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United States v. Adams

United States District Court, D. Kansas

February 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRIE ADAMS 06 and CRAIG BROOMBAUGH 10, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This matter comes before the court on defendant Michelle Reulet's Motion to Exclude or Limit the Government Expert Testimony and Evidence (Doc. 905). The government responded (Doc. 909). Ms. Reulet has since pleaded guilty and is no longer pursuing this issue. But her two co-defendants, Terrie Adams and Craig Broombaugh, have joined her motion (Doc. 930) and those two defendants have standing to pursue Ms. Reulet's Motion. For reasons explained below, the court denies defendants' Motion.

         I. Background

         Defendants' Motion asks the court to exclude or limit testimony of two of the government's expert witness: Dr. Daniel Willenbring and Dr. Jordan Trecki. The court already has overruled a challenge to Dr. Willenbring's testimony in its earlier Rule 702 Order addressing the government's experts. Doc. 546 at 22-23. And the court did not find anything new in defendants' current motion to warrant “a second swing at excluding this witness's opinions.” Doc. 941 at 3. But, for Dr. Trecki, the court determined that defendants' Motion previewed issues implicating the court's gatekeeping obligations. Specifically, “Chief Judge Armijo's order in United States v. Stockton[1] raise[d] meaningful concerns about several aspects of Dr. Trecki's opinions.” Id. at 2. And, the Stockton Order was not available when the court issued its earlier Rule 702 Order. So, consistent with its Rule 702 obligations, the court directed the government to have Dr. Trecki appear for a pretrial evidentiary hearing where: (a) he could address whether any of the concerns raised in the Stockton order apply here; and (b) submit to adverse questioning by defense counsel. The court limited defendants' questioning strictly to Rule 702's foundational requirements. The court conducted this hearing on February 3, 2017.

         At the hearing, Dr. Trecki testified about the methodology he had used to render opinions as a pharmacologist for the DEA. At trial, the government will rely on Dr. Trecki's testimony, in part, to prove that the substances listed in the Indictment are controlled substance analogues (“CSA”). A CSA is a substance:

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

21 U.S.C. § 802(32)(A). Specifically, Dr. Trecki will testify about prong ii, the “effects” provision. This prong turns on any stimulant, depressant, or hallucinogenic effect of a substance on the central nervous system and whether any such effect is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect of a controlled substance. Dr. Trecki's testimony at the hearing focused on the methodology he used to form his opinions about the substances identified in the Indictment in this case.

         Dr. Trecki testified that when the DEA identifies a new substance needing to be tested, his first step is collecting research and literature about the substance. Dr. Trecki searches many sources, including the internet, existing patents about the substance, published and unpublished articles about the substance, and resources for the substance available at the National Institute on Drug Abuse.

         Next, Dr. Trecki studies the Structure-Activity-Relationship (SAR) of the substance. This test studies the substance's molecular structure. Dr. Trecki testified that the SAR is a predictive test. In other words, after studying the SAR tests of the substance and comparing it to the SAR of a scheduled substance, he can opine what effect-stimulant, depressant, or hallucinogenic-the substance likely will have. Dr. Trecki testified that the SAR studies have been found reliable and that they are widely accepted in the pharmacological community as a means to predict a substance's effect.

         The next step of Dr. Trecki's methodology uses in vitro binding tests and in vitro functional tests on the substance. The phrase “in vitro, ” Latin for “in glass, ” means that these tests are conducted in a petri dish. The in vitro binding tests determine the affinity or attraction of the substance to bind to particular brain receptors. The in vitro functional tests determine, on a molecular level, whether the substance will affect the brain or block an effect on the brain. In scientific terms, this test determines whether the substance acts as an agonist or an antagonist. After in vitro testing, Dr. Tecki testified that he can opine what effect- stimulant, depressant, or hallucinogenic-the substance likely will have. Dr. Trecki testified that this type of testing is widely accepted in the pharmacological community for predicting a substance's effect.

         The next step of Dr. Trecki's methodology uses in vivo, or “in life” testing. Dr. Trecki testified that these tests are conducted on rodents. He testified that he studies two different kinds of tests-“in vivo locomotor” tests and “in vivo drug discrimination” tests. Locomotor tests use infrared beams to measure whether a substance has had a stimulant or depressant effect on the rodents. Drug discrimination tests involve giving rodents the substance and determining if rodents can differentiate between it and a controlled substance. Dr. Trecki testified that in vivo testing permits him to opine about the effect a substance will have. Dr. Trecki testified that this testing has been found reliable and is widely accepted in the pharmacological community for determining a substance's effect.

         Finally, Dr. Trecki's uses case reports to compare the effect of substances to controlled substances. Dr. Trecki testified that this testing has been found reliable and is widely accepted in the ...


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