# Petition for Writ of Certiorari — Campbell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0397%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 950 ## Text FILED ') 02 894 apr 252004 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 ~ 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 - ' | ‘ - . , * + , , M vey » x > ~ . P . - . i af Ad be ¥ , + ” j ; ; 4 ? . q ay , $ ae ? ¥ ’ é A ’ . 2 ~ : 4 ; - -: ¢ » , j n i = - - * : ’ 7 Ds oe ee ¥ ~ = hd - ‘ 1 ( . * / - t -_ . » , ‘ - 7 rr Yt " iv _ ~ os x ‘ 4¢ : 5 § d ~ 4 * ’ Wks « 5 4 ny J 4 q 4 4 pe 4 t s Yn f ; e+ 7 ' b ? i we s g i | , , 4 a ¢ 7 a P ) ae a * > 4 4 5 LJ ae tad me ‘ ' oe ,*, . Y ; ; : “| , ; ! a. : es ¢ i. ed -. os , g.73ea . ) 7 i j j ‘ . 4 - of bh » ae? — > ' : ¥ “ ‘ a ; ; " : . > 4 od, ; ’ . ‘Bes nf 2 eo 8 ? ag pot: te wv es ay a _ $ si = nal iki Per 249 6 7.92 276 7 Rm 94 342 6 *.08 352 ° 19.82 448 ect a softkey... *KSHEL Keys 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$2 270784 1261510 1246415* 36.26 %.96? _. 357 359 227708 615222 601722 17.50 4.618 461 462 333890 3459979 3437736 100.006 26.384 Sum of corrected ereas: 13026730. re ope, gee | } | _ ' se iWsyoui Ha >J 1 70 s 3 bat *ad [8d3es. H “8e".FR"| «7 ' H 108000; Hi 106 secce ee 6e00e 91 ® 4 «9000; ., 68 4e ~ 63 2000 \ 51 7 ne 1@3 186 119 1Mee fe a ; e oly +1. . al - Z * 1 2 Z . 9 . a «0 so ae ibe abe File >vcei9 1 >. Scan 203 Box Ob 1806 SUB ROO NRM OVC 6.68 ain. ; 180; { ee: ° 91 ° 3° 65 63 2e{ ~~ = +> 86 1e3 104 119 . N j ?? F e A coe athehy fe ote 7 — —> — 40 6e se | 160 ibe 2C7MS Too Cevet. SeTect se softkey... *KSRET » >BMN 2-Prcpeanone, 1l-phenyl- . 134 C9H100 2-Propanone. 1-phenyl- 134 C9H100 Nee Semple file: +*jC019 Spectrum @#: ‘203 Seerch speed: 2 Tilting option: S No. of 10M ranges searched: a=. Prob. CAS @ CON ¢ ROOT kK OK @FLG TILT % CON C_I R_Iv 930 103797 31502 “BIGOB 80 5 1 2 88 2 68 80 4 36° 103797 315046 “B1IGDB 60 36 2 1 52 S$ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0397%3A1. Public record. Not legal advice.