Filed: Apr. 24, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-24-2007 USA v. Paczan Precedential or Non-Precedential: Non-Precedential Docket No. 06-2106 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Paczan" (2007). 2007 Decisions. Paper 1228. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1228 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-24-2007 USA v. Paczan Precedential or Non-Precedential: Non-Precedential Docket No. 06-2106 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Paczan" (2007). 2007 Decisions. Paper 1228. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1228 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-24-2007
USA v. Paczan
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2106
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Paczan" (2007). 2007 Decisions. Paper 1228.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1228
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NON-PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-2106
UNITED STATES OF AMERICA
v.
JENNIFER PACZAN,
Appellant
__________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 05-cr-00217-2
District Judge: Honorable Alan N. Bloch
__________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 11, 2007
Before: SMITH, NYGAARD, and HANSEN,* Circuit Judges
(Filed: April 24, 2007)
*
The Honorable David R. Hansen, Senior Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
__________
OPINION
__________
HANSEN, Circuit Judge.
In this direct criminal appeal, Jennifer Paczan challenges the District Court's denial
of her ex parte application for authorization of expert and investigative services pursuant to
18 U.S.C. § 3006A(e)(1), and appeals her sentence as unreasonable. Because this is a non-
precedential opinion and we write only for the benefit of the parties, our factual recitation is
brief.
A grand jury returned a three-count indictment against Paczan, charging one count of
conspiracy to manufacture less than five grams of methamphetamine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C); one count of possession of acetone with intent to
manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1); and one count of
possession of equipment, chemicals, products, and materials with intent to manufacture
methamphetamine, in violation of 21 U.S.C. § 843(a)(6) and (d)(2). The evidence at trial
established that Paczan was involved in a methamphetamine manufacturing conspiracy from
December 2004 through February 2005.
In February 2005, law enforcement authorities executed a search warrant at an
apartment occupied by Christopher Burkholder and Gene Luff, after receiving information
that they were operating a methamphetamine laboratory from their third-floor apartment.
During the search, Burkholder advised the law enforcement officers of another
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methamphetamine laboratory operated on the second floor of the same building in an
apartment occupied by Lance Baird and Jennifer Paczan, with whom he had shared
methamphetamine and offered advice on manufacturing methamphetamine. When
questioned, Baird denied the allegations and consented to a search of the apartment he shared
with Paczan.
Burkholder advised the officers to search under the kitchen sink, above the
refrigerator, and in a closet of Baird and Paczan's apartment, where he had seen them store
their methamphetamine manufacturing apparatus. Agents seized numerous ingredients and
materials used in the manufacture of methamphetamine from these locations, including Red
Devil lye, acetone, denatured alcohol, lab-grade iodine, mason jars, empty pill capsules, a
plastic container holding a white paper towel and gray sludge, razor blades, cut straws,
weighing dishes, filters, tubing, pH strips, and a turkey baster. They also found an expensive
hot plate and digital scale that belonged to Carlow University, where Paczan had been a
biology student. The inventory stickers indicating Carlow's ownership of the equipment had
been partially scraped off.
Chemical analysis revealed the presence of substances consistent with the production
of methamphetamine. A computer forensics special agent examined the computer hardware
on Paczan's laptop computer and found multiple files containing information downloaded
from the Internet related to the manufacture of methamphetamine.
Paczan offered innocent explanations for the presence of the methamphetamine
manufacturing chemicals and paraphernalia found in her apartment. The Red Devil lye was
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used for plumbing problems in the bathroom, the gallon can of acetone was used to remove
acrylic fingernails, the pH paper, weighing dishes, and tubing were together in a box in the
closet because of a lack of kitchen drawers and they were used to care for the fish tanks, and
she used the gallon can of denatured alcohol to clean up pet odors. Paczan testified that she
did not steal the hot plate and digital scale from Carlow University but borrowed them for
a school project and to make candles. She testified that Baird was using the cut straws and
razor blades to crush and snort his prescription medication. As to the information found on
her computer, she testified that the third-floor neighbors, Burkholder and Luff, had each
taken her computer for a couple of days on two separate occasions to repair the wireless card
which was not working. She denied knowing that they had been involved in manufacturing
methamphetamine.
Paczan moved for and received a continuance of trial from November 15, 2005, to
November 28, 2005, to consult with experts regarding the government's chemical analysis
and computer forensic evidence. Following trial, the jury returned guilty verdicts against
Paczan on all three counts. Paczan then moved for a new trial, asserting that she was
deprived of a fair trial by the District Court's denial of her ex parte application for expert
witness fees pursuant to 18 U.S.C. § 3006A(e)(1). The District Court denied the motion for
a new trial.
At sentencing, the District Court grouped the three counts pursuant to United States
Sentencing Guidelines Manual (USSG) § 3D1.2(b) (2005), and applied a two-level
adjustment pursuant to USSG § 2D1.12(b)(1). The resulting adjusted base offense level of
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14, together with a criminal history category of IV, produced an advisory Guidelines
sentencing range of 27 to 33 months. The District Court denied Paczan's request for a
downward departure, see USSG § 4A1.3(b), concluding that her criminal history category
did not substantially over represent the seriousness of her criminal history. Ultimately, the
District Court imposed a sentence of 33 months of imprisonment, which is the high end of
the advisory Guidelines range.
Paczan appeals the denial of her ex parte application for authorization of expert and
investigative services under § 3006A(e)(1) and appeals her sentence as unreasonable.
I.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
"The decision to grant or deny a motion under section 3006A(e) is one committed to
the discretion of the district court, and a district court's decision will be disturbed on appeal
only if it constitutes an abuse of discretion." United States v. Roman, 121 F.3d 136, 143 (3d
Cir. 1997), cert. denied,
522 U.S. 1061 (1998). We review a District Court's imposition of
a criminal sentence for reasonableness. United States v. Booker,
543 U.S. 220, 261 (2005).
A defendant challenging a sentence as unreasonable bears the burden of establishing
unreasonableness. United States v. Cooper,
437 F.3d 324, 332 (3d Cir. 2006).
II.
Pursuant to § 3006A(e)(1), funds may be provided to obtain an expert to assist an
indigent defendant at trial if the expert's services are necessary for adequate representation.
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"Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are
necessary and that the person is financially unable to obtain them, the court . . . shall
authorize counsel to obtain the services." 18 U.S.C. § 3006A(e)(1).
The only indication in the record below that Paczan made an ex parte inquiry of the
court regarding expert services is the substance of her motion for a new trial. This court
granted Paczan's motion to supplement the record on appeal with her attorney's affidavit,
stating that prior to trial he had obtained a chemical expert and a computer forensics expert
and had submitted to the District Court the necessary CJA 21 authorization forms for each
in an ex parte meeting, but the District Court denied the requests. Paczan also supplements
the record with two letters from counsel addressed to the District Court referencing the
requested experts, accompanied by the completed CJA 21 forms regarding each expert and
a curriculum vitae for each. Thus, the record, as supplemented by counsel on appeal,
indicates that on the day trial was scheduled to begin, Paczan's attorney made an ex parte
application for funds to obtain a chemist/pharmacist and a computer forensic expert, which
the District Court denied.
Other than the fine print boiler plate language of the CJA Form 21 authorization forms
and the attorney’s bare representations therein that the experts would "render opinion and
testify as necessary," (Supp. R. Exhibits A & B), Paczan has not demonstrated that the
services requested were "necessary" to her adequate defense. 18 U.S.C. § 3006A(e)(1). "[A]
court should first satisfy itself that a defendant may have a plausible defense." Roman, 121
F.3d at 143 (internal marks omitted). Funding authorization is not available for the mere
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asking or to mount a fishing expedition. "The statute requires the district court judge to
authorize defense services when the defense attorney makes a timely request in
circumstances in which a reasonable attorney would engage such services for a client having
independent means to pay for them." United States v. Alden, 767 F.2d 314, 318 (7th Cir.
1984) (internal marks omitted). In our view, the requester must explain to the district judge
in some minimal way why the requested services are necessary.
Defense counsel cross-examined the Government's chemical and computer forensics
experts without challenging the basis of their expert conclusions. Paczan made no attempt
to demonstrate that the chemicals found in the acetone and denatured alcohol containers in
her apartment were not in fact what they appeared to be or what the chemist found them to
be. Instead, she explained that she had legitimate uses for the chemicals. No chemical expert
was necessary to support this defense. Similarly, no computer forensics expert could have
demonstrated, in aid of her theory of defense, that someone other than Paczan had accessed
the methamphetamine Internet site and downloaded the manufacturing information onto her
computer. Absent a demonstration that the experts were necessary to present an adequate
defense, and considering the eleventh-hour nature of the requests, we cannot find that the
District Court abused its discretion in denying the ex parte applications.
III.
The first step of the sentencing procedure is for the District Court to "calculate the
correct guidelines range applicable to a defendant's particular circumstances," because the
Sentencing Guidelines "provide a natural starting point for the determination of the
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appropriate level of punishment." Cooper, 437 F.3d at 330, 331; see also United States v.
Gunter,
462 F.3d 237, 247 (3d Cir. 2006). Paczan argues that the District Court abused its
discretion in denying her request for a downward departure on the ground that her criminal
history score over represented her criminal history record. See USSG § 4A1.3(b). As before
Booker, we decline to review a District Court's decision to deny a departure, absent any
allegation of legal error.
Cooper, 437 F.3d at 332-33. The District Court's refusal to depart
was a lawful exercise of its discretion, which we lack jurisdiction to review. See United
States v. Denardi,
892 F.2d 269, 272 (3d Cir. 1989).
Paczan also asserts that her within-Guidelines sentence of 33 months is unreasonable.
Specifically, she asserts that the District Court improperly imposed a sentence at the top of
the advisory range upon a finding that she had testified untruthfully. While a sentence
within the Guidelines range "is more likely to be reasonable than one that lies outside the
advisory guidelines range, a within-guidelines sentence is not necessarily reasonable per se."
Cooper, 437 F.3d at 331. The record in this case reflects, however, "that the district court
understood and reasonably discharged its obligation to take all of the relevant factors into
account in imposing a final sentence." United States v. Grier,
475 F.3d 556, 571 (3d Cir.
2007) (en banc).
In its Tentative Findings and Rulings on Disputed Facts or Factors, adopted at
sentencing without further objection, the District Court discussed at length Paczan's
characteristics of substance abuse and her related criminal history, noting that the offenses
were recent and exhibited a pattern of combining substance abuse with driving. The District
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Court recognized that this conduct presents a serious risk of bodily harm to herself and to
others, as well as a serious risk of recidivism. When imposing the sentence at the high end
of the advisory Guidelines range, the District Court stated, "[t]his sentence not only
adequately addresses the seriousness of your offenses, it also takes into account the fact that
you testified untruthfully during the trial in this case." (Appellant's App. at 776.) While
noting that her conduct could arguably warrant a sentencing enhancement, the District Court
instead chose to use that conduct to justify a sentence at the high end of the advisory
Guidelines range. This reflects the District Court's reasonable consideration of permissible
factors such as the individual's characteristics and a need to promote respect for the law, to
afford adequate deterrence to criminal conduct, and to protect the public. See 18 U.S.C.
§ 3553(a). We conclude that Paczan's sentence is reasonable. See Cooper, 437 F.3d at 332
(affirming a sentence at the high end of the Guidelines range because the defendant had "not
met her burden on appeal of proving the sentence was unreasonable"). Accordingly, we will
affirm the judgment of the District Court.
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