United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
CHERYL R. ZWART, Magistrate Judge.
This matter is before the court on Defendant Steven M. Sullivan's Motion to Vacate under 28 U.S.C. § 2255 (Filing No. 113). For the reasons set forth below, the motion should be denied.
On March 23, 2011, a federal grand jury sitting in the District of Nebraska returned an indictment charging Sullivan with possession with intent to distribute controlled substance analogues in violation of 21 U.S.C. §§ 802(32)(A), 813, and 841. The Indictment also included an allegation to forfeit $5, 813.00 as proceeds of Defendant's illegal conduct. The facts underlying the indictment arose from a traffic stop occurring on October 27, 2010. During that stop, Otoe County, Nebraska Sheriff's Deputy James Parsons found a white power identified as bath powders in Sullivan's vehicle.
Sullivan pled not guilty at his initial appearance, and during the pretrial phase of his case, he moved to dismiss the indictment and to suppress certain evidence discovered during the traffic stop. On August 9, 2011, the undersigned magistrate judge conducted an evidentiary hearing on the motions.
Based on the hearing testimony, the court found that during the traffic stop, and while waiting for dispatch to provide information on Sullivan's driving privileges, Deputy Parsons deployed his police dog, Kane, to conduct an exterior sniff of the car. Kane alerted and indicated to the odor of narcotics. Law enforcement officers searched the vehicle and found a large plastic bag filled with white powder Sullivan identified as "bath powders;" approximately 100 smaller 2x2 plastic, sealable bags; plastic labels indicating how to use the "bath powders;" $5, 813 in currency; and business records.
The undersigned recommended Defendant's motions to suppress and to dismiss be denied. Filing No. 38. Over Defendant's objections, the Findings and Recommendation were adopted by Judge Richard G. Kopf, the assigned district judge. (Filing No. 40).
At trial, Deputy Parsons again testified regarding the traffic stop. Deputy Parsons' trial testimony differed from his testimony at the Motion to Suppress hearing. At the suppression hearing Parsons testified as follows:
A I asked Mr. Sullivan if he had anything illegal... in his car.
A. And he said, "No, I just have K2 and some bath powder."
Filing No. 104 at CM/ECF p. 37, STr. at 30:14-19 (emphasis added).
At trial Parsons, testified as follows:
A I asked Mr. Sullivan, I said, "Is there" - "Do you have anything illegal in your car?" And Mr. Sullivan said, "I have K2."
Q. After he said, "I have K2"?
A. I said, "Is there anything else?"
Q. And did he respond?
A. And his response was, "Well, there's bath powders." And I didn't think anything about it.
Filing No. 104 at CM/ECF p. 182-83: ATr. at 182:16-19; 183 at 3-6.
Deputy Parsons' trial testimony differed from his suppression hearing testimony in one important respect: At trial, he testified that Sullivan initially said, "No" when asked if he had anything illegal in the car and before stating he possessed K2 and bath powders. Sullivan's counsel did not impeach or otherwise question Deputy Parsons about this distinction during the trial.
The government's trial evidence was primarily expert testimony. Ms. Liqun Wong, the Unit Chief for the Analysis Unit in the Office of Diversion Control in the DEA headquarters, testified the chemical structure of the substance found in Sullivan's car - mephedrone - is substantially similar to the chemical structure of methcathinone, a Schedule I controlled substance. (Filing No. 104 at CM/ECF p. 34; ATr. at 34:10-22). She explained how substances marked as bath salts or powders are typically sold to a retailer as a bulk powder, and are later packaged and labeled in small sealable plastic bags when the buyer intends to distribute the bath salts for human consumption. (Filing No. 104 at CM/ECF p. 51; ATr. at 51:3-52:18).
Dr. Cassandra Prioleau, a pharmacologist employed by the DEA, testified that mephedrone, the substance found in Sullivan's vehicle, had the same pharmacological effect on the body as other known drugs of abuse. Specifically, she opined mephedrone had a substantially similar effect on the central nervous system as methcathinone, a Schedule I controlled substance. (Filing No. 104 at CM/ECF p. 75; ATr. at 75:2-76:4).
Lincoln Police Department Officer Christopher Vigil testified that as part of his undercover work, he visited "head shops, " defined as "retail stores that sell tobacco and smoking accessories." (Filing No. 104 at CM/ECF p. 139; ATr. at 139:18-21). Officer Vigil testified that head shops sell many items intended for use in ingesting narcotics. He described finding two types of products labeled as "bath salts" in the head shops. The type used to scent a bath was sold as a "big bath salt or bath crystal that was relatively cheap." "However, [t]he bath salts... intended for human consumption or for getting high, " like that found in Sullivan's vehicle, "would be like a two-inch by two-inch Ziplock baggie... and I could see a white grainy powder inside the package." (Filing No. 104 at CM/ECF p. 141; ATr. at 141:19-23; 142:2-3). Officer Vigil explained that ...