was or whether the jury
was leaning toward conviction or acquittal. Thus, we do not
face the “precarious” situation where the judge “give[s] a
supplemental charge to consider each other’s views when he
was already advised that only [a minority of] jurors voted for
acquittal.” Mullin v. United States, 356 F.2d 368, 370 (D.C. Cir.
1966) (holding mistrial was properly declared after jury note
revealed in court only 4 of 12 jurors favored acquittal); cf.
United States v. Daas, 198 F.3d 1167, 1180 (9th Cir. 1999)
(“There is no reason to believe the form of the instruction would
have been perceived as coercive by jurors holding the minority
view, particularly since the district court judge did not inquire as
11
to the numerical division and thus did not know whether the
majority was in favor of conviction or acquittal.”).3
Nor is this case like Smith v. United States, 542 A.2d 823
(D.C. 1988)—which Lloyd cites for “circumstances strikingly
similar to those in the instant case.” Appellant’s Br. 20. In
Smith the trial judge was unaware of the jury’s numerical
division, which was disclosed in two jury notes, because his law
clerk screened the notes and kept the information from him. On
appeal, however, the court reversed the conviction, concluding
that “[t]he judge’s attempt to avoid tainting the [deadlock]
instruction by having his law clerk intercept the jury’s notes was
ineffectual because he failed to let the jury know that he had not
read the notes himself.” 542 A.2d at 825 (emphasis added).
Here, by contrast, the judge repeatedly and emphatically
informed the jurors he had not read and did not know their
numerical split.
Lloyd also identifies other circumstances at trial that he
claims rendered the deadlock charge coercive but we find none
of them telling. He points, for example, to the first jury note,
which informed the judge that the jury was “close” to a verdict
on three counts but that it “need[ed] some encouragement and
instructions from the bench,” App. 16, and asserts that the
judge’s reference to these words in open court would have
appeared coercive to the minority jurors. We are not
persuaded.4 After all, the first note here did not, as did the note
3
Lloyd posits that the judge would have inferred that there were
only one or two hold-outs, that those were holding out for acquittal
and that it was therefore reasonable to believe that the dissenting
jurors felt coerced based on the judge’s hypothetical inferences. We
cannot credit such speculative reasoning.
4
What occurred here is not, as Lloyd asserts, “analogous to” what
occurred in (Ronald) Williams, supra. Appellant’s Br. 16. There, the
12
in (Robert) Williams, reveal the jurors’ actual numerical split.
Nor did the judge (unlike the Smith judge) respond to this note
with a deadlock charge. Instead, he expanded upon his
instructions, at the jury’s specific request, and added a partial
verdict instruction. It was not until after the second jury note,
which specifically stated the jury was “hung” and requested that
the jurors speak with the judge apart from counsel (and which
went on to set out the unread numerical division), that the judge
decided to give a deadlock instruction. Thus, the circumstances
here are similar to those we faced in United States v. Spann, in
which we found no ground for reversal—notwithstanding
comments the trial judge made to the jury after a first deadlock
note were “inappropriate and probably proscribed under
Thomas”—because the improper comments “had no direct effect
on the jury—that is, they did not break the jury deadlock or
cause the guilty verdict.” 997 F.2d at 1518. We there
explained:
When the jurors resumed deliberation on the third day
they again reached deadlock, despite the judge’s
admonition of the previous evening. Thus, we do not
see how any of the cited remarks could have, by
themselves, coerced the jury to return the guilty verdict
so as to warrant reversal. It was only after the judge
delivered the supplemental charge in response to the
second deadlock note that the jury finally reached a
unanimous verdict.
jury foremen wrote a note asking “[c]an the (two) alternate jurors
replace the minority voters?” and, when questioned by the judge,
disclosed that the jury was divided by “a clear minority,” 338 F.2d at
531. Thus, unlike here, the judge there knew the jury’s numerical
division and the jurors were aware that he knew. Further, there we
found that the formulation of the Allen charge the court gave was itself
“unquestionably . . . impermissible,” id. at 533, while the language of
the Thomas charge here was, as we have explained, unobjectionable.
13
Id. (citation omitted). Here too, the jurors resumed deliberating
after the first jury note and remained unable to reach a verdict.
After the jury sent the second note, the judge gave the Thomas
instruction and recessed court for the day. The jurors did not
resume deliberating and reach a unanimous verdict until the next
day. We therefore see no causal nexus between the exchange
following the first note, even if objectionable, and the jury’s
ultimate verdict. Cf. Thomas, 449 F.2d at 1181 n.19 (noting
court previously rejected claim of coercion where overnight
recess between supplemental deadlock charge and resumption
of deliberations was “less coercive on the jury than a charge
immediately followed by sequestration and deliberation”) (citing
Fulwood v. United States, 369 F.2d 960, 962-63 (D.C. Cir.
1966)).
Finally, Lloyd asserts that the district court violated his
right under Federal Rule of Criminal Procedure 43 and the Fifth
and Sixth Amendments to the United States Constitution to be
present when the judge discussed the second jury note with
counsel and then communicated with the jurors (with counsel
present), and in particular, when he gave the anti-deadlock
instruction. Assuming that Lloyd had such a right and that he
did not waive it—issues we do not reach—we conclude that any
violation of the right was harmless.5
5
In a letter submitted after oral argument pursuant to Federal Rule
of Appellate Procedure 28(j), the Government cited as relevant to the
waiver issue our recent decision in United States v.
Hoover-Hankerson, 511 F.3d 164 (D.C. Cir. 2007), in which we held
that the defendant had waived through counsel her Sixth Amendment
right to be present during voir dire. We find Hoover-Hankerson
distinguishable because the defendant there was aware the proceedings
would continue in her absence and was in the courtroom when her
counsel orally waived her continuing presence on her behalf. See 511
F.3d at 169. In contrast, Lloyd was not present when his counsel
purported to waive his presence and could not have known there
14
Ordinarily, we review for harmlessness under the standard
set out in Kotteakos v. United States, 328 U.S. 750 (1946), and
determine whether it is “highly probable that the error had
substantial and injurious effect or influence in determining the
jury’s verdict.” 328 U.S. at 776. Lloyd argues, however, that
because he raises a constitutional challenge, we must apply a
stricter standard, namely whether continuing the trial
proceedings in Lloyd’s absence was “harmless beyond a
reasonable doubt.” Appellant’s Br. 29-30 (citing Chapman v.
Cal., 386 U.S. 18, 21-22 (1967); United States v. Washington,
705 F.2d 489, 498 (D.C. Cir. 1983); Wade v. United States, 441
F.2d 1046, 1050 (D.C. Cir. 1971)). We need not choose
between the two standards as the alleged error in conducting the
proceedings in Lloyd’s absence was harmless under either one.
Cf. United States v. Tchibassa, 452 F.3d 918, 929 (D.C. Cir.
2006) (given “overwhelming evidence” of guilt, “any error in
the district court’s evidentiary rulings, whether or not of
constitutional dimension, was harmless”). Any error was
harmless because there was not “ ‘any reasonable possibility of
prejudice’ ” to Lloyd as a result of the proceedings continuing
in his absence. Wade, 441 F.2d at 1050 (where trial judge erred
in repeating jury instructions and giving Allen charge in
defendant’s absence, “[t]he standard by which to determine
whether reversible error occurred . . . is . . . whether there is ‘any
reasonable possibility of prejudice’ ” (quoting Walker v. United
States, 322 F.2d 434, 436 (D.C. Cir. 1963), cert. denied, 375
U.S. 976 (1964)). The only significant event Lloyd missed was
the discussion with counsel about the anti-deadlock instruction
and the judge’s subsequent giving thereof. Because the charge
involved a complex legal issue, it is unlikely Lloyd would have
contributed greatly to the debate. Moreover, Lloyd’s counsel
did not stand mute in Lloyd’s absence; in fact, he argued with
would be a second jury note or additional exchanges between the
judge and the jury during his absence.
15
the judge about which instruction to use. Finally, as noted, there
was nothing erroneous in the anti-deadlock charge. For these
reasons, we conclude that any error in proceeding in Lloyd’s
absence was harmless. See United States v. Rodriguez, 67 F.3d
1312, 1316 (7th Cir. 1995) (“[F]ailure to secure the defendant’s
presence is harmless if the issue is not one on which counsel
would be likely to consult the defendant, or if it is not one for
which the defendant, if consulted, would be likely to have an
answer that would sway the judge.”).
Although we have found no ground under the circumstances
of this case to reverse Lloyd’s conviction based on the deadlock
instruction or the judge’s other communications with the jury in
Lloyd’s absence, we nonetheless caution the district court
against expanding on the Thomas script after a jury indicates
deadlock. See Trial Tr. 296 (elaborating on roles of court, jurors
and lawyers). In prescribing the Thomas instruction for use in
this Circuit, we decried “ ‘the large amount of litigation which
the use of the original Allen charge has engendered,’ ” noting in
particular that “ ‘[o]ne of the sources of trouble on appeal has
been that the language actually used tends to vary from judge to
judge, and this lack of uniformity in a delicate context is full of
pitfalls.’ ” 449 F.2d at 1185 (quoting United States v. Johnson,
432 F.2d 626, 632 (D.C. Cir. 1970) (alteration in original)). We
left no room in Thomas for judicial innovation or extemporizing
after deadlock and a trial judge does so at peril of reversal. It is
essential that each trial judge hew to the precise language we
adopted in Thomas—and stop there—to insure against even the
suggestion of juror coercion.
B. Sufficiency of “Crack” Evidence
Lloyd also challenges the sufficiency of the trial evidence
to establish that the substance in the seized ziplocks was “crack”
cocaine, that is, smokable or vaporizable cocaine base.
Following our recent decision in United States v. Powell, 503
F.3d 147 (D.C. Cir. 2007), we reject this argument as well.
16
In Powell, a DEA forensic chemist testified that the
substance in the ziplock bags seized from the defendant was
83% pure “cocaine base” and his written report to this effect was
admitted into evidence. In addition, the two arresting officers
testified they had seen “crack” many times and the substance
seized was crack cocaine. Finally, Sergeant Brennan, qualified
as an expert in that case as well, testified from a photograph that
the substance was “crack.” The court concluded that the
evidence, “[w]hile not exactly overwhelming, . . . was enough
to enable a rational trier of fact to determine that [the substance]
was crack cocaine.” 503 F.3d at 149. The court explained: “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.” Id. In this case, the evidence is likewise
adequate. The chemist’s report, entered into evidence, identified
the substance seized from the console as 52% pure “[c]ocaine
base,” App. 15, and Lloyd stipulated the report was “true and
accurate,” Trial Tr. 162. In addition, Brennan, again without
contradiction, positively identified the “white substance” in the
ziplocks as “crack cocaine” based on his experience and
expertise. Trial Tr. 194; see also id. 197 (“Exhibit Number 1 is
28.5 grams. It’s 11 Ziplock bags, and it contains cocaine base,
crack cocaine.”). Id. 197. Examining a photograph of the drugs,
Brennan testified that their rock-like form looked like crack. Id.
195. Detective Martin, who recovered the substance, also
identified it as “white” and “rock-like.” Id. 151. Brennan further
testified that, given the customary practices of packaging crack
cocaine for sale in the District of Columbia, the “crack cocaine”
was “basically packaged for the wholesale street distribution.”
Id. 197. Finally, he explained that the knife found in the console
“could be used for protection in the drug trade or could be used
to break up the cocaine base, break up the rocks” and that “[t]he
scale is used to measure the amounts” in packaging crack
cocaine for wholesale distribution. Id. at 198.
17
Lloyd asserts that Brennan’s testimony “demonstrated a
lack of precision regarding the critical distinction recognized in
[United States v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004)]
between cocaine base generally and the particular form of
cocaine base known as crack” because Brennan testified that
“crack is a ‘street name’ for the same drug that chemists identify
as ‘cocaine base’ ” and “did not testify that the particular
substance seized in this case was smokable.” Appellant’s Br. 35
(citing Trial Tr. 195-96). Nonetheless, Brennan was correct in
identifying “crack” as the street name for the form of cocaine
base commonly distributed in Washington, DC since the 1980s.
See United States v. Brisbane, 367 F.3d at 911-12 (D.C. Cir.
2004). Moreover, while one of the distinctive characteristics of
“crack” is that it can be vaporized and therefore smoked without
losing its narcotic effect,6 the absence of expert testimony on
vaporizability “d[oes] not undermine the force” of the other
evidence that the seized substance is crack cocaine. Powell, 503
F.3d at 149. As in Powell, we “cannot say that no rational juror
could have found beyond a reasonable doubt”—based on the
DEA analysis and Brennan’s testimony—“that [Lloyd]
possessed crack cocaine.” Id.
For the foregoing reasons, we affirm the judgment
convicting Lloyd of Counts 1, 2, 4 and 5 of the superseding
indictment.
So ordered.
6
Vaporized cocaine in powder form is “pharmacologically
inactive.” Powell, 503 F.3d at 149 n.2 (citing United States
Sentencing Commission, Special Report to the Congress: Cocaine and
Federal Sentencing Policy 12-13 (Feb.1995) (Special Report)). But
cocaine base, and specifically crack cocaine, vaporizes at a lower
temperature so that “[t]he fumes from vaporized cocaine base still
contain the active cocaine molecule and inhaling the fumes”—as
through smoking—“will produce a high.” Id. (citing Special Report
12-13).