Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-2003

USA v. Chorin
Precedential or Non-Precedential: Precedential

Docket 01-3544




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"USA v. Chorin" (2003). 2003 Decisions. Paper 689.
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                PRECEDENTIAL

                        Filed March 11, 2003

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


       Nos. 01-3544/3574


   UNITED STATES OF AMERICA
                v.
         DAVID CHORIN
             a/k/a
           CHARLIE
          David Chorin,
                  Appellant in No. 01-3544


   UNITED STATES OF AMERICA
                v.
     KEVIN ROBERT CADEN
            a/k/a
        THOMAS KIMBLE
       Kevin Robert Caden,
                   Appellant in No. 01-3574
                                 2




        Appeal from the United States District Court
           for the Eastern District of Pennsylvania
       (D.C. Criminal Action Nos. 98-cr-00450-1 & 2)
         District Judge: Honorable J. Curtis Joyner

                 Argued on December 2, 2002
            Before: ROTH, SMITH, Circuit Judges
                and CUDAHY*, Circuit Judge

                    (Filed: March 11, 2003)

                         Patrick L. Meehan
                         United States Attorney
                         Eastern District of Pennsylvania
                         Laurie Magin
                         Deputy United States Attorney
                         for Policy and Appeals
                         Robert A. Zaumer
                         Assistant United States Attorney
                         Senior Appellate Counsel
                         Dina A. Keever
                         Michael L. Levy (Argued)
                         Office of the United States Attorney
                         615 Chestnut Street
                         Philadelphia, PA 19106
                           Attorneys for Appellee
                         Arthur R. Shuman, Esquire (Argued)
                         8312 Hull Drive
                         Wyndmoor, PA 19038-7514




*The Honorable Richard D. Cudahy, Circuit Court Judge for the Seventh
Circuit, sitting by designation.
                             3


                       Jose L. Ongay, Esquire (Argued)
                       521 South Second Street
                       Philadelphia, PA 19147
                        Attorneys for Appellants


                 OPINION OF THE COURT

ROTH, Circuit Judge:
   Defendants Kevin Caden and David Chorin appeal the
judgments of sentence imposed in the Eastern District of
Pennsylvania on September 13, 2001. The District Court
imposed consecutive sentences on defendants’ convictions
of possession of a precursor and attempt to manufacture a
controlled substance. Both defendants argue that the
imposition of consecutive sentences, which resulted in an
aggregate sentence that exceeds the statutory maximum for
either individual count, violates Apprendi v. New Jersey,

(2000). Caden also argues that, even if the
imposition of consecutive sentences did not violate
Apprendi, it was not called for in this case because the
District Court’s determination of the quantity of drugs
involved was erroneous. Finally, Chorin argues that the
imposition of consecutive sentences violates the Double
Jeopardy Clause, that the government failed to turn over
exculpatory evidence in violation of Brady v. Maryland, 

(1963), that he is entitled to a new trial based on
newly discovered evidence, that 21 U.S.C. § 841 is facially
unconstitutional, and that the District Court abused its
discretion in denying his motion for a new trial based on
ineffective assistance of counsel. For the reasons stated
below, we will affirm.

            I.   Facts and Procedural History
  On November 17, 1999, a second superseding indictment
charged Kevin Caden and David Chorin with attempt to
manufacture more than one kilogram of methamphetamine
in August 1998 in violation of 21 U.S.C. § 846 (Count One),
and possession of monomethylamine between March 1997
and October 1998, knowing, or having reasonable cause to
                                   4


believe, that it would be used to manufacture
methamphetamine in violation of 21 U.S.C. § 841(d)(2)
(Count Three). The second superseding indictment also
charged Caden with possession of 40 grams or more of
phenyl-2-propanone (“P2P”) in August 1998 in violation of
21 U.S.C. § 841(a)(1) (Count Two).1
  At the trial, which commenced on December 1, 1999,
agents of the Drug Enforcement Administration (“DEA”)
testified that they executed a search warrant at 258 East
Hortter Street in Germantown on August 12, 1998. Caden,
the tenant of the property, was present during the search.
The agents discovered a gas cylinder with methylamine gas,
a precursor to methamphetamine. They also found
methylamine in liquid form, P2P, aluminum foil, “cooking”
pots, ethanol, cutting agents, distilled water, a pH meter,
mercuric chloride, baby bottle liners, a recipe of how to
manufacture methamphetamine, and methamphetamine.
An expert DEA chemist testified that this constituted a
methamphetamine laboratory.
  The agents also testified that in mid-October 1998, they
searched 5803 Woodland Avenue in Philadelphia. They
encountered Chorin and evidence that Chorin lived at 5803
Woodland Avenue. The DEA agents also found a tank of
methylamine gas, dry ice, mercuric chloride, and an Ohaus
scale. At trial, the DEA chemist testified that these items,
except mercuric chloride,2 are used to convert methylamine
gas to methylamine liquid, which is used to manufacture
methamphetamine. Based on the serial numbers found on
the gas cylinders recovered in Philadelphia and
Germantown, DEA agents searched Scully Welding and
Supply. This search revealed that the cylinders from both
locations were sold to a Thomas Kimble, which is the same
name Caden used to rent the Germantown property.
  At trial, Manfred DeRewal and Edmund Gifford, two
inmates who had conversations with Chorin while

1. Cadin and Chorin originally were indicted separately on September 9,
1998. A superseding indictment charging both men was issued on
November 4, 1998.
2. The DEA chemist testified that mercuric chloride is used later in the
process of manufacturing methamphetamine.
                              5


incarcerated, also testified. DeRewal testified that, while he
and Chorin were incarcerated at Passaic County Jail,
Chorin told DeRewal that he had been converting
methylamine gas into methylamine liquid in Philadelphia
and that he had manufactured methamphetamine in
Germantown. Likewise, Gifford testified that, while he and
Chorin were incarcerated at Philadelphia County Prison,
Chorin told Gifford that he and “a partner” rented cylinders
from Scully Supply to manufacture methylamine liquid.
Chorin told Gifford that he had sold ten gallons of
methylamine liquid in Philadelphia the night before his
arrest for $30,000, and that he had manufactured
methamphetamine with another associate in Germantown.
  The jury convicted both Caden and Chorin on all counts.
Since the trial occurred before the Supreme Court’s
decision in Apprendi, the jury did not determine the
amount of controlled substances involved. On the contrary,
the District Court charged the jury that “[i]t is not
necessary for the Government to prove that a specific
amount or quantity of the controlled substance or listed
chemical was possessed.”
   Caden and Chorin were sentenced on September 13,
2001, after Apprendi was decided. At a sentencing hearing
to determine the quantity of drugs involved, DEA chemist
Charles Cusumano testified that, based upon the amount
of methylamine found at the two locations, the laboratories
were capable of producing about 73.2 kilograms of pure
methamphetamine. On cross-examination, Cusumano
admitted that it was possible that, during the cooling
process required to convert methylamine gas into
methylamine liquid, some methylamine could evaporate,
reducing the final amount of methylamine liquid. The
District Court credited Cusumano’s testimony and found
that the amount of methamphetamine that could be
produced from the methylamine was 73.2 kilograms. Based
on this quantity, the guidelines called for a sentence of 360
months for Caden and 324 months for Chorin on Count
One. In order to avoid violating Apprendi, the District Court
sentenced both Caden and Chorin to 240 months on Count
One, which is the statutory maximum for manufacture of
methamphetamine regardless of the quantity. See 21 U.S.C.
§ 841(c).
                              6


   The District Court then imposed consecutive sentences
pursuant to United States Sentencing Guideline (“U.S.S.G.”)
§ 5G1.2(d). Caden received a sentence of 120 months on
Count Two and Count Three. The sentences on these two
counts were to run consecutive to the sentence on Count
One and concurrent with each other. Chorin received a
sentence of 84 months on Count Three to run consecutive
to the sentence imposed on Count One.
   In between the verdict and sentencing, Chorin filed a
motion claiming that the government violated Brady by not
disclosing allegedly exculpatory evidence provided by
Andrew Sidebotham, a government cooperator. The District
Court denied the motion. Eight months after the verdict but
before sentencing, Chorin, who had obtained new counsel
after the verdict, also moved for a new trial based upon
ineffective assistance of trial counsel. The District Court
denied this motion. Following their sentence, Caden and
Chorin filed timely appeals.

         II. Jurisdiction and Standard of Review
   The District Court had jurisdiction over this criminal case
involving offenses against the laws of the United States
pursuant to 18 U.S.C. § 3231. This Court has jurisdiction
pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s legal conclusions and apply a
clearly erroneous standard to its factual findings. See
Cradle v. United States, 

, 538 (3d Cir. 2002)
(per curiam). The scope of review over the District Court’s
denial of Chorin’s motion for a new trial is abuse of
discretion. See United States v. Iannelli, 

,
1290 (3d Cir. 1976).

                       III. Discussion
1.   Apprendi and Drug Quantity Calculation Claims
  The District Court did not violate Apprendi by sentencing
Caden and Chorin to consecutive sentences on Count One
and Count Three pursuant to U.S.S.G. § 5G1.2(d). Under
18 U.S.C. § 3584(a), if multiple terms of imprisonment are
imposed on a defendant at the same time, the terms may
                            7


run concurrently or consecutively. In determining whether
to run sentences consecutively or concurrently, a District
Court should consult the Sentencing Guidelines. See 28
U.S.C. § 994(a)(1)(D). The Sentencing Guidelines provide
that:
    If the sentence imposed on the count carrying the
    highest statutory maximum is less than the total
    punishment, then the sentence imposed on one or
    more of the other counts shall run consecutively, but
    only to the extent necessary to produce a combined
    sentence equal to the total punishment. In all other
    respects, sentences on all counts shall run
    concurrently, except to the extent otherwise required
    by law.
U.S.S.G. § 5G1.2(d). The “total punishment” is determined
by the adjusted combined offense level. See U.S.S.G.
§ 5G1.2 cmt. In this case, the offense level for Count One
called for a sentence of 360 months for Caden and 324
months for Chorin. In order to avoid violating Apprendi by
exceeding the statutory maximum of 20 years under 21
U.S.C. § 841 for manufacture of methamphetamine without
reference to quantity while complying with U.S.S.G.
§ 5G1.2(d), the District Court sentenced both Caden and
Chorin to 240 months on Count One and consecutive
sentences of 120 months and 84 months respectively on
Count Three.
  Caden and Chorin argue that the resulting aggregate
consecutive sentences of 360 months for Caden and 324
months for Chorin violate Apprendi because both exceed
the 20 year statutory maximum authorized by Count One.
Under Apprendi, any fact, other than the fact of a prior
conviction, that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt. 

. Apprendi addresses the unconstitutional practice of
a sentencing judge imposing a sentence that exceeds the
statutory maximum sentence authorized by the jury based
on facts that were not submitted to a jury and proved
beyond a reasonable doubt. 

. It does
not address the sentencing procedure used pursuant to the
Sentencing Guidelines to reach a sentence, provided that
                             8


the resulting sentence does not exceed the statutory
maximum sentence authorized by the jury verdict. See
United States v. DeSumma, 

, 181 (3d Cir.
2001), cert. denied, 

(2002) (holding that the
imposition of a two level obstruction of justice enhancement
does not implicate Apprendi, so long as the resulting
sentence is below the statutory maximum). Indeed, there is
“no constitutionally cognizable right to concurrent, rather
than consecutive, sentences.” United States v. White, 

, 135 (2d Cir. 2001), and the Supreme Court has
recognized that there is a presumption that, when Congress
creates two distinct offenses, it intends to permit
cumulative sentences. See Garrett v. United States, 

, 793 (1985).
   Therefore, Apprendi is not implicated by the District
Court’s imposition of consecutive sentences pursuant to
U.S.S.G. § 5G1.2(d) on Count One and Count Three
because these sentences do not exceed the statutory
maximum authorized by the jury verdict of guilty on Count
One, Count Two, and Count Three. Caden and Chorin are
comparing apples to oranges by comparing their aggregate
consecutive sentences to the statutory maximum
authorized for individual counts. The Apprendi decision
itself suggests that the issue of consecutive sentencing is
irrelevant to the constitutional determination of whether a
sentencing court has exceeded the statutory maximum for
the particular count in question. See 

.
   Apprendi pled guilty to two counts (Count 3 and Count
18) of second-degree possession of a firearm for an
unlawful purpose in violation of N.J. Stat. Ann. § 2C:39-
4(a), and one count (Count 22) of the third-degree offense
of unlawful possession of an antipersonnel bomb in
violation of N.J. Stat. Ann. § 2C:39-3a. The prosecutor
dismissed the other 18 counts. See 

The
statutory maximum sentence for Count 18 was 10 years
under New Jersey law. However, applying a “hate crime”
enhancement, which permitted a trial judge to apply an
extended term for second-degree offenses of up to 20 years
if the judge finds by a preponderance of the evidence that
the crime was a hate crime, the trial judge sentenced
                              9


Apprendi to a 12 year term of imprisonment on Count 18
and shorter concurrent sentences on the other two counts.
See 

The Supreme Court held that this
sentencing was unconstitutional because a fact, namely
Apprendi’s racial motivation, which increased the penalty
for Count 18 beyond the prescribed statutory maximum,
had not been submitted to a jury and proved beyond a
reasonable doubt. 

.
  In rejecting the government’s argument that there was no
constitutional violation because the trial court could have
achieved the same result by sentencing Apprendi to
consecutive sentences, the Supreme Court held:
    The constitutional question, however, is whether the
    12-year sentence imposed on count 18 was
    permissible, given that it was above the 10-year
    maximum for the offense charged in that count. . . .
    The sentences on counts 3 and 22 have no more
    relevance to our disposition than the dismissal of the
    remaining 18 counts.

. Thus, the Supreme Court’s
concern in Apprendi is with whether the sentencing court
exceeds the statutory maximum sentence authorized for a
particular count; it ignores the effect of consecutive
sentencing. As the two other Courts of Appeals that have
faced this issue have concluded based on Apprendi, “[t]he
district court’s use of section 5G1.2(d) did not result in a
sentence on any one count above the maximum available
on that count . . . , and so did not violate Apprendi. We
therefore find no error in the district court’s application of
section 5G1.2(d).” 

; see also United
States v. McWaine, 

, 275-76 (5th Cir.), cert.
denied, 

(2002).
  Caden argues that, even if the District Court did not
violate Apprendi, its determination that the amount of
controlled substance involved placed Caden at offense level
38 is clearly erroneous, and thus its determination that the
20 year sentence on Count One was less than the total
punishment also was erroneous. Under U.S.S.G. § 2D1.1,
when no controlled substances are seized, the District
Court is to approximate the quantity of controlled
                             10


substance based on, inter alia, “the size or capability of any
laboratory involved.” 

the testimony of DEA
Chemist Cusumano, who testified that the amount of
methylamine found at the two labs would produce 73.2
kilograms of pure methamphetamine, the District Court
found that Caden’s Offense Level was 38. Caden presented
no evidence to contradict Cusumano’s findings. Rather,
Caden argues that the actual amount involved was lower
than 73.2 kilograms because he could have sold some of
the methylamine and Cusumano admitted that some
methylamine gas could have evaporated during the cooling
process. However, the District Court’s determination was
not clearly erroneous because only 3 kilograms of actual
methamphetamine are required to place Caden at base
offense level 38, see U.S.S.G. § 2D1.1(c), and Caden
produces nothing to suggest that 70.2 kilograms would be
lost due to either factor.
  Caden also argues that Cusumano improperly based his
conclusions on the amount of methylamine found because
there was an insufficient amount of P2P, another precursor,
to produce 73.2 kilograms of methamphetamine. However,
as other Courts of Appeals have held, a District Court is
not limited to the precursor in the smallest amount. See
United States v. Smith, 

, 931 (11th Cir. 2001),
cert. denied, 

(2002); United States v.
Anderson, 

, 429 n. 5 (8th Cir.), cert. denied,

(2001); United States v. Lillard, 

, 504 (9th Cir. 1991). Rather, a District Court may
estimate the amount of controlled substance that a
defendant could manufacture from the precursor he
possessed if he combined that precursor with the
proportionate amount of missing ingredients. See 

; United States v. Becker, 

,
1234-35 (10th Cir. 2000), cert. denied, 

(2001); United States v. Smallwood, 

, 1238
(5th Cir.), cert. denied, 

(1991).
2. Double Jeopardy Claim
  We conclude that sentencing Chorin to consecutive
sentences based on his possession of a precursor and
attempt to manufacture a controlled substance did not
violate the Double Jeopardy Clause because Chorin was
                                    11


involved in more than one criminal undertaking. The
Double Jeopardy Clause of the Fifth Amendment provides
that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V.
Multiple punishment for the same offense at a single trial
is forbidden by the Double Jeopardy Clause. See North
Carolina v. Pearce, 

, 717 (1969), overruled on
other grounds Alabama v. Smith, 

(1989).3
  The “Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment
than the legislature intended.” Missouri v. Hunter, 

, 366 (1983). “Thus, the question of what punishments
are constitutionally permissible is not different from the
question of what punishments the Legislative Branch
intended to be imposed. Where congress intended . . . to
impose multiple punishments, imposition of such sentences
does not violate the Constitution.” Albernaz v. United
States, 

, 344 (1981).
   When legislative intent is unclear, courts apply the test
enunciated in Blockburger v. United States, 

,
304 (1932) to construe the statutes. See 

; United States v. Bishop, 

, 573 (3d Cir.),
cert. denied, 

(1995). Blockburger states that,
“where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to

3. Chorin’s citation to United States v. Busic, 

(3d Cir. 1978)
is misplaced because the holding in Busic that sentencing a defendant
to consecutive sentences under 18 U.S.C. § 111 for assault with a
dangerous weapon and under 18 U.S.C. § 924(c)(1) for use of a firearm
to commit a felony violates the Double Jeopardy Clause where the
dangerous weapon is a firearm and the felony is an assault is no longer
good law. On rehearing this Court vacated its double jeopardy ruling. See

, aff’d in part, rev’d in part, 

(1980). While we reached the same result on different grounds, namely
that Congress did not intend to enhance a sentence under Section 924(c)
where the predicate felony statute contains its own enhancement
provision, and the Supreme Court affirmed this holding, Congress
repudiated this result by amending Section 924(c) to make clear that the
sentencing enhancement applies “irrespective of whether the
Government had actually sought an enhancement under the predicate
statute.” See United States v. Gonzales, 

, 10 (1997).
                             12


determine whether there are two offenses or only one is
whether each provision requires proof of an additional fact
which the other does 

. Under the
Blockburger test, a court looks to the statutory elements of
the crime charged to determine if there is any overlap. As
the Supreme Court states in Iannelli v. United States:
    The test articulated in Blockburger v. United States,
    

(1932), serves [the] function of identifying
    congressional intent to impose separate sanctions for
    multiple offenses arising in the course of a single act or
    transaction. . . . [T]he Court’s application of the test
    focuses on the statutory elements of the offense. If
    each requires proof of a fact that the other does not,
    the Blockburger test is satisfied, notwithstanding a
    substantial overlap in the proof offered to establish the
    crimes.

, 787 n. 17 (1975).
  Imposing multiple punishments for possession of a
precursor and attempting to manufacture a controlled
substance comes close to constituting a double jeopardy
violation. Indeed, two other Courts of Appeals have held
that imposing multiple punishments for possession of a
precursor and attempting to manufacture a controlled
substance violates the Double Jeopardy Clause. See United
States v. Forester, 

, 860-61 (5th Cir. 1988);
United States v. Wilson, 

(9th Cir. 1986). The
Court of Appeals in Forester explains that the:
    two counts against [defendant] involve successive steps
    in one criminal undertaking, the manufacture of
    methamphetamine. And although it is obvious that
    Congress made each offense a crime, no reason is
    suggested to us, and we are aware of none, which
    would support the proposition that Congress intended
    multiple punishments for a criminal who completes
    more than one interim step of a multi-step 

.
  However, in the present case, Chorin engaged in two
criminal undertakings, rather than merely multiple steps in
a single multi-step crime. That is, unlike in Forester and
                              13


Wilson, where the only reason defendant possessed the
precursor was in order to attempt to manufacture the
controlled substance, the convictions for possession of a
precursor and attempt to manufacture a controlled
substance in this case are not based on the same factual
predicate act or transaction because Chorin possessed
methylamine not only in an attempt to manufacture
methamphetamine himself, but also to sell the methylamine
to others. See 

(stating that its
holding is limited to the “specific, limited, and sharply
defined facts of this case” where a petitioner possessed a
precursor as a step in the process of manufacturing a
controlled substance, and noting that its holding does not
extend to cases where a petitioner also uses the precursor
for resale).
  According to the testimony of DeRewal and Gifford,
Chorin possessed different methylamine liquid at different
places for different purposes on different occasions. First,
he manufactured methylamine liquid in the Philadelphia
laboratory for sale to others knowing, or having reasonable
cause to believe, that they would use it to manufacture
methamphetamine. This occurred over approximately a one
year and seven month period from March 1997 to October
1998. Second, Chorin possessed other methylamine, and
created a laboratory in Germantown, in order to
manufacture methamphetamine himself. Chorin did not
possess this methylamine for the same extended period
that he possessed the methylamine that he was using to
sell to others. This distinction is reflected in the Indictment.
Count      One     charges     an     attempt      to   produce
methamphetamine in or about August 1998. Count Three
charges possession of methylamine from March 1997 to
October 1998.
   Thus, since convictions under Count One and Count
Three were not based on the same predicate act or
transaction, Blockburger analysis is not even triggered. See

. Further, as noted in Forester,
it is obvious that Congress intended to make possession of
a precursor and attempt to manufacture a controlled
substance separate offenses, at least where they are not
interim steps in a single multi-step crime, such as in the
                                    14


present case. See 

. Therefore,
there is no double jeopardy violation in this case.
3.   Brady and Newly Discovered Evidence Claims
  Chorin’s claim that the government violated its
constitutional duty to disclose exculpatory evidence under
Brady by failing to provide statements made by Andrew
Sidebotham lacks merit. Brady only requires that the
government disclose information that is in its actual or
constructive possession, see 

,
and Sidebotham did not provide information to the
government until December 8, 1999, five days after the
conclusion of Chorin’s trial on December 3, 1999.
Moreover, Chorin has not shown that there is a reasonable
probability that the outcome of the proceeding would have
been different had the information been disclosed. See
United States v. Bagley, 

, 682 (1985). Since
Chorin has failed to establish prejudice, his claim that he
is entitled to a new trial based on newly discovered
evidence also lacks merit. See 

.4

4. Chorin raises two additional claims. First, Chorin’s claim that 21
U.S.C. § 841 is facially unconstitutional because the statute mandates
that drug type and quantity be treated as sentence enhancement factors
to be considered by the trial judge under the preponderance of the
evidence standard in violation of Apprendi has been rejected by this
Court. See United States v. Kelly, 

, 624 (3d Cir. 2001)
(noting that “the statute does not say who makes the findings or which
party bears what burden of persuasion. Instead the law attaches effects
to facts, leaving it to the judiciary to sort out who determines the facts,
under what burden.”). Further, the District Court did not abuse its
discretion in denying Chorin’s motion for a new trial on the grounds that
his trial counsel was ineffective. The motion was untimely, unless it was
based on a claim of newly discovered evidence, see Fed. R. Crim. P. 33,
and this Court has expressed a preference that ineffective assistance of
trial counsel claims be brought as collateral challenges under 28 U.S.C.
§ 2255, rather than as motions for new trials or on direct appeal because
“[a]ttempting to shoehorn such [an ineffective assistance of counsel]
claim into a Rule 33 newly discovered evidence motion is not an easy
task.” United States v. DeRewal, 

, 104 (3d Cir. 1993).
                              15


                      IV. Conclusion
  For the reasons stated above, the judgment of the District
Court will be affirmed.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit