United States v. Deisch ( 1994 )


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  •                  UNITED STATES COURT OF APPEALS
    
                             FOR THE FIFTH CIRCUIT
    
    
                              __________________
    
                                  No. 93-7257
                              __________________
    
    
    
         UNITED STATES OF AMERICA,
    
                                             Plaintiff-Appellee,
    
                                    versus
    
         TERRY ANN DEISCH,
    
                                             Defendant-Appellant.
    
             ______________________________________________
    
          Appeal from the United States District Court for the
                    Northern District of Mississippi
             ______________________________________________
    
                               (April 25, 1994)
    
    
    Before REAVLEY, GARWOOD and HIGGINBOTHAM, Circuit Judges.
    
    GARWOOD, Circuit Judge:
    
         Defendant-appellant Terry Ann Deisch (Deisch) appeals her
    
    conviction and five year sentence for simple possession of cocaine
    
    base in violation of 21 U.S.C. § 844.         Deisch asserts that the
    
    district court erred in    (1) submitting the section 844 violation
    
    as a lesser included offense at all; (2) the wording of the charge
    
    on the section 844 offense; and (3) allowing the government to
    
    introduce in evidence an untimely disclosed statement.     We reverse
    
    in part, affirm in part, and remand for resentencing.
    
                       Facts and Proceedings Below
    
         On August 15, 1992, Lambert, Mississippi, Police Sergeant Leon
    Williams    (Williams)    received   information      from   a     confidential
    
    informant that David Dawson (Dawson) had been in town selling drugs
    
    and planned to return for the same purpose later that evening.               The
    
    informant    stated   that    Dawson       would   return    to    Lambert   at
    
    approximately 11:00 p.m. and would be driving a 1985 black Cadillac
    
    bearing Arkansas license plate WAB-185.
    
           Williams contacted Sergeant Roy Sandefer (Sandefer) of the
    
    Mississippi Bureau of Narcotics and told him about the informant's
    
    tip.    The two officers met at approximately 10:00 p.m. and began
    
    driving an unmarked car through Lambert.             As the officers were
    
    driving north of Lambert, on Route 3, they passed a car that
    
    matched the informant's description of the Cadillac.               The officers
    
    turned around and followed the Cadillac.             Upon seeing that the
    
    Cadillac's license plate matched the informant's description, the
    
    officers turned on their car's flashing lights.               The police car
    
    followed the Cadillac into an apartment complex parking lot and
    
    pulled up behind it to block its means of exiting.
    
           Driving the Cadillac was Deisch and in the passenger seat was
    
    her boyfriend Dawson.        Both Deisch and Dawson were residents of
    
    West Helena, Arkansas. Before the officers reached the car, Dawson
    
    took plastic baggies of cocaine base, commonly known as crack
    
    cocaine, from inside his pants and threw them at Deisch, ordering
    
    her to hide them.        Deisch, who was seven months pregnant at the
    
    time, hid the baggies inside her bra and panties.
    
           Williams and Sandefer instructed the couple to exit to the
    
    rear of the Cadillac.         At the rear of the vehicle, Sandefer
    
    explained to the couple why they had been stopped.                Sandefer then
    
                                           2
    shined a flashlight through the driver-side window and saw what
    
    appeared to be cocaine on the seat.     Deisch and Dawson were read
    
    their rights, arrested for possession of cocaine, and taken to
    
    jail.    At that point, Dawson stated "If you find any dope . . .
    
    I'm going to claim it.    It's mine."
    
         A later strip search of Deisch revealed she was carrying 3 or
    
    4 baggies of crack cocaine weighing a total of 64.98 grams in her
    
    bra, and 3 round rocks of crack cocaine weighing in all about 1.34
    
    grams in her panties.       An inventory search of the car also
    
    uncovered a few more small rocks of crack cocaine together weighing
    
    approximately .35 grams, and, among other things, an electronic
    
    scale, rolling papers, a scanner, a pager, and another license
    
    plate.
    
             On October 2, 1992, a grand jury indictment was returned
    
    charging Deisch1 with one count of conspiracy to possess with
    
    intent to distribute "approximately 66 grams of cocaine base,
    
    commonly known as 'crack,' a Schedule II narcotic controlled
    
    substance," in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and
    
    846 (count one), and one count of possession with intent to
    
    distribute of "approximately 66 grams of cocaine base commonly
    
    known as 'crack,' a Schedule II narcotic controlled substance," in
    
    violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. §
    
    2 (count two).2   At trial Deisch took the position that she was not
    
    
    1
         Dawson was also indicted by the grand jury. On the day of
    trial, Dawson pleaded guilty pursuant to a plea agreement with
    the government.
    2
         Section 841(a)(1) prohibits the manufacture, distribution,
    or dispensing, or the possession with the intent to manufacture,
    
                                      3
    guilty due to duress.         Deisch testified that she did not know drugs
    
    were in the car until after the police began following them and
    
    Dawson threw the plastic bags at her.             Deisch said that she hid the
    
    drugs because she was scared to disobey Dawson since, in the past,
    
    he had threatened her with guns and hit her.
    
         At    the   close   of     the   evidence,    the       district   court,      over
    
    Deisch's objection, gave an instruction on simple possession of "a
    
    controlled substance, cocaine base, crack" in violation of 21
    
    U.S.C. § 844(a) as a lesser included offense under count two.3
    
    Thereafter,      the   jury   acquitted       Deisch    of    both    counts   of    the
    
    indictment, but found her guilty of the lesser included offense.
    
    Deisch, who had no prior convictions, was sentenced to sixty months
    
    in prison followed by three years of supervised release.
    
         On    appeal,     Deisch    argues   that    the    trial       court   erred    by
    
    submitting any instruction on section 844 as a lesser included
    
    offense.      We first address whether or to what extent simple
    
    possession of cocaine or cocaine base under section 844(a) may ever
    
    
    
    dispense, or distribute, of "a controlled substance." Section
    841(b)(1) assigns the penalties for violation of 841(a)(1).
    Section 846 prohibits attempts or conspiracies to commit a crime
    within subchapter I of Title 21, which includes section 841(a).
    In addition, 18 U.S.C. § 2 defines when a person is punishable as
    a principal.
         The term "controlled substance" is defined in 21 U.S.C. §
    802(6) as "a drug or other substance, or immediate precursor,
    included in schedule I, II, III, IV, or V of part B of this
    subchapter." The referenced schedules are contained in 21 U.S.C.
    § 812(c), and provision for amendment of the schedules is made in
    21 U.S.C. § 811.
    3
         This instruction did require the jury to find that the
    controlled substance Deisch possessed was "cocaine base, crack";
    it did not require any finding as to quantity.
         The district court did instruct on Deisch's duress defense.
    
                                              4
    be a lesser included offense of possession of cocaine or cocaine
    
    base with intent to distribute it contrary to section 841(a)(1).
    
    We then turn to Deisch's contentions that in this case any such
    
    lesser included offense instruction was improper because duress was
    
    a complete defense to both the greater and lesser offenses and
    
    because the quantity of crack cocaine involved is not consistent
    
    with personal use, so that a finding of guilty of the lesser
    
    offense was not a rational alternative to acquittal of the greater.
    
    Deisch also complains that the district court erred in the wording
    
    of its charge on the lesser included offense, and improperly
    
    allowed the government to put in evidence an untimely disclosed
    
    statement.
    
                                   Discussion
    
    I.   Lesser Included Offense
    
         Federal Rule of Criminal Procedure 31(c) provides that a
    
    "defendant may be found guilty of an offense necessarily included
    
    in the offense charged."       The district court may give a lesser
    
    included offense instruction if, but only if, (1) the elements of
    
    the offense are a subset of the elements of the charged offense and
    
    (2) the evidence at trial permits a jury to rationally find the
    
    defendant guilty of the lesser offense yet acquit him of the
    
    greater.   United States v. Browner, 
    889 F.2d 549
    , 550-51 (5th Cir.
    
    1989) (Browner I).      We address these prerequisites in turn.
    
         A.    Elements Test
    
         The    statutory    elements   test   is   the   proper   method   for
    
    "determining when a federal criminal defendant is entitled to a
    
    lesser included offense instruction."       United States v. Buchner, 7
    
                                         
    5 F.3d 1149
    , 1152 (5th Cir. 1993), cert. denied, ___ S.Ct. ___
    
    (1994).   See also United States v. Browner, 
    937 F.2d 165
    , 169 (5th
    
    Cir. 1991) (Browner II) (concluding that the Supreme Court in
    
    Schmuck v.      United    States,   109       S.Ct   1443   (1989),   adopted   the
    
    statutory elements test).       Pursuant to the statutory elements test
    
    "an offense is not lesser included unless each statutory element of
    
    the lesser      offense   is   also    present       in   the   greater   offense."
    
    Browner II, 937 F.2d at 168.          In contrast to the "indictment test,"
    
    under the statutory elements test the mere fact that the particular
    
    indictment in charging the greater offense includes allegations
    
    embracing all statutory elements of the putative lesser offense
    
    does not suffice to render the latter an included offense, for the
    
    statutory elements test looks only to the statutory elements of
    
    both offenses.     Id.4    Thus, the district court should have given a
    
    lesser included offense instruction only if all of the elements of
    
    simple possession pursuant to section 844 were also elements of
    
    possession with intent to distribute pursuant to section 841(a)(1).
    
               1.    Elements under section 844SQcocaine base
    
         Section 844(a) provides in part:
    
         "[1] It shall be unlawful for any person knowingly or
         intentionally to possess a controlled substance unless
    
    
    4
         In Browner II, this Court ruled, under the statutory
    elements approach, that assault with a dangerous weapon (18
    U.S.C. § 113(c)) was not a lesser included offense of voluntary
    manslaughter (18 U.SC. § 1112) since use of a dangerous weapon is
    not a statutory element of the offense of voluntary manslaughter.
    Id. This result obtained even though we assumed, arguendo, that
    the allegation in the indictment's voluntary manslaughter count
    concerning the defendant's having killed the victim "by stabbing"
    him "with a knife" would have sufficiently alleged the "dangerous
    weapon" element of assault with a dangerous weapon as denounced
    by section 1113(c). Id. at 168.
    
                                              6
           such substance was obtained directly, or pursuant to a
           valid prescription or order . . . . [2] Any person who
           violates this subsection may be sentenced to a term of
           imprisonment of not more than 1 year . . . except that if
           he commits such offense after a prior conviction . . .
           for any drug or narcotic offense . . . he shall be
           sentenced to a term of imprisonment for not less than 15
           days but not more than 2 years . . . except, further,
           that if he commits such offense after two or more prior
           convictions . . . for any drug or narcotic offense . . .
           he shall be sentenced to a term of imprisonment for not
           less than 90 days but not more than 3 years . . . . [3]
           Notwithstanding the preceding sentence, a person
           convicted under this subsection for the possession of a
           mixture or substance which contains cocaine base shall be
           imprisoned not less than 5 years and not more than 20
           years, and fined a minimum of $1,000, if the conviction
           is a first conviction under this subsection and the
           amount of the mixture or substance exceeds 5 grams, if
           the conviction is after a prior conviction for the
           possession of such a mixture or substance under this
           subsection becomes final and the amount of the mixture or
           substance exceeds 3 grams, or if the conviction is after
           2 or more prior convictions for the possession of such a
           mixture or substance under this subsection becomes final
           and the amount of the mixture or substance exceeds 1
           gram." 21 U.S.C. § 844(a) (West Supp. 1993) (bracketed
           numbering added).
    
           Pursuant to the first and second sentences of section 844(a),
    
    a person can be convicted and sentenced for simple possession of
    
    any quantity of "a controlled substance"; the maximum confinement
    
    varies from one to three years depending on whether the offense was
    
    committed after one or two prior drug convictions.5           In accordance
    
    with   the   third   sentence   of   section   844(a),   a   person   can   be
    
    convicted of simple possession of "a mixture or substance which
    
    
    
    5
         The maximum term of imprisonment under the first sentence of
    section 844(a) is "not more than 1 year" unless the defendant
    "commits such offense after a prior conviction . . . for any drug
    or narcotic offense," in which event the maximum is "not more
    than 2 years," if committed after a single such prior conviction,
    and "not more than 3 years," if committed after 2 or more such
    prior convictions. As Deisch had no prior convictions, the
    maximum for her under these provisions would not exceed one year.
    
                                          7
    contains cocaine base" if the amount thereof so possessed exceeds
    
    the statutory defined quantity;6 the sentencing range in each
    
    instance is the same, namely, not less than five nor more than
    
    twenty years' imprisonment.
    
         Deisch's five year sentence was necessarily under the third
    
    sentence of section 844(a), as she had no prior conviction.            The
    
    question    thus   arises   whether   the   identity   of   the   knowingly
    
    possessed substance as being "a mixture or substance which contains
    
    cocaine base" is, on the one hand, an element of the section 844(a)
    
    offense, or, on the other hand, a mere sentencing factor.               We
    
    conclude that it is an element of the offense.
    
         In United States v. Michael, 
    10 F.3d 838
    , 839 (D.C. Cir.
    
    1993), the D.C. Circuit concluded that "the third sentence of §
    
    844(a) . . . creates an independent crime of possession of cocaine
    
    base."     The Michael court further clearly, albeit inferentially,
    
    held that the identity of the substance possessed as being cocaine
    
    base was an element of this independent crime.7        The opinion relies
    
    
    6
         The quantity of cocaine base required for the second
    sentence of section 844(a) varies based on whether "the
    conviction is after a prior conviction for the possession of such
    a mixture or substance under this subsection." The statutory
    required quantity is less for repeat offenders. The minimum
    quantity is one that "exceeds 1 gram" (applicable to one whose
    "conviction is after 2 or more prior convictions for the
    possession of such a mixture or substance under this
    subsection"). For Deisch, who had no prior convictions, the
    minimum quantity of the "mixture or substance which contains
    cocaine base" would be a quantity thereof that "exceeds 5 grams."
    7
         Indeed, it is obvious that this conclusion necessarily
    follows from the holding that the third sentence creates a
    separate offense, because the third sentence deals only with
    possession of cocaine base. Further, it is plain that the
    Michael holding that a violation of the third sentence of section
    844(a) was not a lesser included offense of section 841(a)(1)
    
                                          8
    in part on the structure of section 844(a), noting that its third
    
    sentence "is buried in one great paragraph, in contrast to the
    
    penalty section of § 841, which is clearly set off in subsection
    
    '(b)' and labeled 'Penalties.'"       Id. at 840.   It also relies on the
    
    third sentence's "person convicted . . . for the possession of . .
    
    . cocaine base" language, which it characterizes as "suggesting
    
    that the conviction itself must encompass cocaine base."                 Id.
    
    Michael also attaches significance to the fact that the third
    
    sentence was a completely new provision added in 1988, and that the
    
    remainder of section 844(a) did not, and does not, mention cocaine
    
    base.   Id.8    We are generally in agreement with the reasoning of
    
    Michael in these respects.
    
         There     is,   however,   an   additional   consideration   that   is
    
    particularly influential in our conclusion that the identity of the
    
    substance knowingly possessed as being cocaine base is an element
    
    of the offense denounced by the third sentence of section 844(a)
    
    instead of being merely a sentencing factor for a violation of the
    
    first sentence of section 844(a).9        This consideration arises from
    
    
    rested on its determination that the identity of the item
    possessed as cocaine base was an element of the former offense
    but not the latter. See id. at 839, 842.
    8
         The third sentence of section 844(a) was added by Subtitle L
    (consisting only of section 6371) of the Anti-Drug Abuse Act of
    1988, P.L. 100-690, 102 Stat. 4181, 4370, November 18, 1988.
    Subtitle L addressed no other portion of section 844, and did
    nothing but add the third sentence. The only other change in
    section 844 made by the Anti-Drug Abuse Act of 1988 was in its
    section 6480, a part of its Subtitle N, which removed the
    maximum, but not the minimum, fines provided for in the second
    sentence of section 844(a). 102 Stat. 4382.
    9
         If the substance's identity as "cocaine base" is an offense
    element rather than merely a sentencing factor under section
    
                                          9
    the indictment clause of the Fifth Amendment,10 which requires a
    
    grand jury indictment for any federal offense that is a felony or
    
    is punishable by confinement in a penitentiary or at hard labor.11
    
    It   has   become   clear   that   any    federal   offense   punishable   by
    
    
    844(a), then it necessarily follows that the third sentence of
    section 844(a) creates a separate offense, because it is the only
    portion of section 844(a) that in terms deals with "cocaine
    base," and the identity of the substance possessed as being
    cocaine base is clearly not required in order to establish a
    violation of the first sentence of section 844(a), which merely
    denounces the knowing or intentional possession of "a controlled
    substance." This is not to say, of course, that knowing or
    intentional possession of cocaine base would not also violate the
    first sentence of section 844(a).
    10
         "No person shall be held to answer for a capital, or
    otherwise infamous crime, unless on a presentment or indictment
    of a Grand Jury, except in cases arising in the land or naval
    forces, or in the Militia, when in actual service in time of War
    or public danger; . . . ."
    11
         "The fifth amendment had in view the rule of the common law
    governing the mode of prosecuting those accused of crime, by
    which an information by the attorney general, without the
    intervention of a grand jury, was not allowed for a capital
    crime, nor for any felony, . . . ." Mackin v. United States, 
    6 S. Ct. 777
    , 778 (1886). The indictment clause's words "'or
    otherwise infamous crime'" must, by elementary rule of
    construction, include crimes subject to any infamous punishment,
    even if they should be held to include also crimes infamous in
    their nature, independently of the punishment affixed to them."
    Ex parte Wilson, 
    5 S. Ct. 935
    , 938 (1885). It is not necessary
    that a crime be declared infamous by Congress and "the
    constitution protecting every one from being prosecuted, without
    the intervention of a grand jury, for any crime which is subject
    by law to an infamous punishment, no declaration of congress is
    needed to secure or competent to defeat the constitutional
    safeguard." Id. at 939-40.
         "[I]mprisonment in a . . . penitentiary, with or without
    hard labor, is an infamous punishment" for purposes of the
    indictment clause. Mackin at 779. See also In re Claasen, 
    11 S. Ct. 735
    , 737 (1891) (same). Confinement at hard labor, even
    though not in a penitentiary, is likewise an infamous punishment
    for these purposes. United States v. Moreland, 
    42 S. Ct. 368
    (1922).
         The Fifth Amendment's indictment clause is not, however,
    applicable to state prosecutions. Hurtado v. California, 
    4 S. Ct. 111
     (1884).
    
                                         10
    imprisonment for more than one year is an offense for which the
    
    Fifth Amendment requires a grand jury indictment.12
    
           For anyone, such as Deisch, not previously convicted, exposure
    
    to more than one year's confinement for a violation of section
    
    844(a) would be possible if the substance possessed was "a mixture
    
    or substance which contains cocaine base," but not otherwise.                     If
    
    the nature of the substance as cocaine base is an element of the
    
    offense, then       Deisch   will   be    afforded      the    protection   of    the
    
    indictment clause in this respect because the indictment must
    
    allege every element of the offense.                 United States v. Carll, 105
    
    U.S. [15 Otto] 611, 
    26 L. Ed. 1135
     (1882); Russell v. United States,
    
    
    82 S. Ct. 1038
    , 1047 (1962); Honea v. United States, 
    344 F.2d 798
    ,
    
    803-04 (1965).       As the above authorities reflect, it is not enough
    
    that   the   grand    jury   concludes        that    the    defendant   should   be
    
    prosecuted    for     violating     a    particular         statute;   rather,    the
    
    
    
    12
         Under 18 U.S.C. § 3559(a), any offense having a "maximum
    term of imprisonment authorized" which is "more than one year" is
    a "felony." Under 18 U.S.C. § 4083, those convicted of federal
    offenses "punishable by imprisonment for more than one year may
    be confined in any United States penitentiary," while "[a]
    sentence for an offense punishable by imprisonment for one year
    or less shall not be served in a penitentiary without the consent
    of the defendant." See United States v. Kahl, 
    583 F.2d 1351
    ,
    1355 (5th Cir. 1978) (under section 4083 an offense carrying a
    one year maximum potential sentence was not an "infamous crime"
    for which the Fifth Amendment required indictment because
    confinement in a penitentiary was possible only with defendant's
    consent). See also Branzburg v. Hayes, 
    92 S. Ct. 2646
    , 2659-60
    n.24 (1972): "It has been held that 'infamous' punishments
    include confinement at hard labor, . . . ; incarceration in a
    penitentiary, . . . ; and imprisonment for more than a year, . .
    . . Fed. Rule Crim. Proc. 7(a) has codified these holdings: ' .
    . . An offense which may be punished by imprisonment for a term
    exceeding one year or at hard labor shall be prosecuted by
    indictment, or, if indictment is waived, it may be prosecuted by
    information . . . .'"
    
                                             11
    indictment must also allege every element of the offense.13           Only
    
    in this way is any assurance furnished that the grand jury found
    
    probable cause to believe that the defendant in fact committed acts
    
    constituting the offense in question.        This clearly appears from
    
    the reason so often given for the rules that the failure of the
    
    indictment to allege all elements of the offense may not be cured
    
    by   evidence   or   instructions   at   trial,14   nor   by   a   bill   of
    
    particulars,15 and that the indictment may not be actually or
    
    constructively amended by adding material allegations as to the
    
    offense charged or of another offense,16 namely, that absent such
    
    
    13
         The grand jury is charged with "the duty of inquiring
    whether there be probable cause to believe the defendant guilty
    of the offense charged" and "'ought to be thoroughly persuaded of
    the truth of an indictment, so far as their evidence goes; and
    not to rest satisfied merely with remote probabilities.'"
    Beavers v. Henkel, 
    24 S. Ct. 605
    , 607 (1904). See also Hale v.
    Henkel, 
    26 S. Ct. 370
     (1906) (grand jury is "to stand between the
    prosecutor and the accused, and to determine whether the charge
    was founded upon credible testimony," id. at 373, and "may not
    indict upon current rumors or unverified reports," id. at 375).
    14
         Honea at 804: "We could not say with any assurance that the
    Grand Jury would have returned a true bill had this vital element
    been brought home to them."
    15
          Russell, 82 S.Ct. at 1050:
    
          "To allow the prosecutor, or the court, to make a
          subsequent guess as to what was in the minds of the
          grand jury at the time they returned the indictment
          would deprive the defendant of a basic protection which
          the guaranty of the intervention of a grand jury was
          designed to secure. For a defendant could then be
          convicted on the basis of facts not found by, and
          perhaps not even presented to, the grand jury which
          indicted him."
    
    See also, e.g., Van Liew v. United States, 
    321 F.2d 664
    , 672 (5th
    Cir. 1963).
    16
          Stirone v. United States, 
    80 S. Ct. 270
    , 273-74 (1960):
    
    
                                        12
    rules there is lacking the necessary assurance the grand jury found
    
    probable cause to believe the defendant committed acts constituting
    
    all elements of the offense of conviction as proved at trial.
    
         On    the   other    hand,   an    indictment     need   not   allege      mere
    
    sentencing facts.        United States v. Vasquez-Olvera, 
    999 F.2d 943
    ,
    
    944-45 (5th Cir. 1993); United States v. Pico, 
    2 F.3d 472
    , 474-5
    
    (2nd Cir. 1993) (indictment charging conspiracy to import cocaine
    
    need not allege quantity, even though mandatory minimum sentence is
    
    based on    quantity,     because      quantity   is   relevant     only   to    the
    
    sentence and is not an element of the offense).                See also United
    
    
         "The grand jury which found this indictment was
         satisfied to charge that Stirone's conduct interfered
         with interstate importation of sand. But neither this
         nor any other court can know that the grand jury would
         have been willing to charge that Stirone's conduct
         would interfere with interstate exportation of steel
         from a mill later to be built with Rider's concrete. .
         . .
    
         The very purpose of the requirement that a man be
         indicted by grand jury is to limit his jeopardy to
         offenses charged by a group of his fellow citizens
         acting independently of either prosecuting attorney or
         judge. Thus the basic protection the grand jury was
         designed to afford is defeated by a device or method
         which subjects the defendant to prosecution for
         interference with interstate commerce which the grand
         jury did not charge.
    
         . . . .
    
         The right to have the grand jury make the charge on its
         own judgment is a substantial right which cannot be
         taken away with or without court amendment. Here . . .
         we cannot know whether the grand jury would have
         included in its indictment a charge that commerce in
         steel from a nonexistent steel mill had been interfered
         with." (Footnote omitted).
    
    This rationale of Stirone was reaffirmed in United States v.
    Miller, 
    105 S. Ct. 1811
    , 1818-19 (1985). See also United States
    v. Adams, 
    778 F.2d 1117
    , 1122-1125 (5th Cir. 1985).
    
                                            13
    States v. Affleck, 
    861 F.2d 97
    , 99 (5th Cir. 1988) ("Traditional
    
    sentencing factors need not be pleaded . . . ."); Buckley v.
    
    Butler, 
    825 F.2d 895
    , 903 (" . . . there is no Fifth Amendment
    
    right to grand jury indictment on the sentencing facts . . . .").
    
    Accordingly, if the third sentence of section 844(a) does not
    
    create a separate offense and the only offense established by
    
    section   844(a)   is   the   knowing    possession   of   any   controlled
    
    substance as denounced in the first sentence thereof, so that the
    
    identity of the substance possessed as cocaine base is not an
    
    element of any section 844(a) offense but is only a sentencing
    
    factor, then, even if an indictment were required,17 nevertheless
    
    it would not have to allege that the controlled substance possessed
    
    was cocaine base.   However, were that the rule, then any defendant
    
    without a prior conviction, such as Deisch, would be exposed to "an
    
    infamous punishment" without a grand jury ever having considered
    
    whether there was probable cause to believe that the defendant did
    
    that which the law requires she have done before she can be exposed
    
    to any infamous punishment.       Such a ruleSQwhich is the necessary
    
    consequence of holding that under section 844(a) the identity of
    
    the substance as cocaine base is merely a sentencing factorSQwould
    
    
    
    17
         Arguably, an indictment would always be required because the
    potential punishment under section 844(a) would, albeit only in
    certain instances, include "infamous punishment," i.e.,
    confinement for longer than one year that may be in a
    penitentiary. See Ex parte Wilson, 
    5 S. Ct. 935
    , 939 (1885):
    "The question is whether the crime is one for which the statutes
    authorize the court to award an infamous punishment, not whether
    the punishment ultimately awarded is an infamous one. When the
    accused is in danger of being subjected to an infamous punishment
    if convicted, he has the right to insist that he shall not be put
    upon his trial, except on the accusation of a grand jury."
    
                                        14
    emasculate    the   protection   intended      by    the    Fifth   Amendment's
    
    indictment clause.     If no indictment were required, then obviously
    
    such a section 844(a) defendant could be exposed to "infamous
    
    punishment" without the protection of a grand jury.                   But if an
    
    indictment is required because the punishment may be infamous if
    
    (and only if) cocaine base is what is possessed, then it is wholly
    
    illogical to authorize a punishment of that character even though
    
    the indictment does not allege cocaine base.               That which requires
    
    the grand jury must likewise require allegation in the indictment,
    
    else the presence of the grand jury does nothing to subserve the
    
    purpose of requiring it.
    
         Surely the indictment clause must be understood to mean that
    
    the defendant may not be exposed to an "infamous punishment" unless
    
    the grand jury finds probable cause to believe that he did that
    
    which the law requires him to have done before any character of
    
    infamous punishment whatever may be imposed on him.18
    
         Our    conclusion   in   this    regard    is    supported     by   several
    
    decisions    holding   that   where   an   offense    that    is    otherwise   a
    
    misdemeanor becomes a felony if committed in a certain way or with
    
    certain consequences, the particular attribute that makes it a
    
    
    18
         Theoretically, one could say that in such a situation a mere
    sentencing factor must be alleged in the indictment, even though
    not an element of the offense. But, as indicated in the text,
    the rule is that the indictment need not allege mere sentencing
    factors that are not elements of the offense. Moreover, it
    settled that mere sentencing factors need not be submitted to the
    petit jury or proved beyond a reasonable doubt. McMillen v.
    Pennsylvania, 
    106 S. Ct. 2411
     (1986); Affleck at 99; Buckley at
    902-3. It would indeed be anomalous to hold that sentencing
    factors must be alleged in the indictment even though they are
    not elements of the offense, but need not be submitted to the
    trial jury or proved beyond a reasonable doubt.
    
                                          15
    felony is an element of the offense, which must be alleged in the
    
    indictment and proved at trial.      We have applied this rule to 18
    
    U.S.C. §§ 659 (theft of shipments in commerce) and 641 (theft of
    
    property of the United States) in each of which the offense is a
    
    misdemeanor if the value of what is taken does not exceed $100, and
    
    is otherwise a felony, holding that a value of $100 or more is an
    
    element of the felony that must be alleged and proved, Packnett v.
    
    United States, 
    503 F.2d 949
    , 950 (5th Cir. 1974) (section 659);
    
    Theriault v. United States, 
    434 F.2d 212
    , 214 (5th Cir. 1970)
    
    (section 641), cert. denied, 
    92 S. Ct. 124
     (1971); Cartwright v.
    
    United States, 
    146 F.2d 133
    , 135 (5th Cir. 1944) (former section
    
    82, predecessor to section 641). Other courts have reached similar
    
    results.   See United States v. Scanzello, 
    832 F.2d 18
    , 23 (3d Cir.
    
    1987) (sections 649 and 641); United States v. Alberico, 
    604 F.2d 1315
    , 1321 (10th Cir.) (section 641), cert. denied, 
    100 S. Ct. 524
    
    (1979).
    
         For purposes of deciding if a particular factor is merely a
    
    sentencing consideration or is an offense element under section
    
    844(a), two other circuits have also given significance to whether
    
    the presence or absence of the factor determines whether the
    
    defendant is guilty of a misdemeanor only or of a felony.               In
    
    United States v. Puryear, 
    940 F.2d 602
    , 603-4 (10th Cir. 1991), the
    
    Tenth   Circuit,   relying   in   part   on   Theriault,   Alberico,   and
    
    Scanzello, held that the amount of cocaine base possessed by a
    
    defendant was "an essential element of simple possession under
    
    section 844(a)" and that "[a]bsent a jury finding as to the amount
    
    of cocaine, the trial court may not decide of its own accord to
    
                                        16
    enter a felony conviction and sentence, instead of a misdemeanor
    
    conviction and sentence, by resolving the crucial element of the
    
    amount of cocaine against the defendant."             Similarly, in United
    
    States v. Sharp, 
    12 F.3d 605
     (6th Cir. 1993), the Sixth Circuit
    
    held that for section 844(a) possession of cocaine base to be
    
    sentenced as a felony, the trial jury must have found the requisite
    
    quantity because the quantity "does not merely affect the length of
    
    the defendant's sentence but determines whether he is guilty of a
    
    felony or a misdemeanor," and that for a sentencing judge to make
    
    "factual    findings    that     convert    what    would   otherwise   be   a
    
    misdemeanor into a felony seems to us an impermissible usurpation
    
    of   the   historic    rule    of   the    jury."    Id.    at   608.   Sharp
    
    distinguished cases holding that under section 841 quantity was
    
    merely a sentencing factor and not an element of the offense,
    
    because in those cases "the offense would have been a felony
    
    regardless of the quantity" and "the felony/misdemeanor dichotomy"
    
    was not "implicated."         Id. at 608 & n.1.
    
          Accordingly, we hold, consistent with Michael, that the third
    
    sentence of section 844(a) creates a separate offense, an element
    
    of which is that the substance possessed contains cocaine base.19
    
    
    19
         We realize that to the extent our conclusion rests on the
    indictment clause and felony/misdemeanor dichotomy, its logic
    would likewise require the quantity of cocaine base possessedSQat
    least five grams where there are no other convictions, but more
    than one gram in any eventSQto be an element of the offense
    denounced by the third sentence of section 844(a). In Michael
    the court expressly refused to address this issue. Id. at 842.
         In United States v. Monk, 
    15 F.3d 25
     (2nd Cir. 1994), the
    defendant was indicted under section 841(a)(1) for possession
    with intent to distribute "'50 grams and more of a mixture and
    substance containing cocaine base,'" and the district court
    instructed the jury on that offense and, at the defendant's
    
                                          17
         2.   Elements under section 841(a)(1)SQcocaine base
    
         Section    841(a)(1)   makes    it   unlawful   to   knowingly   or
    
    intentionally manufacture, distribute, or dispense, or possess with
    
    intent to manufacture, distribute, or dispense, "a controlled
    
    substance."20   The term "controlled substance" is defined in 21
    
    U.S.C. § 802(6) as "a drug or other substance, or immediate
    
    
    
    request, also on simple possession in violation of section
    844(a), as a lesser included offense. Id. at 26-7. The jury
    acquitted under section 841(a)(1) and convicted under section
    844, and the defendant (Monk) was sentenced to 133 months'
    imprisonment. He contended on appeal "that, while the judge did
    charge the question of quantity in connection with the § 841
    count . . . he did not mention anything about quantity in the
    charge . . . under § 844." Id. at 27. The Second Circuit
    rejected this contention, stating that quantity was not an
    element of the offense under section 844(a), but also observing
    that "[t]here is . . . no serious dispute that the substance Monk
    carried . . . was crack cocaine and it vastly exceeded 5 grams,"
    id. at 26, that "evidence of quantity was never contested" and
    "Monk's basic defense was that the quantity seized from him was
    consistent with personal use," and that the section 844 verdict
    form required the jury to find possession of drugs "as alleged in
    the indictment." The Monk court expressly declined to address
    whether the third sentence of section 844(a) created a separate
    offense, an element of which was possession of cocaine base, and
    was thus not a lesser included offense under section 841, as held
    in Michael, "since it was the defendant himself who asked the
    trial judge for the lesser included offense charge." Monk at 27.
    Cf. United States v. Baytank (Houston) Inc., 
    934 F.2d 599
     at 606
    (5th Cir. 1991) (invited error cannot be taken advantage of on
    appeal). Thus, Monk is not inconsistent with Michael. Moreover,
    Monk's decision on quantitySQbesides possibly being influenced by
    the lack of prejudice thereSQis apparently made on the assumption
    (at least in that particular case) that the third sentence of
    section 844(a) does not create a separate offense, an assumption
    we do not accept here. If the third sentence is a separate
    offense, it seems inevitable that at least a quantity in excess
    of one gram is an element of the offense, as no lesser quantity
    is spoken to.
    20
         Similarly, under section 841(a)(2) it is unlawful to
    knowingly or intentionally create, distribute, or dispense, or
    possess with intent to distribute or dispense, "a counterfeit
    substance." The term "counterfeit substance" is defined in 21
    U.S.C. § 802(7). Section 841(a)(2) is not involved in this case.
    
                                        18
    precursor, included in schedule I, II, III, IV, or V of part B of
    
    this subchapter."     The referenced schedules are set forth in 21
    
    U.S.C. § 812(c).    Provision for amendments to the schedules by the
    
    Attorney General is made in 21 U.S.C. § 811.        See also section
    
    812(a) & (b).    The current schedules are set forth in 21 C.F.R. §§
    
    1308.11SQ1308.15.
    
         The schedules list a vast number of controlled substances,
    
    among the more commonly known of which are heroin, Lysergic acid
    
    diethylamide, marihuana, opium, and several others.
    
         Cocaine is, and has been ever since well prior to the offense
    
    in question, included in schedule II as set forth in section 812(c)
    
    in the following language:
    
                                 "Schedule II
    
              (a) Unless specifically excepted or unless listed in
         another schedule, any of the following substances whether
         produced directly or indirectly by extraction from
         substances of vegetable origin, or independently by means
         of chemical synthesis, or by a combination of extraction
         and chemical synthesis:
    
         . . .
    
                      (4) Coca leaves except coca leaves and
                 extracts of coca leaves from which cocaine,
                 ecgonine, and derivatives of ecgonine or their
                 salts have been removed; cocaine, its salts,
                 optical and geometric isomers, and salts of
                 isomers, ecgonine, its derivatives, their salts,
                 isomers, and salts of isomers; or any compound,
                 mixture, or preparation which contains any quantity
                 of any of the substances referred to in this
                 paragraph." (Emphasis added).21
    
    
    21
         The corresponding language in 21 C.F.R. § 1308.12 (which
    likewise sets forth schedule II) is as follows:
    
              "(4) Coca leaves (9040) and any salt, compound,
         derivative or preparation of coca leaves (including
         cocaine (9041) and ecgonine (9180) and their salts,
    
                                      19
         Section 841(b) sets out a series of penalties, introduced by
    
    the language "any person who violates subsection (a) of this
    
    section   shall   be   sentenced   as    follows."    Various   different
    
    penalties are set out in the subsequent paragraphs of section
    
    841(b),   generally    depending    on    which   particular    controlled
    
    substance is involved in the offense, the quantity thereof, and
    
    whether the defendant committed the offense after a prior drug
    
    offense conviction.     For any violation of section 841(a) involving
    
    cocaine or any other of the controlled substances listed in any of
    
    schedules I, II, III or IV, the authorized sentence always includes
    
    confinement in excess of one year, and the offense is hence always
    
    a felony regardless of the drug quantity or of which particular one
    
    of the various controlled substances listed in the schedules is
    
    involved (and regardless also of the presence or absence of prior
    
    convictions or other factors).22        More particularly, any violation
    
    
         isomers, derivatives and salts of isomers and
         derivatives), and any salt, compound, derivative, or
         preparation thereof which is chemically equivalent or
         identical with any of these substances, except that the
         substances shall not include decocainized coca leaves
         or extractions of coca leaves, which extractions do not
         contain cocaine or ecgonine." (Emphasis added).
    
    Section 1308.12(a) explains the numbers in parentheses, stating
    that "[e]ach drug or substance has been assigned the Controlled
    Substances Code Number set forth opposite it."
    22
         The sole exception to this is the provision in section
    841(b)(1)(D)(4) that "distributing a small amount of marihuana
    for no remuneration shall be treated as provided in section 844
    of this title and section 3607 of Title 18 [relating to special
    probation]."
         For schedule V drugs, the maximum punishment does not exceed
    one year, except that if the offense is committed after a prior
    drug conviction the authorized imprisonment is not to exceed two
    years. § 841(b)(1)(D)(3).
         The numbering of the schedules, as reflected in section
    
                                        20
    of section 841(a) where the controlled substance is cocaine is
    
    always a felony, regardless of whether or not the cocaine is
    
    cocaine base     and     regardless     of   the   quantity   involved   or   the
    
    presence or absence of prior convictions.
    
         Neither "cocaine base" nor "crack cocaine" nor any equivalent
    
    term is mentioned in section 841(a) or in any of the controlled
    
    substance schedules; nor is there anything in any of the controlled
    
    substance schedules which can be said to describe "cocaine base"
    
    (or "crack cocaine") but not "cocaine," or to describe "cocaine
    
    base" (or "crack cocaine") as a discrete variety or type of
    
    cocaine.    Until 1986, all this was also true of section 841(b).
    
    However, in the Anti-Drug Abuse Act of 1986, Pub. L. 99-570,
    
    October    27,   1986,    100   Stat.    3207,     Congress   amended    section
    
    841(b)(1)(A) and (B) so as, inter alia, to insert the special
    
    sentencing provisions for cocaine base which now appear at section
    
    841(b)(1)(A)(iii) and (B) (iii).             Id. 100 Stat. 3207-2, 3207-3.
    
    These amendments in effect provided for the same sentence range for
    
    a given amount of "cocaine base" as for an amount of cocaine 100
    
    times as large.23      It will be observed that the descriptions of the
    
    
    812(b), is such that the most serious or dangerous substances are
    listed in schedule I, the next most in schedule II and so on,
    with the least serious being listed in schedule V. Schedule V
    drugs are to be those with "a low potential for abuse" which have
    "a currently accepted medical use in treatment in the United
    States" and potential for only comparatively "limited"
    "dependence" in case of abuse.
    23
         As so enacted and as presently in effect, section
    841(b)(1)(A)(ii) & (iii) read as follows:
    
         "(ii) 5 kilograms or more of a mixture or substance
         containing a detectable amount ofSQ
              (I) coca leaves, except coca leaves and extracts
    
                                            21
    covered substances given in section 841(b)(1)(A)(ii) and (B)(ii)
    
    (see note 23 supra) are essentially in the very same wording as
    
    that used in paragraph (4) of section (a) of schedule II appearing
    
    in section 812(c), hereinabove quoted, which schedules cocaine.
    
    The inference from this is that "cocaine base," as something
    
    distinct from cocaine or as some discrete variety or type of
    
    cocaine, is not listed or described in the controlled substance
    
    schedules.         Apart   from   the        noted    provisions   of    section
    
    841(b)(1)(A)(iii) and (B)(iii), neither "cocaine base" nor "crack
    
    cocaine" is mentioned in section 841(b). Further, when Congress in
    
    1986 added the references to "cocaine base" by enacting section
    
    841(b)(1)(A)(iii) and (B)(iii) as above described, no change was
    
    made in section 841(a)(1) or in the wording by which cocaine was
    
    listed in schedule II.
    
         There is no statutory definition of "cocaine base."                  While
    
    there   may   be   some    relatively    minor       differences   in   judicial
    
    
              of coca leaves from which cocaine, ecgonine, and
              derivatives of ecgonine or their salts have been
              removed;
              (II) cocaine, its salts, optical and geometric
              isomers, and salts of isomers;
              (III) ecgonine, its derivatives, their salts,
              isomers, and salts of isomers; or
              (IV) any compound, mixture, or preparation which
              contains any quantity of any of the substances
              referred to in subclauses (I) through (III);
         (iii) 50 grams or more of a mixture or substance
         described in clause (ii) which contains cocaine base."
         (emphasis added)
    
    Section 841(b)(1)(B)(ii) & (iii) read exactly the same as their
    counterparts in section 841(b)(1)(A)(ii) & (iii) except that in
    (B)(ii) the specified quantity is "500 grams" instead of "5
    kilograms" as in (A)(ii), and in (B)(iii) the specified quantity
    is "5 grams" rather than "50 grams" as in (A)(iii).
    
    
                                            22
    definitions, all concur that cocaine base is a form of cocaine.
    
    See United States v. Metcalf, 
    898 F.2d 43
    , 46 (5th Cir. 1990)
    
    ("'Cocaine base or "crack" is any form of cocaine with [a] hydroxyl
    
    radical' in the chemical compound," (quoting United States v.
    
    Buckner, 
    894 F.2d 975
    , 976 n.1 (8th Cir. 1990)); United States v.
    
    Brown, 
    859 F.2d 974
    , 975-6 (D.C. Cir. 1988) ("'Cocaine base' . . .
    
    is any form of cocaine with the hydroxyl radical; 'cocaine base'
    
    excludes, for example, salt forms of cocaine").24
    
           We have generally held that the quantity listings in section
    
    841(b)(1) are merely sentencing factors, not elements of the
    
    section 841(a) offense.        See United States v. Valencia, 
    957 F.2d 1189
    , 1197 (5th Cir.), cert. denied, 
    113 S. Ct. 254
     (1992) (no need
    
    to charge jury on quantity of heroin as "[q]uantity is not an
    
    element of the crimes proscribed by 21 U.S.C. § 841(a)(1) . . . ").
    
    Most other circuits are in accord.         See United States v. Campuzano,
    
    
    905 F.2d 677
    , 678 (2nd Cir.), cert. denied, 
    111 S. Ct. 363
     (1990)
    
    (cocaine; citing cases).        Contra:    United States v. Alvarez, 
    735 F.2d 461
    , 467-68 (11th Cir. 1984).
    
           Just as section 841(a)(1) does not speak to quantity, so also
    
    it says nothing about the identity of the substance involved other
    
    than   that   it   must   be   "a   controlled   substance."    Arguably,
    
    therefore, the identity of the particular controlled substance
    
    involved is not an element of the section 841(a)(1) offense, the
    
    
    24
         The disagreement seems to focus on whether as used in
    section 841(b)(1)(A)(iii) and (B)(iii), and in the sentencing
    guidelines, "cocaine base" is restricted to that which is in
    smokable or rock form, commonly known as "crack." See, e.g.,
    United States v. Jackson, 
    968 F.2d 158
    , 161-63 (2nd Cir. 1992)
    (citing cases).
    
                                          23
    only requirement being that the substance involved is "a controlled
    
    substance."   Cf. United States v. Cartwright, 
    6 F.3d 294
    , 303 (5th
    
    Cir. 1993) (not necessary in section 841(a)(1) prosecution to show
    
    that the defendant knew the substance was cocaine, "only that the
    
    defendant knew that the substance was a controlled substance");
    
    United States v. Collado-Gomez, 
    834 F.2d 280
     (2nd Cir. 1987), cert.
    
    denied, 
    108 S. Ct. 1244
     (1988) ("the government does not have to
    
    prove that the defendant knew the specific nature and amount of the
    
    controlled substance . . .").              On the other hand, it is also
    
    arguable that unless the jury, petit or grand, knows what the
    
    controlled substance is it cannot know that it is a controlled
    
    substance.    No such concern, however, is implicated respecting
    
    cocaine base, for all cocaine base is cocaine, the controlled
    
    substance schedules do not mention cocaine base or describe some
    
    discrete substance which is cocaine base as distinguished and
    
    different from cocaine, and cocaine base is a controlled substance
    
    only because it is or contains cocaine.               This is likewise clear
    
    from the fact that cocaine base, as a form of cocaine, was a
    
    controlled substance before the term "cocaine base" was ever
    
    introduced    into    Title   21,    from     the    fact   that   section   841
    
    (b)(1)(A)(ii)   and    (B)(ii)      (see    note    23,   supra)   in   substance
    
    replicate the listing for cocaine in schedule II, and from the fact
    
    that when section 841(b)(1)(A)(iii) and (B)(iii) respecting cocaine
    
    base were added in 1986 there was no corresponding change in the
    
    schedule II listing embracing cocaine.
    
         Accordingly, we conclude that the identity of the involved
    
    controlled substance as being "cocaine base" rather than simply
    
                                           24
    "cocaine" is not an element of any section 841(a)(1) offense.   For
    
    a section 841(a)(1) offense involving cocaine base the indictment
    
    need only allege, and the jury need only find, that the substance
    
    was cocaine, and whether or not it was the "cocaine base" form of
    
    cocaine is purely a sentencing factor.25   We are aware of no court
    
    which has held otherwise, and implicit in numerous decisions is the
    
    conclusion that for purposes of section 841(a)(1), whether or not
    
    the cocaine involved is cocaine base is merely a sentencing factor.
    
    That, of course, is the implicit holding of Michael.
    
         In United States v. Barnes, 
    890 F.2d 545
     (1st Cir. 1989), in
    
    affirming a section 841(a)(1) conviction for possession of cocaine
    
    with intent to distribute, and a sentence therefore under section
    
    841(b)(1)(A)(iii) because the substance was cocaine base, the First
    
    Circuit observed:
    
              "It is important to note that the court, not the
         jury, determines the quantity and type of controlled
         substance appropriate under 21 U.S.C. § 841(b). . . .
         Section 841(b) describes the penalty provisions for
         violations of section 841(a), in this case possession of
         a controlled substance with intent to distribute.
         Therefore, as a penalty provision, the district court
         judge determines the facts at the sentencing . . . .
    
         . . .
    
         " . . . questions as to whether the mixture found was
         cocaine base and its specific weight were factual
         findings for the judge at sentencing. The jury need only
         have found that the three chunks seized contained some
         mixture of cocaine as defined in schedule II. See 21
         U.S.C. § 812." Id. at 551 n.6.26
    
    
    25
         This is not to say that the defendant might not be entitled
    at some point to some character of notice that the government
    claimed the substance was cocaine base; but only that such notice
    need not be afforded by the indictment.
    26
         See also id. at 552 n.7:
    
                                    25
    See also United States v. Easter, 
    981 F.2d 1549
    , 1557 (10th Cir.
    
    1992) (with respect to cocaine base, "[s]ection 841(b)(1) is merely
    
    a penalty provision and as such does not change the elements of
    
    cocaine trafficking offenses, rather it lengthens the penalties
    
    that Congress has already imposed for those offenses"); United
    
    States v. Lopez-Gil, 
    965 F.2d 1124
     (1st Cir. 1992) (conviction
    
    following jury trial for possession of cocaine with intent to
    
    distribute   and   importation   of    cocaine   affirmed,   but   sentence
    
    remanded to trial court for it to determine whether the cocaine was
    
    cocaine base); United States v. Pinto, 
    905 F.2d 47
    , 50 (4th Cir.
    
    1990) (as to alleged vagueness of "cocaine base," "section 841(b)
    
    is a sentencing provision. As such, the notice required to satisfy
    
    due process is less rigorous than that applied to substantive
    
    provisions"); United States v. Levy, 
    904 F.2d 1026
    , 1033, 1034 (6th
    
    Cir. 1990), cert. denied, 
    111 S. Ct. 974
     (1991);27 Collado-Gomez
    
    
              " At the outset, we note that the use of the term
         'cocaine base' in this statute does not present a
         question of giving adequate notice to possible
         defendants. The challenged term appears in the penalty
         provisions of 21 U.S.C. § 841(b). As such, the term
         'cocaine base' is only relevant to enhanced penalties
         facing a defendant, and Congress added these penalties
         without altering the substantive elements of 21 U.S.C.
         § 841(a). . . . Thus, Congress did not criminalize any
         conduct which was not already illegal, and there is no
         problem of giving adequate notice of enhanced penalties
         to possible defendants."
    27
         Rejecting a vagueness attack on section 841(b)(1)(B)(iii)
    ("cocaine base"), the Sixth Circuit states:
    
              "Section 841(b)(1)(B), however, is a penalty
         provision. As such, it did not change the substantial
         elements of the offense of the possession of cocaine
         with the intent to distribute. Rather, it lengthened
         the penalties the federal law already imposed for
         cocaine trafficking." Id. at 1033.
    
                                          26
    ("The   1986      amendments   [adding     §    841(b)(1)(A)(iii)         &   (B)(iii)
    
    concerning     cocaine     base]    did   not     alter    the   elements      of   the
    
    substantive offense, which require the government to prove that a
    
    defendant      knowingly    and    intentionally         possessed    a   controlled
    
    substance").
    
                 3.    What may be lesser included under section 841(a)(1)
    
         All    cocaine     base   is    cocaine,      and    all    is   a   controlled
    
    substance; all cocaine is a controlled substance; but not all
    
    cocaine is cocaine base.           That the controlled substance possessed
    
    is cocaine base is an element of the offense denounced by the third
    
    sentence of section 844(a), but is not an element of any offense
    
    denounced by section 841(a)(1).                Therefore, under the "statutory
    
    elements test" a violation of the third sentence of section 844(a)
    
    can not be a lesser included offense under an indictment charging
    
    possession with intent to distribute in violation of section
    
    841(a)(1), even if, as here, the indictment alleges that the
    
    controlled substance is cocaine base.                    See Browner II at 168.
    
    However, the offense denounced by the first sentence of section
    
    844(a) is knowing or intentional possession of simply "a controlled
    
    substance," the very same words as are used in section 841(a)(1).
    
    Just as the identity of the controlled substance as cocaine base is
    
    not an element of the section 841(a)(1) offense, so also it is not
    
    
    
         . . .
    
              "Levy's interpretation of the statute is misguided
         because, as we explained above, it is a penalty
         provision. Under section 841(b)(1)(B), the district
         court determines the quantity and type of controlled
         substance for the purpose of sentencing." Id. at 1034.
    
                                              27
    an element of the offense denounced by the first sentence of
    
    section 844(a).       Therefore, simple possession of cocaine, contrary
    
    to the first sentence of section 844(a), may be a lesser included
    
    offense under     a    charge   of   possessing   cocaine   with   intent   to
    
    distribute it contrary to section 841(a)(1).                Michael at 842;
    
    United States v. Chase, 
    838 F.2d 743
    , 747 (5th Cir.), cert. denied,
    
    
    108 S. Ct. 2022
     (1988).
    
         Accordingly, Deisch's sentence under the third sentence of
    
    section 844(a) may not stand. This, however, does not require that
    
    we set aside the jury's verdict which necessarily found her guilty
    
    of a violation of the first sentence of section 844(a), and
    
    assuming no other bar to sustaining her conviction for violating
    
    the first sentence of section 844(a), she will only be entitled to
    
    a remand for resentencing on that basis.          Michael at 842.   See also
    
    Theriault at 215; Sharp at 609; Puryear at 604; Scanzello at 23.
    
         We now turn to the remaining issues presented by Deisch's
    
    appeal.
    
         B.   Was Simple Possession a Rational Alternative
    
              1.    Duress defense
    
         Deisch argues that any simple possession lesser included
    
    offense instruction under section 844(a) was improper because she
    
    relied upon duress, a complete and totally exculpatory defense. We
    
    have held that "'[e]ven where the defendant presents a totally
    
    exculpatory defense, the [lesser included offense] instruction
    
    should nevertheless be given if the prosecution's evidence provides
    
    a "rational basis" for the jury's finding the defendant guilty of
    
    a lesser offense.'"       Chase, 838 F.2d at 747 (quoting United States
    
                                           28
    v. Payne, 
    805 F.2d 1062
    , 1067 (D.C. Cir. 1986) (citations omitted).
    
         Nothing suggests that the jury accepted Deisch's defense of
    
    duress. Indeed, a rational jury could have found that while Deisch
    
    did not have the requisite intent to distribute the drugs, she was
    
    not under duress when Dawson asked her to hide them for him.               The
    
    jury found that Deisch knowingly or intentionally took possession
    
    of drugs.        This verdict is not inconsistent with the evidence
    
    produced at trial.         Thus, Deisch's argument on this issue is
    
    without merit.
    
                2.    Magnitude of amount possessed
    
         Deisch contends that the jury lacked a rational basis for
    
    finding her guilty of simple possession, because sixty-six grams of
    
    cocaine base is not consistent with personal consumption.            Deisch
    
    maintains that under these facts the jury's acquittal for the
    
    greater   offense     of   possession    with   intent   to   distribute   is
    
    logically inconsistent with its finding of guilt for the offense of
    
    simple possession.
    
         Under the present circumstances, whether possession of sixty-
    
    six grams of cocaine base is consistent with personal use is not
    
    determinative of this issue.28          The offense of simple possession
    
    requires only knowing or intentional possession of a controlled
    
    substance.       Under the facts presented, the jury could rationally
    
    believe, for example, that Deisch took possession of the drugs in
    
    a split second decision in which no intention was ever formed to do
    
    
    28
         It is certainly arguable that the quantity of cocaine base
    possessed, i.e. 66 grams, is not consistent with personal use.
    The government presented evidence that 66 grams of crack would
    produce approximately 280 rocks.
    
                                        29
    anything but immediately hide the drugs to protect her boyfriend
    
    from arrest and that in the rapidly evolving events she never
    
    formed an intention to distribute the drugs to anyone.29      Moreover,
    
    the jury may have believed that Deisch's intent accompanying her
    
    possession was merely to avoid physical harm by Dawson, but that
    
    her fear of immediate, serious and otherwise unavoidable physical
    
    harm was unreasonable and hence did not make out a duress defense
    
    under   the   district   court's   instructions     thereon   requiring
    
    reasonableness in those respects.       At least the jury may well have
    
    entertained on such a basis a reasonable doubt as to whether Deisch
    
    had the requisite intent to distribute. Under this scenario, while
    
    Deisch would not be guilty of possession with intent to distribute,
    
    she would be guilty of simple possession.       The lesser offense was
    
    hence a rational alternative.30
    
    II.   Court's Charge to The Jury
    
          Deisch complains that the court's explanation of the verdict
    
    form to the jury concerning the lesser included offense of simple
    
    possession prejudicially described the lesser included offense as
    
    
    
    29
         We also note that Deisch testified that she had previously
    left Dawson when she suspected him of selling drugs.
    30
         This case is distinguishable from United States v. White,
    
    972 F.2d 590
    , 596 (5th Cir. 1992), cert. denied, 113 S.Ct 1651
    (1993), in which we ruled that no rational jury could find that
    defendants possessing twenty-one kilograms of cocaine did not
    intend to distribute the cocaine. The White court concluded that
    "the sheer quantity of the drugs involved negate[d] an inference
    of personal use." Id. Unlike the defendants in White, neither
    Deisch nor the government asserted that Deisch possessed the
    drugs for the purpose of personal consumption. The instant case
    is distinguishable from White because the evidence here supports
    simple possession as a rational alternative to possession with
    intent to distribute for reasons other than personal use.
    
                                       30
    "simply   possession       .    .    .    without       intent    to    distribute"   and
    
    "[p]ossession,      what    we       refer      to    as     simple   possession";    thus
    
    improperly    implying         that       the        lesser    included     offense   was
    
    insignificant. Nothing in this instruction reflects that the court
    
    misrepresented the law or implied that the lesser included offense
    
    was    insignificant.          The       lesser       included    offense    instruction
    
    concerned a violation of section 844(a), offenses under which are
    
    entitled "simple possession."                   The court's characterization was
    
    proper and Deisch's argument is completely without merit.31
    
    III.    Government's Undisclosed Statement
    
           Deisch finally contends that the government violated Federal
    
    Rule   of Criminal Procedure 16(a)(1)(A) because it did not produce
    
    the substance of a statement she made on the night of her arrest.
    
    Deisch alleges that she did not learn until the morning of the
    
    trial that Sandefer planned to testify that Deisch declared,
    
    subsequent to her arrest, that she knew cocaine was in the car when
    
    she left Arkansas.         Prior to trial, Deisch informed the court of
    
    the newly discovered information, but the district court did not
    
    rule on its admissibility.               During direct examination of Sandefer,
    
    the    government    did       not    question         him    about    Deisch's   alleged
    
    statement.     However, during cross-examination Deisch's counsel
    
    asked Sandefer if Deisch's position had ever changed concerning
    
    
    
    31
         Deisch also complains that the section 844(a) charge failed
    to require the jury to find that more than five grams were
    possessed. Because of our holding that the third sentence of
    section 844(a) is not a lesser included offense, and because
    quantity is plainly irrelevant to the simple possession offense
    of the first sentence of section 844(a), Deisch's complaint in
    this respect is moot.
    
                                                 31
    whether    she    knew   she   possessed   cocaine   on   August   15,   1992.
    
    Sandefer responded "no."         On re-direct, the government sought to
    
    clarify the ambiguity which under the circumstances was inherent in
    
    the referenced cross-examination question and answer, by asking
    
    Sandefer what Deisch's position was about her knowledge of the
    
    cocaine.    Sandefer then testified that Deisch had said, just after
    
    her arrest, that she knew prior to leaving Arkansas that cocaine
    
    was in the car.          Although Deisch's lawyer objected because the
    
    statement had not been timely disclosed, the court overruled the
    
    objection and concluded the challenged testimony had been opened up
    
    by Deisch during cross-examination.
    
         We review discovery rulings for abuse of discretion and will
    
    order a new trial only when a party demonstrates prejudice to his
    
    substantial rights.        United States v. Ellender, 
    947 F.2d 748
    , 756
    
    (5th Cir. 1991).         Moreover, "[a] defendant may not complain on
    
    appeal that he was prejudiced by evidence relating to a subject
    
    which he opened up at trial."         United States v. Wilson, 
    439 F.2d 1081
    , 1082       (5th Cir.), cert. denied, 
    92 S. Ct. 122
     (1971).            The
    
    district court did not abuse its discretion in finding that Deisch,
    
    knowing of the statement allegedly made to Sandefer, nevertheless
    
    opened the door to the testimony of which she now complains.                No
    
    reversible error is shown.
    
                                      Conclusion
    
         For the foregoing reasons, we REVERSE the felony conviction
    
    for possession of cocaine base under the third sentence of section
    
    844(a), we AFFIRM the misdemeanor conviction for possession of a
    
    controlled substance under the first sentence of section 844(a),
    
                                          32
    and we REMAND for resentencing under the second sentence of section
    
    844(a).
    
        AFFIRMED in part; REVERSED in part; REMANDED for resentencing
    
    
    
    
                                    33