USA v. Lewis

Filing 34

Order on Motion to Exclude

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
MICHAEL JAMES LEWIS,
Defendant.

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3:09-cr-00062 JWS
ORDER AND OPINION
[Re:

Motion at doc. 22]

I. MOTION PRESENTED
At docket 22, the United States moved for an order excluding defendant’s
proposed expert testimony at the sentencing hearing in this case. Defendant Lewis filed
a response at docket 30, and plaintiff’s reply was filed at docket 33. Oral argument
would not assist the court.
II. DISCUSSION
Lewis pled guilty to three counts of possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1). Some of the
methamphetamine was d-methamphetamine, a substance which delivers a powerful
“high.” Some of the methamphetamine was l-methamphetamine, a substance which
does not provide the dramatically altered state of consciousness desired by drug users.
Because those who manufacture illicit methamphetamine are sometimes inept, they
sometimes produce l-methamphetamine when attempting to produce dmethamphetamine.
Lewis wants to provide testimony from Dr. Louis G. Jambor, Scientific Director of
Toxicology for Specialty Laboratories. As Lewis explains it, “In particular, Dr. Jambor

will testify that l-methamphetamine has little or no affect on the central nervous system
and thus does not produce a release of dopamine, serotonin and norepinephrine that
results in the intense “high” or felling [sic] of euphoria that is caused by the use of dmethamphetamine.”1
It is the government’s position that Dr. Jambor’s testimony is not relevant to the
exercise of the court’s sentencing discretion. For purposes of the advisory Sentencing
Guidelines, the government is correct. Lewis concedes “that the 1995 amendment [to
the Guidelines] abolished the distinction between d- and l- methamphetamine. “2 Lewis
contends, however, that the Guideline amendment did not make clear that when
assessing the quantity of actual methamphetamine in a mixture and substance
containing methamphetamine, d- and l- methamphetamine would be treated the same
way. The contention is pure sophistry. There being no difference between the two
types of methamphetamine under the Guidelines, calculating an actual
methamphetamine volume consisting of l-methamphetamine for application of the
Guidelines is correct.
Lewis also argues that the court should consider the difference between the two
types of methamphetamine when considering the factors set out in Section 3553(a) of
Title 18 of the United States Code. However, if, as the court believes the case to be,
the only reason Lewis possessed l-methamphetamine to distribute to others was that
the manufacturing process had been inadvertently botched, there is no logical reason to
consider the difference between the two chemicals and no reason to hear from
Dr. Jambor. If, but only if, Lewis lays a foundation that would make his possession of
and intent to distribute the l-methamphetamine relevant will the court hear from
Dr. Jambor. Laying such a foundation would require credible evidence that Lewis knew
the substance he possessed was l-methamphetamine not d-methamphetamine, that
Lewis had access to a market in which buyers of illegal substances actually wanted to

1

Doc. 30 at p. 2.

2

Id.

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purchase l-methamphetamine rather than d-methamphetamine, and that Lewis intended
to provide the l-methamphetamine desired by that class of buyers.
III. CONCLUSION
For the reasons above, the motion at docket 22 is GRANTED. In the highly
unlikely event that Lewis presents credible evidence which lays the foundation
discussed above, then, notwithstanding that the motion has been granted, Dr. Jambor
will be heard.
DATED at Anchorage, Alaska, this 10th day of November 2009.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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