Appeals Court Calls DEA Drug Tests Into Question, Overturns Sentence Based On Expert’s Assertions

from the wrong-about-being-right dept

We all know field drug tests are inaccurate. The cheap, portable tests turn everything from diesel to humans ashes to contraband, resulting in the wrongful arrests of people who’ve done nothing wrong. Cases often get tossed once these substances are tested by drug labs, but the harm has often already been done. The faulty tests can’t necessarily secure convictions, but they can ruin people’s lives and, far too often, force them to accept plea deals admitting to acts they didn’t commit just so they can get back to their homes, kids, jobs, and lives.

The backstop is drug labs. But even these have their own problems, staffed by people willing to fake work rather than do it, which again results in people being wrongfully convicted for crimes they didn’t commit. When this misconduct is discovered, convictions are reversed and cases are dropped. But this happens months to years after the fact, often far too late to undo the damage done by overzealous drug warriors and lazy lab employees.

It’s a rare case when claims about drugs are called out in court. But it happened here. It won’t reverse the conviction secured by prosecutors, but it will take a lot of time off the defendant’s sentence. This Appeals Court decision [PDF] is a rarity: one that says the government’s assertions about drug potency are false, which means it can’t use its bad math to take additional years of freedom away from the accused.

Antwain Moore was sentenced to ten years in prison for multiple drug offenses. Contributing to the length of his sentence was the DEA’s assertion that the 55.6 grams of meth found in Moore’s home was “100% pure.” This claim was challenged by Moore, who secured expert testimony from a chemist that called into question the government’s purity assertions. This was ignored by the court handling his criminal trial, which felt the questions raised by Moore’s expert weren’t enough to questions the DEA’s assertions.

The Appeals Court, however, says the expert raised questions that deserve attention, especially when they’re a contributing factor to the length of the sentence. The defendant isn’t required to provide insurmountable evidence that contradicts the government’s claims. All he’s required to do at this point is legitimately call them into question.

We agree with Moore and remand for re-sentencing. The “some evidence” standard is not a demanding one. The chemist’s affidavit here did not purport to resolve conclusively the accuracy of the DEA test results, but it raised a fair question about them.

Moore pointed out (reasonably) that the meth in his house was not 100% pure. This seems obvious. Unless Moore was manufacturing meth, the likelihood that the his meth supply had reached him uncut approaches the direct inverse of the government’s assertions: 0%. He argued that, at best, it was a “mixture” of undetermined potency, which would take 20-30 months off his sentence.

But he did more than state the obvious. He presented testimony from an expert in the field of chemical compositions.

To support his objection, he submitted the affidavit of a chemist, Dr. Derek Beauchamp, who explained that exact purity could not be determined with the DEA’s method and that the purity level of Moore’s drugs could be substantially lower than the DEA had reported:

Based on the reports I received, the material was confirmed to be methamphetamine with high purity based on the match to the reference GC chromatogram. Based on the match to a reference library pattern, the exact purity could not be determined. To determine the purity, one would collect a sample of a known purity reference material and use that to quantify the amount of methamphetamine in the sample in question. This approach could lead to a potential lower purity level of the sample, thus potentially lowering the total amount of methamphetamine in the total sample. Nor can it be determined if the purity level is consistent throughout.

Basically, the DEA could not say for sure what the purity of the sample it tested was. And it certainly could not say definitively that the purity observed in the sample was representative of everything seized from Moore’s home.

The government submitted no evidence to the contrary. Instead, it simply insisted Dr. Beauchamp was wrong and claimed the “DEA’s testing procedures are well accepted in the scientific community.”

Allow me to LOL heartily.

When it comes to science, federal law enforcement agencies definitely prefer the “junk” variety and, just as often, tend to overstate conclusions reached with questionable methods via the forensic “experts” agencies put on the stand. “Well accepted” (in this context) just means “well accepted” by federal agencies that aren’t really willing to interact with the actual scientific community because their forensic means and methods aren’t subjected to the same sort of testing and scrutiny actual science is.

The government also suggested that if the defendant was so concerned about purity assertions, he could have gotten the seized substance tested on his own.

The government is in the wrong here, the Seventh Circuit says. It had a lot of obligations it didn’t meet and it can’t salvage this criminal sentence just because the defendant didn’t do things he wasn’t obligated to do.

The government submitted DEA test results that were not supported by any affidavit. When the reliability was uestioned in Dr. Beauchamp’s affidavit, the government chose to rest on an assumption that the district court adopted: that the DEA has reliable and generally accepted methods of testing drug purity We assume that’s probably true as a general matter, but in a particular case, a defendant whose liberty is at stake is entitled to hold the government to its burden of proof by a preponderance of reliable evidence. An unsupported assumption does not tell us anything about whether test results in a particular case can reasonably be relied upon.

Whether or not the DEA’s purity test is reliable is up to the DEA to prove. It’s not on the defendant. All the defendant needed to do was raise doubts about the DEA’s assertions. That was done here. And it exceeded the low bar by including an affidavit by an expert in the field, something the DEA with its billions of dollars of funding couldn’t be bothered to produce.

We recognize that Dr. Beauchamp did not include the words “not reliable” or “unreliable,” but that was the substance of his opinion, and we require no specific words to question the evidence summarized in the PSR. In substance, Dr. Beauchamp identified potential shortcomings. Given the lack of information accompanying the DEA report, those potential problems were sufficient to call into question the reliability of the test results and to call for evidence supporting the PSR’s recommendation.

This all goes to the larger point: it’s not enough for the DEA to say little more than it’s the DEA and it’s good at its job. (It really isn’t.) And it’s not enough to say the evidence speaks for itself when the evidence’s speech is mostly incomprehensible jargon. The lower court was wrong to give the government deference when the defendant challenged its conclusory claims.

The laboratory report contains only a brief explanation of the process involved. That explanation is all but opaque to generalist judges without substantial background in organic chemistry. It makes intuitive sense, of course, that the nation’s premier drug-interdiction agency would use reliable methods in analyzing drug samples. But as noted, that general assumption says nothing about whether the methods used in a particular case were suitable and reliable. No evidence in this record supports the government’s assertion, adopted by the district court, about the reliability and general acceptance of DEA testing methods

The argument the government could be persuaded to muster was this: that allowing someone to challenge DEA lab conclusions would “choke” the court system with meritless challenges to evidence. The Appeals Court shuts this down. If these challenges were going to choke the courts, it would have happened already. And if the government had any faith in the DEA’s methodology, it would have submitted conclusive proof that would deter future drug defendants from challenging this sort evidence because these challenges would be obviously futile. Nothing like that happened here and the Seventh Circuit calls the government on its bullshit.

We are not persuaded by the government’s parade of system-choking horribles. The familiar requirement that the defendant ordinarily offer “some evidence” supporting an objection to factual assertions in a presentence investigation report should weed out most baseless objections. In the mine run of cases, a defendant who has already been convicted of a drug offense will often have reason to know whether contesting purity would be worthwhile. If the DEA protocols are indeed as reliable as the district court thought in this case, a few litigated and unsuccessful challenges are likely to persuade defendants not to keep raising the issue without some case-specific reasons to question reliability. In any event, the potential inefficiencies, which we do not think will be great, do not warrant silencing reasonable questions by a criminal defendant who faces a greater deprivation of liberty based on the accuracy of a laboratory test of a drug sample.

This goes back to the trial court. And the government will be required to offer some evidence (rather than arguments talking around the problem) that supports the DEA’s purity assertions. Even if it can’t provide this, Moore won’t walk. At best, he’ll get a few years off his sentence. But Moore has called the government’s bluff. And if the government can’t ante up, it will be extremely interesting to see just how far off from reality the DEA’s purity conclusions are. This may be a small, run-of-the-mill drug case. But it has implications the government clearly doesn’t like. But it’s the government’s turn to show its cards. Let’s see if it does.

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Comments on “Appeals Court Calls DEA Drug Tests Into Question, Overturns Sentence Based On Expert’s Assertions”

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PaulT (profile) says:

“But even these have their own problems, staffed by people willing to fake work rather than do it”

If anyone’s interested in a deeper look at the subject, I found the Netflix documentary How To Fix A Drug Scandal very enlightening. When you’re watching the account of how one of the subjects was falling deeper into drug addiction, but never questioned when she was faking tests to account for the amounts of drugs she was taking for personal use – and the horrific effects that was having on other peoples’ lives – it’s hard to support the validity of such tests on their face value.

Some might argue that this isn’t that sort of case, since it apparently revolves around an actual drug deals arguing the toss about the claimed purity of what he was selling, but it’s still important to think about. Even the guilty are entitled to due process, and if they’re willing to fake things that are obviously not true for them, what’s to stop them railroading people who are innocent, and thus lack the knowledge and defences that actual criminals possess?

James Burkhardt (profile) says:

THe DEA has a point

The issue is this will choke the courts with merit-based claims because a lot of forensic science is far less certain than the DEA has spent decades claiming. I don’t know why the author of the article misquoted them as claiming they’d see a flood of meritless claims though. /s

They know exactly what the real issue is, and so do these judges. Good on them for seeing straight through the spin.

Anonymous Coward says:


Yeah, this wouldn’t be the first time the government walked away from a prosecution because someone had the audacity to ask ‘so how’d you come to this conclusion?’

Stingrays and NIT’s come to mind off the top of my head. It’d be interesting to see what other ‘generally accepted’ methods they’re not willing to disclose.

Anonymous Coward says:

Louder for the people in the back

But it’s the government’s turn to show its cards.

Indeed. “The government has a favorable record in poker games. So trust the government when the government declares royal flush without showing its cards” is not going to cut it (in the Seventh Circuit, at least). “But allowing the losing player to raise doubt about the government’s hand would choke poker games!” Uh huh. The same way forcing players to follow the rules slows down cheaters, right?

nasch (profile) says:

The argument the government could be persuaded to muster was this: that allowing someone to challenge DEA lab conclusions would “choke” the court system with meritless challenges to evidence.

The flow of convicts headed to for-profit prisons could be disrupted, so we don’t have time for due process. Wow.

But Moore has called the government’s bluff. And if the government can’t ante up…

Your poker metaphor is a bit muddled. Anteing (from Latin “ante” meaning before) happens before the hand starts, so by the time a bluff is being called, that’s already happened.

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