U.S. v. Chase
| Citation | 499 F.3d 1061 |
| Decision Date | 27 August 2007 |
| Docket Number | No. 06-30242.,06-30242. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Toro CHASE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Rhodes, Assistant Federal Defender, Missoula, MT, for the defendant-appellant.
Joshua S. Van de Wetering, Assistant United States Attorney, Missoula, MT, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-03-00028-DWM.
Before: HARRY PREGERSON, WARREN J. FERGUSON, and SANDRA S. IKUTA, Circuit Judges.
Defendant-Appellant David Toro Chase ("Chase") appeals his sentence for conviction of conspiracy to manufacture methamphetamine. Chase contends that: (1) the district court erred in denying his request for an expert; (2) the court based its determination of drug quantity on unreliable evidence; and (3) the sentence was greater than necessary. We hold that the district court abused its discretion in denying Chase's request for a forensic expert and relied on evidence lacking sufficient indicia of reliability. We do not reach the third issue.
Chase pleaded guilty to two counts of conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of possession of a firearm in a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B)(I). At the first sentencing hearing, Chase contested the quantity of methamphetamine alleged by the government. Chase admitted producing between 109.67 and 164.5 grams in February 2003 at the home of a friend ("the Mount Avenue location"), but he disputed the combined quantity allegedly produced between June and October 2003 at two of his previous residences (collectively, "the Twilight location").
The government relied on an expert report for its production estimate. The report consisted of a two-page letter ("letter") prepared by government expert Scott Edison Rienhardt, who, in turn, had relied upon two reports of the State of Montana Forensic Sciences Division (collectively, "the State Report"). The State Report listed items and substances allegedly found at the Twilight location, including chemicals, equipment, four "recipes" for methamphetamine, and 100 empty boxes of pseudoephedrine, a methamphetamine precursor commonly known by the brand name Sudafed.1 Rienhardt concluded that, of the four recipes, the "Curbshot" method was the one most likely to have been utilized, because of the chemicals listed in the State Report. Two 5,000-milliliter flasks were listed among the seized equipment. Rienhardt offered no opinion as to whether either flask had been used, but he calculated that, following the Curbshot method, a 5,000-milliliter flask could be used to produce between 500 and 750 grams of methamphetamine.
"[B]ased upon the information [ ] contained in the [Rienhardt letter]," the district judge estimated that Chase had produced 500 to 750 grams of methamphetamine at the Twilight location. He sentenced Chase to eighty-eight months imprisonment for the drug charges and 120 months for the gun charge.2
Chase appealed. While his first appeal was pending, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Ninth Circuit remanded the instant case for recalculation and resentencing in light of Blakely.
In March 2006, the district judge again heard argument and considered evidence regarding the quantity of methamphetamine Chase had produced. Prior to the presentation of any testimony, Chase renewed a previously filed, and previously denied, motion to hire a forensic expert pursuant to 18 U.S.C. § 3006A(e)(1). The court denied the motion.
Rienhardt, the government's expert, testified at the second hearing. He explained that he typically estimates drug quantities based on the "actual chemicals present"— specifically the known quantities of a drug's precursors—but in this case the precursor quantities were unavailable. The State Report did not indicate the quantities of any chemicals that were identified, nor the purity levels of any such substances. There was no information regarding which precursors were on the various containers associated with the Twilight location, and there was "no indication that any of the glassware had methamphetamine in it."
Rienhardt explained that, according to the State Report, the 5,000-milliliter flask—upon which he based his estimate— had been found in its original box, and there was no evidence of any chemical trace on the flask. Rienhardt testified that a number of other glass containers found on the premises could have been used to produce methamphetamine. Additionally, he stated that his 500 to 750 gram estimate depended on an assumption that the 5,000-milliliter flask had been used, but he expressly disavowed any opinion as to whether this had actually occurred.
Defense counsel's theory of the case was that, based on the 100 empty boxes of pseudoephedrine listed in the State Report, an accurate estimate of the quantity of methamphetamine produced at the Twilight location was forty grams. On cross-examination, Rienhardt admitted that he had been unaware of the empty boxes when preparing his letter. Rienhardt calculated that if Chase had cooked in small batches, 100 boxes of pseudoephedrine (each containing twenty-four sixty-milligram pills) would have yielded a combined total of forty to sixty grams of methamphetamine.
Chase testified in his own defense. He explained that he had produced the narcotic for his own use, not for sale, with red phosphorous obtained from matches and pseudoephedrine purchased from a drugstore. He testified that he had used a 500-milliliter container, not the 5,000-milliliter flask, and that each time he had cooked fourteen grams of pseudoephedrine to produce approximately seven grams of methamphetamine.
The court concluded that Chase had produced at least 609 grams of methamphetamine, including 100 grams at the Mount Avenue location and 500 at the Twilight location. Under the United States Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines"), the court rounded downward and used a 350 to 500 gram estimate to give Chase a base offense level of thirty. U.S.S.G. § 2D1.1(c)(5).3 With a criminal history category II and a three-level decrease for acceptance of responsibility, the Guidelines recommended a range of seventy-eight to ninety-seven months for the drug convictions. U.S.S.G. ch. 5 Pt. A. The court imposed a sentence of 198 months imprisonment, including 120 months for the gun charge and seventy-eight months for the drug charges. The court also ordered Chase to pay restitution in the amount of $16,195.71.
Under the Criminal Justice Act, 18 U.S.C. § 3006A(e)(1), "[c]ounsel for a person who is financially unable to obtain . . . expert . . . services necessary for adequate representation may request them." After conducting an inquiry in an ex parte proceeding, if the court finds "that the services are necessary and that the person is financially unable to obtain them, the court . . . shall authorize counsel to obtain the services." Id. The decision to grant or deny a request for services under the Criminal Justice Act will be overturned on appeal where the district court has committed an abuse of discretion. United States v. Smith, 893 F.2d 1573, 1580 (9th Cir.1990).
Upon a timely request by an indigent defendant, "[t]he statute requires the district judge to authorize[expert] defense services . . . in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them." United States v. Bass, 477 F.2d 723, 725 (9th Cir.1973). The court's inquiry into the necessity of services must be specific to the facts of the particular case. See, e.g., United States v. Armstrong, 621 F.2d 951, 956 (9th Cir.1980).
In a drug case, the sentence depends primarily on the quantity of narcotics that the court attributes to the defendant. U.S.S.G. §§ 2D1.1, 3D1.2(d), ch. 5 Pt. A. Therefore, from the perspective of defense counsel, formulating a theory of drug quantity is critical. In this case in particular, the only disputed issue was the quantity of methamphetamine produced at the Twilight location, where no methamphetamine was found, so the determination of drug quantity demanded a scientific calculation. Chase reasonably requested the appointment of an expert in forensic chemistry to assist his attorney in formulating a theory of the quantity of methamphetamine and to rebut that of the government's expert.
On appeal, the government asserts that defense counsel's cross examination of Rienhardt proved to be sufficient and therefore Chase had no need to hire his own expert. Essentially, the government argues, because Rienhardt agreed with defense counsel's calculation—100 boxes of pseudoephedrine yields forty to sixty grams of methamphetamine—"[t]here was nothing for an outside expert to prove." This argument misses the point.
While there appears to be no dispute that 100 boxes of pseudoephedrine can produce approximately forty to sixty grams of methamphetamine, the value of the empty boxes as an indicator of the lab's production capacity is hotly contested. The government's expert offered no opinion as to the best available method for estimating drug quantity. The appropriateness of relying on the glass flask, the empty boxes, or some other method is by no means settled, and a defense expert could have informed that discussion.
Although the burden of proof of drug quantity lies with the prosecutor, Chase had a right to put on a defense, and to retain an expert if "a reasonable attorney would[have] engag...
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