United States v. Barbosa

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

11-8-2001

USA v. Barbosa
Precedential or Non-Precedential:

Docket 00-1205

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Filed November 6, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1205

UNITED STATES OF AMERICA

v.

LUIS HUMBERTO BARBOSA

Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PHILADELPHIA

(D.C. Criminal No. 98-383-1)
District Court Judge: The Honorable Stewart Dalzell

Argued: December 19, 2000

Before: BECKER, Chief Judge, NYGAARD and FUENTES,
Circuit Judges

(Opinion Filed: November 6, 2001)

James Kousouros (argued)
Law Office of James Kousouros
80-02 Kew Gardens Road
Suite 1030
Kew Gardens, NY 11415

ATTORNEY FOR APPELLANT
 Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Chief of Appeals
Judy Goldstein Smith (argued)
Assistant United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

ATTORNEYS FOR APPELLEE

OPINION OF THE COURT

FUENTES, Circuit Judge:

In July 1998, the Drug Enforcement Agency ("DEA")
arrested defendant Luis Humberto Barbosa for importing
into this country 882 grams of cellophane-wrapped pellets
of heroin, which he had swallowed while in Aruba and
subsequently expelled in a hotel room in Philadelphia,
Pennsylvania. Following the arrest, Barbosa was charged in
a complaint with possession with intent to distribute
heroin. Upon further investigation, the DEA laboratory
determined that the pellets Barbosa had swallowed
contained cocaine base with a purity of 85%, not heroin.

After a jury trial, Barbosa was convicted of possession
with intent to distribute more than 50 grams (i.e., 882
grams) of cocaine base in violation of 21 U.S.C.SS 841(a)(1)
and 841(b)(1)(A)(iii). He was later sentenced to a twenty-
year term of imprisonment. Barbosa appeals his conviction
and sentence, contending that: (1) the District Court should
have sentenced him based upon the drug he intended to
bring into the country (heroin), rather that the drug he
unwittingly, but actually, transported (cocaine base); (2) in
accordance with the Supreme Court's decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000), the issue of which
substance he intended to transport should have been
submitted to the jury for a factual determination beyond a
reasonable doubt; (3) if it was proper to sentence him for

2
cocaine base, the court erred in sentencing him to a
twenty-year mandatory minimum; (4) the District Court
erred in denying his motion for a new trial based on newly
discovered evidence of payments made to government
informants who testified at trial; and (5) the District Court
erroneously denied his motions to dismiss the indictment
based upon "outrageous governmental conduct."

We conclude that there is no merit to any of these claims,
and thus, we affirm the conviction and sentence.

I.

A.

Barbosa was an ancillary part of a larger DEA undercover
investigation into South American heroin suppliers who
were smuggling the drug into the United States. This
investigation ultimately resulted in the seizure of 75
kilograms of cocaine in Aruba and the arrest of five
individuals, including Emilio Medina a/k/a Felix Zorilla. As
Aruba was a critical point in the smuggling route, the DEA
had worked with the Aruban Police Department through
the DEA's Curacao Country Office.

During this investigation, the DEA used three paid
professional informants: Ramon Disla, Nestora Salcedo, and
Miguel Morel. Disla had previously been prosecuted for
illegal re-entry after being deported following a drug
conviction. While serving his sentence, he and his
girlfriend, Salcedo, had cooperated with the Government in
order to have his sentence reduced. Once released, he was
again deported, but had re-entered the country under a
cooperation agreement with the DEA. In total, Disla had
received $14,002 and Salcedo had received $47,000 over
four years for information, evidence, and expenses in a
large number of cases. The DEA had also provided housing
for both Disla and Salcedo. Although they had worked for
other government agencies as well, Disla and Salcedo had
derived the vast majority of their income from the DEA.
Morel, by comparison, had received a total of $108,000 over
eleven years of work with the DEA but was a minor
informant in this case. Under its policy, the DEA made

3
payments to informants regardless of their progress on a
case; these payments were also unconnected to the
convictions of any specific individuals.1 At trial, the
Government elicited detailed testimony as to the amounts
each of the three informants was being paid on this
particular investigation.

At the time these informants were enlisted, the
Government possessed information that Zorilla had access
to a large amount of heroin in Aruba. The DEA knew that
Zorilla had previously been involved in narcotics activities
with Disla, and thus directed Disla to contact Zorilla in
Aruba to negotiate a deal. Disla, however, did not know
Barbosa when he began this work for the DEA. On June
10, 1998, during a tape-recorded conversation, Zorilla
asked Disla if he could obtain a United States passport for
him to travel internationally but not to enter the United
States. Later in the conversation, Zorilla gave Disla the
pager number of his friend, "Luisin," an American citizen
who had just left Aruba for the United States. According to
Zorilla, Luisin was a "straight guy," which Disla later
testified meant someone who could be trusted with drugs.
Zorilla also stated that he had met Luisin at a restaurant
in Aruba after not seeing him for some time. Zorilla then
asked Disla whether he knew of anyone who could be used
to transport drugs into the United States.

Two days after this conversation, Disla paged Luisin, and
the two agreed to meet at the La Familia restaurant in New
York; Luisin turned out to be Barbosa. Disla did not record
this meeting and did not recall the details of this meeting
at trial. However, Disla had a second unrecorded meeting
with Barbosa at the same restaurant in July 1998, this
time accompanied by Morel, who posed as Disla's partner.
At this meeting, Barbosa portrayed himself as a drug dealer
who did not import drugs personally. Rather, Barbosa
_________________________________________________________________

1. During the course of Disla's testimony, it was revealed that he had
been paid $100 by the DEA after concluding a certain day's testimony.
The defense moved for a mistrial based on this non-disclosure. The
District Court conducted a hearing at the conclusion of Disla's
testimony, ruling thereafter that the mid-trial payment was for expenses
and not payment for testimony.

4
explained the two ways of transporting drugs -- by
swallowing or by enclosing them in some type of rubber
device. With respect to the swallowing technique, Barbosa
asserted that swallowing drugs was not risky because the
drugs were wrapped in cellophane and then in rubber, and
that it would cost $10,000 per kilogram, plus an additional
$5,000 for expenses, to bring in drugs using a swallower. In
between the two meetings at the restaurant, Disla spoke to
Barbosa on numerous occasions but similarly did not
record any of those conversations.

Disla did, however, record a telephone conversation with
Barbosa on July 7, 1998. During this call, Barbosa told
Disla that he would talk to Zorilla as soon as Zorilla was
ready to carry out a drug transaction because, otherwise,
they would be wasting their time. Barbosa also told Disla
that the $35,000 per kilogram price (which did not include
$15,000 for travel and expenses) that Zorilla was charging
for heroin was too high. Barbosa further explained to Disla
that the going wholesale price for heroin was $70,000 in
New York, leaving $20,000 for profit. According to Barbosa,
a swallower would cost $10 per gram of drugs.

During another recorded telephone conversation on July
9, 1998, Barbosa informed Disla that he was going to tell
Zorilla how to package the drugs, that he wanted no more
than 9 grams of drugs in each pellet, that he wanted the
pellets narrow so that they could be more easily swallowed,
and that he was familiar with the type of equipment Zorilla
used to make the pellets. However, Barbosa had been
unable to reach Zorilla to relay this information. Barbosa
said that Zorilla was trying to rush the deal and
recommended to Disla that they not move hastily as, in any
case, there were very few heroin customers in Aruba and
Zorilla would be unable to sell the heroin there.

In this same conversation, Barbosa also explained a
potential drug deal in which cocaine would be transported
from Aruba to Israel and heroin would be brought from
Israel to the United States. Barbosa explained to Disla that,
in order to bring the heroin from Israel to the United
States, the swallower would have to stop in between the
two countries, expel the drugs, and reswallow them.

5
According to Barbosa, Zorilla could get the heroin but did
not have the money for this transaction.

On July 13, 1998, Disla and Barbosa had another
recorded telephone conversation. During this call, Barbosa
told Disla that he had someone to transport the drugs, but
that this person would be unable to swallow 1,400 grams
of drugs. Barbosa also explained the nature of the
transaction between Zorilla and Zorilla's supplier, telling
Disla that Zorilla's supplier in Aruba initially would only
give Zorilla 1,000 grams of heroin but would give an
additional 600 grams after being paid for the first 1,000
grams. Barbosa also told Disla that he had a steady
customer who was a Colombian. At the end of the
conversation, Barbosa told Disla that he would go to Aruba
to get the drugs from Zorilla, if they were ready, and then
return to New York City. Disla wanted Barbosa to come
directly to Philadelphia, or to pick-up Barbosa at the
airport in New York himself, but Barbosa declined both
options.

Barbosa and Disla had a second recorded conversation
later on July 13. During this call, Barbosa insisted on
making all of his own travel arrangements out of New York.
Shortly after this call, there was a third recorded
conversation, during which Barbosa estimated that his
expenses would be between $1,400 and $1,500. That night,
Barbosa went to Philadelphia and received $1,600 from
Disla.

Barbosa traveled to Aruba on July 15, 1998. He spoke to
Salcedo on the telephone concerning the money Zorilla had
requested that he bring to Aruba. During a recorded
telephone conversation the next day, Barbosa told Disla
that Zorilla had delivered the drugs to him, and that Zorilla
and his girlfriend had stayed with him while he swallowed
the drugs. On July 17, Disla and Salcedo picked-up
Barbosa at JFK Airport in New York. This came as a
complete surprise to Barbosa, as the two had previously
agreed to meet elsewhere. Disla testified that he went to the
airport because he did not trust Barbosa and was afraid
that Barbosa would abscond with the drugs upon his
arrival. Disla then drove them to the Hilton Hotel, near the
Philadelphia airport. During the drive, Barbosa discussed

6
the potential drug deal in Israel and told Disla and Salcedo
the specific foods and juices he would need to help him
pass the drugs. Barbosa also told them that he would have
no problem passing the drugs and that he did not need to
be in any special place to complete this task.

The DEA had arranged for two adjoining rooms at the
hotel. Disla's room contained video surveillance equipment,
which could record activity in Barbosa's room next door. At
various times, there were four people present -- Barbosa,
Disla, Salcedo, and Morel. During one of their videotaped
conversations, Barbosa asked Disla about a drug deal that
Disla had told him about during their meetings at La
Familia. Although it was not recorded on videotape, Salcedo
also had a conversation with Barbosa in which Barbosa
explained that he knew a lot about swallowing, that he
trained other people, and that he watched the trainees all
the time, going so far as to sleep by their side until they
were ready to swallow drugs on their own.

Barbosa began expelling the drugs almost as soon as
they had all arrived at the hotel. At one point, he showed
Morel thirty pellets of drugs that he had expelled,
explaining that the drugs had not been packaged properly.
Barbosa finished eliminating the drugs the next morning.
He asked Disla for a razor to help cut the covering off the
drugs and peel open the pellets. While he was doing this,
the agents entered the room and arrested him.

After the arrest, Morel traveled to Aruba to pay for the
drugs Barbosa had transported, as well as to purchase an
additional four kilograms of heroin from Zorilla. Morel
called Zorilla and arranged to meet with him the following
day. Aruban authorities arrested Zorilla with 75 kilograms
of cocaine at the prescribed meeting place.

B.

On August 13, 1998, a grand jury indicted Barbosa on
one count of possession with intent to distribute more than
50 grams (i.e., 882 grams) of cocaine base in violation of 21
U.S.C. SS 841(a) and 841(b)(1)(A)(iii). Before trial, Barbosa
moved to dismiss the indictment based upon the
Government's allegedly outrageous conduct. He contended

7
that the Government had orchestrated the entire narcotics
transaction and had unnecessarily placed his life in danger
from the ingested drugs. At oral argument before the
District Court, the Government conceded that swallowing
drugs and transporting them was dangerous but argued
that it was not "unusually dangerous" because Barbosa
knew how to package and swallow drugs, and, in any event,
there was always risk involved in any drug transaction. The
District Court denied Barbosa's motion, holding that, in the
absence of duress or coercion forcing Barbosa to swallow
the drugs, and considering Barbosa's willing undertaking of
what was for him not a new experience, the Government's
conduct did not "shock the conscience of one with a
reasonably sensitive conscience."

A five-day jury trial began on January 25, 1999. At the
conclusion of the Government's case, Barbosa again moved
for dismissal of the indictment on the same ground,
expanding the motion based upon the trial testimony. The
District Court again denied the motion, emphasizing that
Barbosa was willing to engage in such conduct, that there
was no evidence of duress, and that Barbosa did not
appear to be apprehensive in the hotel room.

Barbosa then testified in his own defense. He essentially
interposed an entrapment defense, claiming that he had
been badgered by Disla into undertaking the smuggling
from Aruba to Philadelphia. According to Barbosa, it was
only after repeated prodding from Disla that he had gone to
Aruba and met with Zorilla for the drug transaction. He
testified that he had not participated in the packaging of
the drugs but simply received the pellets from Zorilla. He
spent the night swallowing the pellets, and Zorilla had
stayed with him the entire time. Barbosa agreed that he
was knowledgeable about the price of heroin in Aruba but
claimed that he knew this information from watching the
news on television. Finally, Barbosa stated that, although
he might have made incriminating statements to the
Government after his arrest, he could not recall doing so.

C.

The District Court instructed the jury on the one count
of possession with intent to distribute cocaine base charged

8
in the indictment. However, the court submitted neither the
quantity nor identity of the drugs for a factual
determination. The jury thereafter convicted Barbosa of the
one count in the indictment. Sentencing then presented
novel issues for the District Court's resolution. While all
parties had fully expected that Barbosa was transporting
heroin, he had unwittingly swallowed a form of cocaine
base. None of the parties was ever able to determine when
the "bait and switch" occurred. This mutual mistake of fact
presented to the District Court the threshold issue under
the Sentencing Guidelines of whether Barbosa should be
sentenced for the drug he actually transported or the one
he reasonably believed he was carrying.

The resolution of this issue has a substantial impact on
the potential sentence. Assuming a criminal history
category of III (which neither party disputes), Barbosa's
sentencing ranges for 882 grams of a controlled substance
are 121-151 months for heroin and 235-293 months for
cocaine base.2 However, with a prior felony drug conviction,
Barbosa is subject to statutory mandatory minimums of ten
years for heroin and twenty years for cocaine base. See 21
U.S.C. SS 841(b)(1)(B)(i) (heroin), 841(b)(1)(A)(iii) (cocaine
base).

In the District Court, Barbosa maintained that he should
be held responsible for the intended or foreseeable
consequences of his criminal conduct under U.S.S.G.
S 1B1.3. He further attempted to distinguish his case from
others in which an accused had maintained that he
thought he was delivering a more moderately punished
drug than that with which he was caught. Thus, he
_________________________________________________________________

2. Without objection, the District Court used the November 1, 1998
edition of the Sentencing Guidelines in this case. All sentencing ranges
were based on base offense levels found in U.S.S.G.S 2D1.1(c). As
detailed in the Presentence Investigation Report, the Probation Office
increased Barbosa's offense level by two for obstruction of justice (again
with no objection), which would have resulted in adjusted ranges of 151-
188 for heroin and 292-365 for cocaine base. Because the District Court
imposed a sentence of 240 months, and the record is otherwise silent as
to this two-level enhancement, we assume that the District Court
implicitly rejected this recommendation in imposing its ultimate
sentence.

9
contended that the proper sentencing range was 121-151
months for heroin, which already accounted for the ten-
year mandatory minimum applicable to that drug.
Alternatively, Barbosa argued that, if he were to be held
responsible for the actual drug transported, he should be
subject to the ten-year mandatory minimum sentence for
cocaine because the Sentencing Guidelines define"cocaine
base" only to be crack, relegating all other forms of cocaine
base (like the 85% pure mixture here) to "cocaine." Notably,
the federal drug statutes themselves provide no similarly
delineated definition for "cocaine base." The Probation
Office concurred with Barbosa's alternative position,
recommending a sentencing range of 120-121 months for
cocaine (after imposing the two-level enhancement for
obstruction of justice).3

On June 8, 1999, after thoroughly canvassing existing
case law and conducting a sentencing hearing, the District
Court concluded that Barbosa should be sentenced for the
drug he actually transported. The court further determined
that the Sentencing Guidelines' definition of "cocaine base"
could not override the statute, and thus, applied the
twenty-year mandatory minimum, resulting in an adjusted
sentencing range of 240-293 months (again, omitting the
two-level enhancement for obstruction of justice). The
District Court ultimately imposed the statutory minimum,
or 240 months.

D.

Barbosa thereafter filed a timely notice of appeal, and we
issued a briefing and scheduling order. Before the filing
date of his opening brief, however, Barbosa's counsel
fortuitously learned that, before the commencement of the
trial, Disla had been nominated for a $25,000 reward
_________________________________________________________________

3. With a criminal history category of III, Barbosa's sentencing range for
882 grams of cocaine was 78-97 months or 97-121 months after
imposing a two-level enhancement for obstruction of justice. The
Probation Office modified these ranges by the statutory mandatory
minimum of ten years to either 120 months or 120-121 months,
respectively. See U.S. Sentencing Guidelines Manual SS 5G1.1(b), (c)
(1998).

10
because of his efforts in the overall investigation. Defense
counsel also learned that Morel had received a $25,000
reward for his similar efforts, and that Disla had received
an additional $500 payment only three days after the
conclusion of the trial. The Government had not previously
disclosed either the nominations or the payments to the
defense because it was unaware of them. Defense counsel
moved to remand the case to the District Court for a new
trial hearing under Federal Rule of Criminal Procedure 33
based upon newly discovered evidence. We granted the
motion.

On February 24, 2000, the District Court conducted a
hearing in which Disla, Morel, and DEA Agents Philip
Devlin and Michael Machak testified. In October 1998,
Agent Devlin had nominated both informants for the
$25,000 reward. Although both Disla and Morel knew that
they had been nominated for the award, they were not
aware of the amount of the award, and the DEA had told
them both that the awards were not guaranteed. The
nominations were later approved, and both informants
received $25,000 in April 1999. Disla also received an
additional $500 payment no more than two days after
Barbosa's trial.

In a written opinion, the District Court denied Barbosa's
motion for a new trial. The court found that all testimony
concerning the payments received by Disla and Morel was
true and that, while, at the time, the payments had been
speculative rather than certain, the possibility of payments
should have been disclosed to the defense. Nonetheless, the
court went on to find that the payments were not primarily
for Barbosa's case, but rather for the larger 75-kilogram
seizure in Aruba; that the payments were for investigations
and not trials; that the $25,000 payments were not made
in exchange for any testimony; and that the $500 payment
after the trial was for information provided during intensive
trial preparation. The court further found that any
impeachment value attributable to these payments would
have been cumulative, would not have been material to the
issue of entrapment, and that, in view of the overwhelming
evidence against Barbosa, would not have led to an
acquittal.

11
The District Court exercised jurisdiction over this case
under 18 U.S.C. S 3231, and we have appellate jurisdiction
under 28 U.S.C. S 1291 and 18 U.S.C. S 3742.

II.

Barbosa initially challenges the propriety of being
sentenced based upon the cocaine base he unwittingly, but
actually, transported. The difference is meaningful as the
sentencing schemes for a particular amount of cocaine base
are generally heavier than for an equivalent amount of
heroin, the drug he intended to bring into this country.
This mutual mistake of fact as to the identity of the drugs
transported by Barbosa (the Government also believed it
was heroin) presents us with an issue of first impression in
this Circuit: whether a defendant should be sentenced for
the drug he actually transported or for the drug he
reasonably believed he was carrying.

A.

We have previously held that the sentencing judge is
generally empowered to determine the identity of the
controlled substance at issue for sentencing purposes. See
United States v. Lewis, 113 F.3d 487, 490 (3d Cir. 1997);
see also Edwards v. United States, 523 U.S. 511, 513-14
(1998). Consequently, like other federal appellate courts
that have addressed the instant issue, we would ordinarily
resolve the tension between these two conflicting theories of
punishment by characterizing it as a legal determination to
be made by the sentencing judge. In fact, federal appellate
courts have uniformly ruled that a defendant should be
held accountable for the substance he actually imported,
notwithstanding his reasonable mistake as to drug identity.
See, e.g., United States v. Strange, 102 F.3d 356, 361 (8th
Cir. 1996) ("it is certainly within the province of Congress
to resolve that there is some deterrent value in exposing a
drug trafficker to liability for the full consequences, both
expected and unexpected, of his own unlawful behavior");
United States v. Salazar, 5 F.3d 445, 446 (9th Cir. 1993)
(defendant "personally undertook to pass drug-laden
vehicles through the checkpoint . . . [and thus, he] is

12
responsible for the drugs that came through, even if he did
not know what drugs they were"); United Sates v. Gomez,
905 F.2d 1513, 1514-15 (11th Cir. 1990) ("those who,
acting with deliberate anti-social purpose in mind, become
involved in illegal drug transactions, assume the risk that
their actions will subject them to enhanced criminal
liability"); see also U.S. Sentencing Guidelines Manual
S 1B1.3, cmt. n.2, illus. (a)(1) (1998) (suggesting that a
defendant is chargeable at sentencing for any narcotic with
which he was directly involved "regardless of his knowledge
or lack of knowledge of the actual type or amount of that
controlled substance").

For example, in United States v. Valencia-Gonzales, a
case with facts similar to this one, the defendant believed
-- and the Government stipulated to his belief-- that he
was carrying cocaine when, in fact, he was carrying heroin,
for which he received a longer sentence. The court affirmed
the sentence, characterizing as "clear" the decision by
Congress "to make drug dealers assume the risk of what
kinds and amounts of controlled substances they carry."
172 F.3d 344, 345 (5th Cir. 1999). Similarly, in United
States v. Obi, the defendant had swallowed heroin, but
claimed at sentencing that he thought he had swallowed
cocaine. In affirming the heavier sentence based upon
heroin, the court stated that "narcotics violators run the
risk of sentencing enhancements concerning other
circumstances surrounding the crimes." 947 F.2d 1031,
1032 (2d Cir. 1991) (per curiam).

Barbosa contends that these cases are distinguishable
because the conspiracies in those cases did not involve the
kind of active participation by government agents that were
present here. However, like the defendant in Gomez,
Barbosa:

knew he was engaging in conduct designed to
introduce some illegal substance into the stream of
commerce. He was doing this at the behest of two
individuals whom, he claimed, he hardly knew. Yet he
lacked even the minimal consideration for the public
welfare that would have caused him to determine the
substance's true identity before agreeing to transport
it. One who demonstrates a lack of even this minimal

13
 societal consciousness shows himself to pose an
alarming menace to the public safety, because he
readily allows himself to become the instrument for
others' criminal designs "so long as the price is right."

905 F.2d at 1515. While Barbosa was unable to tell Zorilla
how the drugs should be packaged, the record does not
reveal that he was thereafter concerned in any way as to
how the drugs were presented or even as to the amount or
identity of the narcotic he would be ingesting. Thus, the
rationale in Gomez would amply support the enhanced
penalties dictated by the Sentencing Guidelines, and
adherence to that rationale would properly penalize
Barbosa for the full consequences of his illegal activity. We
agree.

B.

Notwithstanding the persuasive and uniform decisions of
the Second, Fifth, Eighth, Ninth, and Eleventh Circuits,
Barbosa draws our attention to the Supreme Court's recent
pronouncement in Apprendi v. New Jersey, 530 U.S. 466
(2000), and contends that the issue of which substance he
intended to transport should have been submitted to the
jury for a factual determination beyond a reasonable doubt.
According to Barbosa, this error warrants a vacatur of his
conviction and a new trial. We requested supplemental
briefing after oral argument on the novel issue of drug
identity.

The application of Apprendi to this case is a pure
question of law over which we exercise plenary review.
United States v. Williams, 235 F.3d 858, 861 (3d Cir. 2000),
petition for cert. filed, 69 U.S.L.W. 3763 (U.S. 2001).
Apprendi involved the New Jersey hate crime"sentence
enhancement" scheme, which, in the first instance, allowed
a jury to convict a defendant of a second-degree offense
based upon its finding beyond a reasonable doubt that he
unlawfully possessed a prohibited weapon. After a
subsequent and separate proceeding, the scheme then
permitted a judge to impose punishment identical to that
provided for crimes of the first degree in New Jersey. This
enhanced punishment was available upon the judge's

14
finding, by a preponderance of the evidence, that the
defendant's "purpose" for unlawfully possessing the weapon
was "to intimidate" the victim on the basis of a particular
characteristic the victim possessed. See Apprendi, 530 U.S.
at 491.

The Supreme Court initially canvassed prior case law and
history to announce that, "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt." Id. at 490. It then endorsed the concept that, with
the exception of recidivism, "it is unconstitutional for a
legislature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which a
criminal defendant is exposed." Id. (internal quotations and
citation omitted). Under these newly announced
constitutional rules, the Court struck down the New Jersey
scheme because the facts necessary to impose the
enhancement amounted to an intent requirement, which
the Court concluded "is perhaps as close as one might hope
to come to a core criminal offense `element.' " Id. at 493.

In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the
Court first coined the term "sentencing factor" as distinct
from an element of the crime, the former being something
not found by a jury but affecting the sentence imposed by
the judge. See id. at 485-86. By contrast, of course, every
element of a crime must be proven to a jury beyond a
reasonable doubt. See United States v. Gaudin , 515 U.S.
506, 510 (1995). In announcing the rule in Apprendi, the
Court specifically noted that it was neither overruling
McMillan nor rendering the term "sentencing factor" devoid
of meaning. Compare 530 U.S. at 487 n.13 with id. at 494
n.19. Rather, the Court set forth the proposition that "[t]he
judge's role in sentencing is constrained at its outer limits
by the facts alleged in the indictment and found by the
jury. Put simply, facts that expose a defendant to a
punishment greater than that otherwise legally prescribed
were [for the Sixth Amendment's framers] by definition
`elements' of a separate legal offense." Id. at 483 n.10.
Under Apprendi, sentencing factors that support a specific
sentence within the statutorily prescribed penalty range are

15
still properly submitted to a judge to be found by a
preponderance of the evidence. See id. Ultimately, a court
may still consider aggravating and mitigating factors that
support a specific sentence within the statutorily prescribed
range when sentencing a defendant, so long as the
sentence imposed is not greater than the maximum
statutory penalty for the statutory offense established by
the jury's verdict. See id.

Here, in its charge to the jury, the District Court read
aloud the one-count indictment against Barbosa, which
alleged that he:

did knowingly and intentionally possess with intent to
distribute 50 grams or more of a controlled substance.
That is, approximately 882 grams of a mixture or
substance containing a detectable amount of cocaine
base, a Schedule II non-narcotic controlled substance,
in violation of Title 21 United States Code Sections
841(a)(1) and (b)(1)(A)(iii).

The court further instructed the jury that, in order to prove
this charge against Barbosa, the Government had to
establish the following three elements beyond a reasonable
doubt: "First: That the defendant possessed a controlled
substance. Second: That the defendant knew that he
possessed a controlled substance. And Third: That the
defendant intended to distribute the controlled substance."
Notwithstanding the fact that the indictment identified
cocaine base as the controlled substance in this
prosecution, the court expressly stated that:

If you find that the material involved in this case is a
controlled substance, you need not be concerned with
the quantity or the identity of the controlled substance.
So long as you find that the defendant knowingly
possessed with intent to distribute a controlled
substance, the amount and the identity of the
controlled substance involved is not important.

The jury subsequently returned a general guilty verdict
"in the manner and form as [Barbosa] stands indicted."
However, drug identity was ostensibly not submitted to the
jury for a factual determination. Hence, we are faced with
a potential Apprendi issue: whether drug identity was an

16
element of the crime that the District Court should have
presented to the jury to find beyond a reasonable doubt or
merely a sentencing factor that the court properly found by
a preponderance of the evidence standard. Should we
conclude that drug identity is an element of the drug
trafficking offense, a secondary inquiry is whether the
defendant's intent (or lack of intent) to traffic in that
particular drug is yet another fact that the jury was bound
to find. This latter point is the crux of Barbosa's claim in
this appeal.

Before beginning our analysis, we note that Barbosa did
not timely object to the indictment or the jury instructions
because the Supreme Court decided Apprendi long after he
was sentenced. Thus, his counsel could hardly have known
at that time that his client may have had a constitutional
right to have drug identity determined by a jury. Apprendi
nonetheless applies retroactively because Barbosa's direct
appeal was pending at the time the Court decided Apprendi.
See id. (citing and quoting Griffith v. Kentucky, 479 U.S.
314, 328 (1987)). Under these circumstances, Federal Rule
of Criminal Procedure 52(b) limits our review to one for
plain error only. Under that doctrine, "before an appellate
court can correct an error not raised at trial, there must be
(1) error, (2) that is plain, and (3) that affect[s] substantial
rights." Johnson v. United States, 520 U.S. 461, 466-67
(1997) (internal quotations and citation omitted). The
deviation from a legal rule is "error," and an error is "plain"
if it is "clear" or "obvious." United States v. Olano, 507 U.S.
725, 732-34 (1993). Furthermore, in most cases, an error
affects substantial rights if it is prejudicial, i.e., "affected
the outcome of the district court proceedings." Id. at 734.
We are empowered in our discretion to correct the forfeited
error, but we should not exercise that discretion unless
"the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." Johnson , 520 U.S. at
467 (internal quotations and citation omitted). Moreover,
unlike a harmless error analysis, the defendant bears the
burden of demonstrating that the error was prejudicial. See
Olano, 507 U.S. at 734. Our first step then is to determine
whether there indeed was an error, or Apprendi violation.

We begin with a close examination of the federal drug

17
trafficking laws. Congress separated controlled substances
into five drug schedules, which are updated and
republished on an annual basis. See 21 U.S.C. SS 802(6),
812(a). Among other provisions, the drug laws make it
unlawful "for any person knowingly or intentionally -- (1) to
manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute, or dispense, a controlled
substance." Id. S 841(a)(1). Thus, on its face, the identity of
the controlled substance is not an element of the statutory
offense. Rather, in the immediately following section,
Congress enumerated numerous potential penalties for
violating S 841(a), depending upon facts such as drug
quantity and drug identity. See generally id. S 841(b).
Congress also provided for several "catch-all" provisions, all
of which generally contain no reference to specific drug
quantity or drug identity, except by schedule number. See,
e.g., id. S 841(b)(1)(C) ("In the case of a controlled substance
in schedule I or II . . ."); id. S 841(b)(1)(D) (". . . in the case
of any controlled substance in schedule III . . ."); id.
S 841(b)(2) ("In the case of a controlled substance in
schedule IV . . ."); id. S 841(b)(3) ("In the case of a controlled
substance in schedule V . . ."). The maximum penalties
under these "catch-all" provisions range from one year
(schedule V) to twenty years (schedules I and II). If the
defendant has a prior felony drug conviction, the maximum
penalties are enhanced to a range of two years to thirty
years, respectively.4 Thus, because a defendant would be
exposed to greater punishment depending upon a factual
finding regarding the identity of the controlled substance, it
is conceivable, under the teachings of Apprendi , that drug
identity is an element of a S 841(a) offense, and therefore,
generally must be submitted to the jury and found beyond
a reasonable doubt.

Here, the District Court read to the jury the contents of
_________________________________________________________________

4. Under some circumstances, the maximum penalty under a given
combination of quantity and identity of a controlled substance can make
a defendant eligible for a life sentence. See , e.g., 21 U.S.C.A.
S 841(b)(1)(A). Additionally, under 21 U.S.C.S 841 (b)(1)(B), if a
defendant
has previously committed a felony drug offense, other combinations of
quantity and identity of a controlled substance would make him eligible
for a life sentence as well.

18
the indictment, which explicitly alleged cocaine base as the
controlled substance at issue. But immediately thereafter,
the court expressly circumscribed the jury's deliberations
by admonishing it from considering either the amount or
identity of the controlled substance. Thus, the jury only
conclusively found that Barbosa trafficked in a controlled
substance, without any finding as to a particular controlled
substance or the amount at issue.

That said, Barbosa himself does not challenge drug
quantity on this appeal, and thus, in light of this waiver, we
will accept the amount presented at trial, which was 882
grams. See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993)
("When an issue is either not set forth in the statement of
issues presented or not pursued in the argument section of
the brief, the appellant has abandoned and waived that
issue on appeal.") (citations omitted); But, as the "catch-all"
provisions above demonstrate, Congress did not enact a
general provision for situations in which drug quantity is
known but drug identity is not. Thus, under the facts found
by the jury, we cannot unequivocally determine which of
the "catch-all" provisions to invoke against Barbosa. Only
under the "catch-all" provision for a schedule I or II
controlled substance would Barbosa's twenty-year sentence
be within the prescribed statutory maximum. See 21 U.S.C.
S 841(b)(1)(C) (authorizing maximum of twenty years; thirty
years with prior felony drug conviction). Under the other
three provisions, his sentence far exceeds the maximum
permitted under the statute. See 21 U.S.C.SS 841(b)(1)(D),
(b)(2), (b)(3). We would reach the same outcome even if we
were to include any enhancement for Barbosa's prior felony
drug conviction.

In the face of this ambiguity, we would apply the rule of
lenity to Barbosa (notwithstanding his failure to raise this
issue) and conclude that an Apprendi violation has been
established. See Staples v. United States, 511 U.S. 600,
619, n.17 (1994) (rule of lenity requires that "ambiguous
criminal statute[s] . . . be construed in favor of the
accused"). The rule of lenity is applicable when there is a
"grievous ambiguity or uncertainty in the language and
structure of the [statute]." Huddleston v. United States, 415
U.S. 814, 831 (1974). The ambiguity must be such that,

19
even after a court has " `seize[d] every thing from which aid
can be derived,' " it is still "left with an ambiguous statute."
United States v. Bass, 404 U.S. 336, 347 (1971) (quoting
United States v. Fisher, 2 Cranch 358, 386 (1805)). "The
rule [of lenity] comes into operation at the end of the
process of construing what Congress has expressed, not at
the beginning as an overriding consideration of being
lenient to wrongdoers." Callanan v. United States, 364 U.S.
587, 596 (1961). Thus, except for S 841(b)(1)(C) and its
thirty-year statutory maximum, Barbosa can establish an
Apprendi violation because the identity of the controlled
substance is a fact that increased his penalty beyond the
prescribed statutory maximums in the other three penalty
provisions. Cf. United States v. Vazquez, 2001 WL 1188250,
*1 (3d Cir. 2001) (finding Apprendi violation where the
district court sentenced the defendant to a term in excess
of the default statutory maximum for powder cocaine based
upon its own factual finding of drug quantity).

In an attempt to sidestep this result, the Government
argues in its brief that, if the quantity of drugs were to be
disregarded, Barbosa would be subject to a statutory
maximum of thirty years, irrespective of whether the drug
was heroin or cocaine base (the only controlled substances
presented to the jury through the evidence at trial), because
both heroin and cocaine base are schedule I or II controlled
substances. See 21 U.S.C. SS 802(6), 812 (Schedules I(b)(10)
and II(a)(4)), 841(b)(1)(C). Thus, according to the
Government, Barbosa's twenty-year sentence is less than
the statutory maximum, rendering Apprendi inapplicable.
Alternatively, in its letter brief following oral argument, the
Government relies upon another line of cases that permit
us to infer facts from the jury's verdict. See, e.g., United
States v. Boggi, 74 F.3d 470, 478-79 (3d Cir. 1996) (holding
that, in convicting the defendant, the jury implicitly rejected
as false the defendant's exculpatory testimony, thus laying
the groundwork for an obstruction of justice enhancement
at sentencing). According to the Government, the fact that
Barbosa possessed cocaine base was "necessarily and
finally decided" by the jury in convicting him of the
substantive offense, and thus, there can be no question
that the jury made a finding that he possessed cocaine
base.

20
We cannot countenance either of the Government's lines
of analysis to determine whether an Apprendi violation has
occurred because it amounts to an ill-advised effort to
define away the applicability of Apprendi to this case. The
Government fails to appreciate that, because the identity of
the drug was not submitted to the jury, we cannot simply
assume that only schedule I and II controlled substances
are implicated merely because the evidence was so
constrained. Apprendi compels us to focus on the
permissible sentences authorized by the jury's verdict,
which, in this case, contained no factual finding as to drug
identity. Moreover, with respect to its argument pertaining
to S 841(b)(1)(C), the Government only further complicates
the issue by introducing a new variable and urging us to
disregard the quantity of drugs. Both parties agree that
Barbosa intended to import approximately one kilogram of
a controlled substance, and no party disputes the 882-
gram amount that was ultimately seized by the DEA agents.
As we will make apparent, however, where the
Government's arguments have merit is in their applicability
to the substantial rights inquiry of the plain error analysis.

We hold that, under the circumstances of this case, an
Apprendi violation has occurred and that it was plain. The
jury convicted Barbosa without having the issue of drug
identity submitted for its consideration. Barbosa's twenty-
year sentence far exceeded the statutory maximums under
the potentially applicable "catch-all" provisions (after
judicial application of the rule of lenity) because of the
District Court's drug identity determination. Cf. Vazquez,
2001 WL 1188250, at **4-5 (holding that defendant had
established a plain Apprendi violation with respect to drug
quantity). Other federal appellate courts have similarly
concluded that the failure to submit drug identity for a jury
determination may violate Apprendi. See, e.g., Horton v.
United States, 244 F.3d 546, 552 (7th Cir. 2001); United
States v. Robinson, 250 F.3d 527, 529 (7th Cir. 2001); cf.
United States v. Keith, No. 00-4820, 2001 WL 575143, at *1
(4th Cir. May 29, 2001) (unpublished).

Our prior jurisprudence on this point, however, is to the
contrary. Before Apprendi, we had held that drug identity
under S 841(a) was merely a sentencing factor to be

21
determined by the court, not an element of the offense
subject to a jury finding. See United States v. Lewis, 113
F.3d 487, 490 (3d Cir. 1997) (stating that an indictment
need not identify the controlled substance at issue because
drug identity is a factor for sentencing and not an element
of the offense); cf. United States v. Gibbs, 190 F.3d 188,
205-06 (3d Cir. 1999) (holding that the district court's drug
identity finding was not clearly erroneous), cert. denied sub
nom. Sydnor v. United States, 529 U.S. 1030 (2000).
Therefore, we acknowledge that Apprendi has eroded the
precedential value of our prior decisions. However, we do
not overrule them completely because, even after Apprendi,
drug identity will not always be an element of aS 841(a)
offense because of the inherent ambiguity in choosing
amongst several potentially applicable "catch-all"
provisions. Under Apprendi, drug identity must be treated
as an element only when it results in a sentence beyond
the relevant statutory maximum. Apprendi therefore does
not necessarily preclude a sentencing judge from
determining the drug identity involved in a S 841 offense or
considering it as relevant conduct under the Sentencing
Guidelines using a preponderance of the evidence standard.
So long as the resulting, and possibly enhanced, sentence
is below the statutory maximum authorized by the jury's
factual findings, no Apprendi problem exists and drug
identity need not be treated as an element of the offense.
See, e.g., Vazquez, 2001 WL 1188250, at **3-7 (holding
that, post-Apprendi, drug quantity is only an element of a
S 841 offense when a defendant is sentenced above the
default statutory maximum, thus only overruling prior
decisions to the extent that they establish that drug
quantity is never an element).5 Specifically, drug identity
would not be an element in those cases where the sentence
imposed is below the lowest "catch-all" maximum of one
year found in S 841(b)(3), which corresponds to Zone A and
Zone B in the Sentencing Table. See U.S. Sentencing
Guidelines Manual ch.5, pt. A (1998).
_________________________________________________________________

5. It should be noted that while Chief Judge Becker joins the majority in
this case, he had not joined in the portion of Vazquez relevant here, but
rather wrote separately, opining that drug quantity and identity are
always elements, even when the sentence is below the maximum.

22
C.

The foregoing conclusion gives us pause to consider, as
a secondary matter, whether Barbosa's lack of intent to
traffic in cocaine base, brought about because of his
mistake of fact concerning drug identity, would be yet
another fact that the jury was bound to find under the
teachings of Apprendi. We understand Barbosa to be
arguing that, once the application of Apprendi makes drug
identity an element of the offense, a defendant must also
have knowledge of the precise controlled substance at issue
before he can be convicted under S 841(a)(1). Here, both
Barbosa and the Government agree that Barbosa's
knowledge and intent related only to heroin. Thus, the
Government introduced no evidence of Barbosa's knowledge
or intent concerning cocaine base because none existed. On
that basis, according to Barbosa, his conviction cannot
stand because the jury did not find that he knowingly
possessed cocaine base and, in fact, could not have made
such a finding based upon the evidence adduced at trial.
Indeed, Barbosa presents us with the perplexing problem of
a defendant who was found to have possessed cocaine base
but with the intent to distribute heroin. The resolution of
this inquiry turns once again upon statutory construction.

In relevant part, the statutory proscription reads:". . . it
shall be unlawful for any person knowingly or intentionally
-- (1) to . . . possess with intent to manufacture, distribute,
or dispense, a controlled substance . . . ." 21 U.S.C.
S 841(a)(1). Under a plain reading of this statute, if the
identity of the controlled substance creates separate legal
offenses under an Apprendi analysis, then the issue for this
Court is whether the defendant's mens rea concerning that
particular controlled substance must also be construed as
an inherent part of each offense as well.

To act "knowingly" is to act with "knowledge of the facts
that constitute the offense" but not necessarily with
knowledge that the facts amount to illegal conduct, unless
the statute indicates otherwise. Bryan v. United States, 524
U.S. 184, 193 (1998). A contrary interpretation would be
tantamount to compelling the Government to disprove an
ignorance of the law defense. See, e.g., United States v.
Cain, 130 F.3d 381, 384 (9th Cir. 1997). Moreover, "to

23
commit an act intentionally is to do so deliberately and not
by accident." United States v. Fuller, 162 F.3d 256, 260 (4th
Cir. 1998).

Thus, under the mens rea requirement, the Government
must prove the defendant's awareness that he engaged in
one or more of the active verbs in that provision:
manufacture, distribute, dispense, or possess with intent to
manufacture, distribute, or dispense. It is not a
requirement, however, that the defendant have specifically
intended to violate the statute in order to be found guilty.
Additionally, it is well settled that the Government must
show that the defendant knew that the substance in which
he trafficked was a controlled substance. See, e.g., United
States v. Kim, 27 F.3d 947, 959 (3d Cir. 1994); cf. United
States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000) (similarly
analyzing analogous mens rea requirement in felon-in-
possession firearm statute).

We believe that the structure of the drug statutes and the
policies behind them show that the Government's mens rea
burden has not changed with the advent of Apprendi.
Under Apprendi, drug identity may now be a separately
delineated element of the offense, but that conclusion alone
does not lead to the inevitable result that the Government
must prove the defendant's knowledge of that fact. The
drug statutes require specific knowledge or intent as to a
general category of unlawful items. The specific unlawful
items, however, are found in the penalty section of the
scheme. Thus, the structure and plain text of S 841 affords
no support for a requirement that the Government must
prove more than the defendant's knowledge that he was
trafficking in a controlled substance. See United States v.
Lewis, 113 F.3d 487, 491 (3d Cir. 1997) ("While Congress
could have enacted separate statutes criminalizing the
distribution of particular controlled substances, it did not
do so. Instead, it characterized the determination of the
identity and the weight of the controlled substance as
penalty factors in section 841(b). We must honor that
approach."). Moreover, we see no reason, consistent with
Congress' overall intent in promulgating the drug laws, to
extend the mens rea requirement to the precise controlled
substance at issue, even in the face of having concluded

24
that it may be an element of the crime. Barbosa's
awareness that he was trafficking in what he believed was
a controlled substance, albeit a different type for which he
was arrested, is all that is required to satisfy the mens rea
portion of the substantive offense.

We appreciate the somewhat anomalous result in having
provided more specificity to an existing element in
S 841(a)(1) to which the mens rea requirement applies,
while, at the same time, refusing to apply that requirement
to the newly specified element. But to construe the statute
otherwise would entail making drastic revisions to a
statutory scheme, which, in the first instance, lies in the
hands of Congress. By concluding that drug identity may
be an element of the offense, we are not rewriting
S 841(a)(1) so as to eliminate any of the text. We are only
making the specific controlled substance an additional
element that may have to be submitted to the jury for a
factual finding beyond a reasonable doubt, if the facts
warrant it. Otherwise, we would in essence be striking the
term "controlled substance" from the text ofS 841(a)(1).
Thus, we leave undisturbed our jurisprudence with respect
to the mens rea requirement, which only requires the
Government to prove the defendant's knowledge that he
was trafficking in a controlled substance.

Barbosa alternatively urges us to adopt the evidentiary
mechanism suggested by Judge Weinstein in United States
v. Cordoba-Hincapie, 825 F. Supp. 485 (E.D.N.Y. 1993). In
that case, Judge Weinstein proposed a burden-shifting
mechanism for mistake of fact cases. In brief, he held that
the sentencing court should presume that the defendant
was aware of the type of narcotics he was carrying but
should afford him the opportunity to rebut this
presumption by introducing evidence at the sentencing
phase. See id. at 531-32. However creative and facially
palatable Judge Weinstein's solution may appear, we
decline to adopt such a mechanism as the law in this
Circuit for two main reasons. First, it is highly unlikely that
Judge Weinstein's methodology survives the new
constitutional rule announced in Apprendi. Indeed, it would
be unwise for us to craft an evidentiary rule to supplant the
teachings of a Supreme Court case that is directly on point.

25
And second, as we have discussed above, Judge Weinstein
appears to be the lone voice of dissent against a backdrop
of uniformity in the federal courts before the advent of
Apprendi. We decline Barbosa's request to sail in such
uncharted waters.

Accordingly, we now formally adopt the uniform and
persuasive reasoning of pre-Apprendi federal appellate
authority, which held essentially that a defendant who is in
actual possession of a particular controlled substance,
while intending to distribute another, may be punished for
the drug with which he is found to be in possession. See,
e.g., United States v. Valencia-Gonzales, 172 F.3d 344, 345
(5th Cir. 1999); United States v. Strange, 102 F.3d 356, 361
(8th Cir. 1996); United States v. Salazar, 5 F.3d 445, 446
(9th Cir. 1993); United States v. Obi, 947 F.2d 1031, 1032
(2d Cir. 1991) (per curiam); United Sates v. Gomez, 905 F.2d
1513, 1514-15 (11th Cir. 1990).

D.

Having concluded that an Apprendi violation has
occurred with respect to drug identity, we now turn to the
substantial rights inquiry under the plain error analysis. As
we explained in Vazquez, we rely upon Neder v. United
States, 527 U.S. 1 (1999), and Johnson v. United States,
520 U.S. 461 (1997), in conducting this inquiry because
both decisions concerned the failure of the trial court to
instruct the jury as to an element of the offense charged.
See Vazquez, 2001 WL 1188250, WL, at **5-8 . As the
Supreme Court made clear in Neder, "an instruction that
omits an element of the offense does not necessarily render
a criminal trial fundamentally unfair or an unreliable
vehicle for determining guilt or innocence." 527 U.S. at 9.
Despite the occurrence of an Apprendi violation here,
because drug identity was not submitted to the jury, under
Neder, "the question remains whether [Barbosa's]
conviction can stand because the error was harmless." Id.
at 15. The test for whether a constitutional error is
harmless "is whether it appears `beyond a reasonable doubt
that the error complained of did not contribute to the
verdict obtained.' " Id. (quoting Chapman v. California, 386
U.S. 18, 24 (1967)). That is, we must limit our inquiry to

26
"whether the record contains evidence that could rationally
lead to a contrary finding with respect to the omitted
element." Id. at 19. "If, at the end of the examination, [we]
cannot conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error-- for
example, where the defendant contested the omitted
element and raised evidence sufficient to support a contrary
finding -- [we] should not find the error harmless." Id.

Under this standard, Barbosa cannot show that the error
affected his substantial rights. The evidence at trial
established indisputably, and certainly beyond a reasonable
doubt, that Barbosa possessed with the intent to distribute
882 grams of a controlled substance and that this
controlled substance was cocaine base. The Government
presented three government informants, numerous tape-
recorded conversations, and Barbosa's own confession all
demonstrating that Barbosa was a drug smuggler who
made contact with a supplier in Aruba to transport
approximately one kilogram of a controlled substance into
the United States through swallowing. For his part,
Barbosa did not contest that he had violated S 841(a)(1),
but rather, only interposed an entrapment defense.

Before trial, Barbosa and the Government believed the
drug at issue to be heroin. But later chemical analysis
revealed the controlled substance to be cocaine base with a
purity of 85%. Indeed, cocaine base and heroin were the
only controlled substances presented to the jury through
the evidence at trial, the former through the testimony of
the DEA forensic chemist. Nonetheless, we may confidently
infer that the jury, in convicting Barbosa and rejecting the
entrapment defense, necessarily found the controlled
substance to be cocaine base. While evidence of heroin was
presented by the testimony, it is undisputed that Barbosa
was arrested while in possession of cocaine base, the very
same controlled substance he had swallowed in Aruba two
days earlier. We are convinced that a properly instructed
jury would have come to no other conclusion than that the
controlled substance at issue in this prosecution was
cocaine base.

We need not even make that inference, however, because
Barbosa himself only raises the applicability of the

27
provisions for heroin and cocaine base. These provisions
mandate a term of imprisonment of five to forty years for
882 grams of heroin and ten years to life for an equivalent
amount of cocaine base. Because Barbosa has a prior
felony drug conviction (a fact that need not have been
submitted to the jury under Apprendi), the same statutory
provisions also set forth enhanced punishments of ten
years to life for heroin and twenty years to life for cocaine
base. Compare 21 U.S.C. S 841(b)(1)(B)(i) with id.
S 841(b)(1)(A)(iii). Thus, irrespective of which of the two
drugs the jury could have found, Barbosa's twenty-year
sentence falls well below the prescribed statutory maximum
of life for either heroin or cocaine base. Accordingly, we
conclude that Barbosa's substantial rights were not
affected. See United States v. Cepero, 224 F.3d 256, 267
n.5 (3d Cir. 2000) (en banc) (teachings of Apprendi
irrelevant where application of Sentencing Guidelines did
not implicate a fact that would increase the penalty of
crime beyond statutory maximum), cert. denied , 531 U.S.
1114 (2001); United States v. Mack, 229 F.3d 226, 235 n.12
(3d Cir. 2000) (Apprendi does not apply where statutory
maximum is life imprisonment), cert. denied, 121 S. Ct.
2015 (2001).

Even if Barbosa could somehow satisfy the third plain
error prong, the Apprendi violation here did not seriously
affect the fairness, integrity, or public reputation of judicial
proceedings. On this point, we rely on the Supreme Court's
decision in Johnson, which, like Neder , addressed a failure
to submit an element for a jury's determination but did so
in the context of the fourth plain error prong. In Johnson,
the Supreme Court held that, when evidence of an element
wrongly taken from a jury "overwhelming[ly]" supports the
trial court's finding with regard to that element,"there is no
basis for concluding that the error `seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings,' " and therefore plain error relief is
unavailable. 520 U.S. at 470.

In this case, we think it clear that the evidence we recited
above in the context of the third plain error prong
constitutes overwhelming evidence that Barbosa possessed
with the intent to distribute 882 grams of a controlled

28
substance and that the controlled substance was cocaine
base. Because his sentence would not have been any
different, there is no reasonable basis upon which to
conclude that the fairness, integrity, or public reputation of
judicial proceedings were seriously affected. See United
States v. Mietus, 237 F.3d 866, 875 (7th Cir. 2001); United
States v. Nance, 236 F.3d 820, 825-26 (7th Cir. 2000),
petition for cert. filed, No. 00-9633 (U.S. Apr. 24, 2001);
United States v. Keeling, 235 F.3d 533, 539-40 (10th Cir.
2000), cert. denied, 121 S. Ct. 2575 (2001); United States v.
Swatzie, 228 F.3d 1278, 1284 (11th Cir. 2000), cert.
denied, 121 S. Ct. 2600 (2001). Accordingly, we hold that,
while Barbosa's sentence violated Apprendi, the error did
not affect his substantial rights or the fairness, integrity, or
public reputation of judicial proceedings, and thus, we
uphold his twenty-year sentence. Cf. Vazquez, 2001 WL
1188250, at *10 (declining to notice the Apprendi violation
under the fourth plain error prong because "of the
undisputed evidence of drug quantity attributable to[the
defendant] and our determination that his sentence did not
exceed the statutory maximum for the cocaine amount
introduced at trial"). Under these facts, the District Court
properly sentenced Barbosa based upon the controlled
substance he actually brought into the United States,
cocaine base.

III.

Our inquiry is not complete because of another wrinkle in
the drug sentencing schemes. Although we have concluded
that Barbosa should be sentenced based upon cocaine base
-- the drug he actually transported -- Barbosa argues that
this does not automatically mean that his sentence should
be at least the twenty-year mandatory minimum for that
drug. Rather, he contends that he should be subject to the
ten-year mandatory minimum sentence for cocaine
because: (1) there was no dispute that the substance he
transported was not crack, and (2) the Sentencing
Guidelines utilize the cocaine guideline for penalizing all
forms of cocaine base other than crack, reserving the
cocaine base penalties solely for crack. Again, the potential
sentencing ranges are 240-293 months for cocaine base

29
and 120 months for cocaine. This challenge raises yet
another issue of first impression in this Circuit, one that we
have expressly reserved deciding at least twice. See United
States v. Bennett, 100 F.3d 1105, 1111 n.4 (3d Cir. 1996);
United States v. James, 78 F.3d 851, 858 (3d Cir. 1996).
We exercise plenary review over legal questions involving
the proper interpretation and application of the Sentencing
Guidelines. United States v. Helbling, 209 F.3d 226, 243 (3d
Cir. 2000), cert. denied, 531 U.S. 1100 (2001).

We begin with a brief explanation of the chemistry of
cocaine and cocaine base, which is now established in the
case law and which will provide some background for the
ensuing discussion. The chemical compound with the
scientific formula C17H21NO4 is found naturally in the coca
leaf. It is referred to chemically as "cocaine base" because
it reacts with acids to produce a salt. The compound can be
extracted from the coca leaf in the form of a paste. When
the paste derived from the coca leaf is dissolved in
hydrochloric acid (HCl) and water (H2O), it creates a salt
called cocaine hydrochloride, C17H22ClNO4, whichis
commonly known as powder cocaine or cocaine salt. This is
the form of the drug that is usually processed for
importation into the United States. Powder cocaine is
water-soluble and may be ingested, snorted, or dissolved in
a liquid and injected, but it cannot be smoked because it
decomposes at the same temperature at which it
evaporates. There are, however, several ways in which to
convert powder cocaine back into a base. The most
common method is to dissolve the powder in water (H 2O)
and sodium bicarbonate or baking soda (NaHCO3), and
then to boil the mixture until it solidifies and dries. When
dried, the resulting substance, commonly called"crack" or
"crack cocaine," can be smoked and has the same chemical
formula as the naturally occurring cocaine base. Other
forms of cocaine base can be derived from powder cocaine
using other chemical agents. The chemical compound C 17H21
NO4, either in nature or upon conversion from cocaine
hydrochloride, is a base, and its distinct physical forms,
such as coca paste and crack, are chemically
indistinguishable. See United States v. Robinson , 144 F.3d
104, 108 (1st Cir. 1998); United States v. Sloan , 97 F.3d
1378, 1381-82 (11th Cir. 1996); see also United States v.

30
Barbosa, 51 F. Supp. 2d 597, 601 (E.D. Pa. 1999); U.S.
Sentencing Guidelines Manual S 2D1.1(c), Note (D) to Drug
Quantity Table (1998) (" `Crack' 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.").

At trial, the Government proved that Barbosa transported
pellets containing cocaine base with a purity of 85% and
conceded that the pellets did not contain crack. Under the
Sentencing Guidelines applicable at the time of Barbosa's
sentencing hearing, "cocaine base" had to be"crack" for a
defendant to be sentenced to the higher guideline for
cocaine base. See U.S. Sentencing Guidelines Manual
S 2D1.1(c), Note (D) to Drug Quantity Table (1998)
(" `Cocaine base,' for purposes of this guideline, means
`crack.' "). This specific definition was promulgated by the
Sentencing Commission through an amendment to the
Sentencing Guidelines on November 1, 1993 and was
subsequently approved by Congress. See U.S. Sentencing
Comm'n, Notice, Amendments to the Sentencing Guidelines
for United States Courts, 58 Fed. Reg. 27148, 27156 (May
6, 1993) (proposing amendment and explaining that forms
of "cocaine base" other than "crack," such as coca paste,
will be treated as "cocaine" even though they are,
scientifically, forms of "cocaine base"); see also U.S.
Sentencing Guidelines Manual supp. app. C, amend. 487
(1998). Because Barbosa transported a form of cocaine
base different from crack, the Probation Office initially
determined that the cocaine guidelines would provide for an
imprisonment range of between 97 to 121 months (after
imposing a two-level enhancement for obstruction of
justice). However, due to Barbosa's prior felony drug
conviction, Probation also subjected him to a statutory
mandatory minimum sentence of ten years. See 21 U.S.C.
S 841(b)(1)(B)(ii) (mandatory minimum for 882 grams of
cocaine). This adjusted his applicable sentencing range to
120-121 months or simply 120 months without the
obstruction of justice enhancement. See U.S. Sentencing
Guidelines Manual SS 5G1.1(b), (c) (1998).

Notably, Congress itself did not define "cocaine base" as
specifically as did the Sentencing Commission; in fact,

31
Congress chose to omit any definition of "cocaine base"
within the drug statutes. Moreover, to this day, even after
the approval of the Commission's amendment in November
1993, Congress has not seen fit to adopt any definition or
similar delineation of "cocaine base," contrary or otherwise.
Thus, we must address what "cocaine base" means under
the drug statutes when applying the statutory mandatory
minimum sentences. Or said more precisely, the issue is
whether the Sentencing Commission's definition of"cocaine
base" as meaning only the equivalent of crack should be
adopted as the statutory meaning of that drug under 21
U.S.C. S 841(b)(1). The resolution of this issue is significant
because, should we decline to restrict the definition of
cocaine base under the statute in the manner prescribed by
the Sentencing Commission, Barbosa would be subject to a
mandatory minimum of twenty years, or 240 months,
rather than 120 to 121 months. See 21 U.S.C.
S 841(b)(1)(A)(iii) (mandatory minimum for 882 grams of
cocaine base and a prior felony drug conviction).

Two circuits have reached opposite conclusions on this
issue, initially basing their determinations on differing
conceptions of statutory construction and ultimately finding
themselves constrained by principles of stare decisis. The
Second Circuit applied the broader definition of cocaine
base to all forms of cocaine base, including crack. As the
court stated in United States v. Jackson:

It is apparent that Congress in imposing the enhanced
penalties was concerned with the scourge of "crack."
While we believe that Congress contemplated that
"cocaine base" would include cocaine in the form
commonly referred to as "crack" or "rock" cocaine,
Congress neither limited the term to that form in the
plain language of the statute nor demonstrated an
intent to do so in the statute's legislative history.
Congress used the chemical term "cocaine base"
without explanation or limitation.

968 F.2d 158, 162 (2d Cir. 1992). In a later case addressing
the Sentencing Commission's 1993 amendment, the Second
Circuit held that the amendment could not override the
court's earlier interpretation of the drug statute in Jackson
as encompassing all forms of cocaine base, in the absence

32
of new guidance from Congress. See United States v.
Palacio, 4 F.3d 150, 154-55 (2d Cir. 1993). Thus, while the
court concluded that "the sentencing range under the
Guidelines for defendants who possess cocaine base that is
not crack will be significantly lowered" and deemed "the
Commission's interpretation of section 2D1.1 in the
amended commentary . . . authoritative with respect to the
Guidelines," it doubted what effect, if any, that
interpretation would have in construing the substantive
meaning of the term in the criminal statute. Id.

By contrast, the Eleventh Circuit restricted the definition
of cocaine base to crack only, in accordance with the
Sentencing Commission's amendment. Initially, in United
States v. Rodriguez, the Eleventh Circuit had held that the
term "cocaine base," as used in S 2D1.1 of the Sentencing
Guidelines, was not limited to crack but included all forms
of cocaine base according to the term's scientific meaning.
See 980 F.2d 1375, 1377-78 (11th Cir. 1992). But two
years later, the Eleventh Circuit held in United States v.
Munoz-Realpe that the statutory definition of"cocaine base"
had been amended by the Sentencing Commission because
Congress had permitted the amendment to become effective
with no change, thereby implicitly adopting the definition.
See 21 F.3d 375, 377 (11th Cir. 1994). In addressing its
contrary result in Rodriguez, the court stated:

We believe that the precedential force of our Rodriguez
ruling has been eroded by subsequent Congressional
action. . . . By allowing the amendment to take effect,
Congress has given its imprimatur to the new
definition of "cocaine base"; Congress indicated that it
intends the term "cocaine base" to include only crack
cocaine.

Id.6

In imposing the higher mandatory minimum sentence
_________________________________________________________________

6. In passing, we note that, although equally not binding on our
disposition, the Probation Office adopted the Munoz-Realpe analysis in
rejecting an objection by the Government to the Presentence
Investigation Report on the issue of which mandatory minimum to apply
in sentencing Barbosa.

33
upon Barbosa for cocaine base, the District Court
concluded that the reasoning of Munoz-Realpe could not
survive the Supreme Court's subsequent decision in Neal v.
United States, 516 U.S. 284 (1996). In Neal , the Court
rejected a claim that the Sentencing Commission's revision
of S 2D1.1 of the Sentencing Guidelines required
reconsideration of the Court's prior interpretation of a
related statutory provision. See id. at 288-96. Specifically,
the Court held that the Sentencing Commission's revised
definition of "mixture or substance" could not overturn the
Court's prior interpretation of those terms in an earlier
case, Chapman v. United States, 500 U.S. 453, 461-68
(1991). The Court explained that, "[o]nce we have
determined a statute's meaning, we adhere to our ruling
under the doctrine of stare decisis, and we assess an
agency's later interpretation of the statute against that
settled law." Id. at 295.

While this analysis echoes the reasoning of the Second
Circuit in Palacio because it too rested on the fundamental
principle of stare decisis, it actually says nothing with
respect to the proper level of deference accorded to the
Sentencing Commission's interpretation. Indeed, the
Supreme Court expressly acknowledged so. See id. ("In
these circumstances, we need not decide what, if any
deference is owed the Commission in order to reject its
alleged contrary interpretation."). As we will make apparent,
we also need not opine on this thorny issue. All we
understand Neal to stand for is the narrow and now
unobjectionable proposition that a court must adhere to its
prior decisions interpreting an act of Congress, even in the
face of a later, contrary interpretation or definition issued
by the Sentencing Commission. It does not address
situations where the court has not previously determined a
particular statutory construction to which the
Commission's interpretation arguably applies.

Thus, as a threshold matter, we examine our precedent
to see if we have previously opined on the construction of
the term "cocaine base" under the statute. We have not
expressly done so. In United States v. Roberson , we noted,
for the first time, that, "[p]rior to 1993, the Sentencing
Guidelines had not defined the term `cocaine base' in

34
S 2D1.1(c), and no court of appeals had held that this term
referred only to `crack' and not to other forms of cocaine
base." 194 F.3d 408, 414 (3d Cir. 1999) (citing cases).
Interestingly, the only case cited in that opinion from this
Circuit was United States v. Jones, in which one member of
this panel concluded that "crack" is a "cocaine base," and
additionally that, because the Sentencing Guidelines had a
reasonable basis to differentiate between cocaine base and
cocaine salt, both the drug statute and the Guidelines were
not void for vagueness. See 979 F.2d 317, 320 (3d Cir.
1992). We further held in Roberson that the Commission's
1993 amendment overruled our prior constructions of
S 2D1.1(c), such as in Jones, and that this change was
substantive. See Roberson, 194 F.3d at 417. Significantly,
however, we did not interpret the amendment as having
foreclosed any particular construction of 21 U.S.C.
S 841(b)(1), the statute at issue in this appeal.

Next, in United States v. James, we stated that "[w]e find
the Munoz-Realpe analysis to be persuasive." 78 F.3d 851,
858 (3d Cir. 1996). However, we only utilized the Eleventh
Circuit's reasoning to require the Government to prove, by
a preponderance of the evidence, that the form of cocaine
base sold by the defendant was actually crack before
imposing the enhanced sentence for crack under the
Guidelines. See id. at 857-58. Once again, we did not reach
the question of statutory construction under 21 U.S.C.
S 841(b)(1), expressly declining to address the question. See
id. at 858.

Hence, we conclude that we are neither constrained by
stare decisis in the same way as were the Second Circuit in
Palacio and the Supreme Court in Neal, nor required to
address the prospective effect of the intervening
amendment on a prior decision of this Court as did the
Eleventh Circuit in Munoz-Realpe. The limited proposition
established in Neal then is inapplicable to our disposition of
the issue because we must construe the statute for the first
time, unencumbered by precedent. As we stated earlier, we
have had neither the occasion nor the need to opine
expressly on the analytical basis for the Munoz-Realpe
decision until now.

35
Upon careful consideration of the different analytical
techniques employed by the Second and Eleventh Circuits,
we conclude that the reasoning of the Second Circuit in
Jackson and Palacio is more consonant with our
understanding of the power of the Sentencing Commission
to amend, in any way, the substantive meaning of a
criminal statute. Because of the Commission's amendment,
sentences imposed under the Guidelines for defendants
who possess crack will be higher than for defendants who
possess other forms of cocaine base. This result necessarily
follows because the Sentencing Commission's promulgation
of amendments to its own Guidelines, once approved by
and stamped with the imprimatur of Congress, is binding
on sentencing courts. See Mistretta v. United States, 488
U.S. 361, 391 (1989) ("the Guidelines bind judges and
courts in the exercise of their uncontested responsibility to
pass sentence in criminal cases"); see also 28 U.S.C.
S 994(p) (providing that Commission's amendments to
Guidelines automatically become effective within prescribed
time period absent modification or disapproval by
Congress). The Commission's amendments to the Guideline
commentaries are equally binding on sentencing courts.
See Stinson v. United States, 508 U.S. 36, 46 (1993)
("Amended commentary is binding on the federal courts
even though it is not reviewed by Congress, and prior
judicial constructions of a particular guideline cannot
prevent the Commission from adopting a conflicting
interpretation that satisfies the standard we set forth
today."). It is in this sense that we made the following
statement in United States v. Holman: "In 1993, Congress
amended Guideline S 2D1.1 to explain that`cocaine base,'
for the purposes of that guideline, meant `crack.' " 168 F.3d
655, 658 (3d Cir. 1999).

By contrast, sentences imposed under the sentencing
provisions of criminal statutes, specifically the mandatory
minimum sentences, cannot be similarly affected simply
because of Congress' silent approval of the Commission's
amendment. At least two reasons support this conclusion.
First, the Commission lacks the power to do so. Congress
created the Sentencing Commission as an independent
agency within the Article III Judiciary. See 28 U.S.C.
S 991(a). The purposes of the Sentencing Commission are

36
twofold: (1) "establish sentencing policies and practices for
the Federal criminal justice system"; and (2)"develop
means of measuring the degree to which the sentencing,
penal, and correctional practices are effective in meeting
the purposes of sentencing." Id. S 991(b). In carrying out
these purposes, Congress empowered the Commission to
"establish general policies and promulgate such rules and
regulations for the Commission as are necessary." Id.
S 995(a)(1). However, nowhere in Title 28, Chapter 58 of the
United States Code did Congress delegate to the
Commission the power, directly or indirectly, to promulgate
amendments to the statutory code itself. See Mistretta, 488
U.S. at 396 (stating that the Guidelines "do not . . . vest in
the Judicial Branch the legislative responsibility for
establishing minimum and maximum penalties for every
crime. They do no more than fetter the discretion of
sentencing judges to do what they have done for
generations -- impose sentences within the broad limits
established by Congress."). Second, as the Jackson court
succinctly stated, neither the plain language of 21 U.S.C.
S 841(b)(1) nor the statute's legislative history reveals that
Congress limited the term "cocaine base" to crack. See 968
F.2d at 162. The only proper inference we can draw from
Congress' use of the chemical term "cocaine base," without
explanation or limitation, is that it intended the term to
encompass all forms of cocaine base.

We recognize that the Commission's 1993 amendment
could arguably be construed as providing more specificity
to the provisions already existent in the statute, and, in
that sense, it does not alter what has already been
legislated. In fact, we have previously acknowledged that
the amendment conforms to Congress' intent to punish
offenders who traffic in crack more severely than those who
traffic in cocaine. See Holman, 168 F.3d at 658. However,
focusing solely on that congruity obscures the limitations
on permissible judicial constructions of a congressional
statute. Cf. United States v. Noland, 517 U.S. 535, 542
(1996) ("statements in legislative history cannot be read to
convert statutory leeway for judicial development of a rule
on particularized exceptions into delegated authority to
revise statutory categorization, untethered to any obligation
to preserve the coherence of substantive congressional

37
judgments"). Whatever merit we should impart to the
Commission for promulgating guidelines in accordance with
Congress' desire to punish more severely certain drug
trafficking, its wisdom is not germane to our construction
of Congress' inclusion of mandatory minimum sentences in
the drug statute itself. See Smith v. United States, 508 U.S.
223, 231 (1993) (characterizing as "dubious" the
assumption that the Commission's guidelines are relevant
to the construction of a sentencing statute). Thus, we are
firmly convinced that the making of substantive (indeed,
any) changes to the drug statutes is a task residing solely
in the province of the Legislature and not in an arm of the
Judiciary. Cf. Mistretta, 488 U.S. at 377 ("[A]lthough
Congress granted the Commission substantial discretion in
formulating guidelines, in actuality it legislated a full
hierarchy of punishment -- from near maximum
imprisonment, to substantial imprisonment, to some
imprisonment, to alternatives -- and stipulated the most
important offense and offender characteristics to place
defendants within these categories"). Were it otherwise, the
creation of the Sentencing Commission and the delegation
to promulgate amendments to the statute itself would raise
serious constitutional implications that would likely run
afoul of the doctrines of legislative delegation and
separation of powers. See Loving v. United States, 517 U.S.
748, 758 (1996) ("The fundamental precept of the
delegation doctrine is that the lawmaking function belongs
to Congress, U.S. Const., Art. I, S 1, and may not be
conveyed to another branch or entity."); Lujan v. Defenders
of Wildlife, 504 U.S. 555, 559-60 (1992) ("[T]he
Constitution's central mechanism of separation of powers
depends largely upon common understanding of what
activities are appropriate to legislatures, to executives, and
to courts."); see generally Mistretta, 488 U.S. at 371-412
(holding that, in creating the Sentencing Commission,
Congress neither delegated excessive legislative power nor
upset the balance of powers among the coordinate
branches).

Therefore, we hold that, while the term "cocaine base"
means only crack when a sentence is imposed under the
Sentencing Guidelines, "cocaine base" encompasses all
forms of cocaine base with the same chemical formula

38
when the mandatory minimum sentences under 21 U.S.C.
S 841(b)(1) are implicated. Accordingly, the controlled
substance in this case, which was 85% pure cocaine base
but not crack, subjects Barbosa to the statutory mandatory
minimum for cocaine base. We thus affirm the District
Court's imposition of the 240-month sentence.

IV.

Aside from sentencing, Barbosa challenges the District
Court's denial of his motion for a new trial based upon the
discovery of the additional payments and reward monies to
Disla and Morel. Specifically, Disla received an additional
$500 payment a few days after the trial concluded in
January 1999, and both informants received a $25,000
reward in April 1999. We review the District Court's
decision for an abuse of discretion. United States v. Saada,
212 F.3d 210, 215 (3d Cir. 2000).

The District Court is empowered to grant a new trial on
the basis of newly discovered evidence "if the interests of
justice so require." Fed. R. Crim. P. 33. The standard under
Rule 33 is:

(a) the evidence must be in fact newly discovered, i.e.
discovered since trial;

(b) facts must be alleged from which the court may
infer diligence on the part of the movant;

(c) the evidence relied on must not be merely
cumulative or impeaching;

(d) it must be material to the issues involved; and

(e) it must be such, and of such nature, as that, on a
new trial, the newly discovered evidence would
probably produce an acquittal.

Id. at 216 (quoting Government of the Virgin Islands v. Lima,
774 F.2d 1245, 1250 (3d Cir. 1985)).

After a full hearing on the merits in which testimony was
taken, the District Court found that there was no dispute
that the later payments were newly discovered and that
Barbosa's "indefatigable counsel was exemplary in his

39
diligence." However, the court also found that the final
three factors had not been satisfied. That is, in light of the
overwhelming evidence of guilt in the record, and defense
counsel's searching cross-examination and closing in which
he portrayed the informants as essentially on the DEA's
payroll, the evidence of the additional payments was only
cumulative or impeaching, and not material to the issue of
entrapment. Thus, the court concluded (quoting United
States v. Johnson, 199 F.3d 123, 128 (3d Cir. 1999)) that
"this new evidence would in no way have `put the whole
case in such a different light as to undermine confidence in
the verdict, and would have been merely cumulative.' "

Having reviewed the transcripts of both the trial and the
Rule 33 hearing, we conclude that the District Court's
factual findings with respect to the newly discovered
evidence were not clearly erroneous. The additional
payments to Disla and Morel, while concededly subject to
disclosure so as to afford defense counsel an opportunity to
cross-examine the informants on them, were not finalized
or guaranteed, and, in fact, were only nominations at the
time of trial. Moreover, none of the payments was in
exchange for testimony, but for work completed on
investigations for the DEA. Although the $25,000 rewards
were quite large, they were primarily for the results of the
extraordinary drug seizure in Aruba and not because of the
apprehension and conviction of Barbosa. We also note that,
although the record is replete with evidence of Barbosa's
guilt, the District Court obviously felt that there was
sufficient evidence on which to instruct the jury on his
entrapment defense.

Therefore, on these facts, we conclude that the District
Court properly exercised its discretion to deny the new trial
motion based upon this newly discovered evidence because
that evidence would merely have been cumulative or
impeaching, immaterial to the issue of entrapment, and
would not have likely produced an acquittal. We will thus
affirm the denial of Barbosa's new trial motion.

V.

Finally, Barbosa challenges the entirety of his criminal
proceedings, contending that the Government's conduct

40
resulting in his eventual arrest was outrageous as a matter
of law. Specifically, Barbosa claims that the Government
had orchestrated the entire narcotics transaction and had
unnecessarily created an unreasonable risk of death. Citing
the danger of digestive acids dissolving the packaging
materials surrounding the swallowed pellets, Barbosa
points to the increasing risk of a fatal mishap as more time
elapses before the ingested drugs are expelled.
Notwithstanding this risk of fatality, the Government
purportedly solicited his assistance through its paid
informants (particularly Disla) and induced him to travel to
Aruba, to swallow approximately one kilogram of heroin,
and then to return to the United States. Moreover, to
further exacerbate that risk, the informants insisted that he
accompany them by car for several hours to Philadelphia,
thereby increasing the time during which the drugs
remained in his system. (He surmises that the only reason
for this leg of the journey was to establish jurisdiction in
the Eastern District of Pennsylvania for the arrest.)
According to Barbosa, this risk was wholly unnecessary as
the arrest could have been effectuated in Aruba (as the
Government later did with Zorilla) and extradition
proceedings commenced because the entire investigation
was being handled with the full cooperation of the Aruban
government. We exercise plenary review over the District
Court's legal conclusions in denying Barbosa's motions to
dismiss the indictment and review any challenges to the
court's factual findings for clear error. United States v.
Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998).

It is well settled in this Circuit that "a criminal defendant
may raise a due process challenge to an indictment against
[him] based on a claim that the government employed
outrageous law enforcement investigative techniques."
United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir.
1998) (citing United States v. Voigt, 89 F.3d 1050, 1064 (3d
Cir. 1996)). In determining whether a defendant is entitled
to a vacatur of the conviction based upon outrageous
government conduct, we note that:

the challenged conduct must be shocking, outrageous,
and clearly intolerable. . . . The cases make it clear
that this is an extraordinary defense reserved for only

41
 the most egregious circumstances. It is not to be
invoked each time the government acts deceptively or
participates in a crime that it is investigating. Nor is it
intended merely as a device to circumvent the
predisposition test in the entrapment defense. Though
lacking in "mathematical precision," the "shocking,
outrageous, and clearly intolerable" standard provides
sufficient guidance to courts attempting to assess
whether particular government conduct is
fundamentally unfair and thereby offends due process.

United States v. Nolan-Cooper, 155 F.3d 221, 231 (3d Cir.
1998) (internal citations omitted).

We recognize that Barbosa's life was arguably placed in
danger by the Government's sting operation. We also
recognize, however, that narcotics trafficking necessarily
entails a risk of death or serious bodily harm, such as from
the use of firearms and other enforcement measures to
protect or seize the contraband and money, as well as from
the ancillary criminal activity that accompanies the drug
trade. In fighting this "war on drugs," law enforcement
personnel have needed to develop a number of
sophisticated and covert investigatory techniques. One of
these techniques involves the creation of what appear to be
authentic drug transactions, oftentimes with the joint
participation of both law enforcement personnel (or their
designees) and the targets of the investigation. Such
subterfuge is a well recognized and permissible means of
investigation. Therefore, endangerment to the lives of the
agents, informants, and targets involved, which is inherent
in the drug trafficking trade, must also be permissible. It is
incumbent upon the government, however, to police its own
conduct and consistently revisit the parameters and
constitutionality of its enforcement activities.

Smuggling narcotics into this country through swallowing
or "body-packing" has unfortunately become both an
effective and lucrative criminal enterprise. See, e.g., John
Otis, The Drug Quagmire: Mules Ferry Drugs Across Borders
in Game of Chance, Houston Chronicle, July 16, 2000, at
30, available at 2000 WL 4311185 ("The technique . . . has
become one of the most effective ways to smuggle heroin
and cocaine out of Colombia . . . . [S]wallowers are believed

42
to be responsible for up to half the Colombian heroin that
reaches the United States."). Yet, this mode of conveyance
is fraught with grave peril to the courier (also called a
"mule," "packer," or "swallower") in the rare but potentially
real situation in which the wrapped pellets burst before
they can be expelled. Drug swallowing can even be fatal
because acids in the digestive tract can dissolve the latex
packaging materials, thereby releasing massive doses of
narcotics into the body. See, e.g., id. (stating that eating
solid foods after ingesting drugs causes release of gastric
acids that can burn through the latex, leading to massive
overdose and death); see also Edward Barnes, Undertaker
For the Mules "Don Orlando" Is the Man to Call When
Cocaine Couriers Perish On the Job, Time Mag., Aug. 18,
1997, at 2, available at 1997 WL 10902776; Gary Wisby,
Cocaine Smuggling Becomes Inside Job: "Packing" It
Internally Risks Death -- Officials, Chicago-Sun Times,
June 23, 1997, at 4, available at 1997 WL 6356660.

The dangers inherent in the targeted criminal activity
comprise a threshold level, which, if unreasonably
surpassed by the Government in zealously pursuing an
investigation or prosecution, would offend fundamental
fairness and due process. We believe that such a guiding
principle comports with our outrageous government
conduct jurisprudence, at least as applied to the distinctive
norms found in the context of modern drug trafficking
activities.

However cold or callous the Government's stance towards
Barbosa may seem, this case does not involve the classic
example of a courier (perhaps with low income, low
education, and little practical skills) who was enticed,
coerced, or exploited by an affluent, sophisticated drug
dealer to smuggle drugs into the United States through
ingestion. See, e.g., Smugglers Who Swallow Drugs Risk
Death For Cash, Sun-Sentinel, July 23, 2000, at 4B,
available at 2000 WL 22186881 ("Customs Special Agent
Zach Man said smugglers recruit poor men and women to
carry drugs into the country, often promising weekend
vacations in South Florida and the chance to make`more
money in a single trip than they make in an entire year.' ");
Mireya Navarro, Big Gulp in Cali Can Bring Hard Time, Fast

43
Death in Miami, Pittsburgh Post-Gazette, Nov. 5, 1995, at
A9, available at 1995 WL 9541894 (reprinting Nov. 2, 1995
N.Y. Times article) (describing coercion defense at trial of
Colombian businessman who claimed he had been
kidnaped by men and forced to swallow pellets containing
heroin). On this record, Barbosa was apparently a willing
participant in the operation to smuggle drugs to
Philadelphia from Aruba, and he exhibited a level of
professionalism concerning the activity of drug swallowing
not typically found in the average courier.

At trial, the evidence revealed that Barbosa was
extremely knowledgeable about packaging and swallowing
drugs. He told the informants that he regularly engaged in
swallowing drugs for other dealers and further claimed that
he managed persons who brought drugs into the country
through swallowing, even teaching them how do it. Barbosa
had, in fact, been previously convicted in federal court for
drug smuggling using the same illicit methodology, and as
the recorded conversations demonstrated, Barbosa was
aware of the going price of heroin in both Aruba and New
York. He revealed the extent of his swallowing expertise by
dictating the travel arrangements, both going to and
returning from Aruba, and by timing the drug transaction,
both as to when he would swallow the pellets and as to
when he would discharge them. While Barbosa claims that
he would never have met Disla or Morel were it not for the
actions of the Government, Barbosa neglects to
acknowledge that his introduction to Disla was facilitated
by Zorilla, whom he had previously known. Indeed, the
Government was not even aware of Barbosa until his
meeting with Disla, and Disla had no way in which to
contact Barbosa except through his pager number.
Moreover, it was Barbosa who made the arrangements with
Zorilla for the delivery of the drugs in Philadelphia. And in
that respect, we note that his acquiescence in being driven
to Philadelphia was voluntary and not compelled by Disla
or the DEA. Although the record also showed that he was
unable to dictate to Zorilla his preferred pellet size and did
not package the pellets himself, Barbosa neither questioned
Zorilla about the contents of the pellets nor inquired into
the manner in which they were packaged. This brazen
display of confidence in the integrity of the contraband he

44
was about to ingest stands in stark contrast to any reckless
behavior we might impute to the Government in permitting
him to proceed with the transaction.

In arranging for Barbosa's arrest in the Philadelphia hotel
room, the DEA unmistakably facilitated and brought to
fruition the illegal drug trafficking from Aruba. However,
the Government neither initiated this particular
transaction, provided any expertise on the swallowing
technique, nor supplied the illegal contraband. DEA agents
were also absent during the entire time Barbosa was in
Aruba and had only Barbosa's limited contact by phone
with Disla to verify what had transpired in the hotel room
in Aruba with Zorilla and the drugs. The DEA also had no
obligation to have agents in Aruba or to make the arrest in
Aruba where it was not permitted to exercise enforcement
jurisdiction. Indeed, it is well established that"[l]aw
enforcement officers are under no constitutional duty to
call a halt to a criminal investigation the moment they have
the minimum evidence to establish probable cause, a
quantum of evidence which may fall far short of the
amount necessary to support a criminal conviction." Hoffa
v. United States, 385 U.S. 293, 310 (1966).

Barbosa nonetheless contends that, despite his professed
expertise in swallowing almost a kilogram of drugs, he
should not be judged upon his own willingness to risk his
own life, and that factors beyond his control could prolong
the time during which the drugs were in his system,
thereby increasing the likelihood that the pellets would
explode in his system. However, the fact that there was no
evidence that Barbosa had any difficulty in executing the
swallowing or that he feared for his safety militates against
any possible argument that the Government was on notice
that the risk to Barbosa was unacceptably compromised.
Given the inherent risk of death or serious bodily harm in
drug trafficking through swallowing, there would have to be
evidence in the record that the Government unreasonably
increased that risk before we would be compelled to
conclude that the Government's conduct was "shocking,
outrageous, and clearly intolerable." At best, the record
revealed that Barbosa may have exhibited some
nervousness in the car ride to Philadelphia; but the

45
Government would not have even known that fact until well
after their arrival at the hotel when, presumably, the DEA
agents debriefed Disla and/or Salcedo. As the record
revealed, agents arrested Barbosa immediately after he
safely expelled all the pellets.

Barbosa also urges us to adopt a rule of law that drug
swallowing is so life threatening that it is per se violative for
the Government to place a defendant in the position of a
courier who swallows drugs and transports them. However,
there is nothing in the record or even general common
sense notions from which to draw such a blanket rule. On
the contrary, a per se rule would place severe restrictions
on the ability of law enforcement personnel to combat
narcotics trafficking. Indeed, as we have previously noted,
"[n]o federal judge can be unaware of the vastness of
government undercover operations which seek to
apprehend those engaged in that reprehensible trade."
United States v. Jannotti, 673 F.2d 578, 609; see also
Hampton v. United States, 425 U.S. 484, 495 n.7 (1976)
(Powell, J., concurring) ("One cannot easily exaggerate the
problems confronted by law enforcement authorities in
dealing effectively with an expanding narcotics traffic,
which is one of the major contributing causes of escalating
crime in our cities.") (citations omitted). In accord with our
analysis above, a court's evaluation of a particular
governmental enforcement tactic must be conducted in the
context of the specific law enforcement problem to which
that tactic is directed. Under the facts of this case, the
Government's use of a known drug swallower in a sting
operation did not rise to a level of outrageousness sufficient
to offend Barbosa's due process rights.

In sum, the Government had every reason to believe in
good faith that Barbosa was a willing participant in this
highly dangerous form of drug trafficking, and thus, its
conduct was not sufficiently "shocking, outrageous, and
clearly intolerable" such that a vacatur of the conviction is
warranted. Under the evidence adduced at trial, we
conclude that the Government's conduct here was not
fundamentally unfair and offensive to due process, and
therefore, we affirm the conviction on this ground.

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VI.

For the foregoing reasons, we conclude that Barbosa was
properly sentenced based upon the cocaine base he
unwittingly, but actually, brought into the country, and
that the District Court properly imposed the statutory
mandatory minimum sentence for cocaine base. We further
conclude that the District Court properly denied Barbosa's
motion for a new trial based upon the newly discovered
evidence of additional payments to the two government
informants. Finally, we conclude that the District Court
properly denied his motions to dismiss the indictment for
outrageous government conduct. Accordingly, we affirm the
District Court's judgment.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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