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Donald Kapperman v. United States and Benjamine Wagner

November 9, 2012

DONALD KAPPERMAN,
PLAINTIFF,
v.
UNITED STATES AND BENJAMINE WAGNER, DEFENDANTS



MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF Doc. # 940

This is a motion to compel production of samples of chemicals that were seized in the course of investigation of the criminal case that lead to the conviction of plaintiff Donald Kapperman ("Kapperman" or "Plaintiff") on charges of conspiracy to manufacture methamphetamine and possession of ephedrine, a listed substance that is a necessary ingredient in the manufacture of methamphetamine. The indictment in the criminal case named five defendants. Of these five, three were convicted by plea of guilty. Co-Defendant Thomas Farrugia was convicted in 1994 following a jury trial. Plaintiff was convicted following a separate jury trial on September 23, 1994. The matter now before the court is styled as a motion for injunctive and declaratory relief to compel production of trial exhibits for purposes of chemical testing (hereinafter, the "Motion"). As such, Plaintiff's motion represents the most recent in a long line of pleadings by both Plaintiff and co-Defendant Farrugia to obtain samples of certain trial exhibits for "complete chemical analysis." The court notes that both Plaintiff and co-Defendant Farrugia are explicit in their intention to obtain the complete chemical testing of the trial exhibits for the purpose of pursuing later claims of actual innocence. Although the legal basis for the relief Plaintiff seeks is something of a mystery, the court has determined that the instant Motion should be filed within the existing criminal case at Docket Number 940. The court recognizes that the post-conviction options open to Plaintiff are very much limited by applicable statutes of limitations. However, for reasons that will be explained more thoroughly below, it is the court's purpose to rule on the substance of Plaintiff's Motion and such impediments as would normally be occasioned by late-filed nature of Plaintiff's Motion will be overlooked for the purposes of a more complete discussion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

There is little if any factual background to be gleaned from Plaintiff's Motion. So far as the court can tell from the very extensive docket in the criminal case, the bulk of the post-conviction motions that have been filed were filed by co-Defendant Farrugia. Although Plaintiff's Motion lacks any substantial discussion of a legal basis for relief, the factual background that pertains to the chemical substances in question in Plaintiff's Motion is no different from the factual basis that underpinned Farrugia's Fourth Amended Complaint in civil case 08cv0053. On October 29, 2012, the court filed a screening order dismissing Farrugia's Fourth Amended Complaint in that case (hereinafter, the "October 29 Order"). In the October 29 Order, the court summarized the factual background relevant to the issue of complete chemical testing by drawing from documents filed in the past in relation to Farrugia's many efforts to accomplish the same chemical testing that is the subject of Plaintiff's Motion. The court therefore abbreviates, borrows and adapts the summary of fact set forth in its October 29 Order for purposes of analysis of Plaintiff's Motion.

For purposes of the Plaintiff's Motion, the pertinent facts revolve around three containers of "white powdery substance" that were recovered during the investigation of the criminal case. At the outset of the investigation in the criminal case, Detective Toby Rien of the Fresno County Sheriff's Office Department sold a 55 pound "tin" of pure "bait" ephedrine to co-defendant Morgan, who resided in Fresno, California. Following the sale to Morgan, Kapperman met with Morgan in Fresno and then drove to Lancaster, California, while being followed by law enforcement officers. After Kapperman left Morgan, Morgan reported to Rien that Kapperman had purchased and was in possession of one-half of the 55 pounds of pure ephedrine that Morgan had purchased from Rien. Sometime after Kapperman returned to his residence in Lancaster, police secured and searched the residence and an out-building which was found to contain a variety of laboratory glassware, an assortment of chemicals, a notebook and other documents, and a box of "white powdery substance." While there was some dispute at trial as to who had what level of access to the out-building and the "white powdery substance," there is no dispute that the Lancaster property was Kapperman's residence and that he had access to the out-building and its contents. At trial, evidence was adduced to indicate that the "white powdery substance found at Kapperman's residence was not pure ephedrine but was a mix of chemicals containing something close to 50% ephedrine.

Police also searched Farrugia's residence in Oakley, California and there seized another box of "white powdery substance" that turned out to be a mix of chemicals containing about 45% ephedrine. Thus, this action concerns three containers of suspected ephedrine. To avoid confusion these are referred to as the Fresno Substance, the Lancaster Substance and the Oakley Substance. There appears to be no dispute that the Fresno Substance consists of about 25 pounds of pure ephedrine which was provided by the California Bureau of Narcotics as "bait" in the investigation that lead to the criminal charges against the five Defendants. At trial, the government represented at some point that the Lancaster Substance represented the other 25 pounds of the Fresno Substance, however Farrugia disputed this and presented a chemical analysis by his own expert that indicated the Lancaster Substance was not pure ephedrine, but was a mix containing about 55% ephedrine and the balance of other unidentified chemicals. In a similar vein, the government initially represented at trial that the Oakley Substance was a mixture of chemicals containing methamphetamine, but evidence of chemical analysis was adduced that showed that the Oakley Substance contained about 45% ephedrine and no methamphetamine.

Both Farrugia and Kapperman assert that a more "complete forensic analysis of the Lancaster and Oakley Substances will show that the Substances are different from each other and different from the Fresno Substance. Neither Farrugia nor Kapperman have offered any explanation of how an analysis of the non-ephedrine components of any of the Substances would make any contribution to either party's claim of actual innocence.

LEGAL STANDARD

The court interpret's Plaintiff's Motion as being an effort by Plaintiff to obtain relief against a governmental entity for the ultimate, albeit indirect purpose of eventually challenging the legality of his sentence. Plaintiff's Motion therefore falls within the category of actions brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity and is therefore subject to screening by the district court. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(2)(B)(ii).

A complaint fails to state a claim upon which relief can be granted if there is a failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). A complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").

DISCUSSION

Civil case number 08cv0053 was brought by co-Defendant Farrugia pursuant to 42 U.S.C. § 1983 and Bivins v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The purpose of Farrugia's civil case was to secure from the California Bureau of Narcotic Enforcement samples of the three Substances that have been for several years in the custody of the Bureau so that the samples can be "completely chemically analyzed" to determine the presence and amount of binders, adulterants and other chemical characteristics. Prior to the institution of Farrugia's civil action, the docket of the underlying criminal case reflects some fifty or more instances of motions or requests all aimed at the same purposes -- the thorough chemical analysis of the Substances to definitively show their differences of composition and, by inference, their different origins. Although both defendants in the criminal case made separate and multiple requests and motions before conviction to accomplish this "complete analysis," it appears that the vast majority, if not all, of the post-conviction motions, requests or separate actions were undertaken by co-Defendant Farrugia.

Kapperman's, instant motion appears to be in the nature of a "me too" accompaniment to Farrugia's most recent effort as reflected in his Fourth Amended Complaint to his civil case. The court notes parenthetically that Kapperman's motion coincides with the fact that, for the first time since their commitment to the custody of the Bureau of Prisons, both Kapperman and Farrugia are currently housed at the federal facility in Terra Haute, Indiana.

Kapperman's Motion fails to set forth any legal basis of entitlement to relief other than to make the conclusory assertion that relief is compelled by the Supreme Court's holding in Skinner v. Switzer, 31 S.Ct. 1289 (2011). The court's October 29 Order considered at some length whether Farrugia could rely on 42 U.S.C. § 1983 and Bivins to assert his claim to compel production of the requested samples of the Lancaster and Oakley Substances and reached a negative conclusion. Since Kapperman's Motion lacks any legal framework for analysis of entitlement to relief, the court will note that the motion is subject to denial on that ground and will skip to the more fundamental and illustrative question of whether Kapperman can claim any constitutionally cognizable interest in procuring the requested samples of the Substances.

"A motion under § 2255 is generally the exclusive remedy for a federal prisoner who seeks to challenge the legality of confinement, Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012), and consequently an inmate who unsuccessfully petitions under § 2255 is generally barred from bringing claims previously presented and decided on the merits. Kuhlmann v. Wilson, 477 U.S. 436, 451 (1986). Under exceptional and rare circumstances a petitioner may avoid the bar against successive claims where the "ends of justice" so demand. Id. Section 2255(e) provides a limited "escape hatch" in cases where the remedy under section 2255 is "'inadequate or ineffective to test the legality of [the petitioner's] detention.'" Muth, 676 F.3d at 818. This circuit has held that "a § 2241 petition is available under the 'escape hatch' of § 2255 when a petitioner (1) makes a claim of actual innocence and (2) has not had an 'unobstructed procedural shot' at presenting that claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). The Ninth Circuit has established that the standard for pleading a claim for actual innocence is the standard set forth in Bousley v. United States, 523 U.S. 614 (1998). Muth, 676 ...


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