                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          AUG 1 2000
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                 Nos. 99-3144, 99-3154
          v.                                                D. Kan.
 MARK HENRY ALLERHEILIGEN,                      (D.C. No. 97-40090-01-DES)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.




      The appellant, Mark Henry Allerheiligen, entered a conditional plea of no

contest to possession with intent to distribute marijuana in violation of 21 U.S.C.

§ 841(a)(1). The district court gave Mr. Allerheiligen safety valve credit and

sentenced him to a term of imprisonment of 41 months.

      Mr. Allerheiligen appeals, asserting error in the following: (1) denial of his

motion to suppress; (2) exclusion of videotape evidence that would allegedly


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
depict wild marijuana growing in the same area from which the government

seized cultivated marijuana plants over a year after the seizure; (3) exclusion of

testimony from three proffered expert witnesses on the differences between

marijuana grown for personal use versus distribution; (4) exclusion of expert

testimony regarding Mr. Allerheiligen’s psychological and/or psychiatric

condition; (5) denial of his motion to exclude testimony regarding evidence the

government had seized but not preserved; and (6) breach of the plea agreement.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and, for reasons discussed

below, affirm Mr. Allerheiligen’s conviction and sentence.



                                I. BACKGROUND

       On the morning of August 27, 1997, at the request of Marshall County

Sheriff Kenneth Coggins, Special Agent David Christy of the Kansas Bureau of

Investigation (KBI) flew over Mr. Allerheiligen’s farm property in a fixed-wing

aircraft. Special Agent Larry Dixon and Sheriff Coggins were also present in the

aircraft at that time.

       Mr. Allerheiligen’s property is located in a rural area in Marshall County,

Kansas. During the fly-over, Agent Christy caught sight of what he believed to

be several hundred cultivated marijuana plants in a clearing in the trees behind a




                                         -2-
residence. Agent Christy also observed a two-story white house and five out

buildings.

      From the aircraft, and using a Cannon T-50 camera with a 35 to 85mm

lens, Agent Christy photographed the clearing containing what he believed to be

marijuana plants and a pathway leading from the plants to a fence which

contained a gate at the back of a barn. He also photographed the residence and

out buildings.

      Two days later, using the open field doctrine, Agents Dixon and Sabel and

Sheriff Coggins walked into the marijuana field and made the following

observations: numerous marijuana plants had been broken off 10-12 inches

above the ground; one plant had been pulled and had a grow cup (pot cup) still

attached to the root system; a fairly new candy wrapper was found in the

marijuana patch; there was a foot trail leading from the marijuana patch to a gate;

and the marijuana patch was within a fenced-off area with barbed wire and other

fence encasing it.

      On September 2, 1997, Agent Christy submitted an affidavit to the

magistrate judge containing all of the aforementioned facts in support of an

application for a warrant to search the property, including Mr. Allerheiligen’s

residence, all out buildings, and any other structures with foot trails leading to or




                                          -3-
from the marijuana field. Based on the information Agent Christy submitted, the

magistrate judge issued the warrant.

        The warrant was executed the following day. Agents discovered marijuana

in four different areas — three separate outdoor patches and an indoor marijuana

grow room. The agents seized 782 marijuana plants from the patch north of Mr.

Allerheiligen’s barn, 232 plants from the patch near a corn crib, 143 plants from

the patch south of a marijuana grow shed, and 19 plants from the indoor grow

room.

        The agents additionally seized 179 dead plants from one of the outdoor

patches as evidence that Mr. Allerheiligen had “sexed” the plants by removing

only the male plants and leaving the females.    The officers testified that the

majority of plants seized contained peat pot matter within the root system, which

is indicative of cultivated marijuana that is started in a peat pot and later

transplanted to the ground.

        In the indoor marijuana grow room, agents located “bags of miracle grow,

potting soil, 57 pots to transplant plants, 23 plant trays and approximately 10 pots

that had previously been used.” App. vol. VIII, at 9 (Presentence Report). In the

grow room, lights, an air conditioner, and a fan were being regulated on a timer.

Other items seized during the search of Mr. Allerheiligen’s property included a




                                           -4-
book on marijuana botany, a marijuana grower’s guide, balance scales, marijuana

seeds, a suitcase containing marijuana residue, and numerous weapons.

      Mr. Allerheiligen filed a motion to suppress, raising various challenges to

the constitutionality of the search of his property. On June 1, 1998, the district

court held an evidentiary hearing, following which the court denied the motion.

      Both the government and Mr. Allerheiligen filed pre-trial motions seeking

to exclude evidence. The court conducted an evidentiary hearing on these

motions. In a subsequent written order, the court granted the government’s

motion in limine, thereby excluding expert testimony on Mr. Allerheiligen’s

psychological and/or psychiatric condition and testimony regarding the

videotapes allegedly depicting wild marijuana on his property over a year after

the seizure. The court also excluded the proffered expert testimony of Ed

Rosenthal, William Logan, and Walt Carroll regarding the differences between

wild and cultivated marijuana and the condition of his property after the seizure.

The court denied Mr. Allerheiligen’s motion to exclude testimony regarding

marijuana plants and peat pots the government had not preserved.

      On November 3, 1998, prior to trial, Mr. Allerheiligen entered into a plea

agreement with the government. Pursuant to this agreement, Mr. Allerheiligen

pleaded guilty to the § 841(a)(1) charge but reserved the right to appeal most of

the pretrial rulings. The government, in turn, agreed to a contested sentencing


                                         -5-
hearing on the number of marijuana plants attributable to Mr. Allerheiligen. The

government further agreed not to oppose application of the safety valve, pursuant

to 18 U.S.C. § 3553(f) and USSG §5C1.2, if the probation officer who prepared

the presentence report determined it to be appropriate.

       The presentence report attributed 1,346 marijuana plants to Mr.

Allerheiligen. The probation officer who authored the report approved

application of the safety valve. However, in a chambers conference prior to

sentencing, the court advised both parties’ counsel that it would not be inclined

to award safety valve credit if Mr. Allerheiligen contested the number of plants

which had been attributed to him in the presentence report.

       Consequently, Mr. Allerheiligen withdrew his objections to the number of

plants attributed to him in the presentence report and received safety valve credit.

The court sentenced him to 41 months’ imprisonment.



                                 II. DISCUSSION


A. Motion to Suppress

       When reviewing a district court’s denial of a motion to suppress, we

consider the totality of the circumstances and view the evidence in the light most

favorable to the government, accepting the district court’s factual findings unless

they are clearly erroneous.   See United States v. Long , 176 F.3d 1304, 1307 (10th

                                         -6-
Cir. 1999). “The credibility of witnesses, the weight to be given evidence, and

the reasonable inferences drawn from the evidence fall within the province of the

district court.”   Id. “[T]he ultimate determination of reasonableness under the

Fourth Amendment[, however,] is a question of law” we review de novo.             Id.



       1.      Material Falsehoods or Omissions in the Affidavit

       Mr. Allerheiligen contends Agent Christy provided false and misleading

information to the magistrate in his affidavit underlying the search warrant. A

search warrant must be voided and the fruits of the search excluded where a

defendant establishes by a preponderance of the evidence that the affiant

knowingly or recklessly submitted false statements or omitted information

material to the magistrate’s finding of probable cause.          See United States v.

Kennedy , 131 F.3d 1371, 1376 (10th Cir. 1997) (citing          Franks v. Delaware , 438

U.S. 154, 155-56 (1978) and       Stewart v. Donges , 915 F.2d 572, 581-82 (10th Cir.

1990)). The burden, therefore, falls upon the defendant to establish “the affiant

in fact entertained serious doubts as to the truth of his allegations.”      Bruning v.

Pixler , 949 F.2d 352, 357 (10th Cir.1991) (internal quotations omitted).

       Recklessness may be inferred where the omitted information was “clearly

critical” to the probable cause determination.       DeLoach v. Bevers , 922 F.2d 618,

622 (10th Cir.1990) (internal quotations omitted). Mere negligence or innocent


                                              -7-
mistake is insufficient to void a warrant.    See Franks , 438 U.S. at 171; see, e.g. ,

United States v. Clapp , 46 F.3d 795, 800-801 (8th Cir. 1995).

       “Whether false statements or omissions are intentional or reckless is a

factual finding reviewed under the clearly erroneous standard. Whether

misstatements and omissions are material to a finding of probable cause is subject

to de novo review.”     United States v. Dozier , 844 F.2d 701, 705 (9th Cir. 1988)

(citations omitted).



              a.       The Altitude of the Fly-over

       Mr. Allerheiligen contends Agent Christy falsely stated in his affidavit that

he flew over Mr. Allerheiligen’s property at an altitude of approximately 1,000

feet. He asserts the “uncontradicted scientific evidence shows” Agent Christy

was flying at approximately 300 feet. Aplt’s Br. at 11-12. Mr. Allerheiligen

further argues that a fly-over conducted at an altitude of 300 feet violated his

Fourth Amendment rights.

       Contrary to Mr. Allerheiligen’s assertion, the evidence of Agent Christy’s

actual altitude during the fly-over presented at the suppression hearing was

contradictory. Jerry G. Cusick testified as an expert for the defense that one of

Agent Christy’s photographs of Mr. Allerheiligen’s property had been taken at an

altitude of 231 feet, and that two others had been taken from approximately 360


                                             -8-
feet. Agent Christy, however, testified that he was flying at an altitude of 1,000

feet. He explained that his assessment of the altitude during the fly-over was

based on his altimeter. On cross-examination Agent Christy admitted that his

altimeter “could have been out of certification” because there is no certification

requirement for altimeters on the type of aircraft he was flying.   App. vol. IV, at

29. However, he also testified that he had no reason to believe that his altimeter

was not working properly.

       After considering both witnesses’ testimony, the district court nevertheless

found that the fly-over occurred at an altitude of approximately 1,000 to 2,000

feet, and therefore, under   California v. Ciraolo , 476 U.S. 207 (1986), Mr.

Allerheiligen’s Fourth Amendment rights had not been violated.       Although we

are troubled by the great disparity in testimony regarding the altitude at which

Agent Christy conducted the fly-over, we must “not disturb a sentencing court’s

factual findings unless they are without factual support in the record, or if after

reviewing all the evidence we are left with the definite and firm conviction that a

mistake has been made.”      United States v. Moore , 130 F.3d 1414, 1416 (10th Cir.

1997) (internal quotations omitted).

       Here, the court’s finding that the fly-over occurred at approximately 1,000

feet is supported in the record by Agent Christy’s testimony. We must give




                                            -9-
substantial deference to the district court’s decision to judge Agent Christy’s

testimony as more credible than that of the defendant’s expert, Mr. Cusick.

       Further, we note, as did the district court, that the Supreme Court has

approved of aerial surveillance at an altitude as low as 400 feet.    See Florida v.

Riley , 488 U.S. 445, 451-52 (1989). Moreover, we agree with the district court

that the photographs Agent Christy took of Mr. Allerheiligen’s property during

the fly-over “‘are not so revealing of intimate details as to raise constitutional

concerns.’” App. vol. I, at 214 (quoting     Dow Chem. Co. v. United States , 476

U.S. 227, 238 (1986)).

       Thus, our review of the record does not leave us “with the definite and

firm conviction that a mistake has been made.”       United States v. Bautista , 145

F.3d 1140, 1146 (10th Cir. 1998).      Accordingly, we conclude the court’s finding

was not clearly erroneous.   1




       1
         Because we defer to the court’s factual finding that the fly-over was
conducted at approximately 1,000 feet, we do not address Mr. Allerheiligen’s
argument that a fly-over at approximately 300 feet is a Fourth Amendment
violation of his private airspace. However, we do note our court has held that a
helicopter search of marijuana gardens at “an altitude substantially less than five
hundred feet” does not violate the Fourth Amendment where the marijuana
gardens are located in open fields and thus not part of the curtilage of the
defendant’s home. United States v. Swepston, 987 F.2d 1510, 1512, 1515-16
(10th Cir. 1993). Here, Mr. Allerheiligen does not challenge the court’s finding
that the marijuana was located in an open field not within the curtilage of his
home.

                                            -10-
             b.     Other Alleged Falsehoods and Omissions in the Affidavit

      Mr. Allerheiligen alleges Agent Christy submitted other materially false or

misleading statements in the affidavit. In support of these allegations, Mr.

Allerheiligen directs us to Agent Christy’s testimony at the suppression hearing,

as well as that of other witnesses, arguing they contradict Agent Christy’s

assertions in his affidavit and therefore prove such assertions are false or

misleading. However, this evidence is unconvincing and fails not only to prove

the statements were false or misleading, but it fails to establish that the

statements were material to the determination of probable cause.       See Kennedy ,

131 F.3d at 1375.

      First, Mr. Allerheiligen alleges Agent Christy lied about not observing any

wild marijuana on his property during the fly-over.      His only evidence in support

of the falsity of this statement is testimony from various witnesses that wild

marijuana is prevalent in the area generally, especially along the creek bed that

runs south of Mr. Allerheiligen’s property. The testimony from these witnesses

does not establish Agent Christy’s statement was knowingly false or misleading.

See Kennedy , 131 F.3d at 1376. Agent Christy did not deny the existence of wild

marijuana in the area, rather, he only submitted that he did not observe any on

Mr. Allerheiligen’s property during the fly-over.     See, e.g. , United States v.




                                           -11-
Searcy , 181 F.3d 975, 980 (8th Cir. 1999) (“Minor errors in the warrant which do

not reflect deliberate falsehoods are insufficient to mandate suppression . . . .”).

      Second, Mr. Allerheiligen takes issue with Agent Christy’s statement in the

affidavit that “[t]he plants and paraphernalia are located in an area which were

not visible from the county roadway and had a distance that would make normal

gardening very laborious.” App. vol. I, at 44 (Aff. of Agent Christy).

Specifically, he argues use of the word “paraphernalia” was misleading. In

support of this argument he points to Agent Christy’s testimony that

“paraphernalia” referred only to a garden hose he observed next to the barn

during the fly-over and a peat pot the agents observed when they walked through

the marijuana patch. Although use of the word “paraphernalia” may have been

somewhat of an overstatement, Mr. Allerheiligen points to nothing in the record

to suggest Agent Christy chose that word with the intention of misleading the

magistrate. Moreover, there is no evidence that use of the word “paraphernalia”

was material to the magistrate’s finding of probable cause.

      Finally, Mr. Allerheiligen contends Agent Christy’s ability to discern

between wild and cultivated marijuana required viewing the tops of the plants,

and, therefore, his failure to include this fact in his affidavit underlying the

search warrant was a material omission. In support of this contention, he relies

on Agent Christy’s testimony at the suppression hearing that “the plants that [he]


                                          -12-
saw were not consistent with plants that grow naturally on this continent. The

plants [he] observed had round tops, rather than pointed.” App. vol. IV, at 11.

He further argues the photographs, as well as Agent Christy’s own testimony,

illustrate that he could not have made such an identification at an altitude of

1,000 feet.

      Again, this argument is without merit. The district court found Agent

Christy had observed both wild and cultivated marijuana on over 300 separate

occasions and had fourteen years of experience in aerial identification of

marijuana. Nothing in Agent Christy’s testimony during the suppression hearing

suggested that viewing the tops of the plants is the only means by which to

distinguish cultivated from wild marijuana. In fact, in the affidavit Agent Christy

stated he believed the plants he observed were cultivated, as opposed to wild,

based partly on the fact that “[t]he height, the shape and dissimilar shade of green

. . . [was] consistent with [his] previous observations of growing cultivated

marijuana.” App. vol. I, at 123 (Aff. of Agent Christy). Agent Christy’s

testimony does not conflict with his statements in the affidavit. Thus, there is no

support for the contention that Agent Christy omitted any material information.

      Further, Mr. Allerheiligen has presented no evidence that Agent Christy

could not distinguish between rounded and pointed tops from 1000 feet.

Contrary to Mr. Allerheiligen’s position, during his testimony at the suppression


                                         -13-
hearing, Agent Christy did not retreat from his statement in the affidavit that he

could identify cultivated marijuana plants through aerial surveillance. Rather, he

only conceded that his identification from the air could never be certain.

Accordingly, the district court did not err in rejecting Mr. Allerheiligen’s

contentions of material falsehoods and omissions in the affidavit.   See United

States v. Haimowitz , 706 F.2d 1549, 1556 (11th Cir. 1983).



       2.     There was probable cause to search the residence.

       Mr. Allerheiligen asserts there was insufficient evidence of probable cause

to search his residence.   2
                               He contends “none of the information in [Agent]

Christy’s affidavit that was gathered from his fly-over or from the Kansas

officers’ invasion of [his] property during the walk-in can properly be relied

upon in testing the sufficiency of the warrant.” Aplt’s Br. at 15.




       2
         Within his probable cause challenge, Mr. Allerheiligen makes additional
allegations that Agent Christy submitted false or misleading statements in the
affidavit underlying the search warrant. For instance, he asserts the “foot path”
the agents allegedly observed during the walk-in was really a cattle path.
Moreover, he asserts the statement in the affidavit that the marijuana patch was in
a fenced-off area was misleading because the fencing was around the entire
pasture, not just the marijuana patch. However, we conclude that,
“[d]isregarding the[se] allegedly false [or misleading] statements in [the]
affidavit, the other evidence presented by the government amply supported a
finding of probable cause.”   United States v. Salameh , 152 F.3d 88, 114 (2d Cir.
1998); see United States v. Myers , 106 F.3d 936, 940 (10th Cir. 1997).

                                           -14-
       It is true that, in order to determine whether the search warrant was valid

and issued upon probable cause, the supporting affidavit must be analyzed

without facts that are tainted by prior illegality.   See United States v. Anderson ,

981 F.2d 1560, 1568 (10th Cir. 1992). However, we have already concluded the

aerial search over Mr. Allerheiligen’s property did not violate his constitutional

rights. We have further concluded there is no evidence to support Mr.

Allerheiligen’s assertion that Agent Christy intentionally misled the magistrate in

his affidavit underlying the search warrant. Therefore, we may consider Agent

Christy’s observations during the fly-over in testing the sufficiency of the

warrant.

       Moreover, the district court found the walk-in on Mr. Allerheiligen’s

property was constitutional. The court reasoned the marijuana field was an “open

field” not within the curtilage of Mr. Allerheiligen’s home and, therefore, was

not entitled to Fourth Amendment protection. Mr. Allerheiligen does not

challenge this finding on appeal. Thus, we may consider the agents’ observations

during the walk-in in testing the sufficiency of the warrant.

       Probable cause means that “there is a fair probability that contraband or

evidence of a crime will be found in a particular place.”      Illinois v. Gates , 462

U.S. 213, 238 (1983). We give great deference to the magistrate’s determination

of probable cause and will uphold that conclusion if the “totality of the


                                              -15-
information contained in the affidavit provided a substantial basis for finding

there was a fair probability that evidence of criminal activity would be found.”

United States v. Janus Industr.   , 48 F.3d 1548, 1553 (10th Cir. 1995) (internal

quotations omitted).

       In the affidavit, Agent Christy submitted that during aerial surveillance he

observed what he believed to be several hundred cultivated marijuana plants in a

clearing behind Mr. Allerheiligen’s residence. He furthered stated that he

observed a pathway leading from the plants to a fence which contained a gate at

the back of a barn. Agent Christy’s affidavit also relayed the following

observations by the agents who performed the walk-in: there were numerous

marijuana plants broken off ten to twelve inches above the ground, one plant that

had been pulled had a peat pot still attached to the root, and there was a fairly

new candy wrapper in the marijuana patch.

       The agents’ observations during the walk-in, coupled with those made by

Agent Christy during the fly-over, clearly support the magistrate’s finding of

probable cause to search Mr. Allerheiligen’s residence.     See, e.g. , United States

v. Emmons , 24 F.3d 1210, 1215 (10th Cir. 1994) (affirming probable cause

determination in part because “the judge who issued the warrant was certainly

entitled to consider the large quantity of marijuana discovered during the two

expeditions onto [the defendant’s] property, an amount totally at odds with purely


                                           -16-
personal consumption” and rejecting the defendant’s “argu[ment] that even if the

marijuana could give rise to an inference of distribution, it could not fairly be

inferred that evidence would be found in his home.”);     United States v. Morehead ,

959 F.2d 1489, 1499 (10th Cir. 1992) (holding that “officers’ observations of

marijuana plants in the trailer and shop building adjacent to the [defendant’s]

residence” provided a substantial basis for the conclusion that there was a fair

probability that evidence of a crime would be found on the property);     United

States v. Wilson , No. 97-5201, 1998 WL 482786, at ** 3 (10th Cir. Aug. 12,

1998) (“The affiant’s statement that during an aerial fly-over he viewed

marijuana plants on land where Defendant resided and the other statements in the

affidavit that Defendant exhibited behavior consistent with those involved in the

production of marijuana established a fair probability that a crime was being

committed and support a finding of probable cause”);      United States v. Malin , 908

F.2d 163, 166 (7th Cir. 1990) (upholding magistrate’s probable cause finding

where the affidavit underlying the warrant to search the defendant’s house did

not directly link the marijuana observed by officers to the house or cite any

evidence of cultivation),   abrogation on other grounds recognized in   United States

v. Monroe , 73 F.3d 129 (7th Cir. 1995);    United States v. Fuesting , 845 F.2d 664,

671 (7th Cir. 1988) (stating “probable cause existed for the search given the




                                           -17-
observations of the officers in the helicopter”). Accordingly, we conclude that

the district court did not err in denying the motion to suppress.



B.    Exclusion of videotape evidence allegedly depicting the condition of
      Mr. Allerheiligen’s property a year after the seizure

      The crux of Mr. Allerheiligen’s defense was that he cultivated only a few

marijuana plants for personal use and that the rest of the marijuana seized by the

government was wild. Prior to trial, Mr. Allerheiligen disclosed to the

prosecution a list of witnesses, some of whom would testify regarding two

videotapes allegedly depicting approximately 1,500 wild marijuana plants

growing on his farm in September of 1998, approximately a year after the

seizure.

      The government filed a motion in limine to exclude this evidence under

Federal Rule of Evidence 403. In granting the government’s motion the court

reasoned that “evidence that there was wild marijuana growing on some portion

of defendant’s property on September 9, 1998, over a year after the search

warrant was executed, is irrelevant to the allegations contained in [the]

Indictment.” App. vol. III, at 126 (Order, dated Nov. 19, 1998).

      We review a district court’s decision to exclude relevant evidence under

Federal Rule of Evidence 403 for abuse of discretion.    See United States v.

Castillo , 140 F.3d 874, 884 (10th Cir. 1998). Pursuant to this rule, “relevant

                                          -18-
evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Fed. R. Evid. 403.

       Here, the district court noted that the government admitted wild marijuana

grows annually in numerous rural areas in Marshall County, Kansas, where Mr.

Allerheiligen’s property is located. Moreover, in the presentence report the

probation officer agreed with Mr. Allerheiligen that “there were likely wild

marihuana plants growing in the marihuana patchs [sic] which were seized from

the defendant’s property.” App. vol. VIII, at 13, ¶ 37. However, the report

further “concluded that [Mr. Allerheiligen] had adopted those marihuana plants

as his own and cared for them as he did the plants that he personally planted”

and, therefore, those plants were attributable to him.   Id. Thus, the existence of

wild marijuana in the area was not in dispute, thereby, demonstrating the minimal

probative value of the proffered videotape evidence. Moreover, evidence

regarding the condition of Mr. Allerheiligen’s property a year after the seizure

would likely have confused the issues or misled the jury.

       Finally, the KBI made a videotape and took photographs of Mr.

Allerheiligen’s property during the marijuana seizure in 1997. Mr. Allerheiligen

has not offered any legitimate explanation as to why the 1997 KBI videotape and


                                            -19-
photographs do not accurately reflect his property on the day of the seizure.

Accordingly, we find no abuse of discretion in the court’s decision to exclude

any evidence regarding the 1998 videotapes allegedly depicting Mr.

Allerheiligen’s property a year after the seizure.    Cf. , United States v. Culpepper ,

834 F.2d 879, 883 (10th Cir. 1987) (upholding the trial court’s denial of

defendant’s request to allow the jury to view the marijuana field two months after

the seizure because rain had changed the field’s condition and because there were

undisputed photographs of the field on the day of the seizure).



C.     Exclusion of Expert Witnesses Offered to Testify as to the Differences
       Between Marijuana Grown for Personal Use Versus Distribution

       As stated previously, Mr. Allerheiligen’s defense was that he only planted

a few marijuana plants for personal use, not distribution. Because possessing a

large quantity of drugs is a strong indicator of intent to distribute, he set out to

prove he did not cultivate the 1,346 marijuana plants attributed to him.       See, e.g. ,

United States v. Wood , 57 F.3d 913, 918 (10th Cir. 1995) (“A large quantity of

the drug will support a reasonable inference that a defendant intended to

distribute it.”); United States v. Eng , 753 F.2d 683, 687 (8th Cir. 1985) (“The

harvesting of [over thirteen pounds] of marijuana is inconsistent with Eng’s

personal use claim.”).



                                            -20-
       In support of his defense Mr. Allerheiligen sought to present three expert

witness, Ed Rosenthal, Walt Carroll, and William Logan, to testify regarding the

differences between marijuana grown for personal use and marijuana grown for

commercial distribution. The district court excluded all three of Mr.

Allerheiligen’s expert witnesses, finding they were not qualified to testify on the

subject matter of their proffered testimony. Mr. Allerheiligen contends exclusion

of all three expert witnesses was in error.

       A district court may allow expert testimony “[i]f [the expert’s] scientific,

technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. T     he

Supreme Court has held that Rule 702 imposes a special obligation upon a trial

judge to ensure that all expert testimony, even non-scientific and experience-

based expert testimony, is both relevant and reliable.    See Kumho Tire Co. v.

Carmichael , 526 U.S. 137, 147 (1999);     Daubert v. Merrell Dow Pharm., Inc.   , 509

U.S. 579, 592-93 (1993).

       In Daubert , the Court stated that, in determining reliability, the trial judge

may consider: (1) whether a “theory or technique . . . can be (and has been)

tested”; (2) whether it “has been subjected to peer review and publication”; (3)

whether, in respect to a particular technique, there is a high “known or potential

rate of error” and whether there are “standards controlling the technique’s


                                            -21-
operation”; and (4) whether the theory or technique enjoys “general acceptance

within a relevant scientific community.” 509 U.S. at 593-94.

       However, the Supreme Court has stressed that “the trial judge must have

considerable leeway in deciding in a particular case how to go about determining

whether particular expert testimony is reliable.”   Kumho Tire , 526 U.S. at 152.

“Thus, whether Daubert’s specific factors are, or are not, reasonable measures of

reliability in a particular case is a matter that the law grants the trial judge broad

latitude to determine.”   Id. at 153. Accordingly, a trial judge’s ruling on the

admission or exclusion of expert testimony will not be overturned unless it is

manifestly erroneous or an abuse of discretion.     See General Elec. Co. v. Joiner ,

522 U.S. 136, 142 (1997);    United States v. Diaz , 189 F.3d 1239, 1246 (10th Cir.

1999).



       1.     Ed Rosenthal

       At the hearing on the government’s motion to exclude Mr. Rosenthal’s

testimony, defense counsel made a lengthy proffer regarding Mr. Rosenthal’s

qualifications and the subject matter of his testimony. In essence, Mr. Rosenthal

would have testified “about the quantity and quality of marijuana plants which

distinguishes personal use from commercial cultivation” and “the anticipated




                                            -22-
yield of the marijuana seized from [Mr. Allerheiligen’s] property.” App. vol. II,

at 110 (Defendant’s Witness List).

      Mr. Rosenthal proffered similar testimony in      United States v. Kelley , 6 F.

Supp.2d 1168, 1179-85 (D. Kan. 1998), which the court excluded. In          Kelley , the

court’s decision to exclude the testimony was based on its finding that he was not

qualified to testify on the issues of yield, intent, general practices of outdoor

marijuana growers, and processing and use of marijuana in Kansas.         See id. at

1184-85.

      The decision in Kelley was based in part on transcripts of Mr. Rosenthal’s

testimony in State v. Hood and United States v. Wyman & Hadley        , D. Kan. No.

94-40038-01/02-RDR. In       Hood the court characterized Mr. Rosenthal’s

testimony as a “serious disappointment” and “ideologically driven to the point

where [the court thought Mr. Rosenthal] had no objectivity at all.”       Kelley , 6 F.

Supp.2d at 1183-84 (quoting Trans. Aug. 20, 1993, p.171). Similarly, in         Wyman

and Hadley the court expressed regret over allowing Mr. Rosenthal to testify.

Specifically, Judge Rogers voiced concern over Mr. Rosenthal’s qualifications

and referred to his work as “almost voodoo research.”       Id. at 1184 (quoting

Trans. January 27, 1995, at 98-100).

      Here, the district court similarly “observe[d] several areas where [Mr.]

Rosenthal’s purported testimony extend[ed] beyond his demonstrated areas of


                                           -23-
specialized knowledge.” App. vol. III, at 130. In excluding Mr. Rosenthal’s

testimony, the court explained:

             Even given the additional substantial information regarding [Mr.]
      Rosenthal provided to this court by the parties, the fact that [Mr.]
      Rosenthal writes books on marijuana growing and regularly writes a
      popular advice column for High Times magazine does not tell the court
      anything about the scientific reliability of his opinions expressed
      therein. There is no evidence that any of [Mr.] Rosenthal’s writings on
      marijuana have been recognized as a valid research effort or reference
      book in the field of botany. Nor is there anything of record that would
      lead this court to believe that it should rely on readers of High Times
      magazine or others having an interest in growing marijuana as a valid
      indicator of reliability.

            Based upon the court’s opinion in      Kelley , the transcript from
      Wyman and Hadley and the affidavit of Dr. Mahmoud A. ElSohly, the
      Director of the Marijuana Project at the University of Mississippi since
      1980, the court finds that [Mr.] Rosenthal’s qualifications are largely
      a matter provable only through his own opinion. He lacks any
      academic background, formal education or training, and experience that
      would qualify him as an expert on the subject of growing, harvesting,
      and processing of marijuana. His unique exposure to these topics is
      limited to his self-directed efforts at reading reference works, talking
      with some researchers and growers, and then summarizing the work of
      others in to popular “how-to” guides.

Id. at 130-31.

      The district court undertook a careful and thorough review of Mr.

Rosenthal’s qualifications and proffered testimony. In light of the “considerable

leeway” we give trial judges “in deciding in a particular case how to go about

determining whether particular expert testimony is reliable,” we conclude the

court’s decision to exclude Mr. Rosenthal’s testimony was not an abuse of


                                        -24-
discretion. Kumho Tire , 526 U.S. at 152; see, e.g. , Taylor v. Cooper Tire &

Rubber Co. , 130 F.3d 1395, 1397 (10th Cir. 1997) (affirming district court’s

exclusion of expert testimony where, although the expert “was qualified generally

in materials failure, particularly metals,” the court found the expert was not

qualified to testify as to the critical issue of whether “the tire failure in [the] case

was the result of a manufacturing defect”);          Broadcort Capital Corp. v. Summa

Med. Corp. , 972 F.2d 1183, 1195 (10th Cir. 1992) (concluding exclusion of

expert testimony was not an abuse of discretion where “[t]he district court found

that [the expert’s] general experience and education did not qualify [him] as an

expert in the securities area.”);   United States v. Chang , 207 F.3d 1169, 1173 (9th

Cir. 2000) (holding “[i]t was not an abuse of discretion for the district court to

determine that [the proffered expert’s] ‘practical experience in international

finance’ did not amount to practical experience determining whether a particular

security is counterfeit, the fact at issue in th[e] case.”).



       2.     Walt Carroll and William Logan

       Mr. Allerheiligen argues the court also erred in excluding expert witnesses

Mr. Carroll and Mr. Logan. Neither Mr. Carroll nor Mr. Logan appeared at the

hearing on the government’s motion to exclude both witnesses’ testimony.




                                              -25-
Instead, Mr. Allerheiligen submitted their respective resumes and submitted a

proffer of their testimonies.

       Mr. Carroll has been a law enforcement officer for over twenty-five years

and has served as an expert witness and training instructor in the area of drug

detection, inderdiction and prosecution of drug cases. Mr. Allerheiligen

submitted that Mr. Carroll would “testify as to the presence of wild marijuana on

the Allerheiligen property; evidence of spraying in the marijuana field; his

observations during his inspection of the Allerheiligen property in 1997; pictures

taken by him of the Allerheiligen property; [and] all other issues addressed in

[Mr. Carroll’s] report and affidavit.” App. vol. II, at 108. Mr. Allerheiligen

asserts Mr. Carroll’s testimony was significant because he inspected Mr.

Allerheiligen’s property two weeks after the search and found no evidence of

cultivation.

       Mr. Logan is a criminal defense lawyer. He has called Mr. Rosenthal to

testify on behalf of his clients in various cases. Mr. Allerheiligen sought to call

Mr. Logan to “testify to [the] defining elements which constitute personal use of

marijuana” and “the expected yield of the marijuana seized.” App. vol. II, at

109.           After reviewing the proffered evidence, the court concluded “that the

purported testimonies of [Mssrs.] Logan and Carroll extend[ed] beyond their

respective demonstrated areas of specialized knowledge.” App. vol. III, at 151.


                                         -26-
As with Mr. Rosenthal, the court found that “the information provided to [it] by

the defendant t[old] the court nothing about the scientific reliability of the

opinions proffered by [Mssrs.] Logan and Carroll.”       Id.

       With respect to Mr. Carroll, the court found that his “credentials evidence

no training, experience or schooling in matters specifically related to marijuana

identification, marijuana eradication, marijuana processing, [and] marijuana use.”

Id. Moreover, the court found nothing in the record to justify relying on “Mr.

Carroll’s perusal of [Mr. Allerheiligen’s] property after [the marijuana seizure] . .

. as evidence of the yield of the plants seized.”    Id. at 152. As to Mr. Logan, the

court stated, “[t]here is nothing of record that would lead this court to believe

that it should rely on Mr. Logan’s former clients, members of the California

criminal defense bar, California marijuana users or the readers of his articles as a

valid indicator of reliability.”   Id.

       The court carefully and meticulously reviewed the proffer of evidence

submitted by Mr. Allerheiligen in support of Mssrs. Carroll and Logan, ultimately

finding their proffered testimonies were not scientifically reliable. Our review of

the record supports that finding. As stated previously, “the law grants the trial

judge broad latitude to determine” what are “reasonable measures of reliability.”

Kumho Tire , 526 U.S. at 123. Accordingly, we conclude the court’s decision to




                                             -27-
exclude the testimony of Mr. Carroll and Mr. Logan was not an improper exercise

of its discretion.



D.     Exclusion of Expert Testimony Regarding Defendant’s Mental and
       Physical Condition

       On the defense witness list, Mr. Allerheiligen listed Dr. Stuart Twemlow as

an expert witness who would have testified as to Mr. Allerheiligen’s “physical,

medical and psychological condition.” App. vol. II, at 110. Dr. Twemlow

examined Mr. Allerheiligen pursuant to a court ordered evaluation as a condition

of his pre-trial release. The defense also listed Dr. Matthew Schlotterback, who

would have testified as to his knowledge of Mr. Allerheiligen’s “medical

history.” Id. The government’s motion in limine sought to exclude the testimony

of both witnesses.

       The district court granted the government’s motion, finding that the “[Mr.

Allerheiligen’s] true intent [was] to offer a ‘justification’ defense through the use

of this testimony.” App. vol. III, doc. 101, at 122. Mr. Allerheiligen had

represented on the Omnibus Hearing Report that his sole defense was “general

denial; put the government to proof,” and did not list “justification as a defense.”

Thus, the court found that allowing the testimony would violate the Omnibus

Hearing Report. Additionally, the court found the proffered testimony was akin

to a medical necessity defense, which is not a proper defense to possession of

                                        -28-
marijuana with intent to distribute, the charge at issue in this case. Finally, the

court found the testimony was irrelevant and collateral to the issues at trial and

therefore would confuse and distract the jury. Upon this finding, the court

excluded the testimony pursuant to Federal Rules of Evidence 401, 402, and 403.

       On appeal, Mr. Allerheiligen asserts the court’s finding that the testimony

was offered as a justification or medical necessity defense was in error. He

maintains the testimony was not offered to prove justification or to negate intent,

but rather solely to prove he only grew a few marijuana plants for personal use,

not distribution. Moreover, the testimony was relevant because it was offered to

bolster the credibility of Mr. Allerheiligen’s statements to KBI agents during the

search of his property that he only grew a few marijuana plants for personal use.

       As explained in the previous section, we review the exclusion of expert

testimony for abuse of discretion and we will not overturn the court’s decision

unless it is manifestly erroneous.   See General Elec. Co. , 522 U.S. at 142; Diaz ,

189 F.3d at 1246. Without deciding whether all of the court’s reasons for

excluding the proffered testimony were proper, we affirm the court’s decision to

exclude the testimony pursuant to Rule 403. Under Rule 403, “relevant evidence

may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by




                                          -29-
considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Fed. R. Evid. 403.

      At the hearing on the government’s motion to exclude testimony on Mr.

Allerheiligen’s psychiatric condition and medical history, defense counsel

proffered the following testimony:

            [Mr. Allerheiligen] has a medical condition that causes chronic
      pain since the late 60s. [He] tried various prescription medications.
      [He] has a psychiatric/psychological problem that does not amount to
      the size of a problem as a bipolar disorder, but it causes extreme
      hyperactivity and periods of depression similar to what we would call
      manic depression . . . . He’s had it since birth. . . . And only recently
      [Dr. Twemlow] has confirmed through his treatment and care of [Mr.
      Allerheiligen] that that disorder exists.

            [Mr. Allerheiligen] is currently on enough medication to shock
      almost anybody. . . . It maintains him at a level of functioning that
      allows him to participate on a day-to-day basis with his wife and his
      family and society. That is the type of testimony we anticipate out of
      [Dr. Schlotterback] and [Dr. Twemlow].

             This is not a new problem. It’s a longstanding problem. It’s a
      problem, which for almost 30 years he monitored and treated himself
      with marijuana. He has readily admitted that. That’s never been an
      issue in this case.

App. vol. V, at 54-55.

      The probative value of the proffered testimony on Mr. Allerheiligen’s

psychiatric condition and medical history was minimal at best. Establishing Mr.

Allerheiligen is a chronic user of marijuana is only marginally relevant to




                                        -30-
whether he intended to distribute the large quantity of marijuana found on his

property.

      Further, the minimal probative value of this testimony is substantially

outweighed by the likelihood it would inject collateral issues at trial that would

confuse and mislead the jury.       See Fed. R. Evid. 403. Regardless of Mr.

Allerheiligen’s true purpose for this testimony,

      psychiatric evidence (1) will only rarely negate specific intent, (2)
      presents an inherent danger that it will distract the jury from focusing
      on the actual presence or absence of mens rea, and (3) may easily slide
      into wider usage that opens up the jury to theories of defense more akin
      to justification, [therefore,] district courts must examine such
      psychiatric evidence carefully to ascertain whether it would, if
      believed, support a legally acceptable theory of lack of mens rea.

United States v. Cameron , 907 F.2d 1051, 1067 (11th Cir.1990) (internal

quotations and citations omitted)     .

      Moreover, Mr. Allerheiligen had acknowledged throughout that he is a

chronic marijuana user and had already admitted to growing at least some of the

marijuana on his property for personal use. As defense counsel conceded, Mr.

Allerheiligen’s personal use of marijuana has “never been an issue in this case.”

App. vol. V, at 55. Thus, the proffered testimony was also partly cumulative.

Accordingly, the district court’s exclusion of the proffered psychiatric and

medical history testimony under Rule 403 was not an abuse of discretion.




                                            -31-
E.    Evidence the Government Seized but Allegedly Failed to Preserve

      The presentence report attributed 1,346 marijuana plants to Mr.

Allerheiligen.   See App. vol. VIII, at 14, ¶ 44. Mr. Allerheiligen alleges the

government only seized a representative sample of these plants and failed to

seize, preserve, or record any of the peat pots on the plants. Although Mr.

Allerheiligen has framed the issue on appeal as whether “the district court abused

its discretion in denying [his] motion to exclude testimony about evidence the

government had seized but not preserved,” his entire argument is evidently

dedicated to the legal proposition that the government’s alleged failure to

preserve exculpatory evidence, i.e., the marijuana plants and the peat pots, denied

him due process. After reviewing the record, we conclude Mr. Allerheiligen

never presented this argument to the district court.

      The motion Mr. Allerheiligen submitted to the district court was entitled

“Motion In Limine To Exclude Testimony About Evidence Which Has Not Been

Preserved And To Prohibit Any Testimony Regarding Opinions Based On

Scientific, Technical, Or Other Specialized Knowledge.” App. vol. III, at 1.

Within this motion, Mr. Allerheiligen argued that because the government did not

designate any witnesses as experts on its witness list, the witnesses should be

prohibited from testimony based on scientific, technical or specialized knowledge

under Federal Rule of Evidence 702. He asserted that, as a result of the


                                         -32-
government’s failure to designate any of the witnesses as experts, the proposed

witnesses should be limited to testimony based on perception only, as opposed to

opinion, as required under Rule 701. Accordingly, he argued, no witnesses

should be allowed to speculate as to the number of cultivated marijuana plants or

peat pots present on Mr. Allerheiligen’s property during the seizure that were not

videotaped, photographed, recorded or otherwise preserved.

       Although the motion contains a citation to     California v. Trombetta , 467

U.S. 479 (1984), which outlines the standard for determining when the

government’s failure to preserve, or destruction of, evidence violates due

process, it is cited for the more general proposition that “[t]he government has a

duty to preserve all evidence that is expected to play a significant role in a

suspect’s defense.” App. vol III, at 3. The motion makes no allegation of a due

process violation, nor does it attempt to argue the elements of the   Trombetta test.

More importantly, Mr. Allerheiligen never alleged in his motion that the

government failed to preserve or destroyed exculpatory evidence, which is the

sole focus of Mr. Allerheiligen’s argument on appeal.

       The district court’s order lends support to our construction of Mr.

Allerheiligen’s motion. In denying the motion, the court explained:

              After establishing to the court’s satisfaction that a witness
              can offer an opinion as a lay witness under Federal Rule
              of Evidence 701, witnesses may testify to their relevant
              observations, upon proper foundation, whether contained

                                            -33-
              in a report or not. If an agent offers testimony not
              contained in a report, this may be inquired into on cross-
              examination to challenge the credibility of the statement.
              This goes to the weight of the evidence and not to its
              admissibility.

App. vol. III at 147 (Order, Nov. 19, 1998). The court made no mention of Mr.

Allerheiligen’s current due process argument and did not discuss or cite to any

cases regarding such.

       Because Mr. Allerheiligen failed to raise his due process argument to the

district court, our review is limited to plain error.   See United States v. Orr , 864

F.2d 1505, 1508 (10th      Cir. 1988) (“On appeal we will only consider the specific

ground of the evidentiary objection in the trial court, unless the ground not raised

constitutes plain error resulting in manifest injustice.”) (internal quotations

omitted); see also Goulah v. Ford Motor Company         , 118 F.3d 1478, 1483 (11th

Cir. 1997) (“An objection on one ground will not preserve an error for appeal on

other grounds.”). Plain error is that which affects substantial rights and

undermines the “fairness, integrity, or public reputation of judicial proceedings.”

Johnson v. United States , 520 U.S. 461, 466-67 (1997). The plain error doctrine

is to be “‘used sparingly, solely in those circumstances in which a miscarriage of

justice would otherwise result.’”       United States v. Oberle , 136 F.3d 1414, 1422

(10th Cir. 1998) (quoting     United States v. Frady , 456 U.S. 152, 163 n. 14

(1982)). Mr. Allerheiligen cannot establish plain error occurred here.


                                              -34-
       Specifically, Mr. Allerheiligen takes issue with the government’s failure to

preserve the peat pots. He argues, “[h]ad [the government] seized all of the

marijuana plants with peat pots, it would have either supported [his] claim that he

only planted 12-15 plants, or disproved such a claim.” Aplt’s Br. at 27.

However, to establish a violation of § 841(a)(1), the government did not need to

prove Mr. Allerheiligen actually planted the marijuana, only that he possessed it

with the intent to distribute.   See United States v. Silver , 84 F.3d 1317, 1321-22

(10th Cir. 1996); App. vol. V, at 41 (defense attorney acknowledging Mr.

Allerheiligen “[didn’t] have to grow [the marijuana] in order to possess it with

the intent to distribute”). Moreover, the existence or lack of peat pots was not

necessary to attribute the marijuana plants to Mr. Allerheiligen for purposes of

sentencing. As stated previously, the presentence report concluded Mr.

Allerheiligen “had adopted [the wild] marihuana plants as his own and cared for

them as he did the plants that he personally planted,” and, therefore, considered

those plants in determining his base offense level. App. vol. VIII, at 13, ¶ 37.

Thus, the peat pot evidence was only potentially exculpatory.

       When potentially exculpatory evidence has not been preserved, in order to

establish a due process violation, the defendant must show the government acted

in bad faith. See United States v. Gomez , 191 F.3d 1214, 1219 (10th     Cir. 1999)

(citing Arizona v. Youngblood , 488 U.S. 51, 58 (1988)). Here, Mr. Allerheiligen


                                           -35-
alleges “the Kansas and federal authorities were well aware of the importance of

the number of plants seized,” and “the methodology used to count the plants . . .

was unclear and uncertain.” Aplt. Br. at 29. He further argues the government’s

explanation for failing to preserve all of the marijuana plants including the peat

pots, namely, lack of storage space and difficulty in pulling each plant, evinces

bad faith.

       We are not convinced that this evidence alone is sufficient to establish the

government acted in bad faith.     See United States v. Deaner , 1 F.3d 192, 201 (3d

Cir. 1993) (concluding that even though the government destroyed seized

marijuana because of limited storage space instead of retaining a representative

sample as required by statute, the defendant could not establish bad faith);     United

States v. Beldon , 957 F.2d 671, 673-74 (9th       Cir. 1992) (concluding the

government did not act in bad faith where officers pulled marijuana plants from

their pots or cut them above the roots, and failed to preserve the root systems

because it was routine police practice and there was a lack of storage space);      see,

e.g. , Gomez , 191 F.3d at 1219 (no due process violation where the defendant

could not show the police destroyed marijuana in bad faith).

       Because Mr. Allerheiligen cannot establish the KBI acted in bad faith in

failing to preserve potentially exculpatory evidence, his due process claim fails.

Accordingly, he cannot establish plain error.


                                            -36-
F.    Plea Agreement

      Mr. Allerheiligen challenges his sentence, alleging the government

breached the plea agreement. “Whether government conduct has violated a plea

agreement is a question of law . . . we review de novo.”   United States v. Hawley ,

93 F.3d 682, 690 (10th Cir. 1996). Plea bargains are governed by contract

principles, and if any ambiguities are present, they will be resolved against the

drafter. See id. The defendant has the burden of proving by a preponderance of

the evidence the underlying facts establishing the prosecution’s breach of the

plea agreement. See Cunningham v. Diesslin , 92 F.3d 1054, 1059 (10th Cir.

1996). Because Mr. Allerheiligen asserts the government breached the plea

agreement for the first time on appeal, however, our review is limited to plain

error. See United States v. Peterson , No. 99-2042, 2000 WL 725478, *1 (10th

Cir. June 6, 2000).

      Pursuant to the plea agreement the government agreed not to oppose a

contested sentencing, thereby allowing Mr. Allerheiligen to rebut the number of

marijuana plants the presentence report attributed to him for purposes of

calculating his offense level. The government also agreed not to oppose

application of the safety valve provisions.

      Mr. Allerheiligen contends that during a chambers meeting prior to

sentencing, the government “sided with the court” when the court announced to


                                           -37-
both parties’ counsel that it would not be inclined to apply the safety valve if Mr.

Allerheiligen contested the number of marijuana plants at sentencing. Aplt. Br.

at 30. Mr. Allerheiligen asserts this constituted a breach of the government’s

agreement not to oppose a contested sentencing on the number of plants

attributable to him.

      Following the in-chambers meeting, Mr. Allerheiligen filed a “Motion To

Reconsider Rulings Made In Chambers With Regard To Sentencing Issues.”

App. vol. 3 at 156. Although Mr. Allerheiligen did not argue within this motion

that the government breached the plea agreement, the motion did present the

district court with the factual issue of what occurred during the in chambers

meeting.

      In its order denying Mr. Allerheiligen’s motion to reconsider, the district

court made the following findings with respect to what occurred during the in-

chambers meeting:

      The conversation in chambers prior to sentencing was held primarily
      for the defendant’s benefit. The court made no rulings in chambers,
      but merely indicated to counsel for both sides that the court was
      inclined to apply the safety valve provision to this case. The court
      further indicated to counsel that the court did not believe defendant
      would be eligible for the safety valve provision if defendant continued
      to argue his objections with regard to the number of marijuana plants
      because he would no longer meet the fifth requirement for application
      of the safety valve by truthfully providing to the government all
      information and evidence the defendant has concerning the offense.
      See USSG §5C1.2 and 18 U.S.C. § 3553(f). This belief was based not
      only upon the court’s review of the KBI videotape of the counting of

                                         -38-
      the marijuana plants, but also on the court’s review of [inconsistent]
      statements provided by the defendant prior to sentencing.

App. vol. III, at 185-86 (Order, dated May 6, 1999). The court then concluded:

      Upon review of the transcript of the sentencing hearing, the court finds
      that defense counsel never argued to the court that defendant should be
      allowed to contest the number of plants and still be eligible for the
      safety valve. Defendant’s counsel also did not voice any objection,
      either in chambers or during the sentencing hearing, with respect to the
      court’s view of the applicability of the safety valve. Therefore, the
      defendant did not make any kind of record regarding the applicability
      of the safety valve if he contested the number of plants. If the
      defendant believed that he should be allowed to contest the number of
      plants and still remain eligible for the safety valve, then he should have
      raised that argument with the court so that it could be addressed on the
      record.

Id. at 186-87.

      There is nothing in the record that would permit us to review the court’s

findings with respect to what occurred during the in chambers meeting, or Mr.

Allerheiligen’s contention that the government breached its agreement through

statements made therein. Mr. Allerheiligen did not request that the conversation

in chambers be placed on the record, nor did counsel attempt to make any sort of

record once the court was in session for the sentencing hearing. Where the

evidentiary record is insufficient to permit assessment of an appellant’s claims of

error we must affirm.   See Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80

(10th Cir. 1992); see also 10th Cir. R. 10.3(B) (“When the party asserting an




                                         -39-
issue fails to provide a record sufficient for considering that issue, the court may

decline to consider it.”).



                                IV. CONCLUSION

      For the foregoing reasons we AFFIRM Mr. Allerheiligen’s conviction and

sentence.



                                       Entered for the Court,



                                       Robert H. Henry
                                       Circuit Judge




                                         -40-
