Opinion
Case No. 00-40082-01/02-RDR
April 9, 2001
MEMORANDUM AND ORDER
This order is issued to further record and elaborate upon the rulings of the court regarding pretrial motions at the evidentiary hearing conducted March 23, 2001. Most of this order will address defendants' motion to dismiss or suppress for destruction of evidence.
MOTION TO DISMISS FOR DESTRUCTION OF EVIDENCE (Doc. No. 39)
Defendants are facing methamphetamine and gun charges arising from searches conducted on or about August 13, 2000 and October 16, 2000. The motion to dismiss for destruction of evidence concerns evidence and materials collected during the search of defendants' residence in rural Cherokee County on August 13, 2000. Approximately 111 items were seized by law enforcement officers during the search. The government has attempted to categorize the items. They include approximately: 22 guns which have not been destroyed; 50 "non-firearm" items which either were not destroyed or were sampled and then destroyed; and 39 "non-firearm" items which were destroyed without testing.
The items which were destroyed without testing include: 18 containers with labeled or known contents — such as acetone or rubbing alcohol or distilled water; 16 containers or items with unknown contents — such as mason jars with brown sludge or a baking dish with residue or gallon jug with a white paste substance; and 4 items like coffee filters, empty 2-liter bottles or baggies which apparently did not contain a substance.
An inventory of the seized items has been shared with defendants. Photographs have been taken of most of the items. A videotape of the scene where evidence was collected was also made. The officers also obtained a court order for the disposal of some of the seized items. The order stated:
1. That property seized pursuant to the concurrent search warrant includes toxic and dangerous chemicals, contaminated glassware, other contaminated equipment used in the clandestine manufacture of controlled substances and any other property which appears to be contaminated, the seizing agency shall cause to be made photographs and, if available, videotape of the above-mentioned items;
2. That the seizing agency shall take sufficient samples of the suspected controlled substances and precursors for testing and analysis by both the State and, if later ordered, experts for the defense;
3. Samples of suspected controlled substances and precursors shall be preserved to the extent possible for such later evidentiary use; and
4. The remaining toxic or dangerous chemicals, contaminated glassware and contaminated equipment used in the clandestine manufacture of controlled substances and any other property which appears to be contaminated, that has been seized, shall be immediately destroyed as hazardous material in accordance with all applicable federal and state laws.
The duty on the government to preserve evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense;" in other words, evidence that is constitutionally material. California v. Trombetta, 467 U.S. 479, 488-89 (1984). The exculpatory value of the evidence must be apparent to the police before its destruction and the evidence must be incapable of replacement or duplication by other means to be constitutionally material. Trombetta, 467 U.S. at 489. The evidence must be more than "potentially useful" to the defense. U.S. v. Parker, 72 F.3d 1444, 1451 (10th Cir. 1995). Thus, more must be shown than simply that the evidence could have been tested and the results might have exonerated the defendants. Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
If the exculpatory value of the evidence is merely indeterminate, then to prove a constitutional violation, defendant must show that the government acted in bad faith in destroying the evidence. Parker, 72 F.3d at 1451.
In the instant case, the evidence destroyed does not appear to have any potential to exonerate defendants of the crimes charged. Defendants have asserted that they have no opportunity to check some of the evidence for fingerprints. But, defendants have not demonstrated the relevance of finding fingerprints of other persons on the destroyed items. Defendants also assert that the evidence might be useful in determining how much methamphetamine had been produced or was intended to be produced. This issue may be significant. But defendants fail to show how the destroyed evidence is relevant to proof of the output of methamphetamine. Nor do defendants show how the relevance of the destroyed evidence should have been apparent to the officers in charge. Finally, defendants have failed to show bad faith on the part of the officers. The sworn testimony before the court indicated that the officers made a conscientious effort to follow their agency procedures and the court's order in processing the evidence. A number of samples were taken. Photographs and a videotape were taken. An inventory was done of the items saved and the items destroyed. Toxic and dangerous materials, as well as contaminated property, were destroyed as hazardous in conformity with the court order.
In sum, no due process violation has been proven. For these reasons, the court has denied defendants' motion to dismiss or suppress for destruction of evidence.
MOTION TO EXCLUDE EXPERT TESTIMONY (Doc. No. 38)
With this motion, defendants have asked the court to exclude from evidence any expert testimony regarding the "theoretical production capacity of the alleged methamphetamine lab" and asked the court to make a pretrial determination of admissibility under Daubert and Federal Rule of Evidence 104(a). The court has denied this motion. A pretrial Daubert hearing is not required by the Tenth Circuit. U.S. v. Nichols, 169 F.3d 1255, 1262-64 (10th Cir.) cert. denied, 528 U.S. 934 (1999). Moreover, we believe defendants' arguments in this regard are directed more towards relevance or weight than towards scientific reliability. We believe these issues may be addressed fairly and adequately during the trial of this case. Therefore, the motion was denied.
MOTION TO DISMISS COUNT 4 (Doc. No. 55)
The court deferred decision upon this motion until after the trial of this case. See U.S. v. Reed, 114 F.3d 1067 (10th Cir. 1997).
MOTION TO DISMISS COUNTS 5 AND 8 OR FOR A BILL OF PARTICULARS (Doc. No. 56)
Defendants have asserted that Counts 5 and 8 are flawed because they do not allege specifically which firearms form the basis for the § 924(c) charges contained therein. We reject this claim. An enhanced penalty is not being sought by the government on the basis of the kind of firearm involved. This distinguishes this case from Castillo v. United States, 530 U.S. 120 (2000) where the Court found that the machine gun provisions of § 924(c) stated a separate element of the crime. In U.S. v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999), the Supreme Court summarized the elements of a § 924(c)(1) violation and made no indication that the specific type of firearm was an essential element of the crime. In U.S. v. Verrecchia, 196 F.3d 294, 299 (1st Cir. 1999), the First Circuit stated:
We have held, in accord with other circuits, that jury unanimity on a particular firearm is not required in a prosecution under 18 U.S.C. § 924(c) for using or carrying a firearm during and in relation to or possessing a firearm in furtherance of, a violent or drug trafficking crime. See United States v. Hernandez-Albino, 177 F.3d 33, 40 (1st Cir. 1999); United States v. Morin, 33 F.3d 1351, 1354 (11th Cir. 1994); United States v. Correa-Ventura, 6 F.3d 1070, 1075-87 (5th Cir. 1993).
See also, United States v. Vincent, 20 F.3d 229, 236 (6th Cir. 1994).
On the basis of this authority, we do not believe the failure to detail which firearm was considered by the grand jury in issuing the indictment is a violation of defendants' constitutional rights. The grand jury specified the violation by identifying the day and the underlying drug crime. This, together with the bill of particulars promised and recently filed by the government, is sufficient to give defendants fair notice of the charges against them.
For these reasons, the motion to dismiss counts 5 and 8 was denied.
OTHER RULINGS
The court granted the motion of Karen Evans to join in the motions of Bruce Evans. See Doc. No. 52. The court also determined that the following motions were moot: motion for disclosure of expert testimony (Doc. No. 34); motion for notice of co-conspirator statements (Doc. No. 36); and demand for notice of evidence (Doc. No. 37).
IT IS SO ORDERED.