Unpublished Dispositionunited States of America, Appellee, v. Kim Francis Chandler, Appellant.andunited States of America, Appellee, v. Michael C. Osborne, Appellant, 894 F.2d 463 (D.C. Cir. 1990)

JUDGMENT

Per Curiam

This cause came to be heard on the appeal of the defendants from the judgment of the district court, and was briefed and argued by counsel. The issues have been accorded full consideration by the court and occasion no need for a published opinion. See D.C. Cir. Rule 14(c). For the reasons stated in the accompanying memorandum, it is

ORDERED AND ADJUDGED, by the Court, that in No. 88-3110 the judgment is affirmed, and it is

FURTHER ORDERED AND ADJUDGED, by the Court, that in No. 88-3120 the sentence of Appellant Osborne is vacated and the case is remanded to the district court for resentencing in accordance with the accompanying memorandum.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.

MEMORANDUM

The appellants in this case were both convicted of distributing PCP. They claim that the government unconstitutionally deprived them of due process by destroying all but a representative sample of the seized PCP prior to trial. They also claim that the trial judge erred in failing to appoint an expert chemist to assist them in challenging the government's determination of the weight of the PCP. Finally, appellant Osborne claims that the trial judge, in determining for sentencing purposes the amount of PCP Osborne had distributed, improperly relied on the jury's verdict in Chandler's trial, to which Osborne was not a party. We reject the first two claims, and therefore uphold the convictions of both appellants and the sentence of appellant Chandler, but we agree that appellant Osborne must be resentenced.

On three occasions, Appellant Osborne sold PCP to an undercover police agent. On two of those occasions, appellant Chandler was present. They were arrested on December 3, 1987, the occasion of the third sale. A government chemist weighed the PCP that had been seized from the appellants; he concluded that the PCP seized on December 3, 1987 weighed 1,010 grams, plus or minus two grams.¹ The government then destroyed all but a representative sample of the seized PCP.

The indictment charged Osborne with three counts of distributing PCP; the first two counts also charged Chandler. Count one charged the appellants with distributing a kilogram or more of PCP on December 3, 1987; counts two and three charged the distribution of lesser amounts on other dates. Both appellants moved to dismiss count one on the ground that the destruction of evidence was unconstitutional. This motion was denied. The appellants also moved for appointment of an expert to assist them in challenging the chemist's determination of the weight of the PCP. This motion was denied.

On the first day of trial, Osborne pleaded guilty under count one to the lesser included offense of distributing 100 grams or more of PCP in violation of 21 U.S.C. § 841(b) (1) (B) (iv). The jury later found Chandler guilty of distributing one kilogram or more of PCP in violation of 21 U.S.C. § 841(b) (1) (A) (iv). In sentencing the defendants under the United States Sentencing Guidelines, the judge relied, in both sentences, on the jury's finding that the weight of the PCP distributed was one kilogram or more. The defendants now appeal.

The government claims that by pleading guilty, appellant Osborne waived any violation of his constitutional rights that occurred prior to his plea. The government therefore contends that Osborne cannot now challenge the government's destruction of evidence or the trial court's failure to appoint an expert.

We disagree. By pleading guilty, Osborne established only that he distributed 100 grams or more of PCP. The exact weight of the PCP distributed was a fact to be found at sentencing; under the Sentencing Guidelines, it was a crucial fact. See U.S.S.G. Sec. 2D1.1(a) (3) (sentence depends on amount distributed). The cases on which the government relies are based on the proposition that " [a] plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence." United States v. Broce, 109 S. Ct. 757, 762 (1989). In a case such as this, where the guilty plea does not establish all the facts needed to sustain a lawful sentence, we think the defendant may, following the plea, continue to challenge any alleged errors that go to the establishment of facts for sentencing purposes. The destruction of evidence and failure to appoint an expert, if erroneous, would have infected the trial judge's finding of the amount of PCP Osborne distributed, and so Osborne may challenge them.

On the merits, the appellants' claim that it was unconstitutional for the government to destroy the PCP is easily dispensed with on the authority of California v. Trombetta, 467 U.S. 479 (1984). In that case, the Supreme Court determined that so long as government officers act in good faith and in accord with their normal practice, and without any animus towards the defendants or conscious effort to suppress exculpatory evidence, their constitutional duty to preserve evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense." Id. at 488. The Court then defined this "standard of constitutional materiality" as requiring that the evidence (1) "possess an exculpatory value that was apparent before [it] was destroyed," and (2) "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489.

In this case, the evidence does not meet the standard of constitutional materiality. In the first place, once the government chemist determined that the seized PCP weighed 1,010 grams, with a maximum error of 2 grams, the PCP certainly did not have apparent exculpatory value. It had apparent inculpatory value. The weight could conceivably have been wrong, but, as in Trombetta, if the government had preserved the PCP, it would have been "much more likely to provide inculpatory than exculpatory evidence." Id. at 489. Furthermore, the appellants had the opportunity to challenge the accuracy and proper operation of the machine used to weigh the PCP. In Trombetta, the Court held that the ability to attack the accuracy of the government's evidence was a sufficient alternative means of demonstrating innocence. See id. at 490. Therefore, the defendants were not "unable to obtain comparable evidence by other means" than having access to the seized PCP.

Accordingly, the destruction of evidence did not violate the appellants' constitutional rights so long as it was done in good faith. The appellants now seek a remand for a determination of good faith, but they concede that they did not raise the issue below. They attempt to excuse their failure to raise the issue by saying that Arizona v. Youngblood, 109 S. Ct. 333 (1988), had not yet been decided when their case was tried. This is no excuse, however, for Trombetta, which had been decided, makes clear the relevance of the good faith of the government officer that destroys evidence. Similarly, there is no merit in the appellants' other proffered excuse, that the government failed to inform them of pending regulations (which were later adopted) that require the government to preserve twice the minimum amount of contraband required for the most severe mandatory minimum sentence. These proposed regulations had been published in the Federal Register, see 52 Fed.Reg. 37,630 (1987), so the defendants were at least constructively aware of them, and furthermore, since Trombetta made clear the relevance of whether the police acted in accordance with standard procedures in destroying evidence, it was up to counsel to inquire what the standard procedures were.

Accordingly, the trial judge's failure to make a finding as to good faith is reviewable only for plain error. Inasmuch as there is no evidence at all that suggests that the government acted with animus towards the appellants or with a conscious intent to suppress exculpatory evidence, it certainly was not plain error for the trial judge to ignore the question of good faith. The trial judge therefore correctly denied the appellants' motion based on the destruction of evidence.

The Criminal Justice Act provides that counsel for an indigent criminal defendant may move for appointment of an expert at the government's expense. The trial judge "shall authorize" such appointment if she finds that the services of an expert "are necessary for adequate representation." 18 U.S.C. § 3006A(e) (1). The Constitution also provides criminal defendants with the right to expert services in some cases. See Ake v. Oklahoma, 470 U.S. 68 (1985).

We have held that a trial judge exercises discretion in deciding whether to grant a request under Sec. 3006A. Furthermore, the defense counsel bears the burden of demonstrating that the requested services are necessary for adequate representation. See United States v. Brown, 443 F.2d 659 (D.C. Cir. 1970).

In this case, the question whether the defendant adequately demonstrated to the trial court that expert services were necessary is close. The defense counsel stated only that "we would like to see if the expert would give us a one-percent error, if possible." He did not suggest any reasons why the trial court should believe that a one-percent error was a reasonable possibility. We note that the government chemist who weighed the PCP stated that he first tested the scale with "the standard of one kilogram of weight," and that the balance read low, i.e., "about one gram less than it should." Joint Appendix at 152.

Trial judges, in evaluating requests for expert assistance, should of course bear in mind that without expert assistance, defense counsel's ability to explain why expert assistance is necessary may be limited. It certainly would have been proper for the trial judge to grant the motion on the showing that the defendant made. But we are not prepared to say that the trial judge abused his discretion by denying the motion, where, as here, the defendant did no more than suggest that an expert might be useful. For the same reason, we do not think denial of the motion violated the defendants' constitutional right to expert assistance. See Ake v. Oklahoma, 470 U.S. at 82 (defendant must make threshold showing of need for expert).

In determining, for sentencing purposes, that Osborne had distributed more than one kilogram of PCP, the trial judge relied on the jury verdict in Chandler's trial. The government concedes that this was error, for Osborne was not a party to that trial and cannot be bound by the verdict. For this reason, Osborne's sentence must be vacated and his case remanded for resentencing.

On resentencing, the government will bear the burden of establishing the amount of PCP Osborne distributed by a preponderance of the evidence. United States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989). Both parties will have the opportunity to present evidence in accordance with the normal procedure at a sentencing hearing. See U.S.S.G. Sec. 6A1.3. The district judge will not consider the jury's verdict in the Chandler case.

Chandler's conviction and sentence are affirmed. Osborne's conviction is affirmed. Osborne's sentence is vacated and the case remanded for resentencing in accordance with this memorandum.