First Circuit Recognizes Split on Cocaine Possession Statute

Per U.S. v. Medina, 427 F.3d 88 (1st Cir. Oct. 25, 2005):

Medina urges that the trial court erred in instructing the jury on the charge of possession of cocaine base. He did not raise this objection at trial. In the absence of an objection below, we review the trial court's instruction of the jury for plain error. United States v. Bailey, 405 F.3d 102, 110 (1st Cir.2005).The trial judge instructed the jury that, in order to sustain its burden of proof as to the cocaine base charge under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), the government was required to prove, inter alia, "that the controlled substance involved here was cocaine base." Medina claims that the instruction was deficient because it permitted the jury to convict him under the statute, which punishes trafficking in "cocaine base," § 841(b)(1)(A)(iii), without determining whether the substance he possessed was the particular form of cocaine base known as "crack" or was rather some other form of cocaine base.

The question whether the statute regulates only possession of crack or whether its rule encompasses other forms of cocaine base is the subject of some debate and of a conflict among the circuits. See, e.g., United States v. Edwards, 397 F.3d 570, 575-77 (7th Cir.2005) (describing split). In this circuit, however, it is settled that 21 U.S.C. § 841 regulates exactly what its terms suggest: the possession of any form of "cocaine base." United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir.1992) (opinion on rehearing); see also United States v. Richardson, 225 F.3d 46, 49 (1st Cir.2000). Crack is a form of cocaine base and so is among the substances regulated by the statute, but the government is not required to prove that the substance involved in a given case is crack in order to secure a conviction under it. Medina cannot show plain error because the trial court's instructions were simply correct, and Medina's challenge on this score therefore also fails.