Petition for Writ of Certiorari — Campbell v. United States
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OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
RODERICK ALAN CAMPBELL
Petitioner
UNITED STATES OF AMERICA
Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Roderick A. Campbell, Pro Se
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
I.
IT.
III.
QUESTIONS PRESENTED FOR REVIEW
WHETHER, CERTIORARI SHOULD BE GRANTED TO
RESOLVE A QUESTION- OF THE EVALUATION OF
WHETHER SCIENTIFIC EVIDENCE IS EXCULPATORY
UNDER THE STANDARD OF BRADY V. MARYLAND FOR
THE DEPTH OF UNDERSTANDING CHARGEABLE TO
THE DEFENSE, THE TRUTHFULNESS OF THE
GOVERNMENT DESCRIPTION OF THE DATA, AND THE
MINIMUM COMPETENCE REQUIRED OF THE REVIEW-
ING COURT?
WHETHER, CERTIORARI SHOULD BE GRANTED TO
DECIDE WHETHER THE UNITED STATES SENTENCING
GUIDELINES ARE STATUTORY LAW IN FACT AND
LAW WHICH MUST BE CHARGED AND PROVEN AS
AGGRAVATED OFFENSES RATHER THAN
CHARACTERISTICS OF THE OFFENSE?
WHETHER, CERTIORARI SHOULD BE GRANTED TO
DECIDE WHETHER THE PETITIONER’S SCIENTIFIC
EVALUATION OF NEWLY DISCOVERED ANALYTICAL
DATA NOT PRODUCED FOR TRIAL DEMONSTRATED A
COLORABLE PROOF OF ACTUAL INNOCENCE, SUCH
THAT ALL PROCEDURAL DEFECTS SHOULD BE
WAIVED AND THE CASE HEARD ON THE MERITS?
PARTIES
The parties of interest are all named on the cover of the Petition.
li
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW
TABLE OF CONTENTS
TRAVEL BELOW
TABLE OF AUTHORITIES
BACKGROUND FACTS
ARGUMENT:
I. CERTIORARI SHOULD BE GRANTED TO
RESOLVE THE EVALUATION OF SCIENTIFIC
EXCULPATORY EVIDENCE UNDER BRADY
V. MARYLAND:
II. © CERTIORARI SHOULD BE GRANTED TO
ESTABLISH THE STATUS OF THE UNITED
STATES SENTENCING GUIDELINES AS
STATING ELEMENTS OF A DRUG OFFENSE:
III. CERTIORARI SHOULD BE GRANTED TO
DECIDE WHETHER THIS PETITIONER’S
SCIENTIFIC EVIDENCE CONSTITUTES A
COLORABLE PROOF OF ACTUAL
INNOCENCE WARRANTING A FULL
EVIDENTIARY HEARING:
CONCLUSION
APPENDICES: A through N
iil
ill
ili
iV
Vill
23
29
TABLE OF AUTHORITIES °
Apprendi v. New Jersey, 530 U.S. 466 (2000) ..... 15, 16, 19, 22
Brady v. Maryland, 373 U.S. 83 (1963) .............-.. 10, 30
Leko v. Portuondo, 257 F.3d 89 (2"4 Cir. 2001) ............. 11
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579
8 Pe ee Cy eer re re ee ee nye Pre Tere 6, 10
Cae Bs PR, He SP EOP EROEND vids ki scencnvassonseawh 14
Harris v. Nelson, 394 U.S. 286 (1969) ...............-.00. 24
Herrera v. Collins, 506 U.S. 390 (1993) .................. 24
In re Grand Jury Application, 617 F.Supp. 199
SAAD: RUE Sha bi eee Cee chek old ueceoraviar pecans ns 5
Jones v. United States, 526 U.S. 227 (1999) ................ 15
Kinder v. United States, 119 L.Ed.2d 214 (1992) ........... 16
Marbury v. Madison, 5 U.S. 137 (1803) .................. 23
McClesky v. Zant, 499 U.S. 467 (1991) ................. 23, 29
McMillan v. Pennsylvania, 477 U.S. 79 (1986) .......... 16, 19
Miller v. Florida, 482 U.S. 423 (1987) ..................... 21
Miller v. United States, 564 F.2d 13 (1st Cir. 1977) ........... 13
Mullaney v. Wilbur, 421 U.S. 684 (1975) .................. 20
Murray v. Carrier, 477 U.S. 478 (1986) ............. 24, 25, 26
Passos-Paternina v. United States, 12 F.Supp.2d
121 (D.P.R. 1998), aff'd, 201 F.3d 428 (1st Cir. 1998) ......... 10
Phoenix v. Matesanz, 189 F.3d 20 (Ist Cir. 1999) ........... 11
R.L.C. v. United States, 503 U.S. 297 (1992) ............ 21, 22
Sanders v. United States, 373 U.S. 1 (1963) ................ 29
Saville v. United States, 451 F.2d 649
Re BEE bap bS en sae cen db Rado t a ch esows kabus ewan 29
Sawyer v. Whitley, 505 U.S. 333 (1991) ................ 24, 25
iV
Schlup v. Delo, 513 U.S. 298 (1995) ................ 24, 28, 29
Siciliano v. Voes, 834 F.2d 29 (1st Cir. 1987) ............... 13
United States v. Acosta, 963 F.2d 551 (2"4 Cir.1992) ........ i7
United States v. Beler, 20 F.3d 1428 (7% Cir. 1994) .......... 19
United States v. Boylan, 5 F.Supp.2d 274
ee Ter eo ee ie it en me 20
United States v. Butt, 731 F.2d 75 (1st Cir. 1984) ............ 13
United States v. Campbell, 61 F.3d 976
GP EU So b a'vne cen ee wens hak soe cea ae a 1, 33
United States v. Coleman, 188 F.3d 354
a Ee Eee ee eee PR pe 23
United States v. Cotton, 261 F.3d 397 (4t Cir.
2001), cert. granted, 122 S.Ct. 803 (2001) .................. 21
United States v. Edwards, 154 F.3d 915
yt SU 0 43:53 wha dee ea oa ee 11
United States v. Fields, 466 F.2d 119
(2 Cy. TIVE) GE PE DOO Cee) obs bois ce ecckks Goons 11
United States v. Garza-Juarez, 992 F.2d 896
eS ere Prey rr tre Fy Neen Pea ee We yy 13
United States v. Gonzalez, 259 F.3d 355
Go as SD sno ooh. k vceenans Mee oeener ee eeee ea 21
United States v. Jenning, 945 F.2d 129
Ga BOWED 0h b Nk bk tue eas ee werseeeeeaa eats 17
United States v. Johnson, 999 F.2d 1192
Phe SUED bi cakeaeneeuecelcadi ese oeee ae eee 17
United States v. Levay, 76 F.3d 671 (5th Cir. 1996) .......... 17
United States v. Nash, 64 F.3d 504 (9% Cir. 1996) ........... 29
United States v. Navarro, 145 F.3d 580 (34 Cir. 1998) ....... 29
United States v. Ramirez, 242 F.3d 348 (6 Cir. 2001) ....... 16
United States v. Richards, 67 F.3d 1531
ge 2 Tr eye ry rere ree 17
United States v. Robbins, 967 F.2d 1387
ae | EP rere r er Teer ee rT eae. 17
United States v. Rodriguez, 975 F.2d 999
rR: ROMER :0 ce sus pone 20 eves ee nek as Wek b eee ce anes 17
United States v. Roland-Gabriele, 938 F.2d 1231
LS gag Se See Pp beeen de eae ea ey eer Cey Fee 17
United States v. Salerno, 481 U.S. 739 (1987) .............. 18
United States v. Sanquist, 125 F.3d 573
Ejeet Gs BT ep ry erp apse ee nid Bo ey apy tig 2 py 11
United States v. Sciverner, 167 F.3d 525
FoR: ROPE 0440s coh sb eebaceun eateries Vieira 29
United States v. Thomas, 204 F.3d 381 (24 Cir. 2000),
rev'd in part, United States v. Thomas, 274 F.3d
og ee yee Fee re Sere ere rare yey we 20
United States v. Tran, 234 F.3d 798 (2"4 Cir. 2000) .......... 20
United States v. Underwood, 577 F.2d 157
ee Sy PEE Te res ee ee red ery eI eye ES PE ee 13
Williams v. United States, 503 U.S. 193 (1992) ............. 20
vi
PETITION FOR WRIT OF CERTIRARI
Petitioner, Roderick A. Campbell, Pro Se, respectfully
prays for the grant of a writ of certiorari to review the denial of
his request for a certificate of appealability in the United States
Court of Appeals for the First Circuit, entered as a final
judgment on November 26, 2001.
TRAVEL BELOW
The underlying criminal case has been reported as United
States v. Campbell, 61 F.3d 976 (1st Cir. 1995), cert. denied, 517 U.S.
1161 (1996). The matter for which the Petitioner sought a
certificate of appealability in the First Circuit Court of Appeals
was his Motion To Vacate, Set Aside, Or Correct Sentence,
Campbell v. United States, 97-CV-0274 (D.R.I.). The denial of
that Motion is reproduced in Appendix A.
The certificate of appealability requested in the Court of
Appeals was denied on September 6, 2001. See Appendix B.
The Appellate Court construed a timely Motion For
Withdrawal Of Decision as a motion for reconsideration, and
denied the same on November 26. See Appendix C.
This Court has granted an enlargement of time up to and
including September 10, 2002, for filing of this Petition.
JURISDICTION
The District Court held jurisdiction pursuant to 28 U.S.C. §
2255; the First Circuit Court of Appeals reviewed the District
Court denial pursuant to 28 U.S.C. §§ 2253 and 1291. This
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
STATEMENT OF THE CASE
The complexity of the background to this case cannot be
adequately expressed here. The following description touches
the highest points; a full factual account, provided to the First
Circuit Court of Appeals for bail, is reproduced at
http:/ /hometown.aol.com/ drrodcampbell/.
In 1983, Campbell was the director of synthetic research for
Olin-Hunt Chemical Corporation, supervising ten synthetic
organic chemists and their technicians. He was divesting
himself of his private consulting business to be conflict-free in
order to run the Olin Specialty Chemical plant in Rensselaer,
New York. In the process he had a serious lapse in judgment
that resulted in him delivering a one ounce PCP mixture to a
consulting customer. He was arrested and prosecuted.
At his state trial, the prosecutor portrayed Campbell as the
supplier of a conspiracy, unaware or uncaring of the real
supplier compared to the stature of the arrested suspect. When
it developed that there was virtually no other evidence against
Campbell, despite sixty days of wire intercepts over seven
telephones, the state offered the codefendant a deal for his far
more numerous and serious charges if he would testify that
Campbell was his supplier. He did and Campbell was
sentenced to twenty years.
In prison, Campbell litigated over the dirty tricks that he
alleged in his case and on behalf of fellow prisoners. Six years
later, the Rhode Island Attorney General called Campbell the
most vicious writ-writer his office had ever dealt with.‘
Campbell was paroled after six and one-half years. After
floundering for six months in an effort to restore destroyed
family, Campbell got back into chemistry and let his legal
interests lapse. He became Director of Chemical Research at
Spectra Science Corporation, a Cambridge think-tank company
developing laser and infrared dyes mostly for defensive
military applications.5 On a trip to locate equipment for the
company, Campbell tried to learn what had happened to the
* For example, the State had been required to post a $6,000,000 supersedeas
bond over Campbell’s dirty tricks suit. Campbell v. State of Rhode Island, 89-
CV-0185 (D.R.1.).
5 In his five month tenure, Campbell personally made a dye, vanadyl-
naphthalocyanine, that was written up (unnamed) in the June, 1993, Popular
Science as the camouflage dye against infrared detection of infantrymen.
Monsieur Pasaquay, the research director of Bolle Optical, France, called
Campbell's industrial quantity Lambda 2 dye, for fighier-pilot laser-blinding
protection, “the superb ruby.”
former buyer of his consulting business, Woodman, who had
been the real drug supplier in 1983. Trial trans. V, 60-61.
Re-contact with Woodman soon went past the social with
Woodman wanting to sell Spectra Science infrared-absorbing
dyes to Monsanto Safe-flex Glass in Springfield, Massachusetts,
where his brother-in-law was vice-president. V, 64. This
overture was a ruse, however, for Woodman to persuade
Campbell to make P2P, which he claimed was legal by
producing the 1992 West Criminal Code and Rules for the list
of controlled substances.
Campbell smelled the rat in Woodman and, when simple
“no's” quenched none of the ardor, Campbell researched
Woodman at Rhode Island Federal District Court. An
apoplectic clerk eventually gave Campbell a docket sheet
stamped “SEALED.”
So when Woodman asked for a quid pro quo of a small
sample of P2P for picking up some glassware, Campbell
obliged him with a small sample of chloroacetone teargas. V,
67, 69-70. And when Woodman later switched to wanting a
quaalude raw material, Campbell obliged him with a small
sample of AAOT, a sneezing powder. V, 82. When Campbell
suddenly got fired at Spectra Science with no opportunity to
explain his past, he imagined the hands of enemies in that
termination and resolved to exploit and discredit them.
The game of cat and mouse eventually got out of hand.
Campbell was unable to start the legitimate Grignard Reagent .-
business he wanted before becoming broke. So the ruse
continued with Campbell supplying a non-P2P that simply
smelled like P2P. He designed all the chemical bubbling as
‘show for Woodman’s chemist-trained eye; especially the
solvent choice of (THF, tetrahydrofuran), but then the other
reaction conditions were all meant for the P2P chemistry to fail
and make principally benzylacetate.
Campbell was arrested after nine months of this and
charged with manufacture and distribution and conspiracies to
make both P2P and quaalude. He was persuaded to put on a
wholly apologetic defense, and the D.E.A. chromatogram
analyses appeared to indicate a fraction of a percent P2P
present. So the jury convicted on the P2P counts on instruction
that only a detectable quantity of P2P was necessary for guilt.
The jury acquitted on the methaqualone (quaalude) conspiracy,
but convicted for the “any detectable” instruction. Campbell
was sentenced to 288 months.
After trial, Campbell filed a Rhode Island F.O.I. request
with the Rhode Island Department of Health (R.1.D.O.H.)
Laboratory for its analyses of his samples. D.O.H. had told the
defense that the lab’s analyses had showed P2P; but Campbell
didn’t believe he had messed up and he wanted to understand
how he had. The lab sent the data to Defense Attorney West.
The Health Lab had used exactly the same instrument
setup as the D.E.A. lab in New York. But it had taken more care
in running the samples and had produced better separations of
the chemicals than New York. In the spot where the P2P peak
belonged, there was emptiness; instead, the lab had clearly mis-
identified another chemical, 4-methylacetophenone, as P2P.
Campbell had already submitted the D.E.A. data to Morris
Forensics for evaluation of reliability. Appendix I. Morris
criticized the analyses for their lack of runs of authentic P2P
standards, the lack of duplicate analytical runs per sample to
rule out contamination or mistake, and the low reliability of the
computer matches of mass spectra and infrared spectra actually
obtained when compared with the library spectra. Campbell's
money had run out before the D.O.H. data became available,
however.
So Campbell sought support from industrial chemists. And
he asked his congressional delegation to investigate the fraud
that appeared evident from the two data sets. Union Carbide,
Pfizer, and 3M chemists sympathized, but stayed out of it. The
congressional delegation sent banal letters and hung up on
Campbell.
Campbell sent a sworn criminal complaint to the United
States Inspector General. When he failed to hear anything in
three months he called and was told to file a F.O.I. request. So
he sent a complaint addressed to “Foreman, Currently Sitting
Special Grand Jury For The Southern District Of New York,”
pursuant to 18 U.S.C. §3332. It was returned by the United
States Attorney. He mailed again to Mary Joe White, United
States Attorney, citing In re Grand Jury Application, 617 F.Supp.
199 (S.D.N.Y. 1985). His mailing was returned. Finally, he
mailed to the Honorable John Sprizzo, again pursuant to §
3332, who wrote back saying that he was unable to become
involved.
At the same time Campbell supplied the data to the Court-
appointed expert to his case, Dr. William Suggs of Brown
University. Dr. Suggs had been ill. Nonetheless, he provided an
affidavit that corrected scientific mistakes in his testimony and
the misuse of his testimony at sentencing, and then addressed
D.E.A. Sample 17. First, he agreed with what Campbell had
earlier testified, that the D.E.A. analyses did not show the
solvent components to the mixtures. Solvents were about 90%.
Dr. Suggs reduced his estimate of the highest P2P-containing-
sample possibility from 8% to 0.8%. He alluded to the mixture
no longer being “usable” at 0.8% concentration at all. He also
discussed the fact that the chemistry, which Campbell had
chosen, was more likely than not designed to intentionally fail
to make P2P. But, even more importantly, he examined the
analysis to D.O.H. 1, the first positive testing sample, and
stated that, to his professional judgment, it showed no P2P
down to the detection limits of the analytical method, which
was parts per million. Appendix G.
Campbell filed his § 2255 Application at this stage because
of the A.E.D.P.A. deadline. The Government attempted to
discredit the interpretation of the D.O.H. data, saying it did not
match the D.E.A. samples. Campbell responded by Traverse
and Affidavit, which the District Court refused to file and the
Court returned the Affidavit and exhibits. Appendix F.
Later on, Campbell satisfied the District Court’s concern
that the D.O.H. analyses corresponded to the D.E.A. analyses
by retaining the services of National Medical Services
° To counter continuing Government claims of drug greed as the Defendant's
motive, Campbell swore the fact of getting Woodman’s docket from the R.1.
District Court. Only later did he even realize the legal significance for Court
and US. Attorney personnel being material witnesses to the case. E.g., United
States v. Edwards, 154 F.3d 915 (9% Cir. 1998).
5
Laboratory. Appendix H. Regardless, the Court denied
Reconsideration without further opinion and the Court of
Appeals has adopted the entire decision of the District Court,
twice. Appendices B and C.
. D.E.A. director Asa Hutchinson refers a Campbell letter to
the board of forensic chemists (Appendix M) without ever
obtaining the R.I.D.O.H. evidence. The board recently said
everything is fine.
I. CERTIORARI SHOULD BE GRANTED TO ESTABLISH
DAUBERT v. MERRILL DOW STANDARDS FOR SCIENTIFIC
EVIDENCE IN CRIMINAL ADJUDICATIONS:
Truly scientific controversies are a wholly different creature
capable of higher truth resolution than ordinary cases,
provided the science is understood. In this case, it
convincingly appears that the scientific truth was not judicially
understood and the Courts should have used different
standards to address the meaning of scientific facts both
procedurally and substantively. Due process standards for the
acceptance and evaluation of scientific evidence are plainly
required across the Circuits and certiorari should be granted.
The Petitioner took trial because he was innocent. The
defense was that any P2P “detected” was legally chimeral for
never being more than “trace” and purely accidental if present;
the identifications were done without running known P2P
controls and the analyses were inconsistent between the mass
spectral and infrared spectral laboratories. But the technical
defense was highly disadvantaged by the legal treatment given
scientific issues.
The Defense had made a specific discovery motion for “all
data” in the possession or control of the Government. The
Magistrate enforced the motion at a hearing. Yet, the D.E.A.
only supplied data for the positive-testing P2P samples and the
raw material chemicals that had been seized.” Defense counsel,
* The prosecution knew of the D.O.H. testing because its motion to dismiss
certain counts specifically cited the “screening test” as reason for seeking
dismissal. See Appendix E.
Mr. West, contacted the Rhode Island Department of Health
_ laboratory on his own, but he was verbally told there was P2P
in Campbell's samples. Appendix D. He did not conceive of
the D.O.H. lab making a mistake; and he did not want more
incriminating data.
When the D.E.A. data did come, the copies were largely
unusable. They were skewed and chopped-off in copying;
large portions were unreadable blackness. A great deal of time
was wasted just figuring out what the data was, as late as
cross-examination of the Government chemist, Mr. Fasanello.
The two jurors who might have understood what it meant
for the P2P indications to be “artifacts” of the D.E.A. analytical
method were peremptorily dismissed by the Government.
Eliciting the layman meaning of the data fell to defense
counsel.
“Strictly on these technical issues, I don't
have the capacity to phantom (sic, “fathom”) or
(sic,"all”) the implications of the data that he's
[my client's] attempting to elicit. He thinks he
could do it in a more timely fashion and justice
would be served. I'm really handicapped. I
really don't know what he-[Mr. Fasanello was
being examined] is talking about and [cut off].”
West, IV, 3-4. And any possible backup salvation was
precluded by the exclusion of the defense expert, Dr. Suggs,
from hearing the Government's technical testimony. Campbell
lost trial.
By the time of collateral attack, this advantage of surprise
had been largely overcome. Morris Forensics had seriously
criticized the Government methodology and conclusions for
making marginal identifications from single-run analyses only
showing “trace” amount of P2P. Appendix J. But this type of
evidence was now all but worthless under the changed
standard for relief. Dr. Suggs did an eleventh hour assessment
> Mr. Campbell's notes report that Mr. West quoted D.O.H. chemist Gino
Rabuzzini as saying, “There's rather quite a lot in there.” This statement
conforms to the D.O.H. mistakenly identifying 4-methylacetophenone as P2P.
Vide infra.
of his testimony for oversights and misuses of his statements
just in time for filing of the 2255 Application. Appendix G.
But the piece de resistance was the raw R.I.D.O.H. analysis
data for each and every sample up to Campbell's arrest. When
Campbell saw the data, as a person who had personally run
over 1000 gas chromatogram/mass spectrum (GC/MS)
analyses himself, he immediately knew the Government had a
serious integrity problem with Sample 17. D.E.A. Sample 17
was represented at trial for being Campbell's first positive-
testing sample. Despite the alternate labeling at D.O.H.,
Sample 1? was clearly D.E.A. 17 because that lab was doing
contemporaneous screenings to assist the agents. The visual
difference in appearance is obvious, even to a layman.
Sample “1” D.E.A.
TIC of CH91000!1X17.¢d
A5299; Run at 08:57 AM EST on Wed Maz 17, 1993
6000000
$000000
4000000 DIDENZYLKETONE
0000 PHENYLACETIC
7 AcID
. J :
1000000 cat urine
ingredient
° are
“4 ¥ ss a7 7 ‘ rT T T ¥ + T T ¥ ¥ T T T r ¥ T
4 6 § 10 12
Time (min.)
Sample “1” R.1I.D.O.H.
“3¢ nat ~ <90 i. oge dL. $00 L 1000 =
rsa 1@,61
300000
4 c6ees @.9¢
a)ee
200000 4 3
100000 4 on
i ay ee |
A J ¥ , ¥ ¥ La Ls uJ wae
4 ee 14 16 18 20 22
Beginning at 5.33 minutes, the peaks in the D.O.H. analysis have been
identified as 4-chlorobutane-1-acetate, 2- or 3- methylacetophenone (6.20), 4-
methylacetophenone~- (6.50), benzylacetate (6.85), unknowns (toluic
derivatives suspect), and bibenzyl (10.81). There may also be brominated
substances. Scan 207, 4-methylacetophenone, was wrongly identified as P2P
in this analysis. j
But more importantly, the chromatogram peak that D.O.H.
was presenting in all its data as the putative selection for P2P
was in fact the peak corresponding to 4-methylacetophenone
(4-MA) in all the D.E.A. identifications. There was no peak in
the D.O.H. analyses where P2P should be, i.e., in front of the 2-
methylacetophenone (2-MA) peak.
(Using Sample 23A for illustration, see Appendix N). There
was more significant still where all the D.O.H. chromatograms
were better separated than the D.E.A. chromatograms. Where
D.E.A. 23A was getting a shoulder on the left of the 2-MA
peak, D.O.H. 7A should have been getting a separate peak for
P2P entirely. But it was not even getting the shoulder! And, it
did not even get the shoulder taking a new digital spectrum
every % second. So the peak was not there. (Gee Appendix N,
graphs for Sample 23A D.E.A. and Sample 7A D.O. H.).
Instead of becoming a legal epiphany, the Government and
the Courts have both belittled the meaning of this evidence for
six years without ever addressing the science.
A. The Decisions Below:
The §2255 Petition to this case should have been granted.
Instead, the District Court Memorandum And Order denied
the §2255 Application for procedural default by
mischaracterizing the nature of the post-trial discovery, where
it was not the “existence of analytical data at the D.O.H.,” but
rather “that D.O.H. had lied to defense counsel that the data
was positive for P2P, when it was in fact negative.” And on the
merits, it mischaracterized the number of D.O.H. non-P2P
samples as “some” when it was “all,” and, finally, on its own
authority it misinterpreted the D.O.H. data to say it still
showed the presence of P2P, while discounting Dr. Suggs'
expert Affidavit without any evidentiary hearing. Appendix
A.
The District Court's findings and rulings have simply been
perpetuated by the Court of Appeals. Appendices B and C.
All three mistakes display a technical comprehension that
fails the fundamental due process required for the evaluation
of the meaning of this scientific evidence.
B. The Proposed Standard And Its Application:
This Court has redefined the standard for expert opinion
testimony being offered as scientific evidence in civil cases.
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993). It has directed the district
courts to serve as “gatekeepers” of the scientific legitimacy of
evidence being alleged. The threshold for admissibility is not
meant to be insurmountable, and should not be so for collateral
review.
“Vigorous cross-examination, presentation
of contrary evidence, and careful instruction on
the burden of proof are the traditional and
appropriate means of attacking shaky but
admissible evidence.
509 U.S. at 596. All the past rule-making has occurred in civil
litigations, but it is more needed in the criminal context. Here,
a district court has discounted absolutely objective scientific
evidence of innocence over procedural technicalities, even
when the evidence met the Government's own standards of
reliability for convicting this Petitioner in the first place!
Where the evidence produced would have made the conviction
nearly impossible, Passos-Paternina v. United States, 12
F.Supp.2d 231, 236 n. 4 (D.P.R. 1998), aff'd, 201 F.3d 428 (1st Cir.
1998) (per curiam) (unpublished), it had to be evaluated for its
objective truth to_scientific standards. There were no
standards.
Therefore, first, an objective standard of review itself is
now required. Some form of positive Brady v. Maryland
exculpatory disclosure requirement should be enforced by
mandatory post-trial hearing once a prima facie showing of
omission is made. Second, the subject matter in controversy
here must be credited as a different creature, “science” as
distinguished from “human experience.” If a court cannot
articulate its reasons for decision in scientific terminology
appropriate to the question, it fails to show that it had the basic
comprehension necessary to preside over the issues in dispute.
Such an answer is always possible because it is science. A
denial must be explained or fail the substantive due process
owed the aggrieved party.
“What suffices for a statement of reasons is
not subject to rigid definition, but encompasses
10
more than a mere recitation of [the law]
followed by nothing more than a conclusory
statement that the applicable factors have (or
have not) been met.”
United States v. Sanquist, 125 F.3d 573, 575 (7 Cir. 1997); United
States v. Fields, 466 F.2d 119, 121 (24 Cir. 1972) (reason must be
stated with particularity), 62 F.R.D. 254 (1972).
1. Over-generalization Of Default:
In order for the District Court to allow itself to address the
merits of Mr. Campbell's evidence claims only as some after-
thought courtesy, it conflated what fact had really been
discovered (the mistaken interpretation of peak identity
reported as a lie to the defense) with the fact that the R.I.D.O.H.
had performed some screening service for the Government.
No one had informed the defense that there was reviewable
data as opposed to notebooks scribblings of observations at the
R.I.D.O.H. Mr. West had personally only heard what the oral
testimony of a D.O.H. chemist would be. To assign the
Defendant- with the responsibility of seeing through these
shortcomings is to invite the Government to create plausible
deniability situations to insulate all adjudications from the
truth.
The Second Circuit has recognized the potential abuse to
such a scheme of jurisprudence. Leko v. Portuondo, 257 F.3d 89
(2-4 Cir. 2001). The First Circuit has expressed similar views,
but utterly ignored them in this case. Phoenix v. Matesanz, 189
F.3d 20, 27 (1st Cir. 1999) (blood and fingerprint evidence). It is
an open invitation for the Government to be less than wholly
candid in the knowledge that it will be held immune for
whatever it gets away with. That is why certiorari is needed
that, if all scientific data is not turned over, there can never be
procedural default.
2. Ineffective Assistance:
The vast majority of defense counsel are non-technical
people. Quotation of Mr. West, supra. A district court
presiding over a technical case should be required to declare
whether the case is “technically complex” and_ locate
1]
technically competent counsel. But after the fact of trial with
less than technically trained counsel, a lower standard needs to
be applied for the showing of cause. An era of increasing
technical complexity is being forced upon the Courts. The
Government practice of dumbing down the jury in this case is
symptomatic of the advantages it seeks when the subject
matter is arcane. The course of this case is a study in the
constitutional deficiencies possible.
Even before the D.O.H. data, the defense had a case that
Campbell's synthesis was designed to fail (Suggs), that the
D.E.A. 17 M/S analysis was incompatible with its own FTIR
analysis (Bramson Affidavit, Appendix I), and that all the
“detectable” P2P was so small as to only be residues in the
D.E.A. instrument (Morris Forensics).? But none of these points
for the defense came out at trial in any meaningful way.
9 Mr Fasanello made much ado about the low absolute amounts of sample in
his chromatograph. Ill, 101. In the D.E.A. lab, one gram of Campbell
product, or so, was diluted into 99 milliliters of methanol (wood alcohol).
(This step is employed to cause salts, if present, to come out of solution.
Otherwise, salts will deposit in the high temperature (265°C.) area of the gas
chromatograph injector, where they will eventually block gas flow and
catalyze chemical reactions right in the machine.) A one-millionth of a liter
“aliquot” of this methanol solution is injected by syringe into the
chromatograph. Where methanol has a density of about 0.8 gram per
milliliter, the sample weighs 0.0008 gram. Of that 0.0008 gram, 0.000008
gram is Campbell-product-mixture.
The mass spectrometer detector is so sensitive that, of this 0.000008 gram,
98% of it must be discarded by the GC “splitter.” Only 0.00000016 gram of
product mixture goes into the mass spectrometer. Now the components of
the mixture separate into smaller fractions of weight on the chromatography
column according to the composition of Campbell's mixtures. Benzylacetate,
for example, was always 40 to 60% of the mixture, or between 0.000000064
and 0.000000096 gram in absolute weight being analyzed. Per Dr. Suggs’
affidavit correction of his 8% estimate to 0.8%, the absolute amount of P2P
being analyzed in the highest concentration Campbell-sample was
0.00000000128 gram (1.28 x 10° gram), or colloquially “a billionth of a gram.”
These are the quantities of mixtures being analyzed, and which must be
assessed for possible contamination in analysis, not the bulk deliveries. The
single analysis of that bulk quantity is being established by what 2 ten
millionths of a gram of it does in a gas chromatograph. As Mr. Morris tried
to explain, if the methanol “flood” in comparison flushes some P2P trapped
in a pipe thread (such as from a previous run of a standard), one billionth of a
gram of flushed contamination will be reported as 1% P2P in the sample.
—ENivaeioi
Instead, the Court of Appeals used Campbell's cynically
pronounced “all set” to erroneously credit Campbell with
satisfaction. United States v. Campbell, 61 F.3d 976, 981 (1st Cir.
1995); United States v. Garza-Juarez, 992 F.2d 896 (9% Cir. 1993)
(describing the “fallacy of the vicious abstraction’).
Mr. West took Mr. Rabuzzini's oral confirmation of the
presence of P2P at face value. He had no reason not to. Had he
seen the data personally himself, no discrepancies would have
registered. The Courts today have ignored the most obvious
discrepancies imaginable: the two Sample 17 analyses and the
absence of actual P2P peaks in the D.O.H. chromatograms.
Now both of these discrepancies have fortunately been
reviewed by scientists to demonstrate that the layman judicial
assessment was wrong. Mr. Campbell's arguments should
have received a more exacting standard for showing of cause
and certiorari should be granted to establish such a standard.
3. The Merits:
It has certainly been a mistake of constitutional dimension to
equate impartiality of the review process to the reviewers being
wholly non-technical. It is morally equivalent to throwing out
the diagnosis of a brain surgeon for that of a phrenologist.
These judicial findings are overruling expert opinions of
chemists whose business it is to know the scientific truth. To
the First Circuit's own long-standing standards, it had to know
that more evaluation was required:
“Material questions of fact may not be
resolved against the Petitioner solely by relying
on ex parte sworn or unsworn statements of the
Government.”
United States v. Butt, 731 F.2d 75, 77-78 (1st Cir. 1984); Miller v.
United States, 564 F.2d 103, 106 (1st Cir. 1977); United States v.
Underwood, 577 F.2d 157, 159 (1st Cir. 1978). But the District
Court uncritically accepted the Government's version and
refused to let the Petitioner file a Traverse. Mr. Campbell's
petition for relief was no naked allegation of error that could
ever be judicially declared insufficient without an evidentiary
hearing. Siciliani v. Voes, 834 F.2d 29, 31 (1st Cir. 1987).
13
The integrity problem of Sample 17 speaks for itself even to
laymen. The lack of understanding why the negative results of
the D.O.H. for the presence of P2P are so damning is being
allowed to be “lost” upon the reviewers. But it is every bit as
damning as the Sample 17 data.!°
“Judges are not scientists.” G.E. v. Joiner, 522 U.S. 136, 148,
118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (Breyer, J., dissenting).
This case needed help from scientists; when law and science
intersect, the duties which attach must be exercised with
special care. Ibid. This was not an ordinary case by any
meaning of that term. It has not received constitutional due
process in the adjudication of scientific evidence of the most
probative and fundamental kind for this type of case.
Certiorari must be granted to remove cases like this from the
standardless environment in which they are being litigated.
II. CERTIORARI SHOULD BE GRANTED TO DECIDE
WHETHER SUBSTANTIVE SENTENCING GUIDELINE
FACTORS LABELED AS CHARACTERISTICS OR RELEVANT
CONDUCT ARE LEGALLY ELEMENTS OF DIFFERENT OR
AGGRAVATED OFFENSES TO THE OFFENSE OF
CONVICTION:
What is constitutionally in question under this issue is the
degree of sentencing prejudice necessary to implicate the Fifth
Amendment concern for protection by indictment and proof
beyond a reasonable doubt and Sixth Amendment concern that
10 The sensitivity of detection of mass spectrometers is very high. The D.E.A.
and D.O.H. used standard, not enhanced, sensitivity like what is discussed
here, i.e., “multiplier voltage 1800”.
Even when the absolute weight of P2P in a GC injection is 1.28 billionth of
a gram, that weight represents 5.75 trillion molecules or particles. At the set
sensitivity in this case, the instruments would detect fewer than 500 particles
faithfully. From the result reported in Sample 23A, the D.E.A. mass
spectrometer was reacting to 6 trillion molecuies. The D.O.H. mass
spectrometer was taking a spectrum every 3/4's of a second for the duration
of the chromatogram (462 spectra in 10.82 minutes for Sample 17). It is not
realistic that this machine, with this sensitivity and better time resolution
than the D.E.A. separations, failed to detect the P2P “shoulder” or a separate
P2P peak entirely.
14
the determination be made by the trial jury and not by a judge.
Ultimately, the issue is not one of statutory/non-statutory
labels assigned to facts, but of their real import to the
defendant.
“The relevant inquiry is not one of form, but
of effect - does the required finding expose the
defendant to a _ greater punishment than
authorized by the jury's guilty verdict.” .
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2365, 147
L.Ed.2d 435 [2000]. Preceding Apprendi, Campbell argued on
both direct appeal and then on his §2255 Application that his
substantive enhancements had been found only to
preponderance standards, when the Guidelines themselves
required a finding beyond a reasonable doubt. U.S.S.G. § 1B1.2,
Application Note 5. Apprendi now decides his claims and
certiorari should be granted.
Today all Circuits accept that Apprendi expressly decided the
more narrow question of distinguishing the proof required for
two separate statutory punishment maxima and held that, in a
trial case as here, the standard was proof to a jury beyond a
reasonable doubt. Id. at 490. But a separate Apprendi holding
places a more general limit on the power of Congress itself to
structure statutes to remove sentencing facts from the
establishment of sentencing ranges. ~
“With the exception [for prior convictions],
we endorse the statement of the rule set forth in
the concurring opinions in [Jones v. United States,
526 U.S. 227 (1999)]: ‘It is unconstitutional for a
legislature to remove from the jury the
assessment of facts that increase the prescribed
range of penalties to which a criminal defendant
is exposed. It is equally clear that such facts
must be established by proof beyond a
reasonable doubt.' 526 U.S. at 252-253, 119 S.Ct.
1215 (opinion of Stevens, J.); see also id. at 253,
119 S.Ct. 1215 (opinion of Scalia, J.).”
15
Apprendi, 120 S.Ct. at 2363; e.g., United States v. Ramirez, 242
F.3d 348, 350 (6 Cir. 2001) (interpreting basic holding of
Apprendi to include this second sentence).
Left for the courts to resolve in the wake of Apprendi is
whether certain U.S. Sentencing Guideline directives are “too
coarse” in their end result to satisfy the due process and trial
protection required by the Constitution because these narrow
ranges are still to span a lifetime.
A. Description Of The Problem:
Using controlled substance law as the context, the
Guidelines contain two categories of penalty considerations:
(1) Characteristics of the actual offense of conviction.
McMillan v. Pennsylvania, 477 U.S. 79, 88 [1986] (coining the
expression sentencing “tail which wags the dog”). The “factor”
being adjudged in McMillan was a feature of the crime (visible
possession of a firearm), which was not required for conviction,
but nonetheless obliged the sentencing court to begin the
sentencing range at a higher initial level.
(2)(a) Other offenses that are further and potential offenses
to the actual offense of conviction or (2)(b) other offenses
entirely separate from the offense of conviction. Kinder v.
United States, 119 L.Ed.2d 214 (1992) (White, J., dissenting from
denial of certiorari that “relevant conduct” raised serious
constitutional questions for punishing unconvicted crimes).
Type (2)(a) looks to drugs not yet made and deals not done;
type (2)(b) looks to trafficking done, but not charged. Both
constitute an aggravation of the underlying conviction.
Mr. Campbell was convicted for “any detectable amount” of
P2P per the District Court's jury instruction. No matter how
the P2P arrived in the samples produced for trial, in toto they
contained a total of less than three quarters of a gram. On this
foundation, the Petitioner was subjected to two factors of the
first type and three factors of the second type. (The increase in
Criminal History category amounts to a type (2)(b) factor).
And the judge selected a sentence twenty-six months above the
minimum for the offense level range.
The first legal fiction was to treat the mixtures as though
they were pure P2P. On the direct appeal of this criminal case,
16
rs
the Petitioner argued that his mixtures could only make a
trivial amount of methamphetamine, if any at all. He argued
that the then recent U.S.S.G. Amendment 484 required the
Court to discount the “unusable” portion of the mixtures. The
First Circuit ruled that for purposes of sentence, “use” equated
with being able to sell the mixtures to the agents. It therefore
affirmed the District Court's use of 5,700 grams of mixtures as
“pure P2P,” including 5007 grams “with no P2P.""
The next enhancement turned on judicial prediction of the
purpose to which the substance would be put or the
defendant's intentions for it. The Court had equated “sale”
with “use” in order to include the weight of the 99% of
chemically “unusable” materials for the Guideline quantity. It
now conflated “sale” back to “use” in order to find that
Campbell intended his customers to be able to make
methamphetamine. This was necessary in order to utilize the
Guideline-supplied 416 multiplier for marijuana equivalent to
gram of P2P instead of the 75 multiplier in calculating the base
offense level. This determination placed the Petitioner's
starting offense level at 32 instead of 12, the Guideline
mandatory minimum for a schedule II substance. U.S.S.G. §
2D1.1, Drug Equivalency Table.
In controlled substance offenses, the present scheme places
all further enhancements on top of the base offense level
determined by just the conviction and interpretation above.
This practice in a stroke makes a characteristic factor equal in
effect to what could only be accomplished by, here, another
16.8 kilograms of P2P (a move from Offense Level 32 to 34) in
the underlying offense. No stretch of the offense itself could
reach this point.
1! The Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth and Eleventh
Circuits have ruled differently than the general approach of the First Circuit
and limit “use” to “consumable” by a person or “employable” in
manufacture. United States v. Acosta, 963 F.2d 551, 554, (24 Cir. 1992); United
States v. Rodriguez, 975 F.2d 999, 1009 (3° Cir. 1992); United States v. Levay, 76
F.3d 671 (5% Cir. 1996); United States v. Jennings, 945 F.2d 129 (6 Cir. 1991);
United States v. Johnson, 999 F.2d 1192 (7% Cir. 1991); United States v. Robbins,
967 F.2d 1387 (9% Cir. 1992); United States v. Richards, 67 F.3d 1531, 1536 (10%
Cir. 1995); United States v. Roland-Gabriele, 938 F.2d 1231 (11% Cir. 1991).
17
It also makes the penalties for “characteristics” entirely
variable in accordance to the offense level before the
enhancement is applied. For example, having a special skill
can count for four or more years in a base offense level 34 case
while representing only six months in a level 20 case. Of
course, the skill may or may not have any contribution to the
drug crime at all. In Campbell's case, it did not. If it did, it is
hard to see how the defendant hadn't already been blamed
enough through the final drug result; if it doesn't, it is hard to
understand how the skill was culpable to the offense. Campbell
was blamed for building a class A laboratory that made
“terrible” P2P.
The next enhancement involved the administration of
justice. This is an enhancement which is categorically different
in tort from the underlying offense conduct. Its penalty
assessment should be independent. But the Guideline point
system equates its inherent criminality to drug criminality for
sentencing purposes. The determination of this guilt or
innocence is equivalent in import to underlying guilt or
innocence. The Court blamed Campbell for claiming he
wanted to only make terrible P2P or no P2P at all. The increase
to Offense Level 36 could only otherwise be accomplished by
49.96 more kilograms of P2P. Offense Level 36 is the same as a
crime of 70,500 grams of P2P, which is quite removed from the
three quarters of a gram present in the worst case of reality.
Petitioner does not know if he is serving 47 months for his
special skill and 59 months for his perjury, the reverse, or a
unitary sentence for a mega-crime. There is certainly a material
question whether this “drug crime” was 106 months more
serious a crime against society for these “characteristics,”
whose severity intuitively suggests the need for jury finding.
The Court separately departed one Criminal History level
for Campbell's propensity to recidivate. This moved Campbell
laterally from a range of 235-293 to a range of 262-327, a change
of 27-34 months. This was an incredible mens rea prediction for
an already 235 month future. It decidedly ran counter to the
constitutional position on preemptive incarceration. United
States v. Salerno, 481 U.S. 739, 755-767 (Marshall, J., dissenting).
18
‘
Once in that range, the Court went 26 months above the
minimum to 288.
B. Analysis:
In pure magnitude terms, the imposition of additional
sentence time based on one or two enhancements usually fails
to qualify as a “tail that wags the sentencing dog.” McMillan,
supra. This category of adjustment, therefore, will not often
offend the formalistic- Apprendi concerns currently being
addressed in case law. Several due process concerns do lie
elsewhere, including American fair play, irrationality, and
double jeopardy. Sometimes, however, collateral enhancements
placed in pyramid fashion inflate the resulting sentence to an
obscene degree, eclipsing that justifiable for the underlying
offense. For the absolute amount of P2P in this case, were it
genuinely present, the Offense Level is 12, for a sentence of 15-
21 months at Criminal History III. This means that at least 267
months of this sentence are enhancements not found by a jury.
Most defendants experience the second type of
enhancement based on dealings they are alleged to have
transacted, but which were never charged. These are alleged
completed crimes, but legally they are not any different than
crimes left only potential. The intuitive dissatisfaction over
large sentences either way derives from legitimate ethical
criticism of the practice: The conviction for one crime is de facto
being used to produce the punitive result for conduct that the
Government was never sure enough to charge on its own:
“The relevant conduct rules invite the
prosecutor to charge for less serious offenses
that are easy to prove and then expand them in
the probation office.”
United States v. Beler, 20 F.3d 1428, 1431 (7 Cir. 1994). It is now
long accepted that a limited conviction that nonetheless has a
twenty year penalty range can be filled with this other conduct:
“{T]he nature of the charged conduct [is] a
subset of information which is likely to be
narrower than ‘relevant conduct’ as defined in
U.S.S.G. § 1B1.3.”
19
United States v. Boylan, 5 F.Supp.2d 274, 276 (D.N.J. 1995). The
question is now whether the Guidelines can be legitimately
claimed to have authorized such license.
It is not just separate, uncharged but identical, crimes like
multiple drug deals that have become “relevant conduct” when
the Court instructs the jury to return a minimal verdict. Here
the Court asked the jury to convict for “any detectable amount
of P2P,” when it knew it intended, if Campbell were found
guilty, to sentence for the non-P2P weight and for the P2P
being intended to manufacture methamphetamine. An
American Jury is not to be so excluded from the assessment of
penalty, as has developed under the determinate Sentencing
Guidelines.
“The criminal law is not only concerned
with guilt or innocence, but also with the degree
of criminal culpability.”
Mullaney v. Wilbur, 421 U.S. 684, 697-98 & n.23 (1975).
The denial of direct appeal of this original sentencing
derived from a presumed legitimacy to the United States
Sentencing Guidelines for only “positioning” the sentence to an
allowed discretionary range within the superior statutory
range authorized by conviction. That premise is wrong as a
matter of law because the Guidelines themselves are fully
statutory law. Williams v. United States, 503 U.S. 193, 200-01
(1992) (“The Guidelines have the binding force of a legislative
enactment”). The only discretion remaining to the judge is
within the final range. Upon the showing which follows, the
Guidelines are shown to have become a purely reflexive,
semantic justification for unconstitutionally imposed
punishment for different and separate crimes and
characteristics never identified by indictment to the juries.
This Court is currently reviewing the scope of district court
jurisdiction pursuant to the express indictment to the case. The
various Circuits are treating the legality of a sentencing
expanded beyond the express indictment differently upon
review. E.g., United States v. Thomas, 204 F.3d 381 (2.4 Cir. 2000)
and United States v. Tran, 234 F.3d 798 (2°4 Cir. 2000), both
reversed in part by United States v. Thomas, 274 F.3d 655 (274
20
Cir. 2002); United States v. Gonzalez, 259 F.3d 355 (5t Cir. 2001);
United States v. Cotton, 261 F.3d 397 (4 Cir. 2001), cert. granted,
122 S.Ct. 803 (2001) (limiting jurisdiction of district court to
scope of offense defined in the indictment). The question,
however, can be separately addressed and still equally
fundamentally.
C. The Guidelines are Statutes:
This Court has ruled that the United States Sentencing
Guidelines are statutory law in every respect:
“The answer to any suggestion that the
statutory character of a _ specific penalty
provision gives it primacy over administrative
sentencing guidelines is that the mandate to
apply the Guidelines is itself statutory. 18
U.S.C. § 3553(b).”
R.L.C. v. United States, 503 U.S. 291, 117 L.Ed.2d 559, 567 [1992];
also see 503 U.S. at 305 n. 5 (“[A] statute is a statute, whatever
its label.”) and Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96
L.Ed.2d 351 (1987) (unanimous decision) (conferring
unqualified ex post facto status on Florida State Guidelines and
Guideline amendments; guidelines do not allow sufficient
judicial discretion to be considered just “ guideposts”).
And in the same case the Supreme Court also addressed the
question whether a less severe Guideline-determined sentence
bars a sentencing court from imposi allowed by some separate
penalty mechanism.ng a greater sentence that is
- “The question...[was] whether Congress
intended the Courts to treat the upper limit
[under the congressionally enacted statute] of
such a penalty as 'authorized' even when proper
application of a_ statutorily mandated
Guideline...would bar imposition up to the
limit.”
Ibid., and resolving the question by statutory interpretation:
“[A]uthorized' ... refer[s] to the result of
applying all statutes with a required bearing on
the sentencing decision, including not only those
21
een inate —
.
that empower the court to sentence but those
that limit the legitimacy of its exercise of that
power[.]”12
R.L.C., 503 U.S. at 298.
Given the legal indistinguishability of statute and
guideline, when either affects substantial rights, Apprendi does
not permit a Court to any longer substitute for a jury:
“TW]hen the term “sentencing
enhancement” is used to describe an increase
beyond the maximum authorized statutory
sentence, it is the functional equivalent of an
element of a greater offense than the one
covered by the jury's guilty verdict. Indeed, it
fits squarely within the usual definition of an
‘element’ of the offense.”
Apprendi, 530 U.S. at 486. The “statutory sentence” must be
recognized to be the “Guideline sentence.”
What Apprendi now requires everyone to recognize is that all
the additional drug quantity or evil purpose sprung as a
surprise on the defendant after conviction for a_ lesser
indictment is unconstitutional There was never any
aboveboard reason for prosecutors to treat American Juries,
both Grand and Petit, as Judas Goats leading defendants to a
sentencing slaughter for what jurors believe are only much
lesser crimes of conviction. If the Guidelines are statutory and
controlling of ultimate sentence, they clearly fall within the
ambit of protection re-invigorated by Apprendi.
The Writ should issue in order to address the effect of the
constitutional limitations of charging and fact-finding that
delimit the application of substantive Sentencing Guidelines to
the juries, both grand and petit.
12 Sentence “'authorized’ ... refer[s] to the maximum period of imprisonment
that may be imposed consistently with 18 U.S.C. § 3553(b). That statute
provides that 'the court shall impose a sentence within the range’ established
for the category of offense as set forth in the Guidelines, ‘unless the court
finds that there exists an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a sentence
different from that described.’ § 3553(b).” R.L.C., 503 U.S. at 304.
22
III. A WRIT OF CERTIORARI SHOULD ISSUE TO DECIDE
WHETHER THE PETITIONER MADE A COLORABLE
SHOWING OF ACTUAL INNOCENCE:
The Government's version of this case is that it put a
seasoned drug manufacturer away for the rest of his life. The
Defendant's version is that he is a victim of “parole-bashing,”
i.e., the targeting of prior offenders with high pressure
inducements that has come to be typical of American law
enforcement. United States v. Coleman, 188 F.3d 354 (6t Cir.
1999). Campbell reacted in a manner too sophisticated for his
own good. Irrespective of the legal arguments for whether Due
Process has been honestly served in the original trial, the
ultimate issue is which of these versions is morally and
factually correct. Marbury v. Madison, 5 U.S. 137 (1803)
(purpose of law is to convert moral imperatives into
enforceable legal imperatives). The Defendant maintains that
his evidence ultimately satisfied any procedural requirements
in order for him to be given the opportunity in open Court to
prove his actual innocence.
The Courts below have taken the implicit position that Mr.
Campbell's evidence was not newly discovered and not
ineffectively overlooked; therefore, it was procedurally barred.
Decision, Appendices A-C. Notwithstanding any procedural
default, however, when the proffered evidence indicates a
claim of actual innocence, it falls “within the narrow class of
cases. . . implicating a fundamental miscarriage of justice.”
McClesky v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113
L.Ed.2d 517 [1991]. The reason for this exception is plain.
“There is no higher duty of a court, under our
constitutional system, than the careful
proceeding and adjudication of petitions for
writs of habeas corpus, for it is in such
proceeding that a person in custody charges that
error, neglect, or evil purpose has resulted in his
unlawful confinement and that he is deprived of
his freedom contrary to law.”
Harris v. Nelson, 394 U.S. 286, 292, 89 S.Ct. 1082, 22 L.Ed. 2d 281
[1969] (emphasis added). The “no higher duty” imperative to
be discharged in this case is to learn if Campbell is innocent
and whether evil purpose has resulted in Mr. Campbell's
unlawful confinement.
This Court has returned to the standard defined in Murray v.
Carrier for evaluating the strength of evidence necessary to
invoke the procedural exception, although the Petitioner
believes that his scientific evidence easily met the “clear and
convincing” proof of innocence test of Sawyer v. Whitley to the
scrutiny of any discerning evaluator. Schlup v. Delo, 513 U.S.
298, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 [1995], addressing
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397
[1986] and Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 2517,
120 L.Ed.2d 269 [1991].
“To satisfy the Carrier “gateway” standard, it is
necessary for a petitioner to show that it is more
likely than not that no reasonable juror would
have found [the] petitioner guilty beyond a
reasonable doubt.”
Schlup, 115 S.Ct. at 867.
The new evidence in hand has absolute value and would
have had immense collateral probative value, had it been
timely possessed for trial. Mr. Campbell submits that it
demonstrates that there was never any P2P in his products and
demonstrates that the D.E.A. laboratory conformed the
analyses to what Mr. Campbell was supposed to be doing, to
the point of making a real Sample 17 into a totally different
sample just to fit the dialogue. The evidence must be evaluated
for its evidentiary meaning in each way, (1) “as a freestanding
claim of actual innocence,” Herrera v. Collins, 506 U.S. 390, 476
(1993), and (2) for so undermining the Government evidence
that “no reasonable juror would have found [Campbell] guilty
beyond a reasonable doubt,” Carrier, supra. Lastly, the District
Court owed a duty under its supervisory power to evaluate the
collateral evidence for whether the Government scientific
evidence was mistake or fraud.
24
In an erroneous interpretation of the law, Mr. Campbell, as
Petitioner, has today been required to absolutely prove a
negative, i.e., the absence of any P2P from all his mixtures.
Although he believes that the R.I.D.O.H. data does perform
that function to a scientific certainty under the Sawyer analysis,
the Murray question is what weight the contemporaneous jury
would have given this evidence. The issue is addressed in both
ways here.
It is indisputable that the R.I.D.O.H. took its samples from
the bulk deliveries before the D.E.A. Laboratory got its hands
on Campbell's products. The D.O.H. lab then ran a computer
GC/MS screening test on each sample, free of human hands,
for the presence or absence of P2P. Everyone agrees that these
machines routinely detect down to parts per million and less
for P2P.
A. .. where we'll have a gas chromatograph
coupled with . . a mass spectrometer and as
these blips or components come out of the
gas chromatograph column, they go right
into another instrument which will identify
these components and usually one of these
procedures would be utilized to confirm the
presence or absence of P2P.
A. Specifically, I don’t know of any instance
that we have these colluding peaks that
can’t be separated, especially on our
capillary column.
Q. And if there are parts per billion of it [P2P]
in there, it will tell you?
A. Yeah, but...okay.
Fasanello testimony, Day III, p. 49, 131, 152. Yet the D.O.H.
machine passed by the region of authentic P2P in the
chromatogram and reported the much later appearing 4-
methylacetophenone as a false candidate instead. It did this
seven-times-over on separate samples. See Bramson affidavit,
Appendix I.
25
As a matter of science, a computer GC/MS directed to
report all components of a mixture resembling P2P to within an
80% match of the mass spectrum peaks to those of an authentic
spectrum (the definition of performing a “screening” test) over-
reports the possible candidates; it does not omit any candidates
unless they are definitively identified by the computer library
to be another compound. The failure to report a P2P peak or
shoulder in these samples in a screening run is absolute
scientific proof there was no P2P. Appendix I. This is a higher
standard than “beyond a reasonable doubt.”
In the trial setting, per Murray v. Carrier, it would have been
the Government's burden and embarrassment to explain this
discordant data to the jury. The Government would have had
to explain why the D.O.H. lab did not have a “cat-urine
chemistry” sample. D.E.A. Sample 17. And if Government had
to claim that the D.O.H. lab never got that sample, then it had
to answer how the D.O.H. lab could still have seven positive
testing samples! Upon §2255, though, the District Court used
the wrong standard and improperly imposed all the explaining
upon the Petitioner.
Although Campbell had Dr. Blum match all the samples
between the two laboratories, so that he was in effect proving
absolute innocence, Campbell did not owe this burden under
the proper standard for the District Court to have been
evaluating his §2255 petition.
Under the proper Carrier standard, the virtual absence of
any reported authentic P2P in the D.O.H. samples would have
had to cause any reasonable juror pause in the path to
conviction. The existence of a D.E.A. Sample 17 analysis
contrary to the apparent D.O.H. analysis of the same sample,
and also contrary to what chemistry Campbell was on tape
saying he had done, would have to cause suspicion of the
integrity of the Government's handling and analytical
processes. No jury could convict in conscience under these
circumstances beyond a reasonable doubt.
Actually of more import to a defendant on trial, any prima
facie showing of tampering would have opened a Pandora's
box allowing Mr. Campbell to show that the discrepancies
26
were not the result of mistake or seven-fold negligence, but of
evil purpose. This jury never heard the Defendant's claim that
he had previously been pursued as a trophy; his indiscretion in
1983 to solve a nuisance had been exploited by authorities for
its symbolic publicity and prestige as a conviction of a scientist.
But Campbell had unraveled the details in the intervening
years and sued the State in this same Rhode Island Federal
District Court, alleging that one Detective Prendergast had
used Lawrence Bates to try to plant drugs in Campbell's home
for a search. Campbell v. State of Rhode Island, 89-CV-0185
(D.R.L.) Larry, having been seen getting out of Prendergast's
car, swallowed the baggie instead. And when it leaked, he
kidnapped and raped Donna Barribeault under the influence of
those drugs that night. He shouted the story into Channel 12
TV cameras at his arraignment; but the TV station erased the
tape for the State Police. Was this related to the present? This
is the Gerald Prendergast to whom the arrested Campbell, in
this case, was presented with the words, “See what we've got
for you, Jerry?”
In Campbell's State case, the drug compound underwent a
bread and fishes miracle in the evidence room growing from 25
grams to 133 grams. Since that time, the same evidence room
officer, Leon Blanchette, had been caught red-handed giving a
briefcase back to an arresting officer so that he could get the
locks repaired for a suppression hearing. Blanchette was
refused permission to continue with the State Police after 20
years by Governor Sandlun, who had received multiple
complaints similar to Campbell's. Campbell was on record as
complaining about illegal treatment of evidence and had sued
over this matter, too, in this same United States District Court.
The jury would also have learned that the Resident Agent-
in-Charge of the Providence D.E.A. Office, Vincent Furtado,
had just been removed from his post when the text of an
anonymous threatening letter to Mayor Vincent Cianci was
discovered on his personal office typewriter ribbon. See story,
Appendix K. Campbell would have been entitled to argue that
dirty tricks had been sanctioned at the Providence D.E.A.
office.
27
And, finally, when Campbell personally recognized
Fasanello at trial, he realized that this was the chemist whom
Campbell had publicly ridiculed in 1976 for having
recommended a completely incompetent chemist to MacKenzie
Chemical Corporation. Now Campbell had teargassed and
sneezing-powdered him and the agents. The inference that
Fasanello had “spiked” these samples to make them positive
for P2P was not just a possible inference, but strongly
suggested from the totality of this background.
Thus, if Campbell had had this advantage at trial, the
proceeding would have become a roast of the Government for
both its motives and its integrity. No juror could conceivably
believe that the Government had left Campbell's samples
alone, and believe instead that a person with twenty years
formal education and six years of criminal legal writ-writing
experience, on parole and in a facility open to the public and
warrantless search, was manufacturing P2P instead of a farce.
Campbell let the affair get out of hand after he got fired; but his
idiocy was not transformed into knowingly making P2P for his
enemies. Today, Campbell is very lucky for the happenstance
of oversight that has placed this final damming evidence in his
hands.
In assessing the adequacy of Mr. Campbell's instant
showing, therefore, this Court is not bound by those formal
rules of post-conviction admissibility that the District Court
used to block further evaluation of the evidence. Schlup v. Delo,
115 S.Ct. at 867.
If a petitioner such as [Campbell] presents
evidence of innocence so strong that a Court
cannot have confidence in the outcome of the
trial unless the Court is also free of non-
harmless constitutional error, the Petitioner
should be allowed to pass through the gateway
and argue the merits of his underlying claims.
Schlup, 115 S.Ct. at 861. Campbell's D.O.H. evidence evokes
serious due process questions about the integrity of the
investigation. This evidence is of the reliable, exculpatory
scientific nature named by the Schlup Court. Id. at 865. It is not
28
constitutionally permissible for the Government to convict
with a seminal lie underlying its substantive case. E.g., United
States v. Nash, 64 F.3d 504, 508 n.4 (9th Cir. 1999) (conspiracy
conviction cannot be sustained if jury may have relied on
discredited substantive offense). And _ this jury acquitted
Campbell for the other conspiracy alleged over methaqualone;
it is clear it felt obliged to act differently purely over the trace
amounts of P2P.
Where there has been no evidentiary hearing, this Court is
bound to consider the arguments raised here “independently,
and not be influenced by the previous decisions refusing
discharge.” Schlup, 513 U.S. at 317; quoting McClesky v. Zant,
499 U.S. 467, 479 [1991]; Sanders v. United States, 373 US. 1, 8-9
[1963] (res judicata does not apply to habeas petitions). There is
virtually no way that the Petitioner's newly raised claim could
have been conclusively refuted by the files and records of the
case. Saville v. United States, 451 F.2d 649, 650 (1st Cir. 1971).
And issues resolved on even direct appeal (i.e., here a request
for a certificate of appealability) of denial of habeas corpus are
not binding law of the case on subsequent panels who rehear
the issue on habeas. United States v. Sciverner, 167 F.3d 525, 530
(9 Cir. 1999).
Therefore, as the least consideration, the writ of certiorari
should be granted, the decision of the lower court vacated, and
the cause remanded directly for further proceeding in the
District Court consistent with the principles of equitable due
process discussed earlier in this petition.
CONCLUSION
All scientists to have reviewed the analytical data of the
D.E.A. laboratory and the R.I. Department of Health laboratory
have expressed strong reservation on the legitimacy of the data
used to convict Mr. Campbell. Administrative review of this
problem continues to linger where other scientists were able to
reach their conclusion in less than a week. This petition
Coniaiits the sworn declaration of two scientists, Dr. Suggs and
Mr. Bramson, who both conclude in writing there was never
any P2P in these samples before they went to the D.E.A.
laboratory in New York. ;
29
The justice required by this situation is plain. If the legal
treatment this case has received is different than the treatment
of scientists then the legal standard has to be changed. Legal
fiction can not be allowed to trump scientific fact.
Wherefore, certiorari should be granted to resolve the
fundamental Brady issue, guideline issue and actual innocence
issue that were placed into issue by the original § 2255 motion.
Respectfully submitted,
Roderick A. Campbell
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
30
APPENDICES
District Court Decision Denying § 2255 Application
First Court Of Appeals Denial of Certificate Of
Appealability
Second Court Of Appeals Denial Of Certificate Of
Appealability
West Affidavit Re R.I.D.O.H. Contact
Government Motion To Dismiss Courts
Webb Letter Rejecting Traverse And Supporting
Affidavit
Suggs Affidavit
Blum Affidavit
Bramson Affidavit
Morris Forensics Affidavit
Furtado Article, June 26, 2993, “Providence Journal”
Sworn Criminal Complaint
Asa Hutchinson Letter
R.I.D.O.H. Sample 1? (D.E.A. 17) Full Analysis
a re
RPS
pees
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
RODERICK A. CAMPBELL
v. C.A. No. 97-274T
UNITED STATES OF AMERICA
MEMORNADUM AND ORDER
Earnest C. Torres, Chief Judge.
Roderick A. Campbell, (sic) has moved, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct sentence. In
addition, Campbell has filed a motion for partial summary
judgment on his § 2255 motion. For the reasons set forth
below, both motions are denied.
Background
In 1994, Campbell was convicted by a jury of six counts
relating to the manufacture and distribution of phenylacetone
(P2P).!. Campbell was sentenced to concurrent terms of
imprisonment ranging from 240 months to 288 months and
concurrent terms of supervised release ranging from 3 years to
6 years. Campbell also was fined $100.00 and directed to paya
$300.00 special assessment plus the costs of supervision in
monthly installments during the period of supervised release.
' The charges on which petitioner was adjudged guilty were: conspiracy to
manufacture, distribute and possess with intent to distribute P2P, in violation
of 21 U.S.C. §§ 841(a)(1) and 846; knowingly and intentionally manufacturing
P2P, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2;
maintaining a place for the purpose of manufacturing P2P, in violation of 21
U.S.C. § 856; and knowingly and intentionally distributing P2P on three dates
in February, March and April 1993, in violation of 21 U.S.C. § 841 (a)(1),
(b)(1)(C) and 18 U.S.C. § 2.
A
Campbell's conviction and sentence was (sic) affirmed on
appeal, United States v. Campbell, 61 F.3d 976 (1st Cir. 1995), and
his petition for certiorari was denied. Campbell v. United States,
517 U.S. 1161 (1996). j
Facts
The facts underlying Campbell's conviction are recited in the
First Circuit's decision. They may be summarized as follows.
In 1993, an undercover Drub Enforcement Agency (DEA) agent
who claimed to be seeking a steady source of P2P for use in
manufacturing methamphetamine approached Campbell and
Campbell agreed to set up a laboratory that would produce
P2P.
Campbell, later, delivered a sample of a substance that he
said was P2P but that testing revealed was not P2P. Campbell
told the agent that the negative test results were due to his use
of an alternative manufacturing method which was designed to
avoid the distinctive odor associated with P2P. Campbell
subsequently delivered another sample, that was
manufactured in the traditional manner, and that tested
positive for P2P.
In March 1993, Campbell and his associate, Harold Farrell,
began making deliveries to the agent. Farrell indicated that
they would supply 100 gallons of P2P. During March and
April, Campbell and Farrell made six deliveries of mixtures
containing P2P and seven deliveries of substances that
subsequently were determined not to contain any P2P.
At Campbell's trial, a DEA chemist, who had viewed
Campbell's laboratory when Campbell was arrested, testified
that he had observed chemical reactions consistent with the
manufacture of P2P and that the lab contained all of the
chemicals necessary to produce P2P. Campbell's defense was
that he never intended to manufacture P2P and that he was
attempting to deceive his buyer. He claimed that the presence
of P2P in some of the deliveries was inadvertent.
The Section 2255 Motion
Campbell presents nine reasons why his § 2255 motion
should be granted: (1) the government withheld exculpatory
test results; (2) certain samples which allegedly tested positive
for the presence of P2P had been contaminated, either
intentionally, or inadvertently, and the testimony concerning
the analysis of those samples was perjured; (3) defense counsel
was ineffective at trial in failing to expose the alleged perjury
and in failing to conduct an adequate examination on scientific
topics; (4) defense counsel's representation was otherwise
deficient in that counsel did not oppose the court's imposition
of increased penalties by reason of prior criminal convictions
despite the government's failure to file an information as
required by 21 USC. § 851; (5) 21 USC. § 8512 is
unconstitutional on its face and as applied to petitioner; (6) the
government failed to prove that Campbell acted with the intent
necessary for a conviction pursuant to 21 U.S.C. § 841; (7)
Campbell was erroneously sentenced as having intended the
P2P for use in the manufacture of methamphetamine; (8) the
offense level enhancements that he received for obstruction of
justice and abuse of his special skill as a chemist, and the
court's upward departure from the otherwise applicable
sentencing guideline range in order to reflect Campbell's past
criminal conduct and that he was likely to commit other crimes
in the future, should all be reevaluated in view of the new
evidence; and (9) the court lack authority to impose the costs of
supervision.3 :
? As set forth a n.7, infra, the penalty provision to which petitioner apparently
refers is 21 U.S.C. § 841 (sic).
3 The petitioner's claim that the district court lacked authority to impose the
costs of supervision was not set forth in the initial § 2255 motion. Instead,
Campbell raised this ground in a separately filed document captioned
"Motion To Correct Illegal Sentence". (sic) More appropriately, the claim is
treated as part of petitioner's § 2255 motion. See United States v. Zuleta-
Molina, 840 F.2d 157 (1st Cir. 1988).
Discussion
I. The § 2255 Standard
28 U.S.C. § 2255 provides in pertinent part:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which
imposed the sentence to vacate, set aside or
correct the sentence.
In order to be cognizable under § 2255, claims based on
other than constitutional jurisdictional grounds must present
exceptional circumstances that justify permitting a collateral
attack. Sated another way, the alleged error must amount to "a
fundamental defect which inherently results in a complete
miscarriage of justice" or "an omission inconsistent with the
rudimentary demands of fair procedure." Hill v. United States,
368 U.S. 424, 428 (1962). Section 2255 is not a substitute for
direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982).
Accordingly, errors warranting a reversal on direct appeal will
not necessarily support a collateral attack. Knight v. United
States, 37 F.3d 769, 772 (Ist Cir. 1994). See United States v.
Addonizio, 442 U.S. 178, 184 (1979).
II. The Claims
A § 2255 movant is procedurally precluded from obtaining
review of issues not presented on direct appeal absent a
showing of both "cause" for the default and "prejudice" or,
alternatively, that he is "actually innocent." E.g., Brache
v. United States, 165 F.3d 99, 102 (1st Cir. 1999). Although many
of Campbell's claims were not raised at trial or on appeal, he
has failed to make either of the required showings with respect
to these claims.* Moreover, his claims lack merit.
A. The Exculpatory Evidence Claim
Campbell asserts that the government violated the
requirements of Brady v. Maryland, 373 U.S. 83 (1963), by
allegedly failing to disclose that some of the samples claimed
by the DEA to contain P2P, (sic) previously had been found by
the Rhode Island Department of Health (RIDOH) not to
contain P2P.
Presumably, Campbell relies on the alleged nondisclosure as
“cause” for his failure to raise this issue sooner, but he has not
established that this evidence was otherwise unknown or
unavailable to him. See United States v. Pandozzi, 878 F.2d 1526,
1530 (1st Cir. 1989) (quoting Jarell v. Balcom, 735 F.2d 1242, 1258
(11th Cir. 1984)); Lugo v. Munoz, 682 F.2d 7, 9-10 (1st Cir. 1982).
Moreover, Campbell has presented no evidence that any of
the samples determined by the DEA to contain P2P tested
negative. Campbell points out what he claims is a negative
RIDOH report with respect to DEA Sample 17 but he has failed
to establish that the substance in the report is the substance in
Sample 17. Furthermore, contrary to Campbell's assertion, the
RIDOH report indicates that the substance did contain P2P.
* Additionally, Campbell has not demonstrated "actual innocence." "'Actual
innocence’ means factual innocence, not mere legal insufficiency." Bousley v.
United States, 523 U.S. 614, ___, 118 S.Ct. 1604, 1612 (1998) (citing Sawyer v.
Whitley, 505 U.S. 333, 339 (1992)). In order to establish "actual innocence," a
defendant must "demonstrate that, in light of all the evidence it is more likely
than not that no reasonable juror would have convicted him." Id. (internal
quotations omitted). The evidence adduced at trial clearly evinces
Campbell's guilt of the charges for which he was convicted.
B. Evidence Tampering and Perjury Claims
Campbell alleges that any P2P contained in the samples
tested by the DEA was the product of intentional or
inadvertent contamination by DEA agents or that trial
testimony regarding the test results was perjured. However,
Campbell has failed to demonstrate "cause" for failing to raise
this issue sooner.
In addition, Campbell has failed to present any credible
evidence in support of his claims. Campbell's allegations are
based, largely, on the affidavits of two chemists, Wayne A.
Morris and John William Scuggs (sic). For the most part, these
affidavits consist of nothing more than a recitation of post-trial
representations made by Campbell to Scuggs (sic) concerning
the manufacturing process that Campbell employed and
unsubstantiated assertion by Morris that the government's
testing methods were unreliable.
C. The Ineffective Assistance Claims
Campbell claims that his counsel was ineffective for not
exposing the aforementioned perjury; in failing to adequately
examine expert witnesses; and, (sic) in failing to challenge the
enhancement of his sentence pursuant to 21 U.S.C. § 841 on the
ground that the government did not file an information
regarding Campbell's prior state court convictions as required
by 21 U.S.C. 851.
In order to establish that he was deprived of his Sixth
Amendment right to effective assistance of counsel, Campbell
must demonstrate that counsel's performance fell below an
objective standard of reasonableness and that he was
prejudiced by the deficiency. Strickland’v. Washington, 466 U.S.
668, 687-88 (1984).
An attorney's performance is deficient when it is "so inferior
as to be objectively unreasonable." United States v. McGill, 11 -
F.3d 223, 226 (Ist Cir. 1993). In employing this rather
deferential standard, counsel's performance must be evaluated
without "the distorting effects of hindsight" and in light of the
circumstances as they existed at the time. Strickland, 466 U.S. at
689. |
Campbell has fallen far short of satisfying even the first
prong of the Strickland test. He has failed to identify, and the
Court is unable to discern any way in which counsel's
performance at trial was deficient. The fact that counsel was
not, also, a research chemist, that does not set him apart from
the vast majority of defense attorneys. (Sic). Counsel had
demonstrated sufficient familiarity with the subject; and, more
importantly, the facts of the case, to do a very creditable job of
conducting the best defense possible in light of the
overwhelming evidence against Campbell. Moreover,
Campbell was afforded ample opportunity to "educate"
counsel before trial and confer with counsel during the trial
regarding the technical aspects of each witness’ testimony.
Campbell also had the opportunity to present any technical
evidence that he desired when he testified.
Campbell's claim that counsel was deficient in not
challenging the sentence enhancement under 21 U.S.C. § 841
(sic) also lacks merit. Although the docket sheet does not
reflect it, a review of the file reveals that the required
information identifying Campbell's prior felony conviction>
was filed by the government before empanelment.®
5 21 U.S.C. § 851(a)(1) provides in pertinent part: No person who stands
convicted of an offense under this part shall be sentenced to increased
punishment by reason of one or more prior convictions, unless before trial, or
before entry of a plea of guilty, the United States attorney files an information
with the court (and serves a copy of such information on the person or
counsel for the person) stating in writing the previous convictions to be relied
upon. xk
6 A jury was empanelled on January 27, 1994. As used in 851(a)(1), "before
trial" means prior to jury selection. See United States v. Cartagena-
Carrasquillo, 70 F.3d 706, 715 (ist Cir. 1995) (citing Kelly v. United States, 29
F.3d 1107, 1110 (7th Cir. 1994)).
D. The Constitutionality of 21 U.S.C. § 851
- Campbell contends that 21 U.S.C. § 8517 is unconstitutional on
its face because it provides for increased penalties based upon
prior state court felony drug convictions, thereby violating the
prohibitions against ex post facto laws, bills of attainder and
double jeopardy, and because it violates the Ninth and Tenth
Amendments. Campbell also asserts that the court's application
of this provision violated his right to due process and was in
excess of the court's jurisdiction under Article III.
Since Campbell has not demonstrated "cause" for failing to
raise these claims on appeal, he is procedurally precluded from
litigating them now.
Moreover, even if Campbell could raise these issues, his
arguments rest on the erroneous premise that the consideration ©
of his prior convictions constituted either a redetermination of
his guilt or an additional punishment for the state law
violations. The Supreme Court has "repeatedly upheld
recidivism statutes ‘against contentions that they violate
constitutional strictures dealing with double jeopardy, ex post
facto laws, cruel and unusual punishment, due process, equal
protection and privileges and immunities." Parke v. Raley, 506
U.S. 20, 27 (1992) (quoting Spencer v. Texas, 385 U.S. 554, 560
(1967) (internal quotations omitted)). It has also held
that"[e]nhancement statutes * * * do not change the penalty
imposed for the earlier conviction." Nichols v. United States, 511
U.S. 738, 747 (1994). Sentencing enhancement provisions are
not bills of attainder. See Nixon v. Administrator of General
Services, 433 U.S. 425, 468 (1977) (key features of a bill of
attainder include a legislative determination of guilt and
imposition of punishment upon an identifiable individual with
(sic) provision of the protections a judicial trial).
7 21 U.S.C. § 851 simply sets forth the procedures to be employed in applying
the increased penalties delineated elsewhere in Title (sic) 21. To the extent
that Campbell seeks to challenge the substantive provision, the appropriate
reference is to 21 U.S.C. § 841(b)(1)(C).
Pa tr oe me Se. Te ee eee
a ee ey aS eee
E. Knowledge and Intent
Campbell argues that, because P2P is only a precursor to—
methamphetamine, the government was required to prove that
he knew that the P2P could be used to manufacture
methamphetamine. This argument, too, is procedurally barred.
Even if Campbell could raise the issue, Campbell is incorrect
in asserting that the government was required to prove that he
knew that P2P could be used to manufacture
methamphetamine. Section 841(a)(1) makes it unlawful to
"knowingly or intentionally * * * manufacture * * * a controlled
substance." 21 U.S.C. § 802(6) defines "controlled substance" as
"a drug or other substance, or immediate precursor, included in
schedule I, II, Ill, IV, or V of part B of this subchapter." Since
P2P has been designated as a schedule II "immediate
precursor", (sic) 21 C.F.R. § 1308.12(g)(1)(i), it is a "controlled
substance" within the meaning of § 841 and the government
was required to prove only that Campbell knowingly or
intentionally manufactured P2P. :
In any event, the evidence is overwhelming that, in fact,
Campbell did know that P2P was a precursor to
methamphetamine. The evidence also undercuts Campbell's
argument that his guideline sentencing range was calculated
on the erroneous premise that he possessed P2P "for the
purpose of manufacturing
methamphetamine", (sic) thereby triggering a conversion
equivalent of 416 grams of marijuana per gram of P2P rather
than 75 grams of marijuana per gram of P2P. See Drug
Equivalency Tables, U.S.S.G. § 2D1.1 comment. (sic) (n.10).
More importantly, Campbell's challenge to use of the 416
multiplier was considered and rejected by the First Circuit on
direct appeal. United States . Campbell, 61 F.3d at 985-86.
Although Campbell now attempts to recharacterize and to
provide additional legal theories in support of his argument,
the gravamen of his claim remains the same as the one rejected
on appeal and will not be revisited. E.g., Singleton v. United
States, 370 F.2d 862, 864 (1st Cir. 1967). .
F. The Sentencing Enhancement
Campbell argues that the offense level enhancements for
obstruction of justice and abuse of his special skill as a chemist,
and the upward departure based on his past criminal conduct
and the likelihood that he would commit other crimes in the
future were erroneous. Once again, this is simply a rehash of
arguments made and rejected on direct appeal. Consequently
they cannot be raised in Campbell's § 2255 motion.
Campbell attempts to circumvent that prohibition by
asserting that the matter should be reevaluated in view of "new
evidence." However, the "new evidence" consists of nothing
more tharrthe previously rejected claims of evidence tampering
- and perjury. Thus, Campbell's arguments lack any factual
foundation.
G. Imposition of the Costs of Supervision
Finally, Campbell argues that this Court had no authority to
impose the costs of supervised release because Campbell was
indigent. Since Campbell had failed to present any "cause" for
not raising this issue on appeal, he is procedurally barred from
raising it now.
In addition, Campbell ignores the fact that the Court
deferred payment of the costs of supervision until Campbell
was released from prison and could begin using his
considerable talents to earn the money to pay those costs.
Conclusion
For the above reasons, Campbell's § 2255 motion is denied.
Because Campbell is not entitled to relief on any of his claims,
his motion for partial summary judgment is also denied.
IT IS SO ORDERED.
[s/
Ernest C. Torres
Chief Judge
May 16, 2000
Ts
UNITED STATES COURT OF APPEALS
For The First Circuit
No. 00-2399
RODERICK A. CAMPBELL,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges
JUDGMENT
Entered: September 6, 2001
Roderick Campbell ("Campbell") has appealed from the
denial of his motion for post-conviction relief pursuant to 28
U.S.C. § 2255,and we treat his notice of appeal as a request fora
certificate to file a memorandum in support of a request for a
certificate of appealability, though, and the time for doing so
has passed. "If no sufficient memorandum has been filed by the
ee eee
time set by the clerk, the certificate may be denied without
further consideration. The effect of a denial is to terminate the
appeal.” 1st Cir. Loc. R. 22.1(b). We have reviewed Campbell's
submissions below, and we see no reason to make an exception
here and allow Campbell to proceed, despite his failure to
comply with Local Rule 22.1(b). |
Many of his arguments restate those already rejected by this
court in Campbell's direct appeal, and his new arguments lack |
merit. His new arguments regarding allegedly exculpatory
evidence would not succeed, because he has failed to show :
cause for failing to raise them earlier; the arguments do not
establish his actual innocence of the charges as a whole; he has
failed to show the evidence was unavailable to him, see United
States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998), and even if
the government should have turned over the results in
question, any error is harmless.
His ineffective assistance of counsel arguments fail as well.
Campbell is not entitled to a perfect defense, only to a
reasonably effective one, Singleton v. United States, 26 F.3d 233,
238 (1st Cir. 1994); and especially since Campbell himself was
readily available and qualified to assist counsel with the more
technical aspects of the evidence, we see no reason to allow
Campbell to pursue this charge further. Moreover, the court's
file clearly reflects that the required information pursuant to 21
U.S.C. § 851(a) was filed several days before the jury was
empanelled, so no timeliness argument could have been
pursued by counsel.
Finally, no Apprendi problem is presented here, because
Campbell's ultimate sentence -- 24 years -- was within the
default maximum sentence applicable to the offense. See 21
U.S.C. § 841(b)(1)(C) (maximum sentence for Schedule II
controlled substance is 30 years, where defendant has prior
conviction for drug felony); see also Apprendi v. New Jersey, 120
S.Ct. 2348 (2000), 120 S.Ct. at 2362 (fact of prior conviction need
not be determined by jury beyond reasonable doubt); United
States v. Baltas, 236 F.3d 27, 41 (1st Cir.) (no Apprendi error
when sentence is within default statutory maximum,
regardless that drug quantity not determined beyond a
reasonable doubt); cert. denied, 121 S.Ct. 1982 (2001).
The request for a certificate of appealability is denied and
the appeal is terminated. The motion to proceed in forma
pauperis is denied as moot.
By the Court:
Acting Clerk.
cc: Roderick A. Campbell
Kenneth P. Madden, Esq.
Certified copies to: Honorable Ernest C. Torres and Mr. David -
DiMarzio, U.S.D.C. Clerk.
UNITED STATES COURT OF APPEALS
For The First Circuit
No. 00-2399
RODERICK A. CAMPBELL,
Petitioner, Appellant,
Vv.
UNITED STATES,
Respondent, Appellee.
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges
ORDER OF COURT
Entered: November 26, 2001
The court is in receipt of petitioner Roderick Campbell's
("Campbell's") "Motion To Withdraw Decision" and "Petition
for Certificate of Appealability" and supporting memorandum.
The court previously had ordered Campbell to file a
memorandum in support of a request for a certificate of
appealability by May 2, 2001; see order dated 4/11/2001. We
presume Campbell received this order, order dated 4/11/2001.
We presume Campbell received this order, since Campbell
already had advised the court of his correct mailing address at
the time the order issued, and since he apparently was aware
of other language in that order which reinstated the appeal.
Nevertheless, we have reviewed and considered fully the
substantive arguments presented in Campbell's recent
submissions. We treat the instant motion as one for rehearing
and the memorandum as one in support of the motion for
rehearing. For the reasons given in our judgment dated
September 6, 2001, we deny the petition for rehearing.
By the Court:
Janice O'Neil, Acting Clerk
By: __Julie Gregg
Appeals Attorney
cc: Roderick A. Campbell
Kenneth P. Madden, Esq.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
RODERICK A. CAMPBELL
v. | 93-CR-0049-T -
97-CV-0274-T
UNITED STATES OF AMERICA
AFFIDAVIT
I, Albert B. West, Esq., being duly sworn, hereby make affidavit
and state that:
1. That in preparation for trial in the captioned proceedings,
I spoke with representatives of the Rhode Island Department of
Health Laboratory.
2. That I was advised by Mr. Gino Rebussini that, in fact,
detectable amounts of P2P were found in the samples that were
analyzed by that office.
3. That as a consequence of receiving this information, I
cautioned and recommended that witnesses from the State Lab
not be called, since in my view their testimony would be
supportive of the government's position and contrary to
positions being advanced by the Defendant.
Ls/
Albert B. West, Esq.
Subscribed and sworn to before me at Cumberland, Rhode
Island, this.10th day of July, 2000.
D
/s/ Amy J. Manning _
Notary Public
Comm. Expires: __10-30-01
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA
Vs. Cr. No. 93-049T
RODERICK CAMPBELL
HAROLD FARRELL
ee ere NN
GOVERNMENT'S MEMORAN DUM IN SUPPORT
OF ITS MOTION TO DISMISS COUNTS
The Government has moved to dismiss Courts XI, XII, XIII,
XIV, XV, XVI, XVII of the instant indictment.
Counts XI, XII and XIII charge defendant Harold Farrell
with distribution of the controlled substance phenylacetone.
Subsequent analyses by a chemist of the Drug Enforcement
Administration regarding those substances reflected in Counts
XI, XII and XIII are negative for the presence of any controlled
substance.
Count XVII charges defendants Roderick Campbell and
Harold Farrell with possession with intent to distribute
phenylacetone. The subsequent analysis by a chemist of the
Drug Enforcement Administration regarding the substance
reflected in Count XVII is negative for the presence of any
controlled substance.
Count XIV charges defendant Roderick Campbell with the
attempted distribution of phenylacetone. Counts XV and XVI
charge Defendant Harold Farrell with attempted distribution of
phenylacetone. The substance reflected in each of those counts
were known to the government not to contain controlled
substances based upon the results from preliminary field tests.
However, the substances were represented by the defendants
to be phenylacetone. In light of the negative analyses for
Counts XI, XIl, XIII, and VIL the government does not
presently believe that it can sustain its burden of proof with
regard to the attempt crimes charged in Counts XIV, XV and
XVI.
Wherefore, the government moves this Court to dismiss
Counts XI, XII, XIII, XIV, XV, XVI, and XVII of the indictment.
Respectfully submitted,
UNITED STATES OF AMERICA
By its attorneys,
Edwin J. Gayle
United States Attorney
[s/
KENNETH P. MADDEN
Assistant U.S. Attorney
UNITED STATES DISTRICT COURT
District of Rhode Island
January 25, 1999
Roderick Campbell
F.C.I. Schuylkill
03869-0706
P.O. Box 759
Minersville, Pa 17954-0759
Dear Mr. Campbell,
I am returning the enclosed affidavit which you apparently
forward (sic) to us with your objection to the Government
motion to consolidate.
I am returning the document to you for your necessary
action.
Sincerely,
James E. Webb
Deputy Clerk
One Exchange Terrace, 119 Federal Building & Courthouse,
Providence, R.I.
F
IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA
v. ; 93-CR-0049
RODERICK A. CAMPBELL
AFFIDAVIT
I, John William Suggs, do depose and swear the following
under oath:
1. Iam the John William Suggs who has been an expert
witness for the defense in the above captioned case and I have
personal knowledge of the facts presented herein.
2. My time to interview with Mr. Campbell was necessarily
limited due to my professional responsibilities at Brown
University and the security arrangements at the Intake Service
Center. | met with Mr. Campbell two times for a total of no
more than 90 minutes. The rest of the preparation was with
counsel, Attorney Albert West. While Mr. Campbell was very
knowledgeable about organic chemistry, Mr. West was not,
although he tried hard to understand what Mr. Campbell and
myself had to say about organic chemistry.
3. Mr. Campbell has explained to me the use made of my
estimate that the samples contained a maximum of eight
percent P2P and a confusion amounting to a mistake made for
the unqualified use of that statement.
4. By the eight percent figure, which I tried to indicate-was an
approximation, I was referring to the components in the
G
chromatograms. These are compounds of a similar volatility. ,
In organic chemistry, we would refer to them as the higher
boilers, or compounds with higher boiling points. As Mr.
Campbell pointed out to me, in all the chromatograms, the first
two minutes of the sample run is not analyzed, because that
region contains the low boiling solvent portion of the sample.
This is on the order of 90 percent of the sample; so the amount
of P2P in the total sample (if the P2P identification is valid) is
on the order of less than 1 percent of the total, low boilers and
high boilers together.
5. The estimate of 90 percent low boiling material comes from
sample 18. The percentage is a weight percent.
6. Mr. Campbell argues that the peak identified in the
chromatograms as P2P is sometimes the compound 4-
methylacetophenone-and sometimes the closely related
compound 2-methylacetophenone. To clarify the argument, a
drawing of the structures of the compounds in question is
shown below:
A
or Oe Lo
CH; H3C
P2P 2-methylacetophenone 4=methylacetophenone
boiling point 216 _ boiling point 218 boiling point 226
These are what is called isomers, compounds with the same
number and types of atoms, but connected in different ways.
The analysis columns used to separate the mixture into
different components did its job on the basis of boiling point of
each component. The boiling points of these three isomers are
very similar, and one would expect them to appear close to one
another on a GC-MS or GC-FTIR analysis.
7. The synthesis, as described in detail to me by Mr. Campbell,
involved addition of chlorine to toluene in water to make the
a a ae
compound benzyl chloride. This was then reacted after some
purification with magnesium metal to make the compound
benzyl magnesium chloride. The presence of 2-
methylacetophenone and 4-methylacetophenone are consistent
with Mr. Campbell's description, since these compounds
would arise from the reaction of chlorine with toluene, giving
several chemical compounds at the same time. To clarify with
diagrams:
H3 HCl H3 H2 CHs
+ Cl, —s + > +
a Cc
Cl
Above is shown the reaction of chlorine with toluene. Four
products are expected. Traces of iron will favor formation of
the last three. As we shall explain, only the first of these
products goes on to P2P. The last product shown is formed in
the smallest amounts. Once the chlorine reaction is over,
reaction with magnesium (Mg) will give four main products:
H3 H3
i a. [on
) ¢ CIMg
; CH; Hg
P! ex Mg — CL ‘
2) cl MgCl
eG -CH2CH2
OM «OG
Ci H»MgCl
4) Ey" + Mg ——» ie
Only reaction 4 will go on to give P2P. Reactions 1 and 2 will
give 4-methylacetophenone and 2-methylacetophenone,
respectively. Reaction 3 gives bibenzyl, which does not react
further. This bibenzyl compound is identified as a major
component of the analyzed mixtures. Also consistent with Mr.
Campbell's description of his synthetic route is the presence of
benzyl alcohol and benzyl acetate in the mixture. They arise
from benzyl chloride as summarized below:
a H2OH ococ
ES. + — ee = acetate ia "
8. It is a well-established fact that attempts to form benzyl
magnesium chloride (by reaction 4) are inefficient and usually
the reaction shown in reaction 3 is the major and often the only
pathway. Thus, one would expect a very low, and possible
zero, yield of P2P by the route Mr. Campbell used. His route
needed reaction 4 to work in order to get any P2P. There is
scientific basis, from the array of products in the analyzed
samples, for Mr. Campbell's contention that he chose a route to
P2P he expected to fail and produce no P2P because of the
problems with reaction 4.
9. While I have not had a chance to personally study the
R.I.D.O.H. chromatograms, due to my schedule, I have seen the
reduced, photocopied version of one chromatogram, of sample
17. | agree with Mr. Campbell's analysis that the resolution is
better than the DEA chromatograms. Further, I agree that, if
P2P is poorly resolved from the methylacetophenone isomers
in the DEA analyzed samples, it should be better resolved in
the R.I.D.0.H. chromatograms, leading to two separate peaks
or at lest (sic) peak broadening. If the data on the rest of the
R.1.D.O.H. chromatograms are the same as on the one sample |
have seen, I would be convinced that there was no P2P in these
samples, down to the limits of detection of the analytical
method. Instead, i would conclude that the peak identified as
P2P is most likely a methylacetophenone isomer.
10. Had I been appraised and examined on the above topics
during my testimony, I would have testified then exactly as I
have presented these facts now.
Further your Deponent Sayeth Not,
Ls/
John William Suggs
July 15, 1997
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
Subscribed and sworn to before me at Providence, RI, this 15th
day of July, 1997.
—
Ls/
Notary Public
Comm. Expires: 6/24/01
NATIONAL MEDICAL SERVICES, INC.
Toxicology Specialists Worldwide Since 1970
March 5, 2001
Albert West, Esq.
Manning & West
3460 Mendon Road
Cumberland, RI 02864
Re: Roderick A. Campbell
Your File # L10113
NMS Expert Services No. N00194
Dear Mr. West:
You and your firm have retained National Medical Services,
Inc., represented by Lee Blum, Ph.D., as consultants in
Toxicology in the above captioned case. You have been
furnished a description of National Medical Services, Inc., as
well as a copy of my Curriculum vitae. You have requested
that I review pertinent documents and records and form
conclusions and opinions regarding the analysis of D.E.A. item
17 indicated to have been obtained from Roderick A. Campbell.
In order to comply with this request, you have supplied me
with the following relevant documents and records:
1. A copy of a sworn declaration of Roderick A. Campbell.
2. Acopy of an affidavit of John Suggs dated July 15, 1997.
3. Copies of analytical data from the ~ Rhode Island
Department of Health.
4. Copies of analytical data from the U.S. Department of
Justice, Drug Enforcement Administration.
H
-
5. A copy of a letter to David Uliss, Ph.D., from Roderick
Campbell dated May 24, 2000.
6. A copy of a letter to Kenneth P. Madden, Esq., from
Roderick Campbell dated June 22, 2000.
7. A copy of an affidavit from Roderick Campbell dated
November 8, 1998.
8. A copy of a document entitled: The government violated
the Defendant's due process right by not disclosing to the
defense the exculpatory Rhode Island Department of
Health analysis.
9. A copy of a page of what appears to be transcripts from
testimony with attachments.
10. A copy with an affidavit from John W. Suggs dated July 11,
1997.
11. A copy of an affidavit from Wayne A. Morris dated June 12,
1997.
12. A copy of a letter to Albert West from J. William Suggs re:
R. Campbell dated February 2, 1994.
In addition to the above documents and records, I have been
asked to assume the following:
1. D.E.A. Samples 17, 18, 19, 20, 22, 23A, and 24 correspond to
D.O.H. Samples 1, 2, 3, 4, 6, 7A, and 8 respectively;
2. Both the D.E.A. and D.O.H. laboratories performed their
respective analyses on Hewlett-Packard 5800 gas
chromatographs with factory manufactured HP-1 columns;
and
3. The only pre-analytical treatment of the samples was
dilution with methanol and possible filtration of any
precipitated solids.
It should be noted that I have made these assumptions with no
substantial documents or records. I did not receive any
specimen chains of custody, sample preparation procedures,
analytical procedures, concurrent instrument conditions and
parameters, or analytical data from standard or quality control
samples, among others.
Based on the submitted documents and records, the
assumptions given, as well as my knowledge, education or
experience, it is my opinion, with a reasonable degree of
scientific certainty that the total ion chromatograph (TIC) from
the gas chromatograph/mass spectrometry (GC/MS)
analytical data identified as D.E.A. item 17 appears different
from the total ion chromatograph (TIC) of the GC/MS data
identified as D.O.H. item 1?.
The following support the above opinion and conclusions:
1. The three peaks identified from the data submitted for
D.E.A. item 17 indicate 1-phenyl-2-propanone (P2P) at
retention time 4.99 minutes; and 1,3-dipheny]-2-propanone
at retention time 8.19 minutes.
2. The TIC obtained from the analysis of D.O.H. item 1?
recognized at least 9 chromatographic peaks with more
recorded in the chromatogram, but not indicated in the
data report. :
3. If all things are equal between the D.E.A. and the D.O.H.
laboratories including the amount analyzed, the
preparation of the sample, the analytical column 30%
(identified as 1,3-diphenyl-2-propanone at 8.19 minutes),
respectively, of the total. The peak identified as P2P in
D.O.H. sample 1? at retention time 6.50 minutes comprises
13.3% of the total. In addition, the peak identified as P2P in
the D.E.A. item 17 at retention time 3.74 minutes is the
base (or highest) peak, whereas in the D.O.H. analysis, the
P2P peak at 6.50 minutes is 50% of the base peak which
occurs at 10.81 minutes. Likewise, using the peak identified
as P2P at 3.74 minutes on D.E.A. item 17 at retention time
3.74 minutes as the base peak, the peaks at 4.99 and 8.19
minutes have peak heights of 35% and 58.3%, respectively.
A comparison of peak heights on the D.O.H. item 1? GC
TIC does not identify peaks whose heights are
approximately 89,000 counts (35% of 255702, the peak
height corresponding to the chromatographic peak at
retention 6.50 minutes) or approximately 149,000 (58.3% of
255702) at retention times later than the 6.50 minutes peak.
In addition to D.O.H. 1?, the D.E.A. item 17 chromatogram,
which contained three chromatographic peaks, did not
appear to match the chromatographic profiles of D.O.H.
samples 2, 3, 4, 6, 7A, 7B, or 8. Sample 2 demonstrated at
least six chromatographic peaks; sample 3 exhibited at least
four peaks; sample 7B showed at least 7 peaks; and sample
8 recognized five chromatographic peaks. Furthermore the
relative size of the peaks in D.E.A. item 17, did not
correspond to the listed D.O.H. samples when compared
one to the other within each sample.
With the assumption of the identical sample preparation,
the amount analyzed, and the gas chromatographic
conditions (including the analytical columns, temperature
programs, etc.), the chromatographic profiles of D.E.A. item
17 from the GC/MS and the GC/FTIR analyses should be-
similar. Examination of the GC/MS chromatographic
profile exhibits three chromatographic peaks at 3.74, 4.99,
and 8.19 minutes. The GC/FTIR chromatogram shows
numerous small peaks from approximately .5 through
approximately 1.5 minutes, a large single peak at
approximately 3 minutes, and at least one (if not more)
small peak(s) just prior to 5.00 minutes.
If additional information or documents become available that
may affect the above opinion and conclusions, please forward
them to me for further evaluation.
Respectfully,
Lee M. Blum, PhD., DABFT
Forensic Toxicologist
In the County of Mercer, Sc.
AFFIDAVIT
I, Martin Bramson, do’ swear under oath the following
statements and conclusions as true and accurate to be best of
my knowledge and belief:
1. lama degreed chemist and pharmacist with the attached
educational background. I have studied all of the data in the
case United States v. Campbell, 93-CR-0049, and in the habeas
corpus application, 97-CV-0274. This includes all data
generated by both the Drug Enforcement Administration
Northeast Regional Laboratory (D.E.A.) and the Rhode Island
Department of Health (D.O.H.). I have also evaluated the
reports of Dr. William Suggs, of Morris Forensics, and of
National Medical Services Laboratory. I have also reviewed
the trial record for factual background.
2. Based on my review of all the information available and
using my technical background and experience, I have been
asked to take this data and these reports to their ultimate
conclusions, where I conclude that other reviewers have not
been complete.
3. It is-my first conclusion to a scientific certainty that the
R.I.D.O.H. has misidentified the chemical 4-methylacetopheone
(abbreviated 4-MA) as the chemical phenyl-2-propanone (P2P)
in each and all of the analyses appearing to show the presence
of "P2P." They are in fact showing the presence of "4-~MA."
4. It is my second conclusion to a scientific certainty that the
standard screening, as I know these screening tests to be done,
performed by the R.I.D.O.H. would have located P2P in these
samples down to concentrations of parts per million. I conclude
from study of the data, including the absence of a visual peak
or shoulder in D.O.H. chromatograms in the region of expected
P2P appearance, that there is no P2P in these samples down to
parts per million concentration.
5. It is my third conclusion to a scientific certainty that the
D.E.A. mass spec/chromatogram of Sample 17 is anomalous to
all the other data available on that sample. I state that the most
likely explanation for this anomaly is that the mass spectral
sample has been falsified. I state this conclusion based on the
lack of reporting of the major chemicals to the Sample 17
mixture by the D.E.A.'s own infrared lab being irreconcilable
scientifically. I further state this conclusion based on the fact
that Dr. Blum's exhaustive cross-referencing forces a reviewer
to conclude that D.E.A. 17 is D.O.H. 1?. I state this finally
based on the factual background in the trial testimony and the
transcripts of surveillance-taped conversations that Mr.
Campbell disclaimed ever running a "traditional" synthesis and
his statement is supported by all the data except the D.E.A.
mass spectrum/chromatogram.
6. It is my conclusion based on my study and the
appearance of the mixture chromatograms that D.E.A. Sample
17 corresponds to D.O.H. Sample "1?" to a scientific certainty.
7. Finally it is my conclusion to a scientific certainty that these
mixtures are an order of magnitude more dilute in high boiling
components (e.g., 4-MA) than was represented at the trial of
this case. I agree with Dr. Suggs' appreciation that the D.E.A.
chromatograms failed to show the solvents. It is my conclusion
that no amphetamine products could be made from these
mixtures, even if they legitimately contained the P2P shown in
the D.E.A. chromatograms, due to their extreme dilution and
low purity.
Subscribed under penalty of perjury,
LS/
Martin Bramson
AFFIDAVIT
STATE OF FLORIDA
COUNTY OF ORANGE
BEFORE ME, the undersigned authority, personally
appeared WAYNE A MORRIS, who after being sworn deposes
and says as follows:
1. That he is over 21 years of age and that the facts, opinions,
or conclusions set forth in this Affidavit are of his own personal
knowledge.
2. That he is a chemist holding a Master's Degree in Physical
Chemistry (thesis area in infrared spectroscopy), and he is in
private practice as co-owner/president of Morris-Kopec
Forensics, Inc., P.O. Box 1065, Goldenrod, Florida 32733-1065,
telephone number 407-678-5508.
3. That he has been in private practice since March, 1986, and
previously was employed as a crime laboratory analyst by the
Florida Department of Law Enforcement (FDLE) from March,
1976 to March 1986.
4. That he has been qualified as an expert in the area of drug
analysis in State Courts of Florida, and Federal Courts-in Texas
and Florida.
5. That he has attached hereto a true and correct copy of his
experience and qualifications.
6. That the Drug Enforcement Administration has registered
Morris-Kopec Forensics, Inc. as an analytical laboratory
covering all schedules of controlled substances.
7. That he has developed and manufactured field test kits for
controlled substances, including Cocaine, and as part of his
routine business, and that he is co-author of a patent for a field
test kit for Methaqualone and Mecloqualone.
8. That he has testified as an expert in Courts of Florida and
Federal Court as to the results of his analyses in over one
thousand cases.
9. That he has routinely used infrared spectroscopy, gas
chromatography and gas chromatography-mass spectroscopy
for the identification of controlled substances.
10. That he has been qualified as an expert in Courts of Florida
and Federal Courts in the use of gas chromatography and gas-
chromatography-mass spectroscopy for the identification of
controlled substances.
11. That in mass spectroscopy, the quality of the comparison of
the mass spectrum of the unknown to that of a known
(standard) is of utmost importance. The generally accepted
standard for library matches with an unknown compound
have numerical values above 98%. In this matter, the library
search for the results of the mass spectral analyses gave
numerical values of 94 and below. These levels of matching are
far below the generally accepted standard and indicate a low ~
level of reliability for the identifications made in this case.
12. That in mass spectroscopy, the initially acquired spectral
data may be altered by the addition and/or subtraction of
other spectral data arising from background spectra or co-
eluting compounds. Such manipulation of data must be done
carefully in order to prevent the loss of spectral information
arising from the unknown compound or the addition of
spectral information arising from other compounds. The loss
or addition of such data can result in-erroneous identification.
In this matter, the initial mass spectral data have been altered
by addition, subtraction, and normalization techniques
resulting in identifications of the unknown compounds as P2P
with low levels of confidence.
13. That in this case, the mass spectra do not reliably identify
the unknown compounds as P2P since the small amounts of
P2P alleged to have been identified by the library searches are
obtained by the substraction (sic) and addition of spectral data
arising from overlapping compounds having very similar mass
spectra. The absence of the fragment at m/e 119 in the P2P
spectrum differentiates P2P from these other compounds but
the absence of the m/e 119 peak could have been caused by the
manipulation of the spectral data.
14. That in gas chromatography, the repeatability (precision) of
the retention times for peaks representing the same
compound in different samples analyzed under the same
chromatographic conditions is mandatory. In this matter, the ~
agreement of retention times is not as high as should be
expected. Similar chromatographic conditions are reported on
the data but the retention times for the peaks alleged to be P2P
do not show good precision.
15. That, in the case of compounds having closely similar or
identical retention times under the same _ set of
chromatographic conditions, the agreement of retention times
arising from an unknown compound with a retention time for
a known standard, only indicates the possible presence of one,
any, or all of the co-eluting compounds. In this matter, the
chromatographic data only indicates-the possible presence of
P2P and/or other compounds arising from the chemical
syntheses used in the production of these samples.
16. That, the spectra identified as P2P in this case are missing a
prominent shoulder about 1900 cm! and several weak bands at
approximately 1300 cm and between 2850 and 2650 cm"
which are clearly present in the P2P infrared spectra used as a
standard. Although data obtained from gas chromatography-
Fourier Transform Infrared Spectroscopy (GC-FTIR) are
expected to show slight differences from conventional infrared
spectra, the observed differences in this case are significant.
17. That, according to the testimony of the Government's
expert, the P2P standard was at least 98 percent pure. Infrared
analyses of samples having 98 percent purity or better result in
infrared spectra of essentially the pure compound.
18. That, the band in an infrared spectrum are produced by
structural characteristics of the molecule. Very strong, strong,
medium, weak and very weak bands in an infrared spectrum
are explained by the selection rules of infrared spectroscopy
which are based upon the structure and symmetry of the
molecule and NOT upon the concentration of the compound in
the sample analyzed. If strong bands and weak bands are
present in the standard spectrum of a compound, they would
also be present in a spectrum obtained from an unknown
sample of the same compound, regardless of concentration.
19. That, the weak bands observed in the standard spectrum
are not present in the spectra obtained from the samples in this
case. For the identification of an infrared spectrum to be made
by comparison with a standard spectrum, _ it is important that
all the bands in the unknown spectrum have a relative height
relationships (sic) which is similar to the relative height
relationships in the standard spectrum. This is not occurring in
this case.
20. That, mixtures of compounds co-eluting from the gas
chromatograph's column will produce a spectrum which is an
additive result of the individual spectra of each component. ,
21. If an infrared spectrum is produced by co-eluting
compounds, the observed spectrum may be misidentified as a
compound not contained in the sample. Weak bands and
shoulders may not be seen due to peak broadening and
changes in peak height which, upon normalization, may reduce
a band below the noise level of the baseline. Medium and
strong bands may arise from only one of the co-eluting
compounds.
22. That, considering the poor quality of the library matches
between the known and unknown mass spectral data, the
missing peaks and shoulders in the infrared spectra, and the
poor agreement of the gas chromatographic retention times
available in this matter, there is a serious question as to the
scientific reliability of the identifications of P2P in any of the
samples analyzed, including those reported by the Drug
Enforcement Administration's Laboratory and by the Rhode
Island Department of Health Laboratory.
FURTHER AFFIANT SAYETH NOT.
/s/
WAYNE A MORRIS
I HEREBY CERTIFY that on this day, before me, an officer
authorized to administer oaths and take acknowledgments,
personally appeared Wayne A. Morris, known to me to be the
person described in and who executed the foregoing
instrument, who acknowledged before me that he executed
same, that I relied upon the following from (sic) of the above
named person:
and that an oath (was) taken.
Witness my hand and official seal in the County and State
last aforesaid this 24th day of June, 1997.
/s/
Notary Public
JACQUELINE F. BEAMS
Printed Name Of Notary
My Comm. Expires: 2/29 /2000
Comm. # CC 527031 (Seal)
Bonded Through
Atlantic Bonding Co., Inc.
JUNE 26, 1993
DEA SUSPENDS HEAD OF ITS OFFICE IN PROVIDENCE
The move by the federal Drug Enforcement Administration
comes after Mayor Cianci received a phony letter saying he
was the target of an investigation.
By DAN BARRY
and LAURA MEADE KIRK
Journal-Bulletin Staff Writers
PROVIDENCE - The federal Drug Enforcement
Administration's local agent in charge has been placed on paid
leave, after an investigation into a phony letter warning Mayor
Vincent A. Cianci, Jr. that he was the target of a drug
investigation. :
Vincent F. Furtado, a longtime DEA agent who has headed
the Providence office for the last two years, was relieved of his
duties - and his gun - last week, an agency spokesman said
yesterday.
The spokesman confirmed that there is "an issue of a letter."
But he said that Furtado's departure was primarily based on
questions regarding the local DEA office's relationship with
state and local departments.
Sources, however, Say the decision to remove Furtado was
prompted by a bogus letter that Cianci received in March - and
which has been traced to Furtado's office.
The one-paragraph letter, purporting to be from a
Providence police officer, warned Cianci that he was the target
of a drug investigation.
The writer said that the head of the drug unit, Inspector
Urbano Prignano, and Henry Roy, #4 officer on loan to the
DEA, "have been overheard talking about your (Cianci's) use of
drugs," and that "there is talk of a meeting with the US.
attorney about this and the ability of the PD (police
department) to catch you."
The letter also said that "there seems to be an informant that
has the information needed to set you up" - presumably for the
purpose of arresting Cianci.
Providence Police Chief Bernard Gannon emphasized
yesterday that his department has not received any accusations
of Cianci being involved with drugs. "To my knowledge, we
have never had any investigations into the mayor concerning
any criminal activities whatsoever," Gannon said.
Cianci confirmed yesterday that he had received the
unsigned letter. "It said something about beware of two
policemen who would try to set you up, and it mentioned two
police officers," Cianci said.
The mayor noted that the letter turned out to be "totally
false" and he described Prignano and Roy as "two of the finest
police officers that we have."
There is no conclusive evidence liking Furtado to the letter.
However, sources say that Furtado has been squabbling with
Providence police over the handling of drug investigations,
and the letter was interpreted by city officials as an attempt to
discredit Prignano and Roy.
Cianci forgot about the letter - until three weeks ago, when
he was visited by two agents from the DEA's professional
services unit in Washington. He said they told him they had
reason to believe the letter originated at the DEA's Providence
office.
Sources say that DEA investigators found the text of the
letter in the carbon cartridge of a typewriter in the DEA's local
headquarters. But the office is used by several DEA agents and
other law-enforcement officers.
DEA spokesman Jack Kelly declined to discuss the letter.
Instead, he emphasized that the action against Furtado was
prompted by concerns about the operation of the Providence
office.
"The primary issue is administrative in nature," Kelly said.
"It's the DEA's relationship with state and local authorities that
is being reviewed."
Prignano declined comment, as did acting U.S. Attorney
Edwin Gale. Furtado could not be reached for comment.
BEFORE THE GRAND JURY
SITTING FOR THE SOUTHERN DISTRICT OF NEW YORK
‘In re: Sworn Criminal Complaint of
Roderick A. Campbell
SWORN COMPLAINT
I, Roderick A. Campbell, duly swearing to present only
truthful information under penalty to the Grand Jury for the
Southern District of New York, do depose and swear the
following statements of fact and belief as true and accurate to
the best of my knowledge and belief:
3
I am a thoroughly qualified industrial organic
chemist with more than twenty-five (25) years
postgraduate school experience in industry.
I was convicted in February of 1994 in the District of
Rhode island of manufacturing chemical mixtures
said to contain small amounts of P2P and sentenced
in may to serve twenty-four years in prison. |
always contested the presence of any P2P in any of
my mixtures and this was the reason I took trial. At
trial it appeared that 696 grams of mixtures were
contaminated with about 750 parts per million of
P2P while about five kilograms of additional
material was admitted to be negative testing for P2P
to the limits of the scientific methods used, which
was about 1 part per million.
- D.E.A. Chemist Jack Fasanello of the Northeast
Regional D.E.A. Laboratory in Manhattan testified
that he detected P2P in six of the fourteen samples.
He testified that he was the person who received all
of these samples when they arrived at the
laboratory and that he repackaged leaking samples
when required. He also removed the samples from
the custodial vault and performed the testing.
Mr. Fasanello further testified when examined that
all of the positive, and none of the negative, testing
samples arrived at the Northeast Regional’
Laboratory in leading or broken condition.
Mr. Fasanello testified that the first positive testing
sample in the series was established by his analysis
to have been made by a reaction of phenylacetic
acid and acetic anhydride/sodium acetate. I
testified that I had lied to the investigating agent to
say that I would make such a P2P product in that
way, but I also testified that I had admitted to him
that I had lied after he had told me that the sample
had been approved. I never ran the reaction
erroneously reported to Mr. Fasanello, to which his
analysis conforms and this fact is confirmed by the
contemporaneous tape recordings of conversations
made in the investigation.
Long after I was convicted, I learned that the Rhode
Island Laboratory had analyzed all of these same
samples by the same method that had been used by
Mr. Fasanello. This service had been provided
informally to local agents because of the backlog of
work at the D.E.A. Laboratory. I requested copies
of all the work done in Rhode Island pursuantto the
Rhode Island Freedom of Information Act satute.
As a normal precaution, I had all this orginal
information sent to Mr. Albert West, Esq., Manning
and West, Attorneys, 1500 Hospital Trust Tower,
Providence, Rhode Island 02903. Mr. West has
furnished myself and the other parties mentioned in
this Complaint with attested copies of this
information wherever it has been reviewed.
The most glaring discovery from this data for a
layman is the proof that the first positive-testing
sample, which I lied about the method used and the
D.E.A. Laboratory still produced an analysis to
match the unused method, is completely different in
appearance, matching what I say was really done
and exposing Mr. Fasanello's sample and analysis to
be tampered and a lie. The other analyses
performed by the R.I. Dept. of Health Laboratory
consistently show no P2P for all fourteen samples;
there is no chromatogram "peak" at the location
where P2P would appear in any of these analyses.
I have submitted this data, first the naked D.E.A.
data when that was all that I had, and then
supplemented it with the RI. data, to Morris
Forensics, i.e., Mr. Wayne Morris. Mr. Morris wrote
an Affidavit on the quality of the D.E.A. analysis
without knowing of the discrepancy with the
R.L data. I submitted this data to Dr. William Suggs,
a biochemistry research associate professor at
Brown University, who was the retained defense
expert at my trial, who has submitted an Affidavit. |
have also submitted this data through a chemist
who took an interest in my case to the research
departments of Union Carbide Central Research,
B.F. Goodrich Specialty Chemicals, and a division of
Pfizer, Inc. Through the respective research
directors of these research groups I am informed
that the data from the two sources is "irreconcilable"
and that the complete consensus of all the scientists
is that I was framed.
Based on this information I sent a Sworn Criminal
Complaint to the Office of United States Inspector
10.
11.
General in June of this past year. When Dr. Suggs'
Affidavit became available to me in July, I called the
Office Of Inspector General to learn where it should
be sent. I was told that 1 would have to submit a
freedom of information act request for that infor-
mation. That suggestion seemed bizarre, but they
also said I could just send it. So I did. However, in
December, having heard nothing about the
Complaint, I asked Attorney West to check with Dr.
David Uliss, the Director Of Forensic Chemistry of
the R.I. Dept. of Health Laboratory. It was reported
back to me through Mr. West that no one has
-contacted Dr. Uliss or anyone at his laboratory
about my case.
I have just recently read an article from the August 8
issue of "the Nation" that says that the Attorney
General issued an unpublished memorandum order
to the Inspector General in 1994 prohibiting his
office from investigating the D.E.A. and the F.B.I.
Based on this discovery and the fact that the statute
of limitations is nearing closure, I have researched
the subject of a general grand jury investigation and
find that you should investigate this presentation
pursuant to 18 U.S.C. § 3332.
I accuse D.E.A. Chemist Jack Fasanello of
manufacturing controlled mixtures containing P2P
from mixtures that originally contained none. |
accuse Chemist Jack Fasanello of distributing these
controlled substance mixtures to the State of Rhode
Island for my trial. I accuse him of falsifying
evidence, both the samples and the evidence
presented as documentary proof of the analyses;
and I accuse him of perjury in his testimony at my
trial.
12. 1 further swear to any factual statements made in
any of the supporting documents which are
appended to this Complaint as if they were set forth
at length in this Affidavit. | subscribe all the
foregoing once again under penalty of perjury.
Further Your Deponent Sayeth Not,
/s/ 2/4/98
Roderick A. Campbell 03869-070
P.O. Box 759
Minersville, Pennsylvania 17954
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U.S. Department of Justice
Drug Enforcement Administration
Washington, D.C. 20537
October 9, 2002
Mr. Roderick A. Campbell
F.C.I. Fort Dix
#03869-070
Fort Dix, New Jersey 08640
Dear Mr. Campbell,
This is in response to your letter dated August 31, 2001,
regarding alleged tampering evidence at the Drug Enforcement
Administration-(DEA) Northeast Regional Laboratory by
Forensic Chemist Jack A. Fasanello.
Your letter was forwarded to DEA's Office of Professional
Responsibility (OPR). OPR is responsible for the investigation
of all allegations or complaints of either administrative
misconduct or criminal activity concerning DEA employees
and sworn Task Force Officers. On October 3, 2001, this matter
was forwarded to the DEA's Office of Forensic Science for
investigation.
DEA is committed to ensuring the integrity and
professionalism of its employees and is determined to
thoroughly investigate all credible allegations of employee
misconduct.
I would like to thank you for bringing this matter to my
attention.
Sincerely,
Asa Hutchinson
Administrator
M
17
3C7MS Top Level. Sel
4SH
MS date file header f
Mise \&
Sys. @: MS mode
Method file: RACX
Source temp. N/A
Chromatogrephic
Chromatographic
Chrometogrephic
"MGR : INT
»jIC019 1 70
30.91 400.0 TIC
Ups lope: .2000 Ares
Onsiope: 0.0000 Resul
Peak w. Fs first
SJ min scen
ta 19
° 193
<. ¢.¥95 211
> Per 249
6 7.92 276
7 Rm 94 342
6 *.08 352
° 19.82 448
ect a softkey... *KSHEL Keys <891130.1303>
rom : >JC019::01
Operetor: RACI REG. GRP. 4/21793 13:25
BIL@ 3
1: 70 SW/HW rev.: LF AS @: 3 Equip 10: TOXx-1
Tuning file: MT6701 a of extra records: 2
Analyzer temp.: N/A Transfer line temp. : 0
temperetures : 60. 100. 2860. 0. 0.
times, min. 1.5 § 10.0 0.0 0.0
rete, deaq/min: 10.0 15.0 0.0 -5 Cc:
Reject: 5.00 % Mex Peaks: 9? Bunch: 1 Valley »>190 %
ts File VYDIR76 Sorted by Time/Ares INT
max last peek rew corr corr. x of
scan scen height ares ares % max. total
3535 149 7a@76? 4667386 454440 £3.42 >. aR
185 193 47273 478324 474723 ip oR 4 head
203 211 255702 1792214 1740096¢* 59.42 1S. 354
224 227 262458 1723116 1711217 49.78 13.134
256 259 169724 611323 606214 17.63 4.053
288 291 348665 2765249 2756166 60.17 21.155
349 3$2 270784 1261510 1246415* 36.26 %.96? _.
357 359 227708 615222 601722 17.50 4.618
461 462 333890 3459979 3437736 100.006 26.384
Sum of corrected ereas: 13026730.
re
ope, gee |
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|
_
'
se
iWsyoui
Ha >J 1 70 s 3
bat *ad [8d3es. H “8e".FR"|
«7 '
H
108000; Hi 106
secce ee
6e00e 91 ®
4
«9000; ., 68 4e
~ 63
2000 \ 51 7 ne 1@3 186 119 1Mee
fe a ;
e oly +1. . al - Z * 1 2 Z . 9 . a
«0 so ae ibe abe
File >vcei9 1 >. Scan 203
Box Ob 1806 SUB ROO NRM OVC 6.68 ain.
;
180;
{
ee:
° 91
° 3° 65
63
2e{ ~~ = +> 86 1e3 104 119
. N j ?? F
e A coe athehy fe ote 7 — —> —
40 6e se | 160 ibe
2C7MS Too Cevet. SeTect se softkey... *KSRET <691130.1303>»
>BMN
2-Prcpeanone, 1l-phenyl- . 134 C9H100
2-Propanone. 1-phenyl- 134 C9H100
Nee
Semple file: +*jC019 Spectrum @#: ‘203
Seerch speed: 2 Tilting option: S No. of 10M ranges searched: a=.
Prob. CAS @ CON ¢ ROOT kK OK @FLG TILT % CON C_I R_Iv
930 103797 31502 “BIGOB 80 5 1 2 88 2 68 80
4 36° 103797 315046 “B1IGDB 60 36 2 1 52 S$ 60 38
MGR
Sample “1” D.E.A.,
|
TIC of CH910001X17. 4
A5299; Run at 08:57 AM EST on Wed Mar 17, 1993
Abundance vp
DIBENZYLKETONE
PHENYLACETIC
3000000 ACID
2000000 =
1000000 <
. . - . = T tT T T T v T T T T . we 7 py
o 6 2
as 7
ae epee wee”
Beginning at 5.33 minutes, the peaks in the D.O.H. analysis
have been identified as 4-chlorobutane-I-acetate, 2- or 3-
methylacetophenone (6.20), 4- methylacetophenone (6.50),
benzylacetate (6.85), unknowns (toluic derivatives suspect),
and bibenzyl (10.81). There may also be brominated
substances. Scan 207, 4-methylacetophenone, was wrongly
identified as P2P in this analysis.
9
CORRESPONDING SAMPLES PFR RAIAIM APFIDAVIT
SAMPLE
23A D.B.A.
ABVEZT I, re _. ae eee Op 21, 1933
)
$.000+07
4800-07
3.900-07
2.900007
1280-87
0200 +09 —Bampnthet Smet AF Beppe ea Sn oun Sen Somme ome oon oe ce ae oe ee
4 ‘ 4 18 12 4
Tene (min.)
a SAMPLE 7A D.O.H.
eee aad eee i 69e wr ope i 19008 a
1900004
= .4a°*
— 1 18.40
600cee
49006,
2000e
Newey - omen
ae ee 3 18 12 14 16 18 20 22
Sample 23A is the most representative sample with complete
data.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.