Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Daniel Vernon Hardin Jr. pleaded guilty to a one-count indictment for the attempt to manufacture an unspecified amount of methamphetamine and appeals his sentence on the grounds that the district court erred: 1. in denying Hardin’s request for appointment, under the Criminal Justice Act, 18 U.S.C. �3006A(e), of an expert to testify at sentencing, and 2. in including “bones,” a byproduct of methamphetamine production, in the drug quantity attributable to Hardin. HOLDING:Vacated and remanded. Hardin argues that the court’s review should be de novo, pointing to language from Unites States v. Patterson, 724 F.2d 1128 (5th Cir. 1984). The court rejects Hardin’s argument that de novo review applies to the denial of a �3006A(e) motion. It is undisputed that Hardin was indigent and that he moved properly under �3006A(e)(1) for expert appointment. Thus, the district court should have granted the appointment after appropriate inquiry in an ex parte proceeding if Hardin demonstrated the expert was necessary for an adequate representation. District courts must grant the defendant the assistance of an independent expert under �3006A when necessary to respond to the government’s case against him, where the government’s case rests heavily on a theory most competently addressed by expert testimony. The primary issue before the district court at sentencing, raised by Hardin’s CJA motion and his objections to the PSR, was the enhancement of his sentence on the basis of the inclusion of bones in the attributable drug quantity. In 1993, the guidelines were amended to clarify that a “mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used.” U.S.S.G. �2D1.1., comment n.1. Since the 1993 amendment, this circuit has not resolved in a published opinion whether bones satisfy the guidelines’ definition of a mixture or substance, such that they should be included in the calculation of methamphetamine quantity. The language of the statute requires that the expert services not be authorized in the absence of an appropriate inquiry in an ex parte proceeding and two determinations by the court: that the services are necessary for an adequate defense and that the defendant is financially unable to obtain those necessary services. See 18 U.S.C. � 3006A(e)(1). On this record, the district court should have permitted an ex parte proceeding on the motion for appointment because the indigent defendant presented an ex parte application under �3006A(e)(1) specifically identifying as the disputed issue whether bones are “materials that must be separated from the controlled substance” prior to use or whether “such mixture cannot readily be separated from the mixture or substance.” The resolution of this issue turns on questions of both fact and law, the nature of bones and the interpretation of �2D1.1, and is material because Hardin’s applicable sentence differs substantially dependant on the issue’s resolution. On this record, and after an ex parte proceeding on the motion, the district court should have granted Mr. Courtney’s appointment as necessary to Hardin’s adequate defense, under �3006A(e)(1), to inform the description and characterization of bones. OPINION:DeMoss, J.; Jones, DeMoss and Owen, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.