IN THE CIRCUIT COURT FOR JEFFERSON COUNTY, ALABAMA

TENTH JUDICIAL CIRCUIT

STATE OF ALABAMA,

Plaintiff,

vs. CASE NO:

MOTION FOR DAUBERT HEARING ON

ADMISSIBILITY OF EXPERT TESTIMONY REGARDING

DRUG IDENTIFICATION

COMES NOW the Defendant, by and through his attorney of record. John A. Lentine, in the above-styled cause and hereby moves this Honorable Court pursuant to Alabama Rules of Evidence 104(a), 702, and 703 and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) conduct a Daubert hearing in regard to any expert testimony the State's plans to elicit concerning the identification of any controlled substances in this cause. In support of said Motion the Defendant shows as follows:

1.) That the Defendant is charged with unlawful possession of a controlled substance. That counsel for the Defendant has received a report from the Alabama Department of Forensic Sciences which purports to be the findings of a forensic scientist that the material he examined was controlled. Counsel expects the State to attempt to use a certificate of analysis as proof of the identification of the substance as being a controlled substance.

2.) That in Daubert v. Merrell Dow Pharmaceuticals, Inc., 507 U.S. 509, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court of the United States ruled that Rule 702 of the Federal Rules of Evidence (hereinafter "Fed.R.Evid.") superseded the old Frye "general acceptance" test for the admissibility of scientific evidence. The Court concluded that trial courts must determine the admissibility of such evidence using a preponderance of the evidence standard in relation to the requirements of Rule 104(a), Fed.R.Evid. In determining admissibility of scientific evidence, the Court should focus on relevance and reliability. The Supreme Court noted many factors can bear on the inquirv, but set out four specific factors to be considered: 1.) Can the evidence be empirically tested? Can the evidence be refuted? 2.) Has the theory or technique been subjected to peer review or publication? 3.) If the evidence at issue involves a scientific technique rather than a scientific theory, is there a known or potential rate of error? 4.) The Frye "general acceptance" inquiry can be performed but is not required. Finally, the proponent of the evidence has the burden of establishing its admissibility to the Court. Daubert. supra. 113 S.Ct. at 2796.

1.) The procedures adopted in Daubert should be applicable to scientific evidence in the State of Alabama. The Alabama Rules of Evidence, specifically Rules 104(a) and 702 , mirror their Federal counterparts in their verbiage and content. Further, the Frye test has been adopted as the standard for the admissibility of scientific evidence by the Alabama Supreme Court in the case of Ex parte Dolvin, 391 So.2d 677 (Ala. 1980). Finally, the Alabama Court of Criminal Appeals has implicitly acknowledged that the Daubert standard is to be used for the admissibility of scientific evidence. Smith v. State, 677 So.2d 1240 (Ala.Cr.App. 1995). Therefore the Court should hold a pretrial hearing pursuant to Rule 104(a) of the Alabama Rules of Evidence to consider whether the State can prove any expert testimony relating to scientific evidence meets the Daubert test for admissibility at the trial of this cause.

WHEREFORE, ALL PREMISES CONSIDERED, the Defendant prays this Honorable Court will grant his Motion and hold a Rule 104(a) hearing regarding the admissibility of any scientific testimony and evidence concerning drug identification pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 507 U.S. 509, 113 S.CL 2786, 125 L.Ed.2d 469 (1993).

Respectfully submitted.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVSION

UNITED STATES OF AMERICA,

vs. CASE NUMBER:

DEFENDANT'S MOTION IN LIMINE

COMES NOW the Defendant, by and through his attorney of record, John A. Lentine, in the above-styled cause and hereby moves the Court pursuant to Rules 12(e) and 17.1 of the Federal Rules of Criminal Procedure (hereinafter "F.R.Crim.P."), Rule 103(c) of the Federal Rules of Evidence (hereinafter Fed. R. Evid.) and Luce v. United States, 469 U.S. 38, 41 n.4 (1984) for an Order in limine precluding the government and/or any of its agents or witnesses from eliciting before the venire and petit jury in this cause any testimony or evidence regarding the followiniz matters in contained herein:

A.) Any testimony and/or other evidence of the Defendant's possession of money, a beeper and/or a cellular phone.

B.) Any attempts to allow law enforcement officers to testify as expert and fact witnesses.

In support of said motion to exclude said evidence, the Defendant shows as follows:

1.) The Defendant's reason to believe the government mav attempt to mention, refer to or offer evidence or testimony of said matters at trial.

2.) Many times the Government in the prosecution of a narcotics charges, such as the possession with intent to distribute charges in this cause, will attempt to introduce evidence of unexplained assets of a defendant by way of cash found, beepers, automobiles, cellular phones. home ownership records, car registrations. etc. In this cause various items were seized either from the Defendant's person or from the vehicle in which he was driving. These items included a cellular phone, a beeper and approximately Four Hundred ($400.00) in U.S. currency. No other items such as weapons, scales, etc., were discovered on the Defendant's person or in the vehicle.

The Defendant asserts that the introduction of such evidence violates Rules 402, 403 and 404(b) Fed. R. Evid. in that the evidence is not relevant to any issue, any probative value of the eNide-.ice, if found to be relevant, is substantially outnveighed by its prejudicial effect and such -vidence is nothing more than evidence of prior bad acts and says nothing of whether the Defendant possessed drugs with the intent to distribute them. Because such evidence is not probative of an issue it becomes nothing more than inflammatory propensity evidence barred under 404(b) and 403. Independent of the Rule 404(b) argument the Defendant asserts that if such evidence is remotely relevant, any probative worth is still outweighed by its prejudicial effect. Old Chief, v. United States, 519 U.S. ____, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

3.) The Defendant has reason to believe the Government may attempt to qualify or elicit expert testimony from its law enforcement fact witnesses. The Defendant asserts that police officers are not experts but are lay witnesses advocating through testimony that a defendant is guilty of the offense charged. Therefore the Defendant requests the Court rule pretrial that any police witnesses who is going to testify as an expert be disallowed to testify as a fact witness. To allow such "expert" testimony from a lay witness will encourage the jury to give the witness' testimony more weight than it is fairly entitled to receive. (See generally, United States v. Boissoneault, 926 F.2d 230 (2^nd Cir. 1991); United States v. Youniz, 745 F.2d 733 (2^nd Cir. 1994). The allowance of such evidence will unduly bias a jury because it will cast an unfairly prejudicial aura of reliability and trustworthiness to the testimony. (United States v. Doe, 903 F.2d 16 (D.C. 9990).

Further, as of the filing of this motion, counsel for the Defendant has received no response or disclosure of any police "expert" the Government intends to call at trial. If the Government fails to give such notice and disclose the underlying data or information that their expert relied on in part or in whole, then such testimony should be excluded or a reasonable continuance be given to the defense to review such material. (United States v. Vastola, 899 F.2d 211 (3^rd Cir. 1990)).

4.) That counsel for the Defendant respectfully requests the Court hold a pretrial hearing in regard to these matters and, if the Court rules adversely to the Defendant as to any of the matters contained herein that the Court rule that that the adverse ruling is deemed to be preserved and counsel relieved from having to re-raise the objection or motion in the presence of the jury.

5.) In addition to the aforementioned matters, counsel hereby requests the Court to conduct a Daubert hearing to determine the admissibility of any scientific evidence offered in this cause. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 507 U.S. 509, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court of the United States ruled that Rule 702 of the Federal Rules of Evidence (hereinafter "Fed.R.Evid.") superseded the old Frye "general acceptance" test for the admissibility of scientific evidence. The Court concluded that trial court's must determine the admissibility of such evidence using a preponderance of the evidence standard in relation to the requirements of Rule 104(a) Fed. R. Evid.. In determining admissibility of scientific evidence the Court should focus on relevance and reliability. The Supreme Court noted many factors can bear on the inquiry, but set out four specific factors to be considered: 1.) Can the evidence be empirically tested? Can the evidence be refuted? 2.) Has the theory or technique been subjected to peer review or publication? 3.) If the evidence at issue involves a scientific technique rather than a scientific theory, is there a known or potential rate of error? 4.) The Frye "general acceptance" inquiry can be performed but is not required. Finally, the proponent of the evidence has the burden of establishing its admissibility to the Court. Daubert, supra, 113 S.Ct. at 2796. Because the defense anticipates the Government will offer evidence relating to the forensic analysis of controlled substances, the Court should hold a pretrial hearing pursuant to Rule 104(a) Fed.R.Evid. to consider whether the Government, as proponent of this evidence, can prove any expert testimony relating to scientific evidence meets the Daubert test for admissibility at the trial of this cause. (See also United States v. Lee, 25 F.3rd 997 (11^th Cir. 1994).

WHEREFORE, ALL PREMISES CONSIDERED, the Defendant Drays this Honorable Court will grant his motion and issue an Order precluding the Government and any of its agents from mentioning, referring to, or attempting to introduce any testimony or evidence concerning the matters aforementioned and to conduct a Daubert hearing as to the admissibility of anv scientific evidence.

Respectfully submitted,

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVSION

UNITED STATES OF AMERICA,

vs. CASE NUMBER:

DEFENDANT'S SUPPLEMENTAL REOUEST FOR SPECIFIC

PRODUCTION AND DISCLOSURE OF RULE 16(a)(1)(C),(D),(E) KYLES AND

BRADY INFORMATION AND MARERIALS

COMES NOW the Defendant, by and through his attorney of record, John A. Lentine, pursuant to Rule 16.1(a)(1)(C),(D), (E) and 16.3, F.R.Crim.P., Kyles v. Whitley, 115 S.Ct 1555 (1995); Brady v. Maryland, 373 U.S. 83 (1963), and in light of the testimony and evidence offered by the Government at the June 8, 1998, Daubert hearing in this cause, the Defendant moves the Court for an entry of an Order requiring the government to disclose and provide the specific information and materials requested herein. This information is favorable to the Defendant on the issue of guilt. including impeachment information and other material and evidence tending to discredit the govermnent's alleged expert witnesses. The following information and materials is requested:

1.) Pursuant to Rule 16(a)(1)(E) Fed R. Crim. P, a complete, accurate. and full summary of any expert witness' testimony concerning the testing, examination and analysis of any alleged controlled substances in this cause. Further, a complete, accurate and full summary of the witness' opinions, the bases and reasons for the opinions, and the witness' qualifications, as to the witness's qualifications please produce the witness's current resume and/or curriculum viate. Also whether the witness has every been disallowed to testifv as an expert in any case, if so the name of the parties involved, the case number, the jurisdiction in which the case arose.

2.) Pursuant to Rule 16(a)(1)(C) Fed R. Crim.P, the Defendant requests the following be produced:

A.) Copies of the proficiency ratings of the Dallas Texas DEA laboratory drug testing unit for 1997 and 1998.

B.) Any and all publications, articles, journals, treatises, training manuals and/or other publications, produced privately and/or by the Government, specifically including but not limited to the publication "microgram", used by, referred to, made the basis of and/or relied on by any proposed Government expert as to the examination, analysis, testing, operation, calibration, maintenance, use of the instruments that perform Gas Chromatography Mass Spectroscopy (hereinafter "GC/MS"), and Fourier Transform Infrared Spectroscopy (hereinafter "FTIR") testing, examinations and analysis.

C.) Any and all publications, articles, journals, treatises, training manuals and/or other publications, produced privately and/or by the Government, specifically including but not limited to the publication "Microgram", which sets forth the potential or actual error rate of any of the aforementioned instruments, the potential or actual error rate of testing, examinations, and analvsis in the DEA lab in Dallas, Texas or the potential or actual error rates of all DEA labs conducting the aforementioned drug testing.

3.) Pursuant to Rule 16(a)(1)(D) Fed.R.Crim P.. the Defendant requests the following be produced:

A.) Copies of any and all notes, memos, reports, test results, examination results, spectras, standards, used by the Government's analyst and any other analyst in the testing, examination and analysis of the alleged controlled substances in this cause. Specifically, including but not limited to:

(1) The specific brand and model of the FTIR and GC/MS used by the Dallas laboratory in conducting the analysis test on the alleged controlled substances.

(2) The date, time and name of the individual who calibrated said FTIR and GC/Ms prior to said test. Copies of the calibration records on said instruments for the date of the test on the alleged controlled substances in this cause and copies of the procedures used in calibrating said spectrophotometer. Copies of any and all records of maintenance on said instruments during the Months of May and June, 1998.

(3) The exact number of tests conducted by said instruments on the date that the test was conducted on the alleged controlled substances in this case both before and after this test was performed

(4) Copies of the standard spectras used by the examiner in comparing the spectras resulting from the test of the alleged controlled substances and copies of the actual spectras produced bv the tests.

(5) Copies of the standard molecular models from the atomic bands produced by the FTIR and GC/iMs instnunents used in the testing of the compounds in this cause.

(6) The statistical measuring process employed by the analyst in the visual comparison of the spectra produced by the FTIR and GC/MS in this cause.

(7) The confidence level/limits of the hypothesis involved in the FTIR and GC/MS testing procedures.

(8) List all the independent validation techniques used by the analyst to verify or validate the conclusions reached from the tests conducted in this cause.

(9) List all other data used in comparing the spectras produced by the FTIR and GC/MS in this cause.

(10) List of the error rate of the instruments used to conduct any testing in this

(11) The numbers and types of enantiomers that are identical or correspond similarly to cocaine hydrochloride and cocaine base.

(12) Copies of the standard molecular models created by the atomic bands contained in cocaine hydrochloride and cocaine base.

Respectfully submitted,

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

vs. CASE NUMBER:

DEFENDANT'S RESPONSE AND OBJECTIONS

TO GOVERNMENT'S DISCLOSURE AND PRODUCTION

COMES NOW the Defendant, by and through his attorney of record, John A. Lentine, in the above-styled cause, and hereby files with the Court this response and objections to the Government's disclosure and production of material pursuant to the Defendant's supplemental request for specific Rule 16, Kyles, and Brady material filed on June 22, 1998 and the Government's actual disclosures of July 13 and 17, 1998. The Defendant's response and objections are as follows:

AS TO REQUESTS OBJECTED TO BY THE GOVERNMENT:

1.) As to Defendant's supplemental request 2A: The Defendant objects to the Government's failure to provide such material. The request for the proficiency ratings (i.e. error rates), especially as to the specific equipment used to the perform the tests on the substances in question is highly relevant and exculpatory. In 1978 the National Institute of Law Enforcement and Criminal Justice and the Law Enforcement Assistance Administration of the United States Department of Justice sponsored a proficiency testing program of forensic laboratories. The report of showed that forensic laboratories erred in the identification of drugs in 18.2% of samples tested. (See, Peterson, Fabricant & Field, Laboratory Proficiency Testing Research Program (I 978); M. Kurzman & D. Fullerton, Drug Identification in Scientific and Expert Evidence, 409, 504 (E. Imwinkelried ed. 2d. ed. 1981)). The proficiency or error rates of the equipment used to conduct the tests of the substances in question is directly relevant and material to the credibility, reliability, accuracy and trustworthiness of the equipment and the equipment's operator. This is exactly the type of evidence that Brady and its progeny demand be disclosed. (See also, United States v. Russo, 480 F.2d 1228,1241 (6 th Cir. 1973); United States v. Dioguardi, 428 F.2d 1033 (2nd Cir.), cert. denied, 480 U.S. 825, 91 S.CL 50, 27 L.Ed.2d 54 (1970)).

2.) As to request 2B: The Defendant's objects to the Government's refusal to disclose this information. Initially the defense questions the Govemment's assertion its analyst used no written materials in conducting his testing in this cause. The defense merely seeks the specific written material used as part of the specific testing procedures employed. These manuals, articles, instructions, publications, etc., are mandated to be disclosed under Rule 16(a)(1)(C). (See. Ialesias, supra., at 1527; United States v. Yee, 129 F.R.D. 629, 634-35 (N.D. Ohio 1990); United States v. Liguid Suizars. Inc.. 158 F.R.D. 466 (E.D. 1994). Further the assertion of the Government that the chemist only used his "Prior experience, training and industry practice" quantitatively means nothing but is a subtle way to deflect any requests for disclosure . It is illogical to assume that the Govemment's forensic chemist received all his experience, training and industry practice from verbal communication merely passed on over time. Further, it is ridiculous to assume that the Govermnent's "expert" received his specific expertise in drug analysis like Moses receiving the word from the burning bush. The Government's alleged "expert's" expertise was derived from training which in some part came from written materials.

3.) As to request 2C: The Defendant refers the Court back to the response contained in #1. Further the Defendant refutes the Government's assertion that this information concerning trustworthiness and reliability of the specific equipment used by the DEA lab can be found in the public domain. The Defendant asserts the error rates of this particular equipment is being withheld from public disclosure and is not available by any public means.

4.) As to request 3A(2) : The Defendant objects to this myopic response. The Defendant seeks the specifics of the calibrations of each machine used in the testing of the substances. Specifically the Defendant seeks the standards used to calibrate each machine as set out by the Federal Bureau of Standards which requires specific calibration procedures to be followed by a certified NBS expert in all governmental testing.

The Defendant also objects to the myopically restrictive interpretation employed by the Government regarding the extent of discovery of Rule 16(a)(1)(D) material. Dictionary definitions are not determinative because of their meaning flexibility. United States v. Iglesias, 881 F.2d 1519, 1524-25 (9th Cir. 1989). The linchpin to the scope of such discovery is found in the amendments to the rule.

Specifically the 1975 Amendment which sought to give the term "any results or reports" a liberal rather then a restrictive construction. Counsel for the Defendant cannot determine the appropriateness, trustworthiness, and/or reliability of the testing procedures performed merely from a report that is totally conclusionary and without any foundation. Fundamental fairness and due process require a defendant be given an opportunity, pretrial, to examine the basis upon which an expert has formulated his opinions.

Clearly the machines used to run these tests are major "witaesses" confronting the Defendant. Included in the constitutional right of confrontation is a defendant's ability through cross examination to challenge the credibility and reliability of any witness testifying against him. Douglas v. Alabama, 380 U.S. 415. 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1964). In United States v. Liebert, 519 F.2d 542 (3rd Cir. 1975), the Court of Appeals held that:

A party seeking to impeach the reliability of computer evidence should have sufficient opportunity to ascertain by pretrial discovery whether both the machine and those who supply it with data input and information han-e performed their tasks in accurately.

Id. at 547-48.

The Court in Liebert noted that computer error could cast doubt on the accuracy and reliability of the government's evidence against the Defendant. Therefore the information sought in Liebert would be useful in impeaching the reliability of the computer procedures that were instrumental in making the charge against him. Liebert. at 548. The discovery sought in Liebert was not mandated on appeal because the government had offered the trial court and the defense with significant alternatives by producing manuals, handbooks, documenting procedures, etc., reports from other experts showing the reliability studies on the processing systems, depositions of their experts and other sweeping concessions which provided the defense with an abundance of information pretrial to confront the reliability and accuracy of the government's computer system. Liebert, supra, at 549-50.

Like the defendant in Liebert, this Defendant must have the sufficient ability and opportunity to confront the accuracy, reliability and trustworthiness of the machinery and its operators who are witnesses against him. The only way in which the Defendant can have any meaningful confrontation of these "witnesses" is to have sufficient pretrial discovery to determine the accuracy and reliability of the procedures involved. Tnis is especially true when the government asserts in its pleadings that the machinery involved in the testing procedures has no error rate. (See, Government's Response to the Defendant's Request for Production and Disclosure, pg.4, response to 3.(A)(10)).

However, unlike the defendant in Liebert, this Defendant has received no major discovery concessions or alternatives from the Government. The discovery process regarding the scientific evidence has been arduous at best with the Government objecting to much of the information sought by the defense and providing the least and narrowest amount of information called for either constitutionally or statutorily. This Defendant has had to scratch and claw to receive only crumbs of information vital to his defense.

The Defendant asserts he has a constitutional and statutory right to all the information sought throughout his supplemental request for production and disclosure.

5.) As to request 3A(3).: The Defendant objects in that the answer is non responsive. If it is unknown then the Government needs to take reasonable steps to find out the answer.

6.) As to request 3A(7): The Defendant objects in that the question, while unintelligible to the Government, is not to a forensic chemist. The Defendant simply requests a specific answer.

7.) As to request 3A(9). The Defendant objects to this nondisclosure and moves the Government be required to perform the specific analysis and computerized spectral search with production of the resulting spectral matches as Order by the District Court on June 8, 1998. Further the Govemment's supplemental response of July 10, 1998, specifically referring to this subsection is inadequate, unresponsive and in direct conflict with the abovesaid order. A visual review of personally developed diskettes is not what the District Court ordered the Government to do. Further an inspection of this disks amounts to nothing more then a visual observation and not of the specific written results. The Defendant asserts the Government has either negligently or willfully disobeyed the District Court's discovery order in this regard. The Government is due to follow this Order or be sanctioned appropriately.

8.) As to the general grounds of objection by the Government the Defendant submits as follows: The Toughy regulation violation is meritless. These regulations deal with the subpoenaing of witnesses and/or material from governmental agencies not with discovery requests Also equally as meritless is the Government's assertion that the defense has not made a showing of materiality of the information sought. Materiality of information in the context of the discovery of scientific methodology or data contemplates information which is significantly helpful to an understanding of important exculpatory and/or inculpatory evidence. The burden on the defense is not heavy if there exists a probable indication that the information sough will play an important role in the preparation of the defense ancuor in the combating of the prosecutions evidence. (See, Liquid Sugars, Inc., supra, at 471; citing United States v. Jackson, 850 F. Supp. 1481, 1503 (D.Kan. 1994) quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)).

The Government also fails to take into account the impact of Daubert on this

issue. The Government must establish an evidentiary for the admissibility of its scientific test results. However, with the inception of Daubert, the Government has the additional burden of proving its "experts" and their "equipment" meet the necessary scientific standards. United States v. Lee, 25 F.3d 997 (11th Cir. 1994). Therefore in addition to needing such evidence to prepare for the trial of a case, evidence of methodology and/or data is needed to prepare to challenge the Government's evidence at a Daubert hearing. In this cause the Government has previously failed at a Daubert hearing to satisfy the District Court as to their proposed expert and the evidence produced by the equipment used to perform the drug analysis. The Government has been given the opportunity for a second bite at the apple by reanalyzing the substances and offering up another proposed expert. The Defendant in turn has the constitutional and statutory right in advance of a subsequent Daubert hearing and an impending trial to the methodology, information and data which directly underlie the Government's reports and test results necessary for an understanding of the evidence.

AS TO THE MATERIAL DISCLOSED BY THE GOVERNMENT:

9.) As to the disclosures provided by the Government on July 13, 1998, the Defendant objects to the failure of the Government to provide the "actual spectras" produced by the tests that were conducted. The Government has only provided the Defendant with "standard spectras". This is unresponsive and unacceptable. The Government must produce the actual spectra produced by the tests done on the substances. On July 17, 1998, the Government provided the defense with three one page documents alleged to be "the best matches" (algorithms) produced by one of the testing instruments. This disclosure is insufficient and unresponsive to the request. The defense requested and the District Court ordered the computer printout of all matches produced bv the spectral library attached to the testing instruments. The defense believes the Government has only produced what their expert has run from his own personal spectral librarv and not the on board computerized library.

The testimony of the Government's first proposed expert at the June 8, 1998, Daubert hearing indicated that the computerized spectral library on the testing equipment will produce at least 5 compound matches on a test substance. Clearly this procedure was not done because only two "best matches" have been produced. Counsel for the defense has reason to believe the Government's alleged "expert" has intentionally failed to abide by the Court's order to prevent the defense from having access to these results. Counsel asserts the Government should be required have its "expert" immediately perform the tests and provided the defense with all matches from the computerized spectral library on each machine used and not the personalized spectras of the examiner.

WHEREFORE, ALL PREMISES CONSIDERED, the defense request the Court Order the Government to comply with the requests herein and/or set this matter for an evidentiary hearing in order to resolve these issues prior to trial.

Respectfully submitted,

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVSION

UNITED STATES OF AMERICA,

vs. CASE NUMBER:

OBJECTION TO MAGISTRATE JUDGE'S ORDER

DENYING SUPPLEMENTAL DISCOVERY REOUESTS

COMES NOW the Defendant, by and through his attorney of record. John A. Lentine, in the above-styled cause, and hereby files his objection to the Magistrate Judge's Order of July 23, 1998, denying the supplemental request for disclosure of certain materials and information concerning scientific evidence. In support of said objection the Defendant shows as follows:

1.) On June 22, 1998 the Defendant filed a Supplemental Request for Specific Production and Disclosure of Rule 16(a)(1)(C), (D) and (E), Kyles and Brady Information and Materials. On July 6, 1998, the Government responded to the Motion by complying in part and filing objects to the remaining requests. On July 20, 1998, in compliance with the Magistrate Judge's order, the Defendant filed his response and objections to the Government's disclosure and nondisclosure of the requested materials. On July 23, 1998, the Magistrate Judge entered an Order in which certain discovery requests of the defense were denied. Specifically, the Magistrate Judge denied the defense's request for the publications regarding the error rating for the GCMS and the FTIR; any publications. journals. etc. used by the Goverrunent's expert witness in testing, operation, calibration, and maintenance for the GCMS and FnR; and proficiency rating of the Dallas, Texas. DEA laboratory. The defense requests the Magistrate Judge's denial of these materials be vacated and the Government instructed to produce these materials.

GCMS, FTIR, and DEA Laboratory Error Rates

2.) Fed. R. Crim. P 16(a)(1)(C) states:

(C) Documents and Tangible Obiects. Upon request of the defendant the Government shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions there of, which are with the possession, custody or control of the Government, and which are material to the preparation of the defendant's defense or are intended for use by the Government as evidence in chief at the trial, or were obtained from or belong to the defendant.

The Magistrate Judge correctly indicated that the information sought would need to be "material to the defendant's defense" because the items in question are not to be presented in the Government's case in chief nor were the items in the possession of the defendant. The Magistrate Judge further ruled, quoting United States v. Armstrong, that "material to the defense" meant "material that responded to the Government's case in chief." United States v. Armstrong, 517 U.S. 456, 462 (1996). A review of the Supreme Court's decision in Armstrong reveals it applies onlv to the fact specific affirmative defense of selective prosecution.

However, if one applies the ruling from Armstrong to the present case, a more precise definition of "the defendant's defense" is needed. The United States Supreme Court, in Armstrong, clarified the meaning for "the defendant's defense." The Court stated, "the concept of defense . . . may encompass only the narrower class of 'shield' claims, which refute the Government's arguments that the defendant committed the crime charged." Armstrong at 462.

The defendant, Donald Johnson, is accused by the Government of possessing cocaine and "crack" cocaine with intent to distribute. In order for the Government to satisfy this charge, the Government must prove beyond a reasonable doubt, through the use of an expert witness and scientific testing, that the substance obtained from the defendant is cocaine and "crack" cocaine. For the results of the testing to be admitted into evidence, the Government must qualify the witness as an expert to allow testimony concerning the substance obtained from the defendant. United States v. Lee, 25 F.3d 997, 998 11^th Cir. 1994). Lee further states, "The results of such specialized. technical, diagnostic machinery are only admissible through the testimony of an expert witness; courts do not distinguish between the standards controlling admission of evidence from experts and evidence from machines." Lee at 998-999. The Govemment's witness must not only be an expert in the scientific concepts concerning the theory behind the Gas Chromatography Mass Spectroscopy (GCMS) and Fourier Transform Infrared Spectroscopy (FTIR), but the witness must also be an expert in the application of those theories to enable the GCMS and FTIR to "testify." A Daubert hearing must be held to determine if the Government's witnesses (the individual and scientific machines) qualify as experts.

The Magistrate Judge concluded that the error rates of the GCMS and FTIR and the proficiency rating of the Dallas laboratories were not material to the preparation of the defense. Lee specifically states, "Daubert instructed courts weighing the admissibility of a scientific technique to 'consider the known or potential rate of error' of that technique." United States v. Lee, 25 F.3d 997, 999 (11th Cir. 1994). Clearly, the Daubert decision makes the aforementioned information such as the error rates material to the preparation of the defense because this information will be needed to establish the expertise of the Government witnesses and the reliability of the FTIR and GCMS during the Daubert hearing, and will provide impeachment material necessary to refute the Government's claims that the substance in question is indeed cocaine and "crack" cocaine at

The Magistrate Judge concluded that the information concerning the error rate of the GCMS and FTIR and the laboratory were not exculpatory but merelv impeachment materials and that these materials did not fit under the criteria provided bv Brady v. Maryland, 373 U.S. 83 (1963). The United States Supreme Court in United States v. Baiziev, stated, "Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule." United States v. Batziev, 473 U.S. 667, 676 (1985). Because the error rates of the GCMS and FHR and the laboratory can be used as impeachment material during the Daubert hearing and during trial, the defense is entitled to this information under rule Fed.R.Crim.P. 16 (a)(1)(C) and Brady.

Publications - Basis of Training/Experts

3.) The Magistrate Judge failed to specifically rule upon this issue and the defendant pmys that this court will rule specifically to instruct the Government to furnish any and all publications, articles, joumals, treatises, training manuals and/or other publications, produced privately and/or by the Government, specifically including but not limited to the publication Microgram. used by, referred to, made the basis of anclor relied on by any proposed Government expert as to the examination, analysis. testing, operation, calibration, maintenance, use of the instruments that perform GCMS and FTIR testing, examinations. and analysis. Because the admittance of the substance obtained from the defendant as cocaine and "crack" cocaine is chief to the Government's case and may only be admitted through the testimony of an expert, the foundation of the witnesses expertise, i.e. any material used as reference or during training becomes material to the defense. United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 471-72 (E.D. Cal 1994).

"Where scientific methodology or data is involved in proving a defendant's guilt, it is unreasonable to expect defense counsel to be able to delve into technical aspects of that methodology/data on the spot at trial.... this type of information is often very difficult to prepare for in advance. . . the precise methodology utilized by Government experts will not often be known without advance discovery of the underlying methodology/data. Liquid Sugars, at 471.

The Government claims that their witness used "prior experience, training, and industry practice" quantitatively means nothing, but is a subtle way to deflect any requests for disclosure. It is illogical to assume that the Government's forensic chemist received all his experience, training, and industry practice from verbal communication merely passed on over time. Further, it is ridiculous to assume that the Government's "expert" received all his specific expertise in drug analvsis like Moses receiving the Ten Commandments from God upon Mount Sinai. (Moses transcribed God's law in order for the nation of Israel to have a reference. See, Exodus 24:4).

The defense prays that this court require the prosecution to submit the information requested to allow the defense to prepare cross examination of the Governments' witnesses to guarantee correct procedural analysis occurred and to insure the integrity of the judicial svstem.

GCMS and FTIR Calibration Procedure and Maintenance

4.) The Magistrate Judge ruled the calibration and the maintenance procedures were not material to the preparation of the defense and therefore, irrelevant. The defense prays that this court grant the defense's request because such information serves to impeach the results of the GCMS and FTIR. As with results from other machinery, such as the results of a computer, such can be admitted into evidence only after a finding of trustworthiness. In United States v. Liebert. the court held that "A party seeking to impeach the reliability of computer evidence should have sufficient opportunity to ascertain by pretrial discovery whether both the machine and those who supply it with data input and information have performed their tasks accurately." Unites States v. Liebert, 519 F.2d 542, (3rd Cir. 1975). The spectras and results of the computer comparisons are output of these machines. The defense, in order to satisfy the sixth amendment confrontation of adverse witnesses, requires the procedures for calibration and maintenance to insure that the individuals performing these functions conducted these functions properiv and that the machines themselves are in perfect working condition to supply accurate and truthful results. For these reasons, the defense respectfully prays for the court to require the Government to provide the calibration and maintenance procedures.

AS TO THE MATERIAL DISCLOSED BY THE GOVERINMENT:

5.) As to the disclosures provided by the Government on July 13, 1998, the Defendant objects to the failure of the Government to provide the "actual spectras" produced by the tests that were conducted by the FTIR, GC/MS. The Government has only provided the Defendant with "standard spectras". This is unresponsive and unacceptable. The Government must produce the actual spectras produced by the tests done on the substances. On July 17, 1998, the Government provided the defense with three, one page documents alleged to be "the best matches" (algorithms) produced by one of the testing instruments (FTIR). This disclosure is insufficient and unresponsive to the request, the subsequent order of the Magistrate Judge, and the order of this Court. The defense believes the Government has only produced what their expert has run from his own personal spectral library, and not the on-board computerized library.

The testimony of the Government's first proposed expert at the June 8, 1998. Daubert hearing indicated that the computerized spectral library on the testing equipment produced at least 5 compound matches on a test substance from the FTIR and 7 best matches from the GCMS. Clearly this procedure was not done because only two "best matches" have been produced, and the additional comment from the Government that the GCMS does not produced "best matches." Counsel for the defense has reason to believe the Government's alleged "expert" has intentionally failed to abide by the Court's order to prevent the defense from having access to these results. Counsel asserts the Government should be required to have its "expert" immediately perform the tests and provide the defense with all matches from the computerized spectral library on each machine used and not the personalized spectras of the examiner.

Respectfully submitted,

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