United States v. Jean Bertling ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2017
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Jean M. Bertling, *
*
Appellant. *
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Submitted: February 11, 2004
Filed: June 8, 2004
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Before MORRIS SHEPPARD ARNOLD, HANSEN, and RILEY, Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Jean Bertling pleaded guilty in the district court1 to two counts of
manufacturing and aiding and abetting the manufacture of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. After the court
sentenced her to two concurrent prison terms of 76 months, she appealed her
sentence. We affirm.
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
I.
Ms. Bertling first argues that the sentencing court should have granted her
application to fund a domestic violence expert to testify at her sentencing hearing.
"Counsel for a person who is financially unable to obtain ... expert ... services
necessary for adequate representation may request them in an ex parte application."
18 U.S.C. § 3006A(e)(1). If the court finds, "after appropriate inquiry in an ex parte
proceeding, that the [expert's] services are necessary" and the defendant is unable to
pay, it "shall authorize counsel to obtain [the expert]." Id. The defendant has the
burden of showing that the expert is necessary. See United States v. Valverde,
846 F.2d 513, 517 (8th Cir. 1988).
Here Ms. Bertling's counsel stated in the application for expert services that
Ms. Bertling would offer evidence at sentencing that her boyfriend, co-defendant
Bradley Levsen, abused her and that the threat of physical abuse caused her to
participate in the crimes to which she pleaded guilty. Counsel sought funding to hire
an expert witness to testify as to "the dynamics of an abusive relationship, why
women in an abusive relationship commit crime for the abuser, and why it is so
difficult for women to leave an abusive relationship." The application also stated that
Ms. Bertling would offer the evidence to support her request for a downward
departure from the applicable guideline range under U.S.S.G. § 5K2.12 (policy
statement), which permits a departure "[i]f the defendant committed the offense
because of serious coercion, blackmail or duress, under circumstances not amounting
to a complete defense." Id.; cf. United States v. Johnson, 956 F.2d 894 (9th Cir.
1992), modified, 969 F.2d 849 (9th Cir. 1992). A detailed résumé of the proposed
expert was attached to the § 3006A(e)(1) application.
The sentencing court denied Ms. Bertling's application for funding for the
expert without a hearing. In its order, the court found that the proposed witness was
"obviously an expert on domestic violence" but was not a psychiatrist or a
psychologist and had not examined Ms. Bertling. The court concluded that the
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expert's "testimony on the general nature of domestic violence and abusive
relationships is not necessary" because the court was "independently familiar with the
subject matters from its experience on the bench."
We review a district court's decision to deny an application to fund an expert
witness for an abuse of discretion, see United States v. Ross, 210 F.3d 916, 921 (8th
Cir. 2000), cert. denied, 531 U.S. 969 (2000), and we will not reverse unless
prejudice is shown, see United States v. Bercier, 848 F.2d 917, 919 (8th Cir. 1988).
For the first time on appeal, Ms. Bertling argues that she should have been
granted a hearing before the application was denied. Although the district court must
"make appropriate inquiry in an ex parte proceeding" before ruling on a
§ 3006A(e)(1) application, see 18 U.S.C. § 3006A(e)(1), we do not believe that this
language necessarily requires a hearing in every case: what is required is a
proceeding. In addition, here the district court's local rules require that litigants who
want to have oral argument on their motions or applications include that request in
the document, see N.D. Ia. L. Crim. R. 47.1(a); N.D. Ia. L. R. 7.1(c), and Ms. Bertling
did not do so. In fact, Ms. Bertling never mentioned a desire for a hearing on this
issue in the district court, and so we do not believe that the court erred in not holding
one.
We also conclude that the sentencing court did not abuse its discretion in
denying Ms. Bertling's application. Expert evidence is offered to assist the trier of
fact, see Fed. R. Evid. 702, and here the sentencing judge (the fact-finder) stated that
she did not need assistance because she was familiar with domestic violence based
on her experience on the bench, where she has spent more than ten years, most of
them in the state trial court, see Almanac of the Federal Judiciary, vol. 1 (8th Cir.)
22 (2004-1). Ms. Bertling relies on United States v. Lewis, 833 F.2d 1380, 1384-86
(9th Cir. 1987), which held that a trial judge erred in relying on his personal
experience with anesthesia to decide that a defendant's statement given after
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anesthesia was not voluntary. But our circumstances are far different; here the court
relied on its general knowledge about a subject gained by experience on the bench to
deny an application to appoint an expert to assist it in making a decision. Given that
Ms. Bertling's application indicated that the expert would testify generally with
respect to domestic abuse rather than as to this particular defendant, that the
information was of a type that could well be familiar to an experienced trial judge,
and that the experienced judge here stated that she was, in fact, familiar with the area,
we conclude that the court did not abuse its discretion by denying the application. Cf.
United States v. Booker, 186 F.3d 1004, 1006-07 (8th Cir. 1999).
At sentencing Ms. Bertling presented evidence regarding her abuse and the
reasons for her criminal conduct, and the sentencing court denied her request for a
downward departure. Although we cannot review the discretionary decision not to
depart, see United States v. Sypolt, 346 F.3d 838, 841 (8th Cir.2003), cert. denied,
124 S. Ct. 1484 (2004), we note that the sentencing court based its decision on
evidence that supported a finding that there were reasons other than domestic abuse
for Ms. Bertling's drug activities.
II.
For her second point, Ms. Bertling argues that the sentencing court erred by
failing to grant her a two-level reduction in her offense level for being a minor
participant. See U.S.S.G. § 3B1.2(b). Under the sentencing guidelines, a "minor
participant" is a defendant who "plays a part in committing the offense that makes
[her] substantially less culpable than the average participant," U.S.S.G. § 3B1.2
comment. (n. 3 (A)), and "who is less culpable than most other participants, but
whose role could not be described as minimal," U.S.S.G. § 3B1.2, comment. (n.5).
Ms. Bertling had the burden of establishing that she was entitled to a minor-
participant role reduction, and we review the sentencing court's denial of that
reduction for clear error. See United States v. Benford, 360 F.3d 913, 915 (8th Cir.
2004).
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At sentencing, Ms. Bertling testified as follows about her participation in the
manufacturing of methamphetamine. Because she had a driver's license and
Mr. Levsen did not, she drove him to places where he helped cook the drugs, and she
drove when they went shopping together for pseudoephedrine pills and lithium
batteries used at the cooks. She also allowed others involved in the operation to use
her car and took Mr. Levsen and another participant to get anhydrous ammonia, a
methamphetamine precursor chemical.
According to Ms. Bertling, in addition to shopping and providing
transportation, she acted as a "lookout" during the cooks because she thought that
Mr. Levsen was careless and she felt safer when she "watch[ed] for the Feds." She
testified that although she knew what went into the process of making
methamphetamine, she did not know how to "peel a battery ... get lithium strips ...
[or] hit [an anhydrous ammonia] tank." But Ms. Bertling then acknowledged that
sometimes during the cooks she would "peel paper off the battery," "pop pills"
(presumably removing pseudoephedrine pills from blister packages), and crush pills.
After the cooks, she was the one who cleaned up. She also allowed the home that she
shared with Mr. Levsen to be used to manufacture the drug. When they were done
with a cook, Mr. Levsen gave Ms. Bertling a user's amount of methamphetamine;
"when he got high, he got [her] high." In addition, Ms. Bertling did not object to the
findings in the presentence investigation report that she and Mr. Levsen shoplifted
pseudoephedrine and sold methamphetamine.
Although it appears that Ms. Bertling was less culpable than Mr. Levsen, this
alone is not enough to establish her entitlement to a role reduction. See United States
v. Camacho, 348 F.3d 696, 701 (8th Cir. 2003). Based on the evidence of her
admitted involvement in various phases of the manufacturing operation, we do not
believe that the sentencing court was required to find that Ms. Bertling was
"substantially less culpable than the average participant," U.S.S.G. § 3B1.2 comment.
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(n. 3 (A)), and we conclude that the court did not clearly err in failing to find that she
was a minor participant.
III.
Accordingly, we affirm the judgment of the district court.
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