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Buchanan v. United States

Court of Appeals of Columbia District

August 3, 2017

Antwan Buchanan, Appellant,
United States, Appellee.

          Argued December 15, 2016.

         Appeal from the Superior Court of the District of Columbia (CMD-13296-14) Hon. William M. Jackson, Trial Judge.

          Donald Burke, with whom Matthew M. Madden was on the brief, for appellant.

          Priya Naik, Assistant United States Attorney, for appellee. Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Kathleen A. Kern, and Melissa M. Price, Assistant United States Attorneys, were on the brief for appellee.

          Before Thompson and McLeese, Associate Judges, and Ferren, Senior Judge.

          Thompson, Associate Judge.

         Appellant, Antwan Buchanan, was arrested after police officers saw him drop a duffle bag and another grocery-type bag as he was fleeing from police officers who had asked to speak with him. When officers retrieved and searched the bags, they found 7.5 ounces of a plant-like substance they believed to be marijuana, two scales, over 200 empty zip-lock bags, sandwich bags, a nail file, and a plastic lid. The plant-like substance, which was contained in one small and two large zip-lock bags and which field-tested positive for THC, [1]was sent to a Drug Enforcement Administration ("DEA") laboratory for testing. On this evidence, the government charged appellant with possession with intent to distribute a controlled substance (marijuana), see D.C. Code § 48-904.01 (a)(1) (2012 Repl.), and possession of drug paraphernalia, see D.C. Code § 48-1103 (a) (2012 Repl.). After a bench trial, he was convicted of both offenses.

         Prior to trial, appellant sought discovery under the rule now codified as Super. Ct. Crim. R. 16 (a)(1)(E) ("Rule 16 (a)(1)(E)").[2] The Superior Court judge, the Honorable William M. Jackson, compelled the government to produce documents in response to some of appellant's discovery requests but denied appellant's motion to compel production in response to other requests. In this appeal, appellant argues that the court erred in certain of its rulings denying his discovery requests. He asks us to require the government to produce the documents in question and to remand for the trial court to review the documents and determine whether appellant was prejudiced by the non-disclosure. We conclude that appellant is entitled to this relief with respect to some of the categories of documents in question and, as to other categories, is at least entitled to have the trial court reconsider the requests in light of "all relevant factors and no improper factor."[3]


         DEA senior forensic chemist Nicole Edwards performed the chemical analysis of the plant-like substance. In his initial discovery requests, appellant sought "the complete case file of the chemist who was responsible for testing the suspected marijuana recovered in this case." The government provided Edwards's case file to appellant on November 8, 2014, ten days prior to the scheduled trial date. The documents produced included, inter alia, the chemical analysis report (DEA-113) and the forensic chemist worksheet (DEA-86), as well as "bench notes, memoranda, evidence reports, chain of custody reports (DEA-12), negative and positive control data, chrom[a]tographs, mass spectra, photographs of [the] evidence, and the results of any color tests and microchemical crystal tests." The government also produced information about the make and model of the equipment used to test the substance and the "scope of accreditation" document for the DEA laboratory. Upon receipt of this information, appellant moved to continue the trial date in order to confer with his own expert chemist. Judge Jackson set a new trial date.

         On December 16, 2014, appellant moved to compel the production of additional documents he had requested. As pertinent here, he sought to compel the government to produce (1) "the standard operating procedures [("SOPs")] used in the DEA lab, " (2) "validation studies relating to those procedures, " (3) "maintenance and calibration records for the equipment used by the DEA lab, " (4) "audit reports on the operations of the DEA lab, " (5) "training materials used by the lab, " and (6) "proficiency examinations and performance evaluations for the chemist who had tested the suspected marijuana." In support of his request, appellant submitted the affidavit of Heather Harris, a "forensic chemistry consultant and adjunct professor of forensic science employed by Arcadia University in Glenside[, ] [Pennsylvania]." Harris averred that she needed to review the documents appellant sought "to ensure that the [DEA] analyst came to the proper conclusion [regarding the evidence] and that the conclusion is scientifically supported by the analytical results" and asserted that it was "impossible to evaluate the validity and reliability of [the DEA] analysis without this documentation."

         In its written opposition to appellant's motion, the government agreed to provide "the DEA Laboratory Order regarding the Analyses of MPDC Evidence (DEA-42)" (the "Laboratory Order") on condition that appellant sign a non-disclosure agreement. The government rejected appellant's requests for other documents on grounds that their acquisition was unduly burdensome or beyond the reach of Rule 16 (a)(1)(E). Appellant filed a reply memorandum in support of his motion to compel, to which he attached a second affidavit from Harris.

         In a written ruling dated February 27, 2015, Judge Jackson said that the government would be required to produce the DEA laboratory SOPs "[t]o the extent that the DEA Laboratory Order does not encompass DEA's standard procedures and guidelines for testing marijuana, " as well as the DEA laboratory accreditation reports "[t]o the extent that the [DEA laboratory's] accreditation is not publicly available." Judge Jackson rejected appellant's requests for the remaining documents.

         Upon the judge's ruling, appellant filed a second motion to compel, arguing that the government had failed to comply with the court order requiring the government's disclosure of the DEA's SOPs. The motion was accompanied by a third affidavit from Harris. Judge Jackson denied the motion from the bench, reasoning that appellant would be able to call the chemist as a fact witness about the laboratory's operating procedures.

         The case proceeded to trial on March 30, 2015. The government had Edwards available to testify in its case-in-chief, but before she took the stand, appellant's trial counsel "stipulated to the admissibility of the DEA-7 and the findings that have been made within." Accordingly, Edwards did not testify at trial (and thus was not cross-examined). The DEA-7 that was admitted into evidence revealed that Edwards had weighed the plant-like substance and performed three different types of tests - a microscopic inspection, a gas chromatography/mass spectrometry ("GC/MS") test, and a Duquenois-Levine ("D-L") color test - to determine whether the substance was marijuana. Her report indicated that all three tests were positive, leading Edwards to conclude that the sample "contained 'a measurable amount of [m]arijuana.'"

         In addition to the DEA-7, the government's evidence at trial included the testimony of a police detective to the effect that the amount of marijuana found in the bags appellant discarded was consistent with intent to distribute and inconsistent with possession for personal use. The detective also testified that the scale, nail file, small zip-lock bags, and other items found in the bag are tools commonly used to separate and package drugs for distribution.


         Appellant now challenges the trial court's denial of his motion to compel production of the six categories of withheld documents described above. Relying on Rule 16 (a)(1)(E), appellant argues that the trial court erred by denying his discovery requests where they "were supported by unrebutted expert affidavits specifically identifying the potential for error in the testing methods employed by the government's chemist, the defense's need for the requested information, and the absence of any likely burden on the government."[4] The government argues that appellant is not entitled to the relief he requests because he (1) failed to establish that the materials in dispute were material to his defense, (2) stipulated to the analysis and findings of the DEA chemist and thus forwent opportunities to challenge the government's forensic evidence at trial, (3) declined to call his expert to testify about the alleged errors committed by the DEA chemist, and (4) failed to demonstrate that he was prejudiced by the court's denial of his requests.

         "We review the trial court's discovery rulings for abuse of discretion, but we consider the proper construction of [Rule 16 (a)(1)(E)] de novo." Watson v. United States, 43 A.3d 276, 283 (D.C. 2012) (citations omitted). If we conclude that the trial court erred or erroneously exercised its discretion in not compelling the requested document production under Rule 16, we must "turn to the more difficult questions as to whether [appellant] was prejudiced by the government's failure to comply with Rule 16, [and] whether that failure warrants reversal of [his] convictions and a new trial." Ferguson v. United States, 866 A.2d 54, 65 (D.C. 2005).

         "Rule 16 [(a)(1)(E)], which governs pretrial discovery, confers [on] an accused the right to discover specific information within the government's control, such as books, papers, documents, photographs . . . which are material to the preparation of the defendant's defense ...." Watson, 43 A.3d at 283 (emphasis added) (internal quotation marks omitted). To establish that the documents are material, a defendant must show "a relationship between the requested evidence and the issues in the case, and there must exist a reasonable indication that the requested evidence will either lead to other admissible evidence, assist the defendant in the preparation of witnesses or in corroborating testimony, or be useful as impeachment or rebuttal evidence." United States v. Curtis, 755 A.2d 1011, 1014-15 (D.C. 2000). "A defendant must make a threshold showing of materiality, which requires a presentation of facts which would tend to show that the [government is in possession of information helpful to the defense." Id. at 1015 (internal quotation marks omitted). "The threshold showing of materiality is not a high one." Id. "However, neither a general description of the information sought nor conclusory allegations of materiality suffice." Id. (internal quotation marks and brackets omitted). Federal courts have held that the defense "must show more than that the item bears some abstract logical relationship to the issues in the case . . . . There must be some indication that the pretrial disclosure of the item would . . . enable the defendant significantly to alter the quantum of proof in his favor[, ]" United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003) (internal quotation marks and brackets omitted), and that "the requested discovery [must have] relevance to . . . the defendant['s] particular case." United States v. Soto-Zuniga, 837 F.3d 992, 1001 (9th Cir. 2016) (emphasis added); see also id. at 1003 (explaining that the test is "whether the discovery may assist [the defendant] in formulating a defense").[5] Documents that "refute the [g]overnment's arguments that the defendant committed the crime charged" fall squarely within the Rule. United States v. Armstrong, 517 U.S. 456, 462 (1996). A defendant's "request for discovery materials must be reasonable and may not unduly burden the government." Curtis, 755 A.2d at 1016 (citing Wiggins v. United States, 521 A.2d 1146, 1148 (D.C. 1987)).

         In Curtis, the government appealed after the Superior Court granted a motion to dismiss the case for the government's failure to turn over information regarding the "maintenance and repair of instruments used, as well as reports, training materials, and written protocols and procedures relating to the testing of controlled substances that were generated or in use from the time the DEA Lab received the evidence in th[e] case to the time when the analysis was completed." 755 A.2d at 1013. In opposing the defendants' motion to compel, the government had submitted evidence "that the DEA Lab equipment would not give false positive results even if the equipment were not maintained properly." Id. at 1015. We reversed (and remanded because the trial court had made no specific findings regarding materiality or burdensomeness), id. at 1017-18, but observed that contradictory "information that the failure to properly maintain the lab equipment could lead to inaccurate test results, including false positives, would make the maintenance logs material." Id. at 1015 n.8. "Similarly, " we observed, "the submission of an affidavit from a qualified chemist that he or she noted a possible flaw in the testing procedures used by the DEA chemist . . . would satisfy the threshold showing of materiality . . . for copies of the training materials and protocols and procedures utilized by the DEA." Id. We left it "to the discretion of the trial court to determine what type of threshold showing [was] appropriate" to demonstrate materiality but instructed that the defendants "must make some preliminary showing of a reason to doubt the chemical analysis provided by the government" and of "some link to a material issue in the case." Id. at 1015.

         In Jackson v. United States, 768 A.2d 580 (D.C. 2001), we reasoned that "[m]ateriality is easily demonstrated" where the government has yet to produce a "detailed description of the tests performed" by the DEA, "broken down to include, among other things, the evidence sampling procedures, qualitative analysis, and quantitation, with the latter differentiated by method [number] and various weight classifications." Id. at 583 (internal quotation marks omitted). We explained, however, that where the government has already produced reports on the results of scientific tests done on suspected controlled substances submitted to the DEA for analysis, and where the defense is "demanding still additional background documents related to DEA testing" through a "broad request" that amounts to "a fishing expedition, " the Curtis "reason to doubt" standard applies, and "the defense w[ill] have to furnish information by affidavit or otherwise contradicting or calling in question the documentation already disclosed before further intrusion into DEA's internal processes w[ill] be sanctioned." Id. at 583 & n.2 (emphasis, brackets, and internal quotation marks omitted).

         In determining whether a defendant was prejudiced by the denial of a motion to compel the government to produce documents, we must determine the "likelihood that the verdict would have been different had the government complied with the discovery rules or whether the remedy offered by the trial court was inadequate to provide [appellant] with a fair trial." Ferguson, 866 A.2d at 65 (internal quotation marks, citation, and brackets omitted). Where we cannot determine the likelihood that the case would have had a different outcome with the requested discovery, the proper course is a record remand "for consideration of the issue by the trial judge . . ., who may make the necessary comparison and transmit [his] findings to us." Jackson, 768 A.2d at 584 (citing Davis v. United States, 564 A.2d 31, 42 (D.C. 1989) (en banc) (Where this court has "an incomplete record upon which to assess harmlessness, " remand is appropriate for the trial court "to make the proper evidentiary record and return the matter to this court.")); see also Soto-Zuniga, 837 F.3d at 1002 ("[B]ecause we do not have access to the records in question, we cannot ...

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