The opinion of the court was delivered by: Judge Beryl A. Howell
Pending before the Court is defendant Dante Sheffield's "Motion to Test Drugs Not Submitted to DEA." ECF No. 74. On December 1, 2011, a jury convicted defendant Sheffield of Unlawful Possession With Intent to Distribute 100 grams or More of Phencyclidine ("PCP"), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iv). Evidence presented at trial established that the defendant possessed a lemon juice bottle containing eight ounces of PCP that was recovered from a vehicle in which the defendant was a passenger. Following defendant Sheffield's arrest and seizure of the drug evidence, Metropolitan Police Officers separated an ounce of liquid from the lemon juice bottle and sent it to the Drug Enforcement Agency ("DEA") for testing. Defendant Sheffield now moves, forty-one days after the jury's verdict, for an order requiring the testing of the remaining seven ounces of PCP evidence, arguing that this is necessary to ensure that the drug evidence "introduced at trial are the same drugs seized on June 8, 2011, and to ensure that the measurements performed by the Metropolitan Police are accurate." Def. Sheffield Mot. to Test Drugs Not Submitted to DEA ("Def.'s Mot. to Test Drugs"), ECF No. 74, at 3. For the reasons stated below, this motion is denied.
On the evening of June 8, 2011, District of Columbia Metropolitan Police Officers stopped the vehicle in which defendant Dante Sheffield was riding after officers observed the vehicle commit traffic violations. Upon approaching the vehicle, officers smelled marijuana and proceeded to search the vehicle for contraband. During this search, officers recovered from the locked center console between the driver's seat and front passenger seat a lemon juice bottle containing eight ounces of PCP. Defendant Sheffield, as well as the owner and driver of the vehicle, Ms. Brande Johnson Dudley, were subsequently arrested and indicted for one count of possession with intent to distribute 100 grams or more of PCP in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iv).
On December 1, 2011, following a three-day trial, a jury convicted defendant Sheffield and acquitted Ms. Dudley. Evidence presented during trial established that defendant Sheffield possessed the lemon juice bottle recovered from the vehicle, and that the lemon juice bottle contained over 100 grams of PCP. Regarding the contents of the lemon juice bottle, which is the subject of the instant motion, the government presented testimony from six witnesses: two arresting officers, who observed and seized the lemon juice bottle at the scene of the traffic stop; three other officers who established the chain of custody of the lemon juice bottle, and detailed their handling, storage, and documentation of the evidence; and a DEA forensic chemist, who testified as to his testing of the PCP evidence.
The government's witnesses testified that the lemon juice bottle contained 369.7 grams of PCP and introduced as evidence photographs documenting the quantity and weight of liquid contained in the lemon juice bottle. Trial Tr. (Rough), 11/29/11 PM (Officer Joseph Abdalla).*fn1
Officer Joseph Abdalla testified that he performed field testing and documented pertinent information about the liquid in the lemon juice bottle, in accordance with MPD procedure. Id. He then extracted a sample of the liquid contents of the lemon juice bottle to send to the DEA for testing. Id. Officer Abdalla testified that pursuant to DEA regulations, the DEA does not accept custody of more than 28.35 grams of suspected PCP. Id. He therefore separated approximately one ounce of the drug evidence into a vial and gave it to Detective Scott Brown. Id. Detective Brown testified that he placed the vial in a plastic container, heat sealed the container, completed the property receipt, and signed his name on the heat seal. Trial Tr. (Rough), 11/29/11 PM (Detective Scott Brown). Detective Brown then placed the container in an envelope, secured the envelope, initialed his name on the package, and placed it into a property box that was transported to the DEA lab for analysis. Id. With regard to the remaining seven ounces of PCP, Officer Abdalla testified that he marked the remaining PCP for destruction by placing it in a separate container and evidence heat seal. Trial Tr. (Rough), 11/29/11 PM (Officer Joseph Abdalla).
Prior to defendant Sheffield's trial, on November 15, 2011, defendant Sheffield filed a motion in limine to exclude the drug evidence, arguing that the remaining seven ounces of PCP, which had not been sent to the DEA for testing, had been destroyed contrary to federal regulation 28 C.F.R. §50.21 and that this warranted suppression of all PCP evidence at trial. ECF No. 55. On November 21, 2011, the Court denied this motion, holding that the federal regulation cited by the defendant did not apply to D.C. Metropolitan Police Department ("MPD") and that the drugs had been destroyed in accordance with established procedures.*fn2
Approximately ten days later, during trial, the government produced the lemon juice bottle containing the remaining seven ounces of PCP evidence. Contrary to the government's prior representations that this evidence had been destroyed, according to the government "[a] few days before trial, the government learned that the seven ounces of PCP were awaiting destruction and had not yet been destroyed by MPD's third party vendor. At that time, the government was able to locate those seven ounces of PCP and produce them at trial for a viewing by the defendant and his counsel during a recess in the trial proceedings." Gov't Opp'n Def.'s Mot. to Test, ECF No. 77, at 2 n.1. The lemon juice bottle was admitted into evidence, along with five photographs of the lemon juice bottle, its contents, and its weight, that were taken the night of the defendant's arrest. Tr. Ex. Logs, ECF No. 62.
On January 11, 2012, forty-one days following the jury verdict finding defendant Sheffield guilty, he moved for an order directing "the Metropolitan Police to submit the lemon juice bottle of Phencyclidine (PCP) to the [DEA] for testing." Def.'s Mot. to Test Drugs, ECF No. 74. On January 24, 2012, the government filed an opposition to the defendant's motion, arguing that testing of the PCP evidence "does not meet the standards required for newly discovered evidence" under FED. R. CRIM. P. 33(b)(1) because the evidence would not produce an acquittal at any possible new trial. Gov't Opp'n Def.'s Mot. to Test, ECF No. 77, at 3. For the reasons stated below, the Court agrees and the defendant's motion is denied.
Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Whether to grant a motion for a new trial is "a decision committed to the Court's sound discretion," but should only be granted if the defendant has shown that "the error was substantial, not harmless, and that the error affected the defendant's substantial rights." United States v. Williams, No. 09-cr-026, 2011 WL 5833983, at *3 (D.D.C. Nov. 17, 2011) (internal quotations and citations omitted); see also United States v. Pettiford, 517 F.3d 584, 591 (D.C. Cir. 2008) ("In reviewing the District Court's decision on a new trial motion, we apply a deferential standard, and will reverse only if the court abused its discretion or misapplied the law."). A motion for new trial under Rule 33 must be filed within 14 days after the verdict, unless the motion is grounded on newly discovered evidence, in which case the motion must be filed within three years. FED. R. CRIM. P. 33(b).
Defendant Sheffield seeks an order directing the MPD to test the
remaining PCP evidence in order "to ensure that the drugs introduced
at trial are the same drugs seized on June 8, 2011, and to ensure that
the measurements performed by the Metropolitan Police are accurate."
Mem. Supp. Def.'s Sheffield's Mot. to Test Drugs, ECF No. 74, at 3. He
argues that this is necessary because "[t]he amount of PCP increases
the mandatory-minimum sentence and effects his federal sentencing
guideline score which is aggravated by the fact that the defendant may
qualify as a career criminal." Id. The government opposes the
defendant's motion, asserting that testing of the PCP evidence does
not meet the standards required for newly
discovered evidence under FED. R. CRIM. P. 33(b)(1),*fn3 ...