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 *fn1, Circuit Judge
The opinion of the court was delivered by: 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, 530 U.S. 466 (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, 373 U.S. 83 (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 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). *fn2
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, *fn3 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 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).
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 ...