Case No. _________________


    COMES NOW the defendant, by and through his undersigned attorney and asks the Court to dismiss the indictment in this cause pursuant to Federal Rule of Criminal Procedure 12 and gives as cause therefore the following:


    The Court should dismiss the charge because the “cocaine base” laws are ambiguous and should be invalidated under the rule of lenity or equal protection principles.  The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. See U.S. Const. amend. XIV.
The 14th amendment is not by its terms applicable to the federal government. Actions by the federal government, however, that classify individuals in a discriminatory manner will, under similar circumstances, violate the due process of the fifth amendment. See U.S. Const. amend. V.
    In United States v. Sloan, et al., 97 F.3d 1378, (11th Cir. , 1996),  the appellate Court declined to adopt the reasoning of United States District Judge J. Owen Forrester's decision in United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994), and provided the basis for affirming a challenge similar to the one argued here.
    The Sloan decision mis-characterizes the issue at hand. This is not a challenge to the difference between "powder” and "crack." Those terms are not found in the statute. In order to understand this issue, one must first recognize that cocaine is not the same thing as cocaine hydrochloride, the most common cocaine powder. Even the Sloan opinion recognizes: cocaine hydrochloride powder is a cocaine salt--a mixture of "cocaine" (C17-H21-N04) and hydrochloric acid (HCl). Cocaine (C17-H21-N04) is a base, and is the same thing as "cocaine base." (also C17-H21-N04). It is identical in every way. Even the Government now acknowledges that these two substances are chemically indistinguishable.
    The essence of the Davis opinion thus was simple. Congress created two different penalties for the same chemical substance - "cocaine base" and "cocaine." Because two different penalties apply equally to the substances in this case --which could be categorized equally as either "cocaine" or "cocaine base"– a defendant would deserve the lesser of two applicable penalties.  The same would be true if one penalty existed for possessing "automatic weapons" and another for possessing "machine guns," or if driving under the influence of "hard liquor" gave one penalty, and driving under the influence of "distilled spirits" gave another.  The issue is not what Congress may have meant to pass. The issue is what it did pass. Looking at these words the President signed into law, even the Sloan opinion concedes "some facial ambiguity,” and acknowledges that “[n]o doubt Congress could have enacted a statute which expressed its intentions more precisely." Nevertheless, Sloan based its opinion on the "motivating policies underlying” the statute,  and referred repeatedly to what "Congress intended.”
    As the Supreme Court has stated repeatedly, "[b]ecause construction of a criminal statute must be governed by the need for fair warning, it is rare that legislative history or statutory policies will ever support a construction of a statute broader than that clearly warranted by the text." Ratzlaf v. United States, 114 S. Ct. 655, 662 (1994) (majority overrules 10 of 11 Circuits). Notwithstanding this admonition, Sloan  here relied exclusively on these same statutory policies and legislative histories to support its analysis.
    As Judge Forrester noted in his Davis opinion, the "cocaine base” laws thus would violate equal protection guarantees even if they somehow survived the rule of lenity.  864 F. Supp. at 1309, n. 25.  As an analogy, if sugar were illegal, it would be as if sugar cubes were punished 100 times more harshly than granulated sugar.  Judge Forrester's conclusion is consistent with the Sentencing Commission's recent amendments, which suggest ending the "cocaine base" distinction, in part because "[c]rack and powder cocaine are pharmacologically the same drug."  U.S.S.G. 1995 Proposed Amendment 5. No rational basis exists for penalizing chemically equivalent, equally smokeable substances differently.

Respectfully submitted,
Rex Curry,
Attorney for Defendant
Tampa, Florida