DePierre v. United States – Oral Argument – February 28, 2011

Media for DePierre v. United States

Audio Transcription for Opinion Announcement – June 09, 2011 in DePierre v. United States


John G. Roberts, Jr.:

We will hear argument first this morning in Case 09-1533, DePierre v. United States.

Mr. Pincus.

Andrew J. Pincus:

Thank you, Mr. Chief Justice, and may it please the Court:

The question in this case is whether the dramatically harsher mandatory minimum penalty for what the statute terms cocaine base applies to all offenses involving cocaine or only those involving substances with the characteristics of crack cocaine.

In its brief in the Kimbrough case, the government described the provision at issue here as reflecting Congress’s determination that, and I’m quoting,

“crimes involving crack should be subject to considerably more severe penalties. “

We agree.

Congress’s targeting of a limited subset of the substances qualifying chemically as — as cocaine is manifest in the statutory structure, in the language, for three basic reasons.

And I’m going to be looking at page 2 of our blue brief, which has the relevant statutory provision.

First, the only way to give different meaning to two distinct terms that Congress used in the statute — “cocaine” on the one hand and “cocaine base” on the other — is to make clear that cocaine base means something different than all substances with the chemical formula [C17H21NO4.]

Elena Kagan:

Mr. Pincus, if — if I understand your interpretation correctly, it would exclude freebase.

How is that a sensible interpretation of the statute, one that would exclude freebase, a commonly known substance?

Congress was aware of it.

The Richard Pryor incident had occurred.

Everybody knew it was dangerous.

Wasn’t it at least true that Congress meant to incorporate that substance as well?

Andrew J. Pincus:

Let me answer — answer your question with a little bit of detail, Justice Kagan, because I think our reply brief wasn’t as clear as it might have been, because the word “freebase” has, really, three different meanings.

It means a manufacturing process; it means a method of use of a cocaine-related substance; and it also means a substance.

So just to be clear: Freebase, the manufacturing process, occurs when cocaine hydrochloride, the powder form of cocaine, is mixed with ether and ammonia in a very volatile mixture and boiled.

Most — many users of freebase inhale the fumes that are released during that manufacturing process.

That process is very dangerous, as the Richard Pryor incident showed, because the substance is quite volatile and will explode.

If that process — if the substance is not used then, but goes to the very end, when all of the liquids are boiled off, then it does produce a rock-like substance similar to crack cocaine.

Our submission is that the — if the substance is permitted to go to the end, and if, in effect, ether and ammonia are used as a substitute for sodium bicarbonate, then the substance does qualify under the statute, because it is a rock-like substance that has — is chemically cocaine, and was produced in a method similar to the reacting of sodium bicarbonate with baking soda.

But in — when the process is in the middle of the production process, we don’t think Congress meant to reach that for a couple of reasons.

First of all, because that was — is — that substance is not something that’s easily marketable.

And one of the key things that Congress was concerned about was the marketability of crack cocaine in its rock-like form.

That’s what made the really big difference.

Ruth Bader Ginsburg:

Mr. Pincus, if the — the substance that is involved in this case was a rock-like substance and it wasn’t a powder.

So why doesn’t it belong?

It’s a rock-like substance.

Ruth Bader Ginsburg:

Why should it be outside the category cocaine base?

Andrew J. Pincus:

Well, I think there would be a factual question in this case.

None of the courts below, Justice Ginsburg, determined whether, in fact, this — the substance at issue in this case was crack cocaine, because the district court ruled that that wasn’t necessary, that all chemical — as long as the substance chemically qualified as cocaine, it satisfied the statutory requirement, and the First Circuit agreed.

So in this case, there–

Ruth Bader Ginsburg:

Correct me if am I wrong about this — I may have a misimpression — but I thought you were objecting to a charge to the jury that charged cocaine base and didn’t charge crack.

Andrew J. Pincus:

–We’re — we’re objecting to the — the fact that the district judge charged the jury and himself determined that in order for this very severe 100-to-1 penalty to apply, it was not necessary for the substance to qualify as crack cocaine.

All it had to do was to be a chemical form of cocaine.

Samuel A. Alito, Jr.:

If we agree with you, how should a judge instruct a jury to determine whether a substance is crack?

Should the judge use the definition in the sentencing guidelines?

Andrew J. Pincus:

A judge could use the definition in the sentencing guidelines, Your Honor.

Let me just say, as a threshold question, in many cases this won’t be a jury question.

Samuel A. Alito, Jr.:

But in those–

Andrew J. Pincus:

In those cases, we think there are three — there are three elements.

One is the substance has to qualify chemically as cocaine.

The second is it was prepared by processing cocaine hydrochloride with sodium bicarbonate or with a different reactant that produces a similar chemical effect.

And third, that it’s a rock-like or otherwise solid, that is smokeable, that is able to produce the inhalable vapors.

We think those are the key–

Samuel A. Alito, Jr.:

–It has to have all three of those characteristics?

Andrew J. Pincus:

–All three of those characteristics.

Samuel A. Alito, Jr.:

But I thought you just said that freebase would qualify, and freebase would not have the second of those characteristics; isn’t that right?

It was — it would not be prepared using a base?

Andrew J. Pincus:

It would, because ammonia is one of the — is one of — it’s ammonia and ether that have — that are used to prepare freebase.

Samuel A. Alito, Jr.:

So if it had any base?

Andrew J. Pincus:

Any base.

We are — the lower courts, in applying the sentencing guidelines definition, have said that sodium bicarbonate is not required.

We think it is not required.

They’ve recognized other substances, and we think as long as the process is similar, that that’s what the sentencing guidelines capture, that’s what the statute captures.

Antonin Scalia:

I don’t understand that.

I can understand the argument that — that Congress was — was directing its statute at crack, and crack had — had a very definite meaning, which didn’t include any substance that — that is rock-hard and has been produced in the manner you suggest.

You’re coming up — you’re urging upon us a definition that neither is the definition of crack nor is the chemical definition of cocaine base.

Antonin Scalia:

It’s neither fish nor fowl.

Andrew J. Pincus:

Well, respectfully, Justice Scalia, I think that Congress was focused on crack.

Antonin Scalia:


Andrew J. Pincus:

Because it — because it was a substance that had particular characteristics.

Antonin Scalia:

That’s right.

But you don’t argue that.

That’s not the meaning you want us to give it.

Andrew J. Pincus:

Well, we do — we do want the meaning to be a substance with those particular characteristics.

I think the only question that we’re — that we’re debating is whether baking — the use of baking soda is essential, because all of those other — those other three characteristics are characteristics of crack.

Antonin Scalia:

It’s essential to crack.

Andrew J. Pincus:


Antonin Scalia:

You wouldn’t call it crack if it weren’t made that way, would you?

Andrew J. Pincus:

–Well, I think in 1986, the definitions were not that clear.

And I think the sentencing commission has said, and certainly the lower courts have said, both in applying the limited definition of the statute for which we contend and also in interpreting the sentencing guidelines, that the use of a different base gets at what Congress — is still a category of substance that Congress — Congress cared about.

Obviously, if the Court would like to construe the statute more narrowly and say baking soda is required, we wouldn’t object to that.

But we think that Congress — one of the reasons that Congress used the term “cocaine base” was that it was trying to capture a category of substances that had particular characteristics and wasn’t focused so much on the exact chemical formula that went into it, because Congress knew, in the drug area, it would–

Antonin Scalia:

How does “cocaine base” suggest what you want?

It has to be — it has to be rock and it has to be base cocaine produced in one of the fashions you suggested.

I don’t know how “cocaine base” remotely suggests that.

Andrew J. Pincus:

–Well, I think in — in three ways, Your Honor.

First of all, because Congress didn’t use the term “cocaine”, which is used elsewhere in the provision, it clearly meant a subset.

It didn’t mean all of the — all of the substances with the chemical formula that satisfies the chemical term “cocaine”.

Second of all, the statute shows just by the 100-to-1 ratio that Congress was focused on something that was especially dangerous, much more dangerous than powder.

Third, the legislative context was, as the Court said in Kimbrough, that this was a statute that was enacted in response to a particular problem, and I think the question we’re debating is: Would Congress have said, when it defined the term — when it defined the term “cocaine base” — and I should say, “base” was one of the street terms, colloquial terms, that was used at the time to — to describe these categories of substances.

Antonin Scalia:

All of them or just crack?

Andrew J. Pincus:

It was — “freebase” was a word.

“Base” was a word.

“Crack” was a word.

The — the legislative debate didn’t distinguish necessarily the chemical — the chemical process for creating the substance.

What it focused on was a substance that had characteristics that had led to the epidemic that Congress was concerned with, and those characteristics were easy marketability, because it was a solid, incredibly strong addictive potential, and inhalability.

John G. Roberts, Jr.:

Counsel, the provision refers to

“a mixture or substance which contains cocaine base. “

You read cocaine base to be crack, so you have to be talking about a mixture or substance which contains crack.

What contains crack?

Crack is the problem they’re getting at; yet the statute, as you read it, has to talk about a substance which contains crack, not just crack.

Andrew J. Pincus:

Yes, Your Honor, and we think the reason that Congress used that phrase was often in this reactive process at the end of the day the rock will not be pure cocaine in a rock form.

There may be some cocaine hydrochloride that didn’t react with the base.

There may be — then there often is some of the base reacting–

John G. Roberts, Jr.:

It’s kind of an odd way for Congress — it’s an odd way for Congress to phrase the provision if what they want to get at is crack, to say what we want to get at is substance which contained crack.

That suggests to me, when you talk about substances that contain something, what they contain is a base that then is used in the substance.

I think that’s a harder, harder logic to apply when you’re talking about crack.

They want to stop the use of crack, not so much — it wouldn’t occur naturally that they’re talking about substances which contain crack.

It would occur naturally, that language formulation, if you think of cocaine base as broader than just crack.

Andrew J. Pincus:

–Respectfully, I disagree, Mr. Chief Justice.

The provision just above large Roman numeral IV talks about compounds and mixtures, and Congress is sensitive in crafting the drug laws that often, because these substances are not prepared in a chemistry lab, there are many, many impurities associated with them.

For example, even cocaine hydrochloride, cocaine powder, is not pure cocaine hydrochloride.

It’s often diluted, it’s often cut with other impurities.

And so in all — throughout the drug laws Congress has used that and we think that’s exactly why it used a similar phrase here, because the crack rock does not contain 100 percent chemical cocaine in a rock-like form.

There will be cocaine powder often, cocaine hydrochloride left.

There will be baking soda left or the other reactant, and so it will be a mass of substances, and Congress needed that language to avoid defendants saying: This substance is not 100 percent cocaine in a crack form and therefore I don’t qualify under (iii).

John G. Roberts, Jr.:

You kind of elided the point there in your verbal formulation.

It’s easier to say this is something that’s not just cocaine.

It’s harder to say this is something which is not just crack because crack is a type of cocaine.

You can say it contains, as the government says, cocaine base.

Andrew J. Pincus:

I may be missing your point, Your Honor, but I think even cocaine in a crack form has other — the rock that Congress was trying to get at has other things in it.

John G. Roberts, Jr.:

And you’re saying Congress is afraid that the sodium bicarbonate, we might not be able to get at that if we just say crack?

Andrew J. Pincus:

No, that the defendant, that the defendant would say this — if it doesn’t, if it didn’t say a mixture which contains, if it said cocaine base, then the argument might well be, you have to — you have to distill the substance to find out how much cocaine base is actually in it, as opposed to how much of it actually is cocaine in a rock form, as opposed to other things have been mixed in, instead of, as this Court decided in Chapman, it’s the whole package that one weighs.

And so I think Congress was getting at the idea that it didn’t want people to either avoid the falling within clause (iii) entirely or trying to escape the 50-gram crack threshold by saying there are other things in here that you have to take out before you, before you can impose this penalty on me.

Sonia Sotomayor:


Samuel A. Alito, Jr.:

Other than crack and free base, are there other forms of cocaine base that are actually in use in any substantial amounts in this country by drug users?

Andrew J. Pincus:

Well, I think we don’t know, Your Honor.

There are — certainly cocaine leaves can be in the country, and under the government’s definition of the statute cocaine leaves would qualify under clause (iii).

Cocoa paste — coca paste can be imported into the country.

There are cases like that.

Samuel A. Alito, Jr.:

Are there actually people in the United States who are smoking coca, coca paste?

I thought that that was exclusive to South America.

Andrew J. Pincus:

They may not be smoking it, Your Honor, but they may be bringing it into the country in that form and then converting it into–

Samuel A. Alito, Jr.:

Are you aware of cases where that’s happened?

Andrew J. Pincus:

–There are — the case that we point to regarding the cocaine that was intermingled in luggage and in the fiberglass of a flowerpot are both cases where it was not cocaine hydrochloride, it was cocaine.

So it was either coca paste or some later, more distilled form of chemical cocaine as opposed to cocaine hydrochloride, but it was not in a rock form, and I think–

Samuel A. Alito, Jr.:

To go back to your definition of crack, just so I’m clear on it, if a substance — in the second prong of your definition, if a substance is tested and chemically it is pure [C17H21NO4,] no trace of sodium bicarbonate, no trace of ammonium, is it possible for a defendant to be convicted and given the crack penalty?

Andrew J. Pincus:

–Yes, it is, Your Honor.

There are cases applying the sentencing guideline test, which is a similar test, in which the courts have said the absence — I think what you’re getting at is if the reactant is not present?

Samuel A. Alito, Jr.:

That’s right.

And I don’t think — could you just reiterate what the second prong of your test is because I thought — I was under the impression it required the presence of a reactant.

Andrew J. Pincus:

It is that it was prepared by processing sodium hydrochloride with a base or with baking soda or similar reactant.

Elena Kagan:

That means prepared from the powder, in theory–

Andrew J. Pincus:

Prepared from–

Elena Kagan:

–is that right?

Andrew J. Pincus:

–cocaine powder, yes.

Samuel A. Alito, Jr.:

So you need extrinsic evidence about how this particular substance was prepared in order to satisfy it?

If you don’t have the trace elements of the reactant, you need evidence that that’s how this was made?

Andrew J. Pincus:

Your Honor, the courts have not required — the courts applying the sentencing guidelines have said that a chemist can testify based on his knowledge, and they’ve found the sentencing guidelines satisfied, that in his professional opinion that’s how this substance was prepared.

Elena Kagan:

Would it be enough for you if it had the right chemical definition and it was a rock-like substance, just those two things?

Would that be enough?

If the government could show it has the right chemical definition, it’s rock-like, it’s solid, does it have to show anything else?

Andrew J. Pincus:

I think that the element of the sentencing guidelines which we’re picking up in our second element, Your Honor, is useful in making clear that this is a substance that was — went from cocaine hydrochloride back to cocaine base, because I think that’s one of the–

Elena Kagan:

I’m asking the same kind of question that Justice Alito is asking, whether the government has to show anything particular to demonstrate that it was prepared from powder cocaine.

Andrew J. Pincus:

–I think that the government doesn’t have to produce — doesn’t have to make a physical showing.

It can — it is enough for the government’s chemist — and there’s always a chemist that testifies in these cases — to say in his opinion that’s true.

Andrew J. Pincus:

I think — I think as a fallback we would certainly be happy with the definition that just had the first and the third ingredients in what I’ve said, but I think the second is important because one of the things that Congress was focused on was the potency of the crack and crack-like substance.

Antonin Scalia:

Mr. Pincus, you’ve lost me.

You’ve responded to the Chief Justice when he raised the problem that this has to be not just cocaine base, it has to be a mixture containing cocaine base, you responded to him by saying: Well, crack always has some mixture in it; it’s never — it’s never pure; and that’s why crack would be covered.

But in response to Justice Alito, who asked you what if it’s pure, if it’s pure cocaine base, without any admixtures, you said that would still be covered.

I mean, both answers can’t be right.

Andrew J. Pincus:

I may have misspoken in my response to the Chief Justice, Justice Scalia.

I thought the Chief Justice’s question was that the formulation of a mixture or substance which contains–

Antonin Scalia:


Andrew J. Pincus:

–somehow meant that Congress was getting at the chemical, all chemical forms of cocaine because — because that formulation was more sympathetic than thinking that it required a rock-like substance.

And in responding to the Chief Justice, all I was trying to say was not that it was always true, that there are other things present, but just that it is often is true that there are other things present and that Congress’s use of the word 100 percent cocaine in its chemical form and therefore I’m not covered by clause (iii).

Sonia Sotomayor:


Andrew J. Pincus:

I think the question here is — I’m sorry, Your Honor — is the converse of that question, which is: But if it is 100 percent cocaine in its chemical form in a rock-like state, is that covered too, and I’m just trying to say: Yes, that’s certainly covered, too, but so is the dirtier form of a rock that has other things mixed in.

Samuel A. Alito, Jr.:

What if it’s pulverized?

I don’t know whether that’s possible, but could you grind it up so that it’s not rock-like anymore, so it’s like a powder–

Andrew J. Pincus:

I think–

Samuel A. Alito, Jr.:

–and smoke it after it’s in that form?

Andrew J. Pincus:

–Your Honor, I think our view — that’s one of the reasons that we would say rock-like or a solid that is otherwise smokeable, to deal with people saying: Oh, if it doesn’t have to be a rock I’ll pulverize it.

Even if it’s tiny little rocks, if it still has the smokeability characteristic, which is what Congress was focused on, we think that that would be — that that would be sufficient.

Sonia Sotomayor:

–Can you get cocaine into a rock form without using a base?

Is there some way that the rock type form of cocaine could ever be achieved without a use of a base?

Andrew J. Pincus:

No, I don’t believe so, Your Honor.

Sonia Sotomayor:

And coca paste, what can you do with coca paste?

Can you make it into powder or is it only useable as a — ultimately for a rock-like formation?

Andrew J. Pincus:

Coca paste is — is the intermediate step for all downline products.

Coca leaves are mashed up in kerosene and other things and they’re — through a process.

They are — the first step is to convert them into coca paste, which is this sort of mushy brown substance with many, many impurities in it.

It then typically is subject to subsequent processing which turns it into cocaine hydrochloride, colloquially cocaine powder.

And then the way — the way that crack is produced is that cocaine powder is turned back, using the process we’ve been talking about, into chemically cocaine in this rock-like form.

Anthony M. Kennedy:

You mentioned leaves several times, and you talked about that in your — in your brief.

If this were a trial court and we had two world-class chemists, strictly from a chemical standpoint wouldn’t they tell you that the cocaine in a leaf is in a salt form, not a base form?

Andrew J. Pincus:

I — I don’t think they would, Your Honor.

We — we talk in our — in our brief, we cite a number of studies that have found that cocaine is present in the leaf in both the salt and the chemically basic form, and I — I think that the study — we explain in detail why the government study, which is a little — the principal study they rely on is about 125 years old — doesn’t capture the new learning–

Anthony M. Kennedy:

Does that depend on the age of the leaf or if it’s been in the sun or is–

Andrew J. Pincus:

–No, I think it’s just — you know, different leaves have different characteristics.

The mix will be different.

But — but as a — a matter of the chemical composition, there will be some cocaine in its chemical form and there will be some cocaine salt in the leaves, and I — I think even more important, Congress believed that.


Anthony M. Kennedy:

–No, no, no, no.

Andrew J. Pincus:


Anthony M. Kennedy:

I thought that the chemists said that it’s always a salt.

And you–

Andrew J. Pincus:

No, Your Honor.

Anthony M. Kennedy:

–I thought that was the government’s position, that it’s a salt.

Andrew J. Pincus:

That is the government’s position, Your Honor.

But — but on page–

Anthony M. Kennedy:

But you ended by saying oh, sometimes it’s a salt.

Andrew J. Pincus:

–Our position is that within the leaf, there is both — there — both forms coexist in — in the natural state; that there is both the salt form and the form that is chemically cocaine, and the studies that we cite on pages 9 and 10 and in the footnotes on that page I think were very clear.

Early on the processes for extracting from the leaf made it difficult to tell whether the extraction process had made it into a salt or whether there was actual chemical cocaine in the leaf.

More modern processes make clear that there are both forms in the leaf.


Antonin Scalia:

As a practical matter what difference does it make?

Is the government going to be prosecuting anybody for possessing coca leaves?

Andrew J. Pincus:

–They say they’re not, Your Honor.

I think the reason it makes a difference is for the interpretation of what Congress meant, because–

Antonin Scalia:

I don’t think Congress knew what this chemical debate was all about.

I — I think it’s very unlikely.

Andrew J. Pincus:

–Well, Your Honor–

Antonin Scalia:

Let’s assume that the government’s right and — or that you’re right.

And that it’s — no, let’s assume the government’s right, and it is — no, you say it’s base.

Andrew J. Pincus:

–We say it’s both.

Antonin Scalia:

You say it’s both, but it includes base.

Andrew J. Pincus:


Both base–

Antonin Scalia:

And let’s assume you’re right.

So what?

Andrew J. Pincus:

–I think then that would mean that the — the — under the government’s interpretation of the statute, offenses involving leaves, as long as there were more than 50 grams of them, would fall within clause III, and that doesn’t make any sense.

Ruth Bader Ginsburg:

But you just said it’s an academic issue because there’s not a market for leaves or for paste.

What Congress was getting at was crack.

The judge used the term cocaine base.

Assume you are right.

What should happen?

Could you go back to the judge and he would then say, well, this is — the chemists testified this is crack?

Andrew J. Pincus:

Well, Your Honor, we would like to go back to the judge, because in this case in fact the chemist didn’t testify.

The chemist did testify that it was chemically — it was cocaine in its chemical form, but the chemist did not testify: In my experience this is crack, based on looking at lots of samples.

Ruth Bader Ginsburg:

It was — it was — the testimony was it was a rock-like substance.

What wasn’t said was — what is it?

Bicarbonate, sodium bicarbonate, was not mentioned.

Andrew J. Pincus:

The testimony was there was no — there was no baking soda found, and that there was a — that it was chemically basic.

The testimony about whether it was crack or not principally came from the informant in the case and a little bit from an agent who also said that he believed that cocaine powder was chunky.

And so we believe we have a fair argument on remand, when the district judge looks at the facts, that he will say the government did not meet its burden, even though it’s only a preponderance.

Ruth Bader Ginsburg:

The — the district judge would be the finder, right?

Andrew J. Pincus:

The district judge would be the finder.

Yes, Your Honor.

Ruth Bader Ginsburg:

Because you have no Apprendi problem?

Andrew J. Pincus:


I would like to reserve the balance of my time.

John G. Roberts, Jr.:

Thank you, Mr. Pincus.

Ms. Saharsky.

Nicole A. Saharsky:

Mr. Chief Justice, and may it please the Court:

Whether you call it freebase, coca paste or crack, it’s the same thing chemically.

Nicole A. Saharsky:

It is cocaine base, it is smokeable, it has the same effects on the user; and Congress did not limit the statute to one form of cocaine base.

This Court shouldn’t do it, either.

Just to pick up on some of the–

Sonia Sotomayor:

I’m sorry, cocaine paste — coca paste is smokeable in its paste form?

Nicole A. Saharsky:

–Yes, it is smokeable in its paste form, and that evidence was before Congress.

It’s cited in our brief.

Sonia Sotomayor:

All right.

Assuming we accept the — the brief of the physicians and scientists, they say clearly that coca leaves can be chewed, but they are bulky and contain a lot of organic matter in addition to cocaine.

I understood their scientific explanation to say that coca leaves contain coca — cocaine.

I think you’ve taken the contrary position, but let’s assume we accept the sciences answer.

What does that do to your argument?

Nicole A. Saharsky:

Well, of course we don’t think that that’s right as a scientific matter.

But probably more importantly, that’s not something that we can prove.

We have the world’s experts working for the DEA on cocaine-related substances.

We don’t have one of them who would get up in court and say that coca leaves contain cocaine in its base form.


Sonia Sotomayor:

So you’re representing that you will never prosecute someone who possesses coca leaves under subdivision (iii)?

Nicole A. Saharsky:

–The Romanette provision, Romanette (iii), which would be the sentencing enhancement, we have never applied in any case to coca leaves.

We have never even had a case where it’s been an issue.

We’ve never considered it–

Sonia Sotomayor:

And you’re representing to the Court that you won’t?

Nicole A. Saharsky:

–We don’t have a chemist who would testify that.

We would not be able to make that showing in court.

But perhaps a more important question is whether there was evidence before Congress that the provision in Romanette (iii) would apply to coca leaves, and there wasn’t.

There was evidence before Congress about different base forms of cocaine, that distinguished between the salt form and the base form, and it mentioned substances like coca paste, it mentioned substances like freebase, and it mentioned crack.

And the important thing in — in looking at the term that — that Congress eventually used, cocaine base, is that that came from science.

Petitioner says, well, you know, “base” was a colloquial term.

The reason that “base” was used is because cocaine is in its base form.

That is what makes it smokeable.

Elena Kagan:

It’s a bizarre term, Ms. Saharsky.

Elena Kagan:

It’s — I mean, cocaine base means the same exact same thing as cocaine, because cocaine is a base.

It’s like referring to an apple by saying “apple fruit” or referring to a poodle by saying “poodle dog”.

I mean, it’s a strange way to speak about it.

Nicole A. Saharsky:

It is an extra clear, extra precise way to think — to speak about it, and we think that there’s a good reason that Congress did that.

In the preceding provision in Romanette (ii), Congress was defining the whole world of cocaine-related substances.

So when it used “cocaine” there — and it does mean cocaine base there — but cocaine, its salt, its optical and geometric isomers, it’s talking about everything.

It didn’t need to distinguish between the different forms.

And that formulation had already existed like that in the Controlled Substances Act.

But then in 1986 Congress was hearing testimony about a specific form, the base form of cocaine.

Did you, at that point — would one want Congress to have just said (iii)?

No, Congress said “cocaine base” because it wanted to be extra clear.

There’s another reason — another–

Elena Kagan:

It’s a strange way to be extra clear, to — to use a different phrase that’s meant to mean the same thing as another phrase.

To use two different phrases that are meant to mean the same thing is not a very good way of being clear.

Nicole A. Saharsky:

–Well, it’s really just adding the extra word “base”.

It’s not like they’re two completely different words.

It’s just the addition of “base” to be extra clear.

Another way to think about it is this: In 1986, prior to 1986, this Court had decided cases in which it had said, somewhat imprecisely, that cocaine hydrochloride was cocaine.

It called it “cocaine” throughout its opinion.

It didn’t make a scientific finding, but that’s how the Court referred to cocaine hydrochloride, “cocaine”.

This was in its 1970 decision in Turner.

It was in its 1985 decision in Montoya de Hernandez.

Congress is presumed to know about this Court’s decisions.

It knew perhaps that courts had used the term “cocaine” imprecisely, despite the fact that it has a specific scientific meaning.

Congress was going to be extra clear and use the term cocaine base.


Sonia Sotomayor:

So why did it draft it to say “cocaine salts, et cetera”, as opposed to

“cocaine, comma, its salts, et cetera? “

If it intended to differentiate between true cocaine and its byproducts like salts, et cetera, why didn’t it just simplify the language in Roman numeral number (ii)?

Nicole A. Saharsky:

–Yes, I think that it does that, Your Honor.

Nicole A. Saharsky:

I’m looking at page 19 of the government’s brief.

This is — you know, throughout the briefs, you have Romanette (ii) and Romanette (iii).

If you look at Romanette (ii) — again, I’m on page 19 of the gray brief, but it’s in other briefs, too — Romanette (ii), Roman (II):

“Cocaine, its salts, optical and geometric isomers. “

In Roman (II), “cocaine” does refer to the base form; “its salts” refers to cocaine hydrochloride.

Sonia Sotomayor:

But why would it do that?

If it’s going to treat cocaine base, which is the same thing as cocaine, differently from cocaine salts, why doesn’t it just say cocaine salts?

Nicole A. Saharsky:

Well, it–

Sonia Sotomayor:


Nicole A. Saharsky:

–I’m sorry, Your Honor.

Sonia Sotomayor:

–it say “cocaine and its isomers” or something?

“Its isomers”.

Why is it using (ii) and in — in (iv)?

Nicole A. Saharsky:

The base form has to be somewhere in Romanette (ii), because the way that Congress drafted these two provisions together is that a large amount of substances are listed in Romanette (ii) and then a subset is pulled out in Romanette (iii).

And Romanette (iii) says, you know, 50 grams or more of a mixture of substance described in clause (II) which contains cocaine base.

So you need to have something that’s described in clause (II) and that would contain cocaine base, and that would be the word (II).

So you couldn’t just say “cocaine salts”, meaning the hydrochloride form, optical and geometric isomers.

You need something to get the base form into — into Roman (II).

Samuel A. Alito, Jr.:

No, but you could have — in Romanette (iii), they could have said 50 grams or more of a mixture or substance which contains cocaine base, period.

There was no need to have it described in clause 2 if there’s nothing implied in Romanette (ii) that is not also in Romanette (iii) with respect to cocaine.

On your submission, it’s just bad draftsmanship?

Nicole A. Saharsky:

I think that there is a redundancy, but I think it is understandable in light of the fact the courts had used the word “cocaine” somewhat imprecisely.

I think it’s also understandable in light of the fact that Congress was putting an enhanced penalty in play, and that if Congress had not been extra clear there would be criminal defendants, perhaps like Petitioner, coming to court and saying, if Congress had just said “cocaine”, that that wasn’t clear enough.

It’s true that — you’re right, Justice Alito, that Congress could have said: Here’s some things in (ii); here’s some things in (iii); they don’t overlap.

Congress didn’t do that.

Ruth Bader Ginsburg:

What is in (ii) now, on your reading, your expansive definition of “cocaine base”?

What is in Romanette (ii) other than powder?

Nicole A. Saharsky:

Well, there is, in Roman (I), coca leaves, except those from which all of the active substances have been taken out.

In Roman (II), the salts of cocaine, their optical and geometric isomers and salts of isomers.

You have (III), which is ecgonine, which is a smaller molecule that is part of the cocaine molecule.

Nicole A. Saharsky:

It was made — it was used in pharmaceuticals a while back.

It’s not something that’s really seen in the production process now.

And you would have compounds, mixtures, or preparations that don’t contain cocaine base.

Samuel A. Alito, Jr.:

What about optical and geometric isomers of cocaine?

Those — those fall under Romanette (ii), Roman (II), but not under (iii).

Are there such things?

Nicole A. Saharsky:


There are optical — optical isomers are — isomers are generally substances that have the same chemical definition, the same — but different spatial arrangements of atoms.

Optical isomers are nonsuperimposable mirror images, like right and left-handed versions of the same molecule.

Those are — those are both cocaine base.

There is a right-handed cocaine base and a left-handed cocaine base.

They’re both cocaine base.

We think that those would be counted within Romanette (iii).

Geometric isomers, which are never seen, are slightly different.

They are based on spatial arrangements where a certain part of the molecule is — it is pushed out or pushed up axially or equatorially.

They’re — you know, geometric isomers are not seen.

Ruth Bader Ginsburg:

They’re all very exotic, but practically, what does the government prosecute under Romanette (ii)?

What substances other than–

Nicole A. Saharsky:

I would say cocaine hydrochloride would be the primary one, which would be powder cocaine.

Ruth Bader Ginsburg:


That’s — so there seem to have been a lot of words here, but in practice, (ii) is powder and everything else is under (iii)?

Nicole A. Saharsky:

Well, the things that would be under (iii) would be any form of cocaine base: That would be coca paste, freebase, crack, whatever you want to call it.

Just to explain, Justice Ginsburg, why there are so many words here: You know, this definition is taken from — is the same — the stuff in Romanette (ii), this long definition — from other places in the Controlled Substances Act.

It’s taken from Schedule II, where Congress is defining the whole world of cocaine-related substances that are subject to Federal law, so that’s — that’s where all of this comes from.

This was something that existed–

Stephen G. Breyer:

It’s my understanding here that — that the problem in this case — tell me if I’m wrong — is because cocaine can become — can be a salt.

People sniff it often, I guess, if it’s a salt.

And that’s bad.

And then there’s a kind that’s worse, that’s freebase or crack, and that isn’t a salt and it isn’t a poodle and it isn’t an acid.

It takes a base form, right?

Nicole A. Saharsky:


Stephen G. Breyer:

And so that’s why they have a higher punishment.

Then the odd problem is that maybe a cocaine leaf, but certainly cocaine paste, which are more primitive forms, also have a chemical-based solution, they too.

So they’ve written this statute that sounds like — that sounds like

“Who’s your father’s son who’s not your brother? “

It takes a long time to figure it out.

All right.

So would you have an objection — and I wonder if the other side would have an objection — if what we said this word (iii) means is that it is cocaine in the chemical form of a base after it has been processed beyond the stage of coca paste?

And that’s how we read it.

That would seem to exempt the things they’re most worried about, the paste and the leaves.

And I’m not going to repeat the same stupid joke, poodles and fruits, but you see the point.

Is there any objection from the point of the government to define it in that way, or the other side?

And why?

Nicole A. Saharsky:


There’s an objection on behalf of the government, and there are several reasons why that’s true.

The first is there often won’t be evidence of how the substance was made.


Stephen G. Breyer:

No, I don’t care how it was made.

All we do is test it.

Now, all we have to do is test it, and then we look to see if it’s a leaf.

That isn’t tough, I don’t think.

And then we have to look and see if it’s this yellow stuff that looks like paste, and I guess that isn’t too tough, either.

So those are the only things you have to do.

You have to test it, look and see if it’s a leaf, look and see if it’s a paste.

Now, even the — I mean, I say “even”.

I mean, certainly the DEA could do that.

Nicole A. Saharsky:

–With — with all respect, Your Honor, I–

Stephen G. Breyer:

Certainly they could, right?

Nicole A. Saharsky:

–I just — I don’t think it’s that easy.

Stephen G. Breyer:

No, that’s what I want to know.

Nicole A. Saharsky:


First of all, if you talk about the chemical testing that can occur, DEA chemists can tell you if it contains cocaine base or if it contains cocaine hydrochloride.

Stephen G. Breyer:

We got that part.


Nicole A. Saharsky:

They’re not going to start making guesses about how it was processed.

They’re just going to tell you what they can–

Stephen G. Breyer:

That’s fine.

Elena Kagan:

But they don’t need to do that, Ms. Saharsky.

Suppose we just said it needs the right chemical definition, and it’s rock-like, rock-like, crystalline, whatever you want to call it.

So it’s rock-like.

It’s not a paste; it’s not a leaf; it’s a rock.

Nicole A. Saharsky:


As soon as the Court starts saying not a paste or rock-like or something like that, you have some problems.

The first is, you’re basically giving a national uniform roadmap of — to evasion on behalf of drug traffickers.

It doesn’t — crack, for example, or the rock form, doesn’t have to be rock-like.

You can grind it up in a coffee grinder and make it into a powder.

It is still smokeable.

It is chemically the exact same thing.

Stephen G. Breyer:

Can you make it in–

Antonin Scalia:

I would assume that your major objection would not be that.

Your major objection would be: We’re not supposed to be writing a statute, we’re supposed to be interpreting one.

And there is no way to — to get that out of these words, no way, absolutely no way.

Is there?

Nicole A. Saharsky:

That is exactly how I should have started, Your Honor.


Elena Kagan:

But this is — but this is, Ms. Saharsky, just a strange statute, where you are — your definition creates all kinds of issues about why it is that Congress used two different phrases to mean the same thing, and then how it is that if they did use two different phrases to mean the same thing, you’re effectively reading cocaine out of the statute in Romanette (ii), right?

Nicole A. Saharsky:


I think that that’s based on a misunderstanding of how the statute works.

You need to have (ii) so that when Romanette (iii) says something contained in (ii) that contains cocaine base, it is pulling out a substance that is in (ii).

But it’s — it’s not a redundancy.

Elena Kagan:

Well, but no, cocaine is the same as cocaine base.

So it’s like saying — it’s like saying apples, oranges, and bananas cost one dollar; aforesaid apples cost three dollars.

That’s a strange way to write a statute.

Nicole A. Saharsky:

That is how Congress wrote the statute, though.

It defined a large amount of substances and then it pulled out one substance.

Elena Kagan:

But why would it say apples cost one dollar in Romanette (ii) if it was going to say apples cost three dollars in Romanette (iii)?

Nicole A. Saharsky:

Because these definitions in Romanette (ii) preexisted in other parts of the Controlled Substances Act, in the definitions section in 802, in the definitions of controlled substances in Section 812.

This subseries of definitions, which are the whole world of cocaine-related substances, are used several places.

So Congress pulled them over and it used them here too, to define the whole world of everything–

Antonin Scalia:

Is it–

Nicole A. Saharsky:

–And then it pulled out one thing for special treatment.

Antonin Scalia:

–Is it not relatively common statutory drafting to include something in an earlier section which is also included in a later section that imposes a higher penalty?

For example, as I recall from my criminal — criminal law courses, States have statutes that provide that the taking of a human life, homicide, is — is punishable by so much; and then it says the taking of a human life with malice aforethought is punishable by more.

Now, does — does the second include the first?

Of course it does.

It includes the first and then something.

And it seems to me that’s the same thing here.

It includes the first, the cocaine, but it has to be within a compound mixture of preparation.

Nicole A. Saharsky:

Yes, you are 100 percent correct, and I think that the statutory language makes that clear because it says it has to be a mixture of substances described in clause (ii).

Ruth Bader Ginsburg:

Then, Ms. Saharsky, you do get the problem that Justice Breyer was trying to avoid.

That is, on your definition this paste, which is supposed to be less addictive, less addictive than powder, gets bracketed with crack, which is more addictive.

Nicole A. Saharsky:

I don’t think that there is evidence that paste is less addictive than powder.

They contain the exact same chemical, which is cocaine in its base form.

And the question — they both can be smoked.

Now, the question is does one have a higher percentage purity of the chemical than the other?

Maybe, but that just depends on how it was prepared.

And there are cases in the courts of appeals, several in the cases that gave rise to the circuit split in this case, where the courts appear to be grappling with whether something that was a little bit wet but still rock-like should be called paste.


Stephen G. Breyer:

–But you define it in your brief, and this is very interesting to me — you talk about it being a yellow substance that came directly from grinding up leaves, something like that.

You have the definition there.

Stephen G. Breyer:

It’s written.

Take that definition that you wrote, and what you’ve said that’s very interesting to me that I would like to know, is that, that substance, in some significant amount of time is actually more addictive, more dangerous than the salt, which is ordinarily sniffed?

Now, is that what you’re saying, because I received from this material the contrary impression.

I had the impression that the yellow paste that comes from the leaf directly is, if anything, less addictive and less harmful, if anything, than the salt which you sniff.

Now, which is it?

Nicole A. Saharsky:


Stephen G. Breyer:

Or if–

Nicole A. Saharsky:

–I’m sorry.

Stephen G. Breyer:

–Go ahead.

Nicole A. Saharsky:

It is the case that the paste, just like the freebase and the crack, can be smoked, and for that reason is seen as more addictive than the powder.

Stephen G. Breyer:

So now if I want to find a citation for the authority that paste, yellow, made out of leaves is in fact more dangerous and Congress could have thought that than — more dangerous than ordinary salt sniffed, I will read what?

Because that — that — I did have that wrong impression.

Nicole A. Saharsky:

You would read our brief pages 30 to 33–

Stephen G. Breyer:

Well, what you’ve referred to, in other words.

I — I mean, I trust your brief implicitly, but I don’t know on the scientific matter or the congressional.

I would like to know what to read on that.

Nicole A. Saharsky:


And in — on these pages of our brief we’re citing evidence that was before Congress in the hearings in this case.

There were statements by two different authorities who are scientists–

Stephen G. Breyer:

What page is that of the brief?

You don’t have to read it.

I’ll read it.

Nicole A. Saharsky:

–No, that’s okay.

It’s right here.

It’s like 29, 30, 31.

There’s a Dr. Beck who — from Yale, who testified specifically about the dangers of smoking coca paste.

Stephen G. Breyer:

Okay, I’ll read that.

Thank you.

Nicole A. Saharsky:

And one I — the point I really wanted to make is that, you know, once the court says it has to be pasty, or it has to be yellow, you know, any of those things can be changed.

The one thing that can’t be changed is the chemical composition.

Nicole A. Saharsky:

It’s still in the base form; it’s still deadly; it still can be smoked.

The paste doesn’t have to be yellow, just like crack doesn’t have to be white or off-white.

There was evidence that a few years ago there were folks in Ohio that were coloring crack green for St. Patrick’s Day.

Any of these things can be changed.

It doesn’t have to be rock-like.

It can be ground up to a powder and it can be smoked that way.

But the important think is that it’s the same thing chemically.

And I think if you look at the Controlled Substances Act, not just in this provision, but holistically, what Congress was concerned about was dangerous chemicals.

This gets back to the point that the Chief Justice made, which is the reference in the provision at issue here to a “mixture or substance” containing cocaine base.

The thing that Congress looked at was: Do you have a substance which may not be 100 percent pure; it’s sold on the street; but does it contain the dangerous chemical?

Congress defines throughout the Controlled Substances Act the things that it was concerned about in chemical terms.

And that’s just not because it was an easy way to define things.

It does give greater accuracy and certainty.

But it’s because the harms that are visited on people, the reason that they are controlled substances, that they don’t have approved medical uses, and that they are extremely addictive, is because the chemical is inside of them and the chemical is dangerous.

So whether you get the chemical out of paste, whether you get it out of rocks, whether you grind the rocks and make it into a powder, whether you freebase it, it is the same thing.

And just to — to make sure the Court has you know, some example or some thoughts as to the issues that would be caused if the Court started making up definitions of crack, you know, a word that doesn’t appear in the statute and does not have any clear meaning — you know, Petitioner says it wasn’t clear in 1986, the definition of crack — I just want to give the Court an example of some of the problems that the — the issues the courts of appeals have confronted.

In several courts of appeals there have been substances which I think perhaps under Justice Breyer’s definition would qualify as paste.

The courts didn’t call them paste, but in the Bryant case in the Fifth Circuit they said there was a brown, soft, mushy wet substance that contained cocaine base was being brought in the United States.

The Easter case in the Tenth Circuit: a wet gooey, cream-colored substance.

Those courts are ones that use the chemical definition of cocaine base, and they said, look, they contain cocaine base, they have the deadly chemicals, they count.

Samuel A. Alito, Jr.:

Well, my understanding of how coke — how the paste is produced is the following: You start with the leaves; then people vigorously macerate the leaves by stomping on them for an hour or more; and then this mixture is — this — what’s left is mixed with an alkaline material such as sodium bicarbonate, an organic solvent, such as kerosene, and water; and what you end up with is a gummy, yellowish solid called coca paste; is that — that’s correct?

Nicole A. Saharsky:

Yes, that’s true.

But it also can be dried.

It can — can be dried and smoked; it has been dried in South America, so it’s not always wet, it’s just a question of, you know, whether it has had time to dry or not.

Samuel A. Alito, Jr.:


Now, if a chemist analyzed that or then analyzed crack or freebase, wouldn’t there be present in the coca paste lots of other substances that would not be present, in quantities?

Other substances would be present in quantities in the coca paste that would not be present in the crack or the freebase?

Nicole A. Saharsky:

Well, they all — any of those would have impurities that are not cocaine base.

All three of them would be identically — chemically identical if that they would all contain cocaine base; but you’re right; the impurities would be different because the method of preparation is different.

Samuel A. Alito, Jr.:

So a DEA chemist could test — could test a substance and say this is coca paste of the type that is smoked in South America by some people.

Samuel A. Alito, Jr.:

This is crack or freebase that has been mixed with water into a pasty substance — a chemist could make that — that differentiation, couldn’t they?

Nicole A. Saharsky:

I think it really depends, Your Honor.

I think if it’s just a — a regular DEA chemist, they would be able to tell you what chemicals they can find through standard techniques like infrared spectroscopy, like gas chromatography, and they can say we’ve identified these chemicals in this substance.

Unless it is a chemist — and we do have some that have additional knowledge of methods of preparation, DEA agents who have that kind of experience, have seen it prepared — those chemists — regular chemists would not be testifying about how it was prepared.

For example in this case the chemist testified that the — the sample had cocaine base, it did not have detectable amounts of sodium bicarbonate, and then defense counsel said well is — is this — do you think that it’s — or I’m sorry, the chemist, the defense counsel said — wanted to — tried to distinguish it from freebase, and said it’s freebase crack; and the chemist said you know, I can’t answer those questions.

I can tell you scientifically what it includes.

And that — that’s really the — the issue of proof, is that you can tell chemically that it has the substance that Congress was trying to get at, the cocaine base.

I suppose you can tell what other impurities are there, but you know, Congress doesn’t care about the impurities, it cares about the cocaine base; and that’s why you know, it says mixture of substance containing cocaine base.

You know, one — one other thing that I just want to make sure is clear to the Court, is that there was ample testimony before Congress at the time that it enacted this provision about the chemistry of this all, that when Congress spoke about cocaine base, it was understanding that base meant chemically the base form, and that again is near the pages I cited to Justice Breyer in our brief.

But two different scientists, one was the head of the National Institute for Drug Abuse; the other was the — was a professor at Yale.

Both with experience, and they said things like the form of the drug is the freebase, the usual kind of cocaine is a salt.

It is cocaine with hydrochloride, it is a salt like sodium chloride.

But this has no chloride attached to it, it is freebase, which is just plain cocaine.

So Congress knew the base form of cocaine is what would normally be called cocaine.

It learned about the science and it used the term cocaine base.

And I take your point, Justice Kagan, some of the other Justices: There is perhaps redundancy in saying cocaine base instead of just saying cocaine, but when Congress in 1986 was faced with a situation where courts, including this Court, had used the term cocaine to refer imprecisely to the cocaine hydrochloride form and Congress was going to put a mandatory minimum penalty in place, Congress had every incentive to be extra clear, and that’s exactly what we think that Congress was doing here.

Antonin Scalia:

Ms. Saharsky, coming back to Romanette (iii), you have 50 grams or more of a mixture or substance described in clause 2.

Doesn’t — it really doesn’t have to be a mixture.

It could be pure, couldn’t it?

It says “mixture or substance”, not mixture.

Nicole A. Saharsky:

Yes, it could be pure.

I don’t know that we’ve seen any cases like that, but it is almost always cut with something else.

So just to wrap up and be as clear as possible, what Congress had intended to do in the Controlled Substances Act really was to pull out chemicals that — that have certain pharmacological effects on people that are dangerous.

Congress did that by using the term “cocaine base”.

That is a term that is expansive and includes all these kind of forms that we’ve been talking about today.

The lower courts have struggled in trying to figure out whether a substance that’s wet, off-white, rock-like, paste-like counts as cocaine base.

Certainly the Seventh Circuit has had several cases like that.

It struggled.

If this Court picks just one definition to limit the term “cocaine base”, it’s really setting up a road to evasion for drug traffickers to change to a different form.

We hope that this Court won’t do that.

Nicole A. Saharsky:

We just don’t think the text supports it.

It says “cocaine base” without any limitation.

And this — we just don’t think that this — this Court should be adding a limitation based on what it thinks Congress must have intended but didn’t say in the text.

If the Court has no further questions, the judgment below should be affirmed.

John G. Roberts, Jr.:

Thank you, Counsel.

Mr. Pincus, you have four minutes remaining.

Andrew J. Pincus:

Thank you, Mr. Chief Justice.

Just a couple of points.

First of all, in response to Justice Breyer’s question, the 2002 sentencing report where — sentencing commission report on this issue, on page 110, recommends to Congress that substances other than crack should be excluded from Clause 3, and I’m quoting,

“because they do not present the heightened concerns associated with crack cocaine. “

Stephen G. Breyer:

Yes, but she says there’s no way — and she does cite this professor from Yale and so forth, who says if the stuff has the base in it, it can be abused in ways that if it has the salt in it, it can’t be abused.

That’s all we can look at.

Andrew J. Pincus:

But Your Honor, I–

Stephen G. Breyer:

That’s her point.

You can respond to that if you want.

Andrew J. Pincus:

–I think that is her point.

But I think the question here — all of these substances are criminalized, and they’re all going to be penalized.

The question is: What deserves the 100-to-1 sanction?

That, to us, means something that Congress was especially concerned about, and certainly, because the government agrees that cocaine hydrochloride is only in 2, something that’s worse than cocaine hydrochloride, which is a pretty bad thing.

As Judge Posner said, there’s no reason to imagine that Congress meant to punish paste more than cocaine hydrochloride.

Stephen G. Breyer:

She says there is a reason.

It’s because it contains base, and for many years, it was smoked in Latin America and can be smoked here.

That’s her reason.

Now, your response is, it’s a bad reason?

Andrew J. Pincus:

Our response is that it is — it does not have the potency that crack had.

It was smoked here and didn’t give rise to the epidemic that occurred once crack was created, because that was more potent, more marketable, and led to all the evils that Congress was trying to get at.

Second point: We would be very happy to accept your definition.

Third point, about the statutory language: I think the critical question here, as several members of the Court have noted, is that (ii), but throughout the statute — means all chemical forms of cocaine.

If that’s what Congress meant in (iii), there was no reason to just — not to just say it.

The words “cocaine base” could have a chemical meaning, but the word “base” was also in this debate as a word that was being used to describe the specific evil that Congress was aimed at.

Andrew J. Pincus:

And so we think, at the worst, there’s ambiguity here.

We think it’s quite clear that by using those different terms, Congress meant something different, but at worst, there’s ambiguity here.

And an ambiguity, under the rule of lenity, means that the clause should be construed narrowly.

And, Justice Scalia, going to your point in your analogy to State law, the problem here is that everything that is in clause 2 is in clause 3 under the government’s interpretation, because clause 2, Roman (II), has the word 2, Roman (IV), says any compound mixture or whatever containing cocaine.

Under the government’s theory, that provision will never, ever be invoked, because every offense that uses cocaine is sanctionable under 3.

And so it’s not the situation with–

Antonin Scalia:

It’s the same with homicide and murder.

Every murder, every murder, is a homicide.

Andrew J. Pincus:

–Yes, but the question here is whether every homicide — whether every lesser form of homicide is also capital murder.

And what the government’s position means: Every lesser form of homicide, everything that’s in (II) that sets up a punishment, is also in (III), and we think that’s the problem with their interpretation.

And it’s why, if it’s unclear, as you said maybe it was, then the rule of lenity should apply, and Congress can fix it.

If Congress meant to include all of these other substances, Congress can easily fix the statute.

But we think, given the way the statute looks right now, that’s not possible.

Two more–

Sonia Sotomayor:

Let’s assume for the sake of a hypothetical that the statute was the same but that things were reversed; that the smaller universe of items was the salt rather than the crack, and so they put an enhancement in Roman numeral number (III) for salt rather than crack.

Is your argument that it’s redundant based on the fact that a larger grouping of the chemicals listed in Roman numeral number (II) is excluded by Roman numeral number (III), so that — is that the basis of your argument?

Andrew J. Pincus:

–That particular argument would still apply.

Our principal argument, if I may answer the question, is that in this — in the government’s interpretation, the word “cocaine” and the word “cocaine base” — the phrase “cocaine base” have the same meaning.

That evil wouldn’t be present, and therefore, our argument would be harder, but it is present here.

John G. Roberts, Jr.:

Thank you, Counsel.

The case is submitted.