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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 92-1328
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROLAND EUGENE BUTLER,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
____________________________________________________
(April 5, 1993)
Before POLITZ, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Roland Eugene Butler makes a number of challenges to his
conviction and sentence on charges of possessing with intent to
distribute both cocaine (Count I) and cocaine base (Count II). We
find no error except in the court's order refusing to allow Butler
to conduct an independent chemical analysis of the substance
alleged to be cocaine base. We therefore affirm on the cocaine
charge (Count I), vacate the judgment on the cocaine base charge
(Count II), and remand to the district court with instructions to
allow Butler to test the substance alleged to be cocaine base.
I.
On August 1, 1991, at approximately 12:45 a.m., Officer Roy
Kaiser, a Narcotics detective with the Los Angeles Police
Department, observed an African-American female approach the

American Airlines ticket counter at the Ontario International
Airport in California. She purchased a ticket with cash and,
without carrying any luggage, hurriedly exited the terminal instead
of approaching the boarding gate. Officer Kaiser consulted with
airport employees and determined that she purchased the ticket in
the name of Robin Jamerson. The ticket was for one-way travel
departing at 1:00 a.m. to arrive in Washington, D.C. via
Dallas/Fort Worth.
Kaiser's partner, Officer Robert Gartner, followed the woman
and observed her leave the terminal and hand her ticket to the
appellant. The appellant waited for several minutes and then
entered the terminal. Officer Gartner followed appellant to the
security screening area. Officer Kaiser also observed the
appellant, an African-American male wearing a gray, double-breasted
suit and carrying a black briefcase and gray garment bag, enter the
terminal and quickly approach the security screening area. Officer
Kaiser then followed the appellant to the gate area and observed
him board the 1:00 a.m. flight to Dallas.
Officer Kaiser then telephoned Agent Mike Munday of the
Dallas/Fort Worth DEA Task Force, relayed his observations, and
requested that Agent Munday investigate the appellant upon his
arrival in Dallas. At the Dallas/Fort Worth Airport, Agent Munday
observed a man fitting appellant's description arrive on the flight
from Ontario, California. He was carrying a black briefcase and a
gray garment bag. Agent Munday approached the appellant,
identified himself, and asked for his airline ticket. The ticket,
paid for in cash and issued to R. Jamerson, was for one-way travel
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from Ontario to Washington D.C. via Dallas/Fort Worth. Agent
Munday asked for identification but appellant, appearing nervous,
denied having any identification. Agent Munday asked appellant if
his name appeared correctly on the ticket and the appellant
responded that he did not know why the name Jamerson appeared on
the ticket. Appellant then presented a California identification
card bearing the name Roland Eugene Butler.
Agent Munday asked to search the appellant's briefcase, and
the appellant consented to the search. Agent Munday then asked to
search the appellant's garment bag. Appellant first responded that
he had found the garment bag on the airplane, but later stated that
Robin, his half-sister, gave him the bag at Ontario Airport. The
appellant did not consent to the search of the garment bag, and
Agent Munday asked him to follow the officers to have a drug-
detecting canine sniff the bag for the presence of narcotics. The
appellant followed the officers to the airport lobby area. The dog
gave a positive alert that the garment bag contained narcotics.
Agent Munday then arrested appellant and advised him of his Miranda
rights. The appellant later gave a written consent to search his
garment bag and Agent Munday searched the bag in his office. Agent
Munday found a white powdery substance and a brown pasty substance,
both of which tested positive for cocaine after a field test.
Approximately one week later, Agent Munday found a hospital
admittance card bearing the name of Roland Butler inside a pocket
of a pair of jeans recovered from the garment bag.
Butler was charged with knowingly possessing 988.1 grams of
cocaine with the intent to distribute, in violation of 21 U.S.C. ��
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841(a)(1) and 841 (b)(1)(B); and knowingly possessing 948.4 grams
of cocaine base with the intent to distribute, in violation of 21
U.S.C. �� 841(a)(1) and 841(b)(1)(A).1
Prior to trial, appellant filed a motion to suppress the
evidence seized from him at the airport and any statements made
during his interrogation. The court overruled the motion after a
hearing. The appellant also filed a motion to require the
government to furnish appellant with a sample of the controlled
substances for testing and analysis. The court denied the motion.
The appellant also filed an application requesting the court to
order issuance of a subpoena to a character witness in California,
which the court also denied.
After trial, the jury returned a verdict of guilty on both
counts. The court sentenced appellant to concurrent terms of 240
months imprisonment on each count, and concurrent terms of four
years of supervised release on the cocaine offense and five years
on the cocaine base offense. Butler filed a timely notice of
appeal.

II.
Butler first challenges the district court's order denying his
application for the issuance of a subpoena to produce Kerry
Morning, a character witness, and the court's refusal to admit into
evidence portions of that witness's affidavit. The affidavit
accompanied Butler's application for the issuance of the subpoena
1 Butler was charged on and found guilty of a third count
of knowingly possessing 948.4 grams of cocaine base. After
trial, the court granted the government's motion to dismiss and
set aside the jury's verdict on this count.
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and demonstrated the nature of the character witness's testimony.
Morning stated that appellant's character and reputation were
inconsistent with that of a drug dealer. Appellant contends that
the court's ruling violated both his constitutional and statutory
right to compulsory process.
On appellant's statutory claim, Fed. R. Crim. P. 17(b)
provides that a court shall order a subpoena on a named witness
upon a satisfactory showing "that the defendant is financially
unable to pay the fees of the witness and that the presence of the
witness is necessary to an adequate defense." A trial court enjoys
wide discretion in determining whether a subpoena should issue
under Rule 17(b). United States v. Ojebode, 957 F.2d 1218, 1222
(5th Cir. 1992), cert. denied, 122 L. Ed. 2d 683 (1993). It is
unusual that a character witness's testimony will be essential to
an adequate defense. This is not such an unusual case. Cocaine
and cocaine base were recovered from a garment bag that Butler was
carrying. A card identifying Butler was found in the garment bag.
It is unlikely that Morning's testimony would have undermined this
strong, direct evidence of guilt. It follows that Morning's
testimony probably would not have changed the verdict in this case.
We are satisfied that the witness was not "necessary to an adequate
defense."
Similar reasoning persuades us that Butler's constitutional
claim must also fail. Butler cannot show that he was unable to
obtain a fair trial without Morning's testimony. See Ross v.
Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Appellant also challenges the court's refusal to allow him to
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introduce the following passages of Morning's affidavit:

Roland's character and reputation is not consistent with that
of a drug dealer. I have never known Roland to possess, use,
or sell drugs.
The accusations against Roland are inconsistent with my
knowledge of his character and reputation.
Appellant's argument is meritless. The district court facilitated
a stipulation between the parties. It agreed to admit most of the
affidavit into evidence because both the government and the
appellant stipulated to its admission. The court refused to admit
the above quoted part of the affidavit because the government
declined to stipulate to its admissibility. The hearsay affidavit
was only admissible to the extent the parties agreed to its
admissibility. We find no error in the court's refusal to admit
the affidavit in its entirety.
III.
The appellant next argues that the district court erred in
overruling his motion to suppress evidence because the officers
lacked reasonable suspicion in seizing appellant. For purposes of
reviewing the district court's ruling at a suppression hearing we
accept the court's factual findings "unless they are clearly
erroneous or are influenced by an incorrect view of the law."
United States v. Simmons, 918 F.2d 476, 479 (5th Cir. 1990).
Agent Munday stopped appellant because he matched a
description of an individual who exhibited suspicious behavior in
the Ontario airport. The court found that the initial contact
between the agents and appellant constituted "mere communication,"
which does not implicate the Fourth Amendment. See United States
v. Hanson, 801 F.2d 757, 761 (5th Cir. 1986). We have held that a
6

"simple stop," consisting of a request for identification and a
plane ticket, does not constitute a seizure. United States v.
Galberth, 846 F.2d 983, 989-90 (5th Cir.), cert. denied, 488 U.S.
865 (1988).
The court found that a seizure occurred when appellant handed
Agent Munday his airline ticket and identification card bearing two
different names, and that the seizure was justified and supported
by reasonable suspicion. "[A] district court's determination that
a seizure has or has not occurred is a finding of fact subject to
reversal only for clear error." United States v. Valdiosera-
Godinez, 932 F.2d 1093, 1098 n.1 (5th Cir. 1991). Accepting the
court's finding that a seizure occurred, we must determine whether
the officers' detention was supported by reasonable suspicion.
"Reasonable suspicion must be supported by specific and
articulable facts which, taken together with rational inferences
from those facts, would warrant a person of reasonable caution in
the belief that the intrusion was appropriate." Simmons, 918 F.2d
at 481 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). Agent Munday
knew that in California the ticket was paid for in cash, was for
one-way travel, and was purchased by a woman who did not board the
flight. Rather, she gave the ticket to appellant, who was hiding
among palm trees outside the airport. Appellant possessed a
recently purchased cash one-way ticket in another person's name.
Appellant initially denied knowing why the ticket was issued to "R.
Jamerson," but later stated that his half-sister had purchased the
ticket for herself. Although appellant initially denied having
identification, he later showed an identification card, bearing the
7

name of Roland Butler. These facts, when taken together, form a
reasonable basis for suspecting that the appellant was engaged in
unlawful activity. The officers therefore developed reasonable
suspicion to justify detaining the appellant.2 Because the
officers' detention of appellant was supported by reasonable
suspicion, the court properly overruled appellant's motion to
suppress evidence.
IV.
A.
Next, Butler challenges his conviction of possession of
cocaine base and his resulting sentence on three related grounds.
First, he argues that the evidence is insufficient to support the
jury's finding that he possessed cocaine base.
Butler's argument is meritless. The finding is amply
supported by the testimony of an experienced DEA chemist. The
chemist, Mr. Edwin Albers, testified that he performs a cocaine
base analysis approximately two to three times a week. He
testified in detail about the tests he conducted. He tested three
samples of substances that were seized from the appellant and
concluded that the first sample was cocaine hydrochloride, or
cocaine. He concluded that the second and third samples he tested
were cocaine base.
The appellant argues that the government produced no evidence
that the chemist tested the substance to see if it was smokeable,
2
Appellant raises no challenge to the propriety of the
police action in requesting Butler to accompany them and the
later events that led to the recovery of the controlled
substances from Butler's garment bag.
8

or able to be vaporized and drawn into the lungs. The appellant
also argues that, at the time the agents seized the substance from
him, it was not hard or rock-like, but was soft, mushy, and a bit
wet. In other words, the appellant argues that because the
substance was not hard and dry--known properties of crack cocaine--
the substance was not, or had not yet become, cocaine base within
the meaning of � 841(b) and the guidelines. We disagree.
Neither the statute, 21 U.S.C. � 841(b), nor the sentencing
guidelines define the term "cocaine base." This court has found
crack cocaine to be a cocaine base, noting that "[n]umerous cases
have held that crack cocaine is one type of cocaine base." United
States v. Metcalf, 898 F.2d 43, 46-47 (5th Cir. 1990). But this
court has not held that crack cocaine is the only form of cocaine
base. Appellant's reliance on United States v. Thomas is
misplaced. See United States v. Thomas, 932 F.2d 1085 (5th Cir.),
cert. denied, 112 S. Ct. 264, and cert. denied, 112 S. Ct. 428
(1991), and cert. denied, 112 S. Ct. 887 (1992) In Thomas, the
defendant challenged his conviction for possession of cocaine base
on grounds that the term "cocaine base" was unconstitutionally
vague. For that reason, he contended that he was not placed on
notice that his possession of crack cocaine offended the statute.
In rejecting that argument, we stated that the term "cocaine base,"
when referring to crack cocaine, is not unconstitutionally vague
because: "even many children on the street know the difference
between powdered cocaine and crack," and "we can fall back on the
common usage and definition of crack cocaine." Thomas, 932 F.2d at
1090. In rejecting this constitutional challenge we did not
9

suggest that crack cocaine and cocaine base are synonymous.
Other courts have found the term "cocaine base" to encompass
more than just crack cocaine. See, e.g., United States v. Lopez-
Gil, 965 F.2d 1124, 1134 (1st Cir.) (opinion after rehearing)
("Although we continue to believe that Congress indeed was
concerned primarily with the crack epidemic in enacting [� 841(b)],
the Government now persuades us that it does not necessarily follow
that the term 'cocaine base' includes only crack cocaine."), cert.
dismissed, 112 S. Ct. 2959, and cert. denied, 113 S. Ct. 484
(1992); United States v. Reyes, 782 F. Supp. 609, 611 (S.D. Fla.
1992) (rejecting contention that cocaine base means only crack,
finding that "tan, chunky substance" identical in composition and
effect to crack but differing only slightly in physical appearance
was "cocaine base").
The record in this case supports the conclusion that one of
the substances Butler possessed was cocaine base. "District judges
are forced to rely on the expert testimony of chemists who
specialize in drug analysis in order to determine the identity of
a substance." Lopez-Gil, 965 F.2d at 1135. The DEA chemist
testified that cocaine hydrochloride becomes cocaine base by
dissolving it in water and treating it with baking soda. The
hydrochloride molecule then neutralizes and separates from the
cocaine base. The cocaine base is not water soluble, so it forms
oily droplets and sinks to the bottom of the container. After the
water solution is poured off, the cocaine base remains, which cools
and hardens into hard chunks. The reaction speeds up when the
mixture is heated. The chemist testified that the "mushy, wet"
10

substance seized from the appellant was cocaine base, presumably
because the critical reaction transforming cocaine to cocaine base
had occurred.
Based on this testimony, we reject the appellant's argument
that the wet, mushy substance he possessed had not yet become
cocaine base because it had not completed the drying process.
Although a substance does not appear to be crack cocaine, it may
nevertheless be cocaine base within the meaning of � 841(b). We
conclude that the evidence supports the jury's verdict and the
court's finding that the appellant possessed "cocaine base" within
the meaning of � 841(b) and the guidelines.
B.
Second, appellant argues that the statute and guidelines,
which do not include a definition of "cocaine base," are
unconstitutionally vague as applied to him. We disagree.
Appellant correctly notes that this Circuit has rejected a
challenge that the statute is unconstitutionally vague on its face,
because we can rely on "the common usage and definition of crack
cocaine." See Thomas, 932 F.2d at 1090. He contends, however,
that because he did not possess crack cocaine, and because crack
cocaine is synonymous with cocaine base, the definition of "cocaine
base" is uncertain and unconstitutionally vague as applied to him.
We have rejected appellant's argument that crack cocaine is
the only form of cocaine base. We have also concluded that the
government's expert testimony supports a conclusion that the wet,
mushy substance seized from appellant was cocaine base. Although
the substance had not completely dried, it was chunky rather than
11

powdery, and was not water soluble. The term "cocaine base,"
therefore, encompasses the substance that appellant possessed and
is therefore not unconstitutionally vague as applied to appellant's
case.
C.
Third, the appellant argues that the court erred in refusing
to grant his motion to compel the government to produce samples of
the substance alleged to be cocaine base so that appellant could
conduct an independent chemical analysis of the substance. In his
motion, appellant cited Fed. R. Crim. P. 16(a)(1)(C), which
provides, in pertinent part:
Upon request of the defendant the government shall permit the
defendant to inspect . . . tangible objects . . . or portions
thereof, which are within the possession, custody or control
of the government, and which are material to the preparation
of the defendant's defense or are intended for use by the
government as evidence in chief at the trial, or were obtained
from or belong to the defendant.
In cases involving a controlled substance, "a concomitant part of
the examination or inspection [is] the right of the accused to have
an independent chemical analysis performed on the seized
substance." United States v. Gaultney, 606 F.2d 540, 545 (5th Cir.
1979), rev'd sub nom. on other grounds, Steagald v. United States,
451 U.S. 204 (1981).
Because the substance alleged to be cocaine base was obtained
from Butler and because the government intended to use the
substance as evidence at trial, we agree that the court erred in
refusing to grant appellant's motion to test a sample of the
substance. But even if the substance was discoverable under Rule
16(a)(1)(C), we must determine whether the court's error prejudiced
12

appellant's substantial rights. See United States v. Gonzalez, 661
F.2d 488, 494 (1981). Appellant's rights were prejudiced if his
inability to test the substance affected the verdict. United
States v. Montemayor, 703 F.2d 109, 119 (5th Cir.), cert. denied,
464 U.S. 822 (1983).
We conclude that we can not determine from the record whether
appellant's substantial rights were prejudiced. Because no
independent analysis of the substance occurred, we can not evaluate
whether such an analysis could have changed the verdict. We
therefore vacate appellant's conviction on the cocaine base charge
(Count II). We remand this case to the district court with
instructions to order the government to produce a sample of the
seized substance alleged to be cocaine base to allow the appellant
to conduct an independent chemical analysis of the substance. The
testing shall be under the control and supervision of the district
court. If the analysis raises an issue of fact as to whether the
substance tested is cocaine base, then the district court should
order a new trial on the cocaine base charge. On the other hand,
if the analysis does not raise a legitimate issue of fact on the
chemical composition of the substance and the court determines that
the appellant suffered no prejudice, then the district court should
reinstate its original judgment.3
V.
3 Butler did not limit his Rule 16(a)(1)(C) motion in the
district court to the cocaine base. But his challenge on appeal
is to the court's failure to permit him to test the substance
"alleged to be cocaine base." We therefore do not vacate the
conviction on Count I.
13

Next, appellant argues that the district court erred when it
enhanced his sentence under � 3C1.1 of the Sentencing Guidelines.
This section provides for a two-level increase for the willful
obstruction of justice during the investigation, prosecution, or
sentencing of an offense. The district court acknowledged
appellant's constitutional right to a trial and to testify in his
own behalf. The court found, however, that appellant obstructed
justice not because he declared his innocence under oath, but
because he gave perjured testimony on facts that were material to
the issues to be decided by the jury. "Though the court may not
penalize a defendant for denying his guilt as an exercise of his
constitutional
rights,
enhancement
based
on
perjury
is
permissible." United States v. Goldfaden, 959 F.2d 1324, 1331 (5th
Cir. 1992). See also United States v. Dunnigan, 113 S. Ct. 1111,
(1993) ("Upon a proper determination that the accused has committed
perjury at trial, an enhancement of sentence is required by the
Sentencing Guidelines.").
Also, the record supports the court's finding that appellant
gave perjured testimony. Aside from other, less material
inconsistencies in appellant's testimony, the appellant testified
that his half-sister asked him to take the garment bag containing
the drugs to her nephew in Washington, D.C, and that he owned no
clothing found in the garment bag. But the agents found a hospital
admittance card bearing appellant's name in a pocket of a pair of
jeans recovered from the garment bag. The district court did not
err in enhancing appellant's sentence for obstruction of justice.
VI.
14

For the reasons stated above, we affirm the conviction on
Count I. We vacate the conviction on Count II and remand the case
to the district court to permit Butler to conduct an independent
chemical analysis of the substance identified as cocaine base. If
the district court concludes that Butler suffered no prejudice due
to his inability to test the substance earlier, the court may
reinstate its judgment. If, however, the district court finds that
appellant was prejudiced from his inability to test the substance
it will order a new trial on Count II.
The judgment of the district court is therefore AFFIRMED in
part, VACATED in part, and REMANDED for further proceedings
consistent with this opinion.

15