                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2005

USA v. Phung
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4544




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-4544


                           UNITED STATES OF AMERICA,




                                             v.

                                   DIEN VY PHUNG

                                             Appellant




                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 02-cr-689-01)
                     District Judge: Honorable Petrese B. Tucker


             Submitted Under Third Circuit LAR 34.1(a): January 13, 2005

                   Before: ROTH and CHERTOFF,* Circuit Judges,
                        and IRENAS,** Senior District Judge.


                                 (Filed: April 13, 2005)


   *
      This case was submitted to the panel of Roth, Chertoff and Irenas. Judge Chertoff
subsequently resigned after submission, but before the filing of the opinion. The decision
is filed by a quorum of the panel. 28 U.S.C. § 46 (d).
   **
    Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
                                        OPINION




IRENAS, Senior United States District Judge.

             Appellant Dien Vy Phung was convicted in the Eastern District of

Pennsylvania of one count of conspiracy to distribute 3,4

methylenedioxymethamphetamine (“MDMA” or “Ecstasy”), in violation of 21 U.S.C.

§ 846, and one count of possession with intent to distribute MDMA, in violation of 21

U.S.C. § 841(a)(1). He appeals the District Court’s denial of his motion for a Daubert

hearing, its admission of the testimony of the Drug Enforcement Administration (“DEA”)

chemist, and its determination regarding the quantity of drugs for sentencing purposes.

We will deny his appeal.

      Appellant was arrested on September 26, 2002, after arranging the sale of

approximately 7,560 pills of MDMA to a woman who was cooperating with agents from

the Pennsylvania Office of the Attorney General, the DEA and the Bureau of Narcotics

Investigation and Drug Control. Agents seized three MDMA pills handed to the woman

by Appellant. Appellant’s co-conspirator, Son Thanh Le (“Le”), was apprehended by the

Upper Merion Township Police, who seized 7,560 pills from the back of Le’s car.

      On October 23, 2002, the grand jury returned indictments against Appellant and

Le, charging them with conspiracy to distribute MDMA and possession with intent to

distribute MDMA. Judge Petrese Tucker granted Appellant’s motion for severance on
December 16, 2002.1

          Appellant filed a motion in limine on May 2, 2003, requesting that the District

Court limit the testimony of Jennifer Espinosa (“Espinosa”), a DEA chemist and expert

witness for the government, based on her use of an improper sampling method. Appellant

requested that Judge Tucker hold a hearing in accordance with Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). On May 5, 2003, Judge Tucker denied the

motion.

          Appellant’s trial began on May 6, 2003. Appellant renewed his objections to

certain portions of Espinosa’s testimony, and cross-examined Espinosa regarding the

sampling method for testing the pills. (Supp. App. II, 376, 394-98.) Appellant was found

guilty on both counts on May 9, 2003. On November 23, 2003, the District Court

imposed a sentence of 132 months imprisonment, three years supervised release, a fine of

$20,000 and a special assessment of $200. Appellant filed a timely appeal with this

Court.




                                               II.

          We review a district court’s ruling regarding the admissibility of expert testimony

for abuse of discretion. United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001). A

district court’s determination regarding the quantity of drugs for sentencing purposes is

reviewed for clear error. United States v. Yeung, 241 F.3d 321, 322 (3d Cir. 2001).


   1
       Le was convicted of both counts after a three day trial, beginning on March 4, 2003.
                                             III.

       Appellant argues that the District Court was required to hold a Daubert hearing as

a result of his objections to the sampling methodology employed by Espinosa. Espinosa

testified that she followed the sampling plan developed by the DEA statistical department

to select which of the 7,560 pills to test. (Supp. App. II, 385-86.) She tested the three

pills handed to the cooperator by Appellant, and found all three to contain MDMA.

Espinosa divided the remaining pills into three containers.2 Espinosa drew handfuls of

pills out of each container and randomly selected a set number of pills to test, as

determined by the sampling methodology.3 Espinosa then performed two tests on the pills

which revealed that all of the pills tested contained MDMA, a color test4 and a gas

chromotography/mass spectrometry test.5 A total of 93 pills were tested and all were


   2
     The first container included pills that were similar in appearance, but some were
stamped with a horse logo and some were stamped with a fish logo. The second group of
pills were wet and spongy. The third group consisted of four similar pills, each with the
logo of an omega or a circle with a wedge in it.
   3
    Espinosa tested 29 pills of each logo type from the first container, 28 pills from the
second container and all four pills in the third group.
   4
    A color test is performed by adding small samples of the individual pills to various
reagents, and if the reagent turns a particular color, the particular pill contains the
substance the reagent tested for. In this instance, a sample from each pill was combined
with sodium nitropreside, which will turn cobalt blue when MDMA is added to the
reagent. The reagent turned blue for every pill tested by Espinosa, presumptively
indicating that the pills contained MDMA.
   5
    A sample of the item to be tested is injected into the gas chromatograph, which will
separate the sample into its individual components. The mass spectrometer will produce
a characteristic spectrum for each type of molecule in the components, which enables the
molecule to be identified. This test indicated that the pills contained MDMA, as well as
acetaminophen and methamphetamine.
found to contain MDMA.

       Espinosa also ground up a number of pills from each container, and tested this

composite to determine the percentage by weight of MDMA in the tested pills. From this

calculation, she extrapolated the total weight of MDMA in the 7,560 pills. Espinosa

determined that the total weight of the pills was 2,367 grams, and the amount of MDMA

present in those pills was 152.2 grams.

       Appellant argues that Espinosa’s selection of pills to test was not random, so her

extrapolations from those test results are invalid. At trial and on appeal, Appellant offers

the expert report of Donald Rubin of Datametrics Research, Inc., which states that the

results of a test on a sample can only be extrapolated to those items that could have been

in the sample.6 Appellant contends that Espinosa’s test results can only be extrapolated to

the pills in the handfuls she selected from each container, and not the entire contents of

the containers, because the pills not in her handfuls had no chance to be included in the

sample.

       In addition to holding a Daubert hearing, Appellant further contends that the court

should have excluded Espinosa’s testimony regarding the extrapolation of the total

weight. Appellant also argues that Judge Tucker should not have relied on the

extrapolated total weight of the MDMA in sentencing him, and instead should have used



   6
    A statement in the trial record by Appellant’s trial counsel indicates that Rubin is the
Chair of the Statistics Department at Harvard University. However, the report prepared
by Rubin does not indicate this, nor has Appellant provided the curriculum vitae of his
purported expert.
only the actual weight of MDMA in the pills tested by Espinosa.

       The United States contends that the District Court did not abuse its discretion in

denying Appellant’s request for a Daubert hearing or permitting Espinosa to testify about

the sampling method she used to test the pills. The United States argues that the sampling

method used by Espinosa has been approved by this Court, and that the jury was entitled

to hear evidence about Espinosa’s test results. The United States also emphasizes that the

issue for the jury was not the total quantity of the drug, but whether Appellant possessed

any amount of MDMA with intent to distribute. Finally, the United States contends that it

was not clear error for Judge Tucker to rely on Espinosa’s estimate in imposing a

sentence.

A.     Daubert hearing

       In Daubert, the Supreme Court held that Fed. R. Evid. 702 places a special

obligation upon the trial judge to “ensure that any and all scientific testimony is not only

relevant, but reliable.” 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S.

137, 147 (1999) (applying standard established in Daubert to all expert testimony). This

Court stated in In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir. 1994)

(Paoli II), that “Daubert holds that an inquiry into the reliability of scientific evidence

under Rule 702 requires a determination as to its scientific validity.”

       District courts have considerable latitude in deciding how to perform their Daubert

gatekeeping function. Kumho Tire, 536 U.S. at 152. Trial judges have “the discretionary

authority needed both to avoid unnecessary ‘reliability’ proceedings in ordinary cases
where the reliability of an expert’s methods is properly taken for granted, and to require

appropriate proceedings in the less usual or more complex cases where cause for

questioning the expert’s reliability arises.” Id. The Third Circuit has held that district

courts are not required to hold Daubert hearings, but may follow the course they see fit to

determine the reliability of expert testimony. Oddi v. Ford Motor Company, 234 F.3d

136, 154 (3d Cir. 2000) (citing United States v. Downing, 753 F.2d 1224, 1241 (3d Cir.

1985)).

       The District Court did not abuse its discretion by declining to hold a Daubert

hearing in response to Appellant’s challenge to the testimony of Espinosa. As in Oddi,

the Appellant “does not even begin to suggest how such a hearing would have advanced

his position, and we can not begin to imagine that it would have.” Id. The sampling

method employed by Espinosa was previously approved by this Court against similar

challenges by criminal defendants. See United States v. Dent, 149 F.3d 180, 190-91 (3d

Cir. 1998); United States v. McCutchen, 992 F.2d 22, 25-26 (3d Cir. 1993).

       Judge Tucker’s decision is especially appropriate given that Appellant did not

bring a novel challenge to the sampling method, nor did he rely on any new or specific

facts in objecting to Espinosa’s testimony. Cf. United States v. Mitchell, 365 F.3d 215,

246 (3d Cir. 2004) (“Thus a district court would not abuse its discretion by limiting, in a

proper case, the scope of a Daubert hearing to novel challenges to the admissibility of

latent fingerprint identification evidence–or even dispensing with the hearing altogether if

no novel challenge was raised.”). On appeal, he relies only on a report from a statistician
that was prepared for another case, which does not address drug testing generally or the

DEA sampling method at issue here.

B.       Admission of Espinosa’s testimony

         Nor did the District Court err in admitting Espinosa’s testimony regarding her

extrapolation of the total weight of the MDMA contained in the pills.7 Appellant’s

argument that Espinosa should have randomly drawn each pill directly from the

containers, rather than from a handful of pills drawn from those containers, does not

convince us that her methodology was not scientifically sound. Rubin’s report criticizes

extrapolations from samples drawn by a systematic nonrandom method, such taking only

every fiftieth unit in a list. It is not at all clear whether Rubin’s report has anything to say

about drug testing or Espinosa’s particular method for sampling the pills.

         Daubert’s reliability requirement does not set a high bar for the admissibility of

expert testimony. See, e.g. Paoli II, 35 F.3d at 744-45. Moreover, Daubert does not

require a district court to look at whether a proposed expert could have performed his or

her analysis in a better manner. See Kannankeril v. Terminex Int’l, 128 F.3d 802, 809 (3d

Cir. 1997); Paoli II, 35 F.3d at 744 (observing that “good grounds” for an expert’s

opinion may exist “even if the judge thinks that a scientist’s methodology has some flaws

such that if they had been corrected, the scientist would have reached a different result”).

Daubert held that “[v]igorous cross-examination, presentation of contrary evidence, and



     7
   Trial counsel stipulated that Espinosa was qualified as a forensic chemist. (Supp.
App. I, 378.)
careful instruction on the burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.” 509 U.S. at 596.

        Additionally, several other factors support a finding that Espinosa’s methodology

in extrapolating the total weight of the MDMA was reliable, and that her conclusion was

based on “good grounds.” The sampling procedure was designed and approved by the

DEA statistical department, and appears to be the standard procedure amongst law

enforcement forensic chemists for determining the total weight of a particular drug within

a blended substance. In Appellant’s case, all pills were seized at the same location during

a single attempted sale. The seized pills were divided into containers based on similar

appearance and markings. Every pill Espinosa tested contained MDMA.

C.      Sentencing

        It was not clear error for the District Court to impose a sentence of 132 months

imprisonment based on Espinosa’s extrapolation of the total weight of MDMA in the

seized pills. At the sentencing hearing, Judge Tucker stated: “[Espinosa’s] testimony was

convincing to this Court and the jury that based on the amount of pills – the number of

pills that were actually tested, the information could be extrapolated and she could give

us whether or not the pills were all MDMA.” (Supp. App. III, 538 (emphasis added).)

        For the reasons stated above, we believe that Judge Tucker appropriately relied on

Espinosa’s estimation of the total weight of the MDMA. In McCutchen, this Court held

that:

        If a defendant challenges a drug quantity estimate based on an extrapolation
        from a test sample, the government must show, and the court must find, that
       there is an adequate basis in fact for the extrapolation and that the quantity
       was determined in a manner consistent with accepted standards of
       reliability.

992 F.2d at 25-26. The evidence in the record supports the District Court’s determination

that there was an adequate basis in fact for the extrapolation and that the total quantity of

MDMA was calculated in a reliable manner.

       Appellant also asserts that the 132 month sentence is excessive because sentences

of more than ten years for MDMA offenses were only intended for high-level traffickers

whose conduct involved at least 8,000 pills. Appellant draws this argument from the

reasons stated for Amendment 609, which changed the marijuana equivalency for

MDMA.8 U.S.S.G. Manual suppl. to app. C, am. 609, cmt. (2001) (“The penalty levels

chosen for MDMA offenses provide five year sentences for serious traffickers (those

whose relevant conduct involved at least 800 pills) and ten year sentences for high-level

traffickers (those whose relevant conduct involved at least 8,000 pills).”).

       Commentary to the Guidelines is generally binding on a sentencing court, except

in certain circumstances. The Supreme Court in U.S. v. Stinson held that “commentary in

the Guidelines Manual that interprets or explains a guideline is authoritative unless it

violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” 508 U.S. 36, 38 (1993). Here, the commentary is inconsistent



   8
    Prior to the Amendment, the Drug Equivalency Tables in the Commentary to § 2D1.1
established that one gram of MDMA was equivalent to thirty-five grams of marijuana.
Amendment 609 changed the equivalency to five hundred grams of marijuana. The
Amendment became effective on May 1, 2001.
with § 2D1.1 and the Drug Equivalency Tables, and therefore is not authoritative.

       The United States Sentencing Commission intended that sentences for crimes

involving MDMA be calculated based on weight, and not on the number of units, as

evidenced by the Drug Quantity Table contained in § 2D1.1 and the Drug Equivalency

Tables contained in the Application Notes for the guideline. Amendment 609 itself

speaks in terms of weight, indicating that the reference to specific pill quantities reflects

only an estimate of the equivalent number of pills. The District Court correctly sentenced

Appellant in accordance with the Drug Equivalency Tables and not the comments to

Amendment 609.




                                             IV.

       For the reasons set forth above, the decisions of the Eastern District of

Pennsylvania denying Appellant’s motion in limine, admitting the testimony of Espinosa

without restrictions and sentencing Appellant in reliance on the extrapolated total weight

of the MDMA are affirmed.
