United States v. Pecina

302 F.R.D. 492, 2014 WL 4053840, 2014 U.S. Dist. LEXIS 113256
CourtDistrict Court, N.D. Indiana
DecidedAugust 15, 2014
DocketNo. 2:13-cr-00146
StatusPublished

This text of 302 F.R.D. 492 (United States v. Pecina) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pecina, 302 F.R.D. 492, 2014 WL 4053840, 2014 U.S. Dist. LEXIS 113256 (N.D. Ind. 2014).

Opinion

OPINION AND ORDER

PHILIP P. SIMON, Chief Judge.

Luis Pecina is charged with possessing methamphetamine with the intent to distribute it. The government has weighed and analyzed the alleged drugs the police seized when they arrested Pecina, and now Pecina wants his own expert to weigh and test the drugs pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E). (DE 59). The problem is that the parties can’t agree on the best way to get this accomplished. They have each submitted briefing and proposed procedures, and also presented their arguments at a hearing. Some of the procedure for retesting is uncontested. The points of contention are what portion of the drug evidence the defense expert will test (and who will select that sample), what testing method the defense expert may use, and whether a government agent may record some portion of the defense expert’s work.

The first issue relates to the fact that the alleged methamphetamine, when seized, was in seven different packages, so the parties disagree about how to decide what portions from which packages to test, and whether the defense must test the government-created composite sample, or whether the defense may choose its own sample. The defense argues that the creation of the composite [494]*494could determine the chemical composition, while the government argues that any such effect would have no impact because neither the quantity nor the purity of the drugs is anywhere near a threshold amount for changing the criminal charge or sentence. The parties also disagree about whether the defense expert should be required to use a particular method for testing the composition of its sample. The government argues that defense experts often test drug evidence using a method that tends to indicate a lower purity than the government’s preferred method, and that testing different samples using different methods will yield conflicting results that can’t be meaningfully compared to one another. The government filed a supplemental brief that states that the government’s lab tests are conducted in accordance with Best Practices established by three independent organizations, and that testing a composite of multiple packages is the standard method of testing multiple-unit exhibits; it was supported by attachments addressing the science of drug exhibit testing. (DE 66.1) Finally, the government wants its agent to record the defense expert’s work so that a government expert can review the video for errors or adulteration of the evidence.

There is not a lot of precedent available to help me decide exactly what procedures should be followed in this situation. Frankly, as far as I can tell, the parties usually come to an agreement regarding procedures for defense analysis of drug evidence, and jointly submit to the court a stipulated order. I’ve approached this matter using a few guiding principles. A district court has discretion over discovery procedures, and appellate courts review those decisions for abuse of discretion. See, e.g., United States v. Herrera, 366 Fed.Appx. 674, 676 (7th Cir.2010); United States v. Stevens, 380 F.3d 1021, 1025 (7th Cir.2004). Federal Rule of Criminal Procedure 16 requires the government to permit a defendant to inspect tangible objects, or a portion thereof, that the government controls or possesses, and that are material to preparing the defense or that the government intends to use in its case-in-ehief. Fed.R.Crim.P. 16(a)(1)(E). “In eases 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. Butler, 988 F.2d 537, 543 (5th Cir.1993) (quotation marks, brackets and citation omitted).

The quantity of the drugs is relevant, and most likely will be offered in the government’s case-in-chief, because it must be proved to a jury and it will impact the charge (possessing 50 grams or more of a methamphetamine mixture with intent to distribute). See United States v. Washington, 558 F.3d 716, 719 (7th Cir.2009) (“[A] jury must find beyond a reasonable doubt any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum.” (internal quotation marks, brackets omitted.)) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). What’s more, should the defendant be convicted, the defendant’s advisory guideline range can be greatly impacted by the purity of the substance. This is because a purer form of methamphetamine — known colloquially as “lee” — will result in a longer possible advisory sentence. See U.S.S.G. § 2Dl.l(e), Notes to Drug Quantity Table, n. C; see also United States v. Arechiga-Mendoza, 566 Fed.Appx. 713, 718-19 (10th Cir.2014). (DE 63 at 3.)

In exercising discovery rights, the rules apply to both parties: “[r]ules about pretrial discovery in criminal prosecutions must apply to prosecutors as well as to defendants. Access provided to private experts retained by the prosecution must be provided to private experts retained by the defense.” United States v. Shrake, 515 F.3d 743, 747 (7th Cir.2008) (citing Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)). Both parties have an interest in developing evidence to use at trial. However, the government obviously has additional interests in safeguarding evidence that is, in itself, illegal, and also in protecting the demonstrable integrity of the evidence through proper chain of custody practices. See, e.g., United States v. Prieto, 549 F.3d 513, 520-21, 524-25 (7th Cir.2008).

[495]*495I have considered both parties’ arguments and the case law, and this Order lays out the procedure that will be followed for Pecina’s expert’s analysis of the drug evidence. Most of it is simply consolidation of uncontested procedures proposed by the parties in their briefing and at the hearing. I have attempted to balance the government’s interest in safeguarding the evidence with the defense’s interests in having equal access to evidence and a full and fair opportunity to defend the ease.

I agree with the defense that it may challenge any part of the government’s testing, including both the selection of the sample and the chemical analysis. The defense expert may therefore take her own representative sample of the evidence. The sample each expert tests may be different, but they are both intended to represent the whole exhibit, and can be compared on that basis. (DE 66-1 at 35.) Each expert can be questioned in court about how she selected her sample, and will have to justify her methodology.

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Related

Wardius v. Oregon
412 U.S. 470 (Supreme Court, 1973)
Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (Supreme Court, 1993)
Apprendi v. New Jersey
530 U.S. 466 (Supreme Court, 2000)
United States v. Roland Eugene Butler
988 F.2d 537 (Fifth Circuit, 1993)
United States v. Lawrence Stevens
380 F.3d 1021 (Seventh Circuit, 2004)
United States v. Prieto
549 F.3d 513 (Seventh Circuit, 2008)
United States v. Washington
558 F.3d 716 (Seventh Circuit, 2009)
United States v. Shrake
515 F.3d 743 (Seventh Circuit, 2008)
United States v. Clacy Herrera
366 F. App'x 674 (Seventh Circuit, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
302 F.R.D. 492, 2014 WL 4053840, 2014 U.S. Dist. LEXIS 113256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pecina-innd-2014.