Criminal Law Blog

Defense Was Entitled to Additional Discovery on Procedures in Lab Testing of Suspected Marijuana

Buchanan v. United States (decided August 3, 2017)

Players: Associate Judges Thompson and McLeese, and Senior Judge Ferren. Opinion by Judge Thompson. Donald Burke and Matthew M. Madden for Mr. Buchanan. Trial Judge: William M. Jackson.

Facts: Appellant was arrested after police officers found 7.5 ounces of a substance they believed to be marijuana in a duffel bag he dropped. The substance field tested positive for THC and was sent to the DEA laboratory for testing.

Pre-trial, appellant sought discovery under Rule 16(a)(1)(E) for (1) the standard operating procedures (SOPs) used in the lab, (2) validation studies relating to those procedures, (3) the lab’s maintenance and calibration records for the equipment, (4) the lab’s audit reports on the operations, (5) the lab’s training materials, and (6) proficiency examinations and performance evaluations for the chemist that performed the test. Appellant attached an affidavit from an expert stating the expert needed to review the requested documents to ensure the chemist came to the proper conclusion and that the conclusion was supported by analytical results, which was impossible to do without the requested documents.

The government rejected the requests as immaterial or beyond the reach of Rule 16. The trial judge ruled the government must produce the lab’s standard operating procedures and accreditation reports, and rejected requests for the remaining documents. When the government failed to produce the SOPs, the judge denied appellant’s second motion to compel, reasoning defense could call the chemist as a fact witness about the lab’s procedures.

The case proceeded to trial, where appellant did not contest that the substance was marijuana and stipulated to the chemist’s report. He was convicted in a bench trial.

Issue: Did the trial court erroneously deny appellant’s motion to compel documents related to testing done by the DEA laboratory?

Holding: Yes, the requested discovery was material to appellant’s case and supported by affidavits identifying the potential for error in the testing methods, the defense’s need for the information, and the absence of any burden on the government. The court considered each category of evidence individually.

Lab’s standard operating procedures: The trial court refused to hear appellant’s argument that the produced documents failed to include the SOPs, and appeared not to have reviewed the discovery itself. The government did not dispute that the defense’s expert needed the SOPs to understand the limits of the testing, nor did they assert production would be burdensome. The trial court’s decision was erroneous without a more careful consideration of what material information its ruling made inaccessible to the defense.

Training materials: The court previously held that submitting an affidavit from a qualified chemist that noted a possible flaw in the testing procedures used by the DEA shows materiality for copies of training materials used by the DEA. A prima facie showing that the results were unreliable is not required. The court held it is enough that appellant’s expert identified a possible flaw that called into question the government’s evidence, and the trial court erred in not requiring production of the training materials.

Validation studies: Appellant’s initial request for “validation studies relating to [the testing]” was too broad, but appellant’s expert elaborated in her third affidavit, explaining that although the DEA’s techniques are generally accepted in the community, that does not prove that the DEA was using the techniques accurately and reliably. The trial court erred by not considering the expert’s explanation and the issue was remanded to the trial court to consider more fully.

Maintenance and calibration records: Although the defense’s expert did not establish materiality because the request did not specify a time and so was overly broad, and she did not state that the equipment could lead to a false positive if not maintained, the issue must be remanded because the trial court’s decision was based on an incorrect application of the rule. The trial court denied because the request was unduly burdensome and Brady already required the government to produce information about any problems with the equipment. The court had no evidence it was unduly burdensome, and this was contradicted by appellant’s expert. It also did not consider the relevance of the lab failing to adhere to a maintenance or calibration regimen. The court remanded for the trial court to consider the issue more fully.

Audit reports: The trial court rejected appellant’s request as unduly burdensome and another Brady obligation, but appellant’s expert averred that the burden was minimal, as they must store the documents in an easily accessible location to maintain accreditation. Although appellant’s request may have been too broad because it sought documents other than during appellant’s testing, the court remanded for the trial court to reconsider only those reports that are temporally relevant.

Proficiency examinations and performance evaluations: The trial court denied appellant’s request for the chemist’s performance evaluations because disclosure was not mandated under the Privacy Act. The trial court erred because the Privacy Act does not create a discovery privilege and appellant was not required to show an actual need for the materials. Discovery can be compelled over the Privacy Act by a court discovery order.

The trial court must reconsider its rulings on the validation studies, maintenance and calibration records and audit reports. The government must produce the laboratory SOPs and training materials and the DEA chemist’s proficiency results and performance evaluations.

The court could not determine if the erroneous discovery rulings were prejudicial to appellant and if the erroneous ruling was significant enough to call the government’s proof of the substance’s identity into question. It held although appellant stipulated to the chemist’s report and analysis, and its theory of the case at trial did not rest on the testing of substance being inaccurate, appellant is still free to challenge the evidence. The court remanded to the trial court to reconsider if its ruling was prejudicial after reviewing the requested evidence.

AB

Read the full opinion here