1 - Voice For The Defense Online

knowledgeable prosecutors immediatelyprior to trial or sentencing will7Similarly, the failure to adequatelyanalyze confiscated drugs has seldombeen encountered as a problem amongreputable laboratories and analysts, hutit is a common fault of local and regionallaboratories where a considerabledegree of incompetence is tolerated.The sentencing guidelines provideequivalencies for certain chemicals designatedas "immediate precursors" tocontrolled suhstances. There are threeparts to this definition, hut the criticalone is that an immediate precursor is"an immediate chemical intermediateused or likely to be used in the mannfacture2"'of a confrolled substance, with"imtnediate" presumably being used inthe normal sense that the conversion ofthis intermediate into the controlled suhstancecan be accomplished in a one stepchenucal process with no other intermediateprocedures required.Immed~ate precursors differ frompharmaceutical controlled substances ina critical way whereas potency or abilityh produce an effect is essentiallyirrelevant to trying or sentenclng forcrimes involving controlled substances,potency or the ability to he convertedinto a usable quantity of a controlledsuhstance is the principal relevant issuewhen considering precursors. A chemicalsuhstance that can't be convertedinto a controlled substance isn't a precursorat all, and one that requires intermediateprocessing steps isn't an inmied~ateprecursor.Consider, for exan~ple, phenylacetone(also called "P2P" or "phenyl-2-propanone"), the most eonnnon chemicalused to produce clandestine methmphetarnine.A chemist can place purephenylacetonc into a flask with scvemlother chemicals, heat them for a fewhours, and crealc racenlic mcthamphetamine,so pure (or nearly pure) phenylacetoneis, by definition, an irnmedmteprecursor of ine?hamphetamine, and it isso defined in the sentencing gnidelines.If, on the other hand, one substitutes adilute solution of phenylacetone inwater for the pure chemical andreproduceseaoh step of the chemicalprocess exactly, no methamphetamine atall wjll he produced because the waterinterferes with the chemical process. Adilute solutian of phenylacetone istherefore not an immediate precursor tomethamphetamitlc.Phenylacetone present in that dilutesolution could be separated and used toprepare the controlled substance, sointent and potential are legifimate issuesfor purposes of trail and sentencing, hutthese require that chemical analysis andappropriate calculations be considered.Table 2 lists the common precursors formethamphetamine and the mixwe ofinethamphetarnine isomers to he expected.The govemmmt has, on several occasions,linked the controlled substanceguideline specifying that "the weight ofa controlled substance set forth in thetable rofers to the entin: weight of themixture or snbstance containing adetectable amount of the controlled snbstance"with very dilute solutions ofunreacted phenylacetone set aside by thechemists at methamphetamine lahoratoriesfor purposes of recovering thepotentially usable phenylacetone forreprocessing. Even though the phenylacetonein such solutions fails the testof being an immediate precursor and theform and substance of the solution clearlyrenders it recognizable as unusable aseither a drug or production chemical, thegovernment has requested and receivedexaggerated and inequitable smtenceson the basis of "'the entire weight of themixture or substance containing adetectable amount of the confrolled snhstance"without giving any considerationto the fact that precursor chemicalsare not controlled substances. Th~smequity is also apparent when one considersthat conversion efficiency -- themunt of drug that can be prodncedfrom a given quantity of precursor -- isbu~lt into the equivalency tables. (Forexample, 1.00 gram of pheny[acetonetheoretically converts to 1.11 grants ofn~ethampheta~mne that would have asentenclng equivalency of 1110 gramsof mmjuana. If, however, one assumcsonly 37.5% efficiency in making theconversion (a reasonable value), then thegram of phenylaoetone produees only0.4 16 gram of methamphetamine havingan equlvelency of 416 grams of mairjuana21,which is identical to that of thephenylacetone used as a starting material.)An interesting composite of fact andconspiracy often arises when immediateprecursors and listed precursor chemicalssuch as ephedrine andphenylaceticacid are included among the items ofseized evidence. Instead of applying thegdeline standards and sentencing onthe basis of the cumulative quantities ofthese substances, the government elicitsexpert testimony from its chemists todetermine the qwltity of cMltmlled suhstanceswhich could have been producedif they had been converted into eontrolledsubstances (often using equipment,techniques, and other chemicals towhich the defendants had no apparentaccess -- or skills to apply them even ifthose materials were available.)Although a conimon practice, it changesthe character of the evaluation of the evidenceh m an ohjeotive computationbased on demonslrable facts to an opinionlimited only by the imagination ofthe witness and the credulity of thecourt.'he Burden of ImmediacyIt is a necessary requirement that thegovernment test each hatch of seizedprecursor chemical to determine itschemical identity, hut to expect eachhatch to be tested to determine whetherit complies with one step convertibilityinto a controlled substance is truly hurdensomeas well as being dangerous.Because most immediate precursorsmust he of reasonably high purity andbecame the techniques of analysis necessaryto prove chen~ical identity alsoproduoe sufficient data to determ~ne thepurityof the chemicals, it would he quitesimple and unqnestionably fair for lbegovernment to fomlnlate a sentence onthe basis of the amount of precursorehen~ical which could he actually heretnevcd by extrachon or distdlationfrom the evidence.JulyIAug~~sl 2000 - Voice 23