United States of America v. Bryant J. King

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2180
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
B RYANT J. K ING ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 01 CR 12—William C. Lee, Judge.
____________
A RGUED D ECEMBER 5, 2003—DECIDED J ANUARY 28, 2004
____________
Before F LAUM , Chief Judge, and M ANION and W ILLIAMS ,
Circuit Judges.
M ANION , Circuit Judge. Bryant J. King was convicted of
distributing more than 50 grams, but less than 500 grams, of
a mixture containing methamphetamine in violation of 21
U.S.C. § 841(a)(1). The district court sentenced King to 262
months’ imprisonment to be followed by five years of
supervised release. On appeal King challenges the district
court’s denial of his request for government funds to retain
a fingerprint expert, the sufficiency of the evidence against
him, and the calculation of his sentence. We affirm.

-- 1 of 11 --

2 No. 03-2180
I.
On January 29, 2001, members of the Fort Wayne, Indiana
Police Department arrested King immediately after he sold
$5,000 worth of methamphetamine to undercover police
detective Steven Espinoza. Espinoza had arranged the sale
with the help of Charles Dominguez, a confidential infor-
mant. Dominguez arranged for the sale to take place at a gas
station, drove Espinoza to the gas station, and was present
during the sale, which took place in the back seat of
Dominguez’s car.
Members of a police surveillance team, who had wit-
nessed the transaction and heard details of the sale through
a listening device, arrested King after he returned to his car.
A search of King and the car revealed $1,000 on his person
and $4,000 on the driver’s side floorboard. The recovered
currency was pre-recorded money Espinoza used to pur-
chase the drugs. In the passenger seat of King’s car when he
was arrested was Aaron Montgomery. Montgomery was
questioned by the police and later released.
After King was arrested, the drugs he sold to Espinoza
were field-tested (the test was positive for methamphet-
amine), photographed, and sealed in an evidence bag.
Neither the drugs nor the bags the drugs were sold in were
fingerprinted. Espinoza transferred the drugs to Scott
Criswell, a detective with the Fort Wayne Police
Department who also served as a member of a Drug
Enforcement Administration (“DEA”) task force. Criswell
then transferred the evidence bag to a drop box where the
bag was retrieved by an evidence technician and placed in
an evidence custody room until Criswell took back the bag
and mailed it to a DEA lab for analysis.
At the lab, Odiest Washington, a DEA forensic chemist,
received the drugs and tested them. Washington accom-

-- 2 of 11 --

No. 03-2180 3
plished this by reducing the drugs to a powder (the drugs
had previously been in chunks) and testing a portion (25
grams) of the powder. Washington’s test confirmed that the
powder was, in fact, a mixture containing methamphet-
amine.
In preparation for trial, King initially pursued a theory
that he had been entrapped by Montgomery and
Dominguez as agents of the government. In order to pursue
this theory, King requested that the court approve the
expenditure of public funds so that King could retain an
audio expert. King asserted that a tape recording of phone
calls between Dominguez and King arranging the sale had
been edited to eliminate Montgomery’s voice from the
conversation. The court approved King’s request.
In a September 2001 status conference, King’s attorney
reported to the court that tests of the tape recording did not
find any indication that a voice had been edited out of the
recording. King’s attorney, however, requested a second
expert be retained to conduct a test of the tape. Over the
government’s objection, the court agreed to a second test.
A week after the request for a second audio expert,
King also requested a fingerprint expert to determine if
Dominguez’s fingerprints would be found on the drugs or
on the bags in which they were sold. The court suggested
that the Fort Wayne Police Department or the Indiana State
Police could conduct the test for free. King rejected this idea.
The court, therefore, took the motion under advisement and
directed King to file a petition setting forth the exact
services and the costs. King never filed this petition.
In February 2002, King’s attorney reported to the court
that the second audio analysis had not detected any doc-
toring of the tape. As a result, in March 2002, the court
denied King’s motion to suppress the tape. Shortly after the

-- 3 of 11 --

4 No. 03-2180
suppression ruling, King filed a pro se motion alleging inef-
fective assistance of counsel. The court treated this motion
as a motion for new counsel and appointed new counsel for
King.
At about this time, King’s defense theory changed. Rather
than assert that, although he sold the drugs to Espinoza, he
was the victim of an entrapment involving Dominguez and
Montgomery, King’s new theory (and the theory he pre-
sented at trial) was that Montgomery, not he, was the
person who sold the drugs to Espinoza. To help corroborate
this theory, King’s new attorney adopted the outstanding
request for a fingerprint expert. This time, however, the
purpose of the test was to show that King’s fingerprints
were not on the drugs. The court denied this request. The
court pointed out, however, that King could argue to the
jury that no fingerprint test was ever conducted and the
implications of the absence of such a test.
After a two-day trial, a jury found King guilty of distribut-
ing more than 50 grams, but less than 500 grams, of a
mixture containing methamphetamine. At sentencing, the
court first determined that King’s initial sentence level
under federal sentencing guidelines was 26, based on the
weight of the methamphetamine being approximately 142
grams. The court then increased the sentence level by two
for obstruction of justice based on what the court considered
King’s perjurious testimony at trial that he was not
the person who purchased the drugs from Espinoza, and for
pursuing a “wholly spurious” issue related to the tape
which resulted in an unnecessary expenditure of public
funds. Finally, the court set King’s sentence level at 34
because of a previous burglary conviction. The judge sen-
tenced King to 262 months’ imprisonment, the lowest end
of the sentencing range, and five years of supervised release.
This appeal followed.

-- 4 of 11 --

No. 03-2180 5
II.
King raises three issues on appeal. First, King argues
that the district court abused its discretion when it denied
his request for a fingerprint expert. Second, King claims that
the government did not present sufficient evidence to
support his conviction. Specifically, King argues that the
evidence was insufficient due to a break in the chain of
custody, discrepancies in the weight of the drug evidence,
and that DEA chemist Washington’s testimony was vague
and should not have been relied upon by the jury. Finally,
King argues that the district court erred in calculating his
sentence by improperly determining the amount of drugs
involved and by enhancing his sentence because of obstruc-
tion of justice.
A. Retention of a Fingerprint Expert
King first challenges the district court’s decision to deny
his request to hire an expert to conduct a fingerprint test
on the drugs. King argues that it was Montgomery who sold
the drugs, and a fingerprint test of the drugs would corrob-
orate this theory of defense if his prints were not on the
drug packages. The government responds that King’s
request was frivolous because, given the overwhelming au-
dio and eyewitness evidence, a fingerprint analyst would
not have contributed to a plausible defense.
Title 18 of the United States Code, section 3006A(e)(1)
governs the funding by the government of expert services
for indigent criminal defendants.
Counsel for a person who is financially unable to obtain
investigative, expert, or other services necessary for
adequate representation may request them in an ex
parte application. Upon finding, after appropriate

-- 5 of 11 --

6 No. 03-2180
inquiry in an ex parte proceeding, that the services are
necessary and that the person is financially unable to
obtain them, the court, or the United States magistrate
judge if the services are required in connection with a
matter over which he has jurisdiction, shall authorize
counsel to obtain the services.
18 U.S.C. § 3006A(e)(1). The government does not challenge
King’s assertion that he is indigent and thus unable to
afford expert services.
This court reviews a decision to grant or deny a request
for expert services for an abuse of discretion. United States
v. Cravens, 275 F.3d 637, 639 (7th Cir. 2001). The test for
whether expert services should be provided is “whether a
reasonable attorney would engage such services for a client
having the independent financial means to pay for them.”
United States v. Alden, 767 F.2d 314, 318 (7th Cir. 1984). This
court has recognized, however, that this standard, if applied
too literally, could result in the government being forced to
finance a “fishing expedition.” Id. As a result, this court has
held that “it is appropriate for the district court to satisfy
itself that a defendant may have a plausible defense before
granting the defendant’s section 3006A(e) motion.” Id.,
quoted in Cravens, 275 F.3d at 639. Other circuits have also
adopted this “plausible defense” requirement. See United
States v. Gilmore, 282 F.3d 398, 406 (6th Cir. 2002); United
States v. Roman, 121 F.3d 136, 143 (3d Cir. 1997).
The district court did not abuse its discretion in denying
King’s request for a fingerprint analysis. King did not have
a plausible defense that would have made a fingerprint
analysis necessary. The evidence that King sold Espinoza
methamphetamine is overwhelming. Espinoza personally
purchased the drugs from King. King’s approach to
Dominguez’s car and his return to his car after the sale were

-- 6 of 11 --

No. 03-2180 7
observed by a police surveillance team that also overheard
the details of the sale through a listening device. King was
arrested immediately after the sale with the proceeds (pre-
recorded money) of the sale on his person and at his feet.
Neither King’s brief nor the record calls into question
Espinoza or the surveillance team’s version of events.
Furthermore, audio tapes of King arranging the drug sale
were also made. The district court did not abuse its discre-
tion when it refused to require the government to finance a
fingerprint expert, particularly after the government had
already financed two separate expert analyses of the audio
tapes to bolster an earlier theory that King had sold the
drugs but had been entrapped. Also, King’s attorney
rejected the court’s initial suggestion that the police conduct
a fingerprint analysis for free. We agree that the test would
not have contributed to a plausible defense. King’s request
appears to have been the classic fishing expedition and the
government need not have financed it.
B. The Sufficiency of the Evidence
King next challenges the sufficiency of the evidence pre-
sented by the government for his conviction. King makes
three specific challenges to the evidence. First, King argues
that there was a break in the chain of custody of the drugs.
Second, King argues that Washington’s testimony concern-
ing the testing of the drugs was vague and should not have
been relied upon. Third, King seizes on what he suggests
are material discrepancies in the weight of the drugs
weighed by Espinoza in Fort Wayne and the amount of
drugs weighed by Washington at the DEA labs.
A defendant challenging the sufficiency of evidence “faces
a ‘nearly insurmountable hurdle.’ ” United States v. Hickok,
77 F.3d 992, 1002 (7th Cir. 1996) (quoting United States v.

-- 7 of 11 --

8 No. 03-2180
Teague, 956 F.2d 1427, 1433 (7th Cir. 1992)). Evidence of a
conviction is viewed in the light most favorable to the
government and this court will overturn a conviction
“ ‘[o]nly when the record contains no evidence, regardless
of how it is weighed, from which the jury could find guilt
beyond a reasonable doubt.’ ” Id. King was found guilty of
distributing more than 50 grams, but less than 500 grams, of
a mixture or substance containing a detectable amount of
methamphetamine in violation of 21 U.S.C. § 841(a)(1). The
three elements the government had to prove beyond a
reasonable doubt were: (1) that the defendant distributed
methamphetamine; (2) that the defendant did so knowingly
or intentionally; and (3) that the defendant knew that the
substance was a controlled substance.
There was sufficient evidence to support King’s con-
viction. As recounted above, the government provided
testimony that King sold drugs to an undercover police
officer. This sale was overheard by police officers who
observed King approach and exit the car where the sale took
place. King was arrested minutes later with the proceeds of
the sale on his person and at his feet. With respect to King’s
argument concerning the chain of custody, the testimony of
Espinoza, Criswell and Washington establishes an unbroken
chain of custody. Without any evidence of tampering or
other interference, there is a presumption of regularity when
evidence is within official custody. See United States v.
Boykins, 9 F.3d 1278, 1285 (7th Cir. 1993). Even assuming
there was some sort of break in the chain, such a break
would not go to the admissibility of the drugs as evidence,
only to the weight of the evidence. Id.
King’s argument concerning the calculation of the amount
of the drugs is also unavailing. The district court carefully
reviewed this argument in its sentencing memorandum and
order. King claims that the drugs were initially weighed by

-- 8 of 11 --

No. 03-2180 9
Espinoza to be 108.4 grams, while Washington later
weighed the drugs to be 142.9 grams. As the district court
noted in some detail, this argument has no merit. The issue
was not only raised belatedly at sentencing, but also had
little factual foundation. King’s claim is not supported by
the record. The record, including Espinoza’s testimony,
Criswell’s DEA “Report of Investigation,” and a Fort Wayne
Police Department “Continuity Record” dated the same day
as the arrest, make it clear that the drugs purchased by
Espinoza weighed approximately 145.7 grams. There is a
reference to a weight of 108 grams on the Continuity
Record. The Continuity Record listed the weight of one bag
of several rocks of methamphetamine as 108 grams. How-
ever, the Continuity Record also listed a second bag contain-
ing a single rock of methamphetamine and having a weight
of 37.4 for a total of 145.8 grams of methamphetamine.
Finally, we do not believe Washington’s testimony was
vague. King argues that Washington testified that he took 25
grams of the methamphetamine and tested that amount.
King argues that because Washington did not take a sample
from each of the rocks of methamphetamine he received, the
sample he did take cannot be considered representative.
King’s recitation of Washington’s testimony is incorrect.
Washington testified that the contents of the evidence
bag were weighed and then ground to a powder. Only
after the contents were a powder (and thus uniform) did
Washington remove 25 grams for analysis. These 25 grams
were necessarily indistinguishable from, and thus rep-
resentative of, the remainder of the powder. Washington’s
testimony was not vague. There was sufficient evidence for
King’s conviction.

-- 9 of 11 --

10 No. 03-2180
C. Sentencing
Finally King challenges his sentence. First, King argues
that the district court improperly considered the weight of
the drugs to be approximately 142 grams. The district court
used this weight to arrive at a base sentencing level of
26. See U.S. Sentencing Guidelines Manual § 2D1.1(7).
King argues that the weight of the drugs should be 25 grams
because, as noted, the sample analyzed by Washington was
not representative. His sentencing level, King argues,
should, therefore, be 20. Id. at § 2D1.1(10). King also chal-
lenges the district court’s two-point enhancement for
obstruction of justice. Id. at § 3C1.1. The district court
suggested that it did “not recall ever hearing a bigger
prevaricator.” King argues that he should not have received
the enhancement for testimony on his own behalf.
There is no need, however, to consider King’s arguments
because King is a career offender and does not challenge his
career offender status. As a result of King’s career offender
status his offense level is 34. If the offense level mandated
by the career offender guideline is greater than the offense
level otherwise applicable under the guidelines (as it is
here), the career offender offense level applies. U.S. Sentenc-
ing Guidelines Manual § 4B1.1(b) (“[I]f the offense level for
a career offender from the table in this subsection is greater
than the offense level otherwise applicable, the offense level
from the table in this subsection shall apply.”). While his
sentencing arguments have little merit, even if they had any
substance, they would have no impact on King’s sentence.
His career offender status dictates the term of his sentence.
United States v. McNeil, 90 F.3d 298, 300 (8th Cir. 1996). The
sentencing range for an offense level of 34 and a criminal
history category of VI is 262-327 months. King was sen-
tenced to 262 months’ imprisonment, the lowest sentence
possible absent any downward departures.

-- 10 of 11 --

No. 03-2180 11
III.
For the foregoing reasons, the decisions of the district
court are A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-28-04

-- 11 of 11 --