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United States District
Court,
D. Kansas.
United States of
AMERICA, Plaintiff,
v.
Dennis LEE, Defendant.
No. 96-40055-01-SAC.
May 16, 1997.
Eric Kjorlie, Topeka, KS, William K. Rork, Rork Law Office,
Topeka, KS, James C. Heathman, Heathman & Kelly, Topeka, KS, for Defendant.
CROW, Senior District Judge.
MEMORANDUM AND ORDER
*1 On July
24, 1996, the grand jury returned a four count indictment charging Dennis Lee,
Roger Kelley and Candace Mullins with conspiracy to possess, manufacture or
attempt to manufacture, with the intent to distribute in excess of one kilogram
of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 21
U.S.C. § 846. In Count 2, the indictment charges Dennis Lee with manufacturing
or attempting to manufacture with the intent to distribute in excess of one
kilogram of methamphetamine. In Count 3, the indictment charges both Dennis Lee
and Roger Kelley with possession with intent to distribute in excess of one
hundred grams of methamphetamine. Count 4 charges Candace Mullins with
committing perjury before grand jury in violation of 18 U.S.C. § 1623.
This case comes before the court upon Dennis Lee's "Motion for Testing of
Controlled Substances, Appointment of Forensic Expert and Payment Under the
Criminal Justice Act" (Dk.120). In his motion, Lee requests that the
substances seized from his residence be made available for testing by Mid
America Laboratories and that the court authorize payment for those services. [FN1]
Lee requests that the substances be tested to determine the precise form of the
methamphetamine. Lee also requests that a box fan seized at his residence be
tested for red phosphorous contaminants. Lee's motion was not filed under seal.
FN1.
Lee's motion indicates that the requested tests will cost approximately $500.
The government opposes Lee's motion. The government contends that Lee has not
made any showing that such testing is necessary to his defense. The government
contends that it has already supplied the defense with copies of the reports
regarding the results of the testing performed by qualified experts. In short,
the government contends that there is no legitimate reason for the
authorization of funds to obtain an expert to analyze substances seized in this
case.
Analysis
At this juncture, the defendant has failed to make any showing that
the
circumstances of this case justify the expense of hiring an expert to
analyze
the substances seized. The attack the defendant primarily wishes to
mount
is basically irrelevant for purposes of trial; the information the
defendant
primarily contests are the government's findings regarding the
quantity
and quality of the methamphetamine, issues essentially relevant during
sentencing.
"[T]he quantity of the substance
in the possession of the defendant which invokes the application of the
enhanced penalty is not an element of the substantive offense upon which the
charge is based. Hence, the government is not bound to independently prove the
essential quantities beyond a reasonable doubt. (citations omitted). Most
importantly here, however, because the enhancement motivating fact is not an
element of the offense, the defendant has no right to a finding by a jury that
the fact has been established.
Uniled States v. Jenkins, 866 F.2d 331, 334 (10th Cir.1989); see
United