State of Delaware v. Irwin. / State of Delaware v. Nyala. / State of Delaware v. Nesbitt.

IN THE SUPERIOR COURT OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
II
STATE OF DELAWARE, '-
$11) No. 1309012464
v.
MICHAEL IRWIN,
Defendant.
.- =_—_=_ _- _ _
STATE OF DELAWARE,
V
DILIP NYALA,
Defendant.
STATE-OF DELAWARE,—
V .
HAKEEM NESBITT,
Submitted: September 30, 2014
Decided: November 17, 2014
On Defendant Dilip Nyala’s Motion In Limine to Exclude Drug Evidence - DENIED
On Defendant Michael Irwin’s Motion In Limine to Exclude Drug Evidence - DENIED
On Defendant Hakeem Nesbitt’s Motion In Limine to Exclude Proffered Expert
Testimony Concerning the Chemical Composition and Weight of the Substance
Seized and to Exclude any Analyses, Reports or Tests Relied Upon in Rendering
His/Her Opinion - DENIED
On Defendant Hakeem Nesbitt’s Motion In Limine to Permit the Defendant to
Exercise his Right to Confrontation and Cross Examine the State’s Crime Lab
Witnesses and Witnesses Within the Chain of Custody About the Investigation of the
Operation at the OCME Crime Lab - GRANTED IN PART, DENIED IN PART
OPINION
Sarita Wright, Esquire;1 Joseph Grubb, Esquire, Department of Justice, 820 N.
French Street, Wilmington, DE 19801. Attorneys for State of Delaware.
Patrick J. Collins, Esquire and Albert J. Roop, Esquire,2 Collins & Roop, 8 East
13th Street, Wilmington, Delaware 19801. Attorneys for Defendants Dilip Nyala
and Michael Irwin.
Nicole Walker, Esquire and Beth Savitz, Esquire, Office of the Public Defender,
820 N. French Street, Wilmington, Delaware 19801. Attorneys for Defendants
Hakeem Nesbitt and Braaheim Reed.
'CARPENTER, J.
-F“—__ . .5!
' Soon after briefing in this matter was completed, Ms. Wright passed away. The Court expresses its deepest
sympathy to her husband and family as well as to her colleagues at the Department of Justice. She was a respected
member of the Bar, and she embodied what it meant to be a “Delaware Lawyer” in all dealings with the Court.
2 The Court wishes to express its appreciation to Mr. Collins and Mr. Roop for submitting an appendix that
encompassed transcripts from both hearings and the relevant documents referenced in these proceedings. It
encompassed three volumes and greatly aided the Court.
the contrary, F LIMS reported that the evidence submitted by Corporal Lewis
regarding this matter was delivered to the OCME drug lab on October 7, 2013 at
3:36 pm. and was submitted to James Daneshgar. In response to the
inconsistency, Mr. Daneshgar explained that Ms. Bailey received the evidence and
would have placed it in the evidence locker until he had an opportunity to log it
into the system.
As a result of the OCME investigation, the drugs seized from Nyala were
subsequently removed from the OCME drug lab and taken to the Delaware State
Police Troop 2 where the contents of the envelopes were audited. That audit
noted no significant discrepancies and the drugs were subsequently forwarded to
an independent lab for testing. The lab determined that the marijuana seized from
Nyala weighed 52.96 grams which was 13.04 grams lighter than the initial weight
noted by the officer. The lab also determined that the total heroin seized weighed
6.45 grams, 13.29 grams less than the original seizing weight, and the crack
cocaine weighed 41.87 grams, a 6.13 gram deviation from the seizing weight.
C. Hakeem Nesbitt
On October 29, 2013, the Delaware State Police responded to the area of I
1213 West Avenue in New Castle for an alleged robbery in progress. They were
advised that two black males had been fighting at a nearby gas station and it
11
appeared that a black handgun had been pulled by one of the individuals. The
police were also advised that the armed suspect had run from the gas station
toward the Super Lodge Hotel parking lot. The officers obtained a description of
the individual with the handgun and proceeded to the hotel parking lot where they
observed an individual matching the description. That individual, later identified
as the defendant, Hakeem Nesbitt, was stopped and the officers immediately
smelled a strong odor of marijuana from Nesbitt’s clothing. A subsequent search
of Nesbitt’s pockets revealed 16 bags of a green leafy substance, believed to be
marijuana, weighing 119.6 grams. The officers also discovered a room key for the
Super Lodge Hotel. The hotel manager confirmed that Nesbitt had been staying at
the hotel and a search warrant for Nesbitt’s hotel room was obtained. During the
search 1,271.4 grams of marijuana were found. Nesbitt was indicted on
November 25, 2013 for drug dealing, aggravated possession of marijuana and
possession of drug paraphernalia. On May 30, 2014, the drugs were sent to the
independent lab for testing. The lab calculated the weight of the marijuana to be
1,194.62 grams which was 196.38 grams less than the amount allegedly seized by
the police.
12
D. OCME Lab
The OCME drug lab was part of the overall facilities that housed the
various functions of the Medical Examiner’s Office at 200 South Adams Street in
Wilmington and was a division of the Department of Health and Social Services.
When the controlled substances from an arrest needed to be tested, a narcotics
control officer from the arresting agency would take the drugs to the OCME drug
lab7 and a forensic evidence specialist or another lab employee acting in that
capacity would review the evidence with the officer and prepare a receipt. The .
receipt .would be signed by the OCME employee who received the controlled
substance as well as the officer who submitted it for testing. On the submission
form, the date and time of transfer would be recorded as well as a listing of all the
evidentiary items that were being turned over to the OCME lab. Once received at
the OCME drug lab, the information regarding the evidence would be placed in
the OCME laboratory management system known as FLIMS. Unique numbers
would be assigned to the particular evidence submitted and the date and time
when entries were made would be automatically populated when the information
was inputted.8 FLIMS was intended to track the evidence movements within the
7 The larger police agencies had a regular date and time each week to submit evidence to the OCME drug lab.
Smaller police departments in New Castle County would make an appointment with the lab, while a courier system
was utilized for downstate departments.
8 Information regarding the evidence that would be submitted by the arresting agency as well as the officer involved
could also be front loaded into the system by the drug officer prior to physically turning the evidence over to the
OCME lab. While some of that information relating to the arresting officer is also incorrect, it has no bearing on the
13
lab, and the information inputted would create the chain of custody documentation
for that evidence.
Unfortunately, it was often the case that the date and time when the officer
submitted the drug evidence was not the date and time reflected in FLIMS. It was
common that drugs would be received by the lab, placed in its drug vault and then
recorded into its management system at a later date. Since FLIMS automatically
created the date and time when the information was inputted, the chain of custody.
documents were regularly incorrect. This was also true as to the employee that
actually received the controlled substance from the officer. As an example, if one
employee received the evidence but another employee actually inputted the
information into FLIMS, the chain of custody document would reflect that the
inputting employee was the one who actually received the substances.9 While the
blame for the delay in logging evidence was usually the workload of the
employees of the lab, there also appears to be a complete lack of appreciation for
the critical nature of the information they were recording.
Once the evidence was logged into FLIMS, the drugs were stored in a vault
adjacent to the office. While the door to the OCME drug lab had unique security,
as did the drug vault, the utilization of the security around these areas was lax at
issues to be addressed here.
9 While there was a “note” provision in the system that would allow one to make a note of who actually received the
evidence and when, it seems it was never utilized by staff.
14
best. Unauthorized individuals were allowed access to the area and at times the
door of the vault would be left partially open as a convenience to employees going -
in and out of the vault. There was no written office policy or protocol for intaking
evidence, and once evidence was transferred to the chemist for testing, those
packages were allowed to be stored in the personal lab lockers assigned to each
chemist. While a surveillance camera was available to record events that occurred
in the drug lab, it appears it was not routinely monitored and no video evidence
was introduced by the State to counter defendants’ arguments as to the lack of
security at this location.
When the Delaware State Police closed the OCME drug lab and removed
the drug evidence from its vault, more than 700 pieces of “old” evidence that was
unaccounted for in the case management system was discovered as well as rolls of
evidence tape utilized by the various police agencies. No reasonable explanation
was provided for these situations but clearly it would have assisted employees
who were inclined to steal drug evidence from the lab. They could use
unaccounted-for evidence as a substitute for what was stolen and use the tape
color routinely used by that police agency to hide their entry into the drug
envelopes)
15
The above, taken with the testimony regarding an absentee manager and the
lack of oversight regarding the intake activities that were occurring within the
OCME drug lab, together with the knowledge that most drugs tested by the lab
would never be needed for trial, created a perfect storm for illegal conduct to
occur,
At the hearing, counsel for Nyala and Irwin presented the testimony of
Joseph Bono, an independent forensic consultant who previously served as the lab
director for the United States Secret Service, and has held similar positions with
the DEA and NCIS.10 Mr. Bono’s report, supported by his testimony at trial, ' ‘
found that:
[I]n the absence of an investigation to determine the “root causes” of
the evidence breaches noted in the June 19, 2014 report issued by the
Delaware Department of Justice entitled “Investigation of Missing
Drug Evidence: Preliminary Findings,” any evidence that was stored
in the Delaware OCME Crime Lab is not sufficiently reliable to meet
the standards for ensuring integrity as required by recognized
forensic science accrediting bodies.ll
He concluded that:
In conclusion the situation at the OCME drug analysis laboratory, as
documented in the June 19, 2014 Preliminary Findings, calls into
question any reliability of reports or evidence handling procedures
associated with purported controlled substances which passed
through that laboratory. With what is known up to this point, and
To Ben—o was also hired by counsel for Nesbitt but was not called as a witness during his hearing.
'1 Op. Mem. of Joseph Bono, Nyala and Irwin’s Hearing Ex. 2 at pg. 2-3 (“Bono Report”).
16
based on all of the documentation made available to me through
various sources, there are serious concerns related to the veracity of
any scientific results reported by the laboratory. There is no
certainty, scientific or otherwise, that the evidence handling
procedures in the OCME laboratory can be deemed reliable or can be
trusted.12
Irwin and Nyala assert that since there was no contrary expert testimony presented
by the State, Mr. Bono’s testimony alone would support a finding by the Court
that the drug evidence is sufficiently unreliable to allow submission at trial.
E. Audit
After the drug evidence was removed from the OCME drug lab to Troop 2
of the Delaware State Police, an audit of the evidence from more than 9000 cases
was undertaken.13 The review conducted by the Delaware State Police, with
assistance from other police agencies, included the following:
1. A review of the outside of the envelope or container in which the
controlled substance was located to determine if there were any observable rips,
tears or other signs of tampering.-
2. A review of the contents of the envelope or container by opening it to
determine if it appeared to contain the drugs listed by the arresting officer. If so,
_ _ 3..
'2 Id. at pg. 10-1 1.
'3 To the Court this is an astounding amount of evidence being retained at the lab. Most drug cases are resolved
within four to six months of indictment, and once the substance was tested or the case resolved, the drugs should
have been returned to the police agency. This reflects a significant breakdown in communications between the
agencies regarding the resolution of cases or retention policies that are simply out of date.
17
the contents were weighed and/or counted, depending upon what drugs were in
the container.
3. Any discrepancies as to either the type of drugs, its weight or count
would be noted on a form that had been created for the audit purpose.
4. The drug evidence would be resealed and the envelope or container
would be returned to the evidence locker at Troop 2,...
Discrepancies that were noted by the officers would be brought to the
attention of a supervisor and a determination would be made by that officer
whether it warranted further investigation.
When the audit process was initially instituted there was a meeting of some
of the officers who were to participate for the purpose of outlining the procedures
that were to be followed. However, there was no written direction or protocol,
and the determination of whether there was a discrepancy was in large part left to
the discretion of the reviewing officers. This was highlighted during the hearing
when the officers who participated in the audit gave conflicting testimony as to
what was considered a discrepancy and whether it needed to be reported to the
supervising officers. In all three cases at issue here, the officers did not find a
discrepancy that warranted further investigation.
18
III. OTHER JURISDICTIONS
To aid the Court’s analysis, it has reviewed cases involving crime labs that
have experienced similar scandals throughout the country. Although it is
unfortunate how often these issues have arisen, the Court was able to draw some
insight on the issues from the actions taken in other jurisdictions to properly
combat such abuses. In each of the jurisdictions where a lab scandal occurred, the
common thread among them was the identification of the chemist or lab
technician who actually committed the improper conduct. For example, in West
Virginia, the actions of the West Virginia State Police Crime Laboratory’s lead
serologist were found to be so egregious over a ten-year period that the West
Virginia Supreme Court ruled that:
as a matter of law, any testimonial or documentary evidence offered
by [that serologist] at any time in any criminal prosecution should be
deemed invalid, unreliable, and inadmissible in determining whether
to award a new trial . . .14
In Massachusetts, as a result of the conduct of a chemist, the Supreme
Court created a conclusive presumption that the misconduct would have occurred
in a defendant’s case if that chemist signed a certificate of drug analysis as either
the primary or secondary chemist in a defendant’s case.15 The conduct of the
-'_ : :—-;.—=.u —
‘4 In re Investigation of W. Va. State Police Crime Lab., Serology Div., 438 SE. 2d 501, 506 (W. Va. 1993).
'5 See Massachusetts v. Charles, 992 NE. 2‘1 999, 1003-05 (Mass. 2013).
l9
chemist eventually led the Supreme Court of Massachusetts to appoint five retired
judges as special judicial magistrates to preside over criminal proceedings that
related to the lab at which the chemist was employed.
Similar cases have arisen in Texas, Florida, New York, Oklahoma, North
Carolina and California,16 so the problem presented to the Court here is not
3—_
' '6 In 2012, the Houston Police Department’s Crime Lab discovered that one of their employees, Jonathan Salvador,
had on at least one occasion used evidence from one case to support evidence in another case. The Texas
Department of Public Safety identified 4,944 cases that Salvador worked on during his six-year tenure at the lab. All
of the evidence handled by Salvador during the 90 day period surrounding the incident was re-tested and an
additional 440 cases were also re-examined. In order to deal with Salvador’s misconduct the court came up with the
following rule to establish when an inference of falsity will be given to a piece of evidence:
[I]f the applicant shows that: (1) the technician in question is a state actor, (2) the technician has
committed multiple instances of intentional misconduct in another case or cases, (3) the technician
is the same technician that worked on the applicant's case, (4) the misconduct is the type of
misconduct that would have affected the evidence in the applicant's case, and (5) the technician
handled and processed the evidence in the applicant's case within roughly the same period of time
as the other misconduct. Once the applicant satisfies this initial burden by establishing the
identified factors, the applicant has proven that... the errors could have resulted in false evidence
being used in the applicant's case. . .. If Applicant can establish the necessary predicate facts, then
the burden shifts to the State to offer evidence demonstrating that the laboratory technician
committed no such intentional misconduct in the applicant's case. We realize that rebutting an
applicant's successful claim that we should infer falsity will be an onerous burden, but we believe
the burden is appropriate considering the egregious nature of the actions of Salvador.
(Ex Parte Coty, 418 S.W.3d 597, 598-605 (Tex. Crim. App. 2014)(intemal citations omitted».
In Florida, on February 4, 2014, chemist Joseph Graves of the Pensacola Regional Crime Lab was arrested on
charges of grand theft, tampering or fabricating evidence and trafficking illegal drugs after the Escambia Sheriff’s
Office began an investigation into missing prescription pain pills from the evidence room. (See State v. Graves, No.
2014-CF-000457A (Fla. Escambia County Ct. filed February 5, 2014); Florida Dept. of Law Enforcement, Office of
the Inspector General Review of FDLE Drug Chemistry Section Evidence Procedures & Protocols (March 31,
2014)).
In 2011, the Nassau County, New York crime lab was closed and the governor ordered Inspector General Ellen
Biben to investigate the lab. Biben found dysfunctional leadership, management, inconsistent training among
analysts, inconsistent and outdated procedures and failure in the monitoring of the lab. Hundreds of cases were
placed under review and at least one has been vacated. However, the last review released to the public declared no
evidence had been tainted and no discrepancies were found which would affect convictions. (See New York State
Inspector General Investigation into the Nassau County Police Department Forensic Evidence Bureau (Nov. 2011)).
In Oklahoma, Joyce Gilchrist, a forensic chemist for the Oklahoma City Police Department was fired in 2001 for
misconduct after being publicly scrutinized by courts for years. Although more than 1,700 cases were reviewed, no
legal action was taken against Gilchrist by the state. (See Mark Hansen, Crime Labs Under the Microscope After a
String of Shoddy, Suspect and Fraudulent Results, ABA Journal (Sept. 1, 2013), available at
20
I. .0 IE_W._
On January 14, 2014, during atrial in Kent County Superior Court, it was
discovered that drug evidence that had been in a sealed envelope stored at the
Chief Medical Examiner’s Office Controlled Substances Unit (“OCME drug lab”)
was missing, despite there being no appearance of tampering. The actual drugs
that were seized had been replaced with blood-pressure pills. Following this
discovery, the Office of the Chief Medical Examiner (“OCME”) began an internal
audit but was unable to explain how the event occurred. When more
discrepancies were uncovered, Delaware State Police and the Department of
Justice initiated a criminal investigation, which caused them to seize all evidence
at the OCME drug lab and suspend all drug testing at that facility. All drug
evidence was systematically removed from the OCME drug lab and transported to
Delaware State Police Troop 2 (“Troop 2") where an audit was conducted by the
Delaware State Police with the assistance of officers throughout the state. The
subsequent investigation has uncovered multiple issues at the OCME drug lab
relating to the storage of the evidence, security at the lab, documentation of the
evidence’s arrival at and movement within the lab, and other failures in protocol.
unique to Delaware and unfortunately is all too common. However, what
distinguishes those cases from the situation here is that those jurisdictions were
able to identify who engaged in improper, and at times illegal, conduct and the
Courts were able to create remedies when evidence was touched by that
individual. Unfortunately here, to the extent that there are discrepancies between
the drugs seized from a defendant and those tested by the lab, the individual _
possibly responsible for that conduct has not been identified. This is an important
distinction because as best the Court can ascertain, and the parties have not
provided evidence to the contrary, none of the cases in other jurisdictions that
have led to the investigation of a particular crime lab have ever resulted in all of
the evidence being found unreliable and inadmissible simply because that
evidence was stored or tested at the lab that has been compromised. In addition,
during the expert testimony of Mr. Bono during the hearing in Nyala and Irwin’s
matters, in response to the Court’s inquiry, he too was unaware of any court
.‘E___, EL—
http://www.abajoumal.com/magazine/article/).
In 2010, an independent audit revealed that the North Carolina State Bureau of Investigation’s Forensic Lab had
systematically withheld evidence in 230 cases over 16 years. After a review of all 230 cases, none were reopened.
(See Chris Swecker & Michael Wolf, An Independent Review of the SB] Forensic Laboratory (2010) available at
www.ncids.com/forensic/sbi/Swecker_Report.pdf).
In March 2009, San Francisco police shut down the crime laboratory's drug unit after an analyst was arrested for
stealing cocaine from evidence. The technician was criminally charged. (See Craig M. Cooley, Nurturing Forensic
Science: How Appropriate Funding and Government Oversight Can Further Strengthen the Forensic Science
Community, 17 Tex. Wesleyan L. Rev. 441, 475 (2011); see also Jessica D. Gabel, Realizing Reliability in Forensic
Science from the Ground Up, 104 J. Crim. L. & Criminology 283, 305 (2014)).
21
making such a broad or generalized finding. While this makes the cases here
unique, it also makes it more difficult for the Court to decide how to best address
the problems found at the OCME drug lab. The charges against the OCME
employees that have occurred to date do not help identify the “root cause” at the
lab and thus there is no obvious way to isolate the problems at the OCME drug
lab.
Unfortunately, the Court cannot simply wait until the criminal
investigations are complete and the individuals responsible have been identified.
First, those involved may never be identified, and secondly, hundreds of cases,
some in which the defendants are currently incarcerated, must be promptly
resolved. They have already waited for the issue to be properly presented to the
Court and waiting further simply is not legally acceptable or reasonable.
IV. MOTIONS IN LIMINE
A. Parties’ Contentions
Although the motions for Nyala, Irwin and Nesbitt are titled differently, the
foundation upon which they are all based is the same. That is, the
mismanagement and the discovery of criminal conduct at this lab supports the
conclusion that the underlying drug evidence in these criminal cases is unreliable
and should be ruled inadmissible. In other words, they argue that the lab
22
conditions are so egregious, there is no way of ensuring that the drugs seized
from the defendants by the police are the same drugs that have been tested by the
lab. Counsel for Nesbitt tweaks this argument further by asserting that the
evidence lacks the requisite scientific reliability required under Daubert17 and
since the underlying reliability of the evidence tested is in question, the Court
should assert its gatekeeping function and exclude the Chemist’s testimony.18
Obviously without such testimony the State would be unable to continue to
pursue the drug charges against the defendants. In addition to these assertions, all
of the defendants claim that even if the Court does not accept their unreliability _
argument, the State is unable to establish a reliable chain of custody to
authenticate the drug evidence.
B. Analysis
To first address the general admissibility of the evidence, it is important to
separate the issues affecting admissibility from those that are simply reflective of
an incredible deficiency in the oversight and management of this lab. Clearly, by
any reasonable forensic standards relating to the management and operation of a
lab testing controlled substances, this facility has failed. The lab had an
'7 Daubert v. Merrell Dow Pharm., 509 US. 579 (1993).
'8 It is important to note, there is no assertion by Nesbitt that the testing by the independent lab was performed
improperly or that the results of the testing are unreliable as to the identification of the substance. His Daubert
argument goes to the reliability of what was tested and whether it relates to the defendant.
23
unreliable case management system and intake procedures that would regularly
fail to accurately reflect when and by whom evidence was received, and it was
operated by individuals who lacked the necessary training, expertise or
professionalism to perform those functions. The employees here failed to
appreciate or even recognize the critical responsibilities they had in safeguarding
the evidence they received, or the consequences to the criminal justice system in
failing to do so.
While the OCME facility was generally a secured building, the safeguards
within the building were routinely bypassed or ignored by staff. This lack of
security allowed employees to have, at times, unimpeded and unsupervised access
to evidence lockers providing a near open door to those who wanted to steal for
personal pleasure or economic gain. This, together with an absentee manager and
a lack of clear procedures and protocols, created opportunities that were simply
too tempting for an unscrupulous or compromised employee.
A lack of management also created in essence a warehouse of
uninventoried drug evidence that was maintained at the OCME drug lab even
after the criminal case was completed. This provided access to drugs that were no
longer needed by the police or prosecutors opening a door where unaccounted-for
drugs could be utilized to foster criminal conduct without fear of being
24
discovered. As a result of the conditions found at this lab, it should not be
surprising to anyone that the criminal conduct discovered to date occurred, or that
the unmonitored circumstances have allowed others to go uncharged.
There should be no question that the Court finds the conduct here to not
only be outrageous, unacceptable and a violation of a public trust, it also warrants
a full investigation and review by professional lab managers with their
suggestions as to the best practices to operate this lab being fully implemented by
the State. The reliability and confidence in the State’s ability to perform this
critical function has been severely damaged and the citizens of this State deserve
nothing less than a lab that will meet or exceed the best practices for this industry.
There are hundreds of officers who put their lives in- jeopardy every day to
enforce our drug laws, and the actions of OCME has put those cases in jeopardy.
The cost to the criminal justice system has been enormous and a simple change in
who manages the facility or creating some written procedures simply will not
suffice.
That said, the question is not whether the lab was in disarray and
mismanaged, as everyone, including the Court, agrees that it was. The question
now is what effect that should have on the admissibility of drug evidence in
criminal cases. At times this question has gotten lost in the forest of information
25
gathered regarding the improper operation of this lab. To answer this question it
is also important to understand what is not present here. There is no evidence to
date to suggest that proper testing of drugs submitted did not occur, or that the
chemists were submitting false reports, or that critical evidence was withheld by
the lab, or that there was any misconduct by the police in violation of a
defendant’s rights. When the smoke clears, what we have is a lab that suffered
from systematic failures in protocol resulting in evidence being stolen, for either
sale or personal consumption, and in some instances replaced with other drugs.
While the defendants urge this Court to find that any evidence stored at the
OCME drug lab is z'psofacto unreliable due to a lapse in management and
protocol, the Court finds that such a blanket ruling is inappropriate. While the
circumstances here clearly justify greater scrutiny and review of the evidence
presented in the courtroom, the Court does not find it justifies a wholesale
suppression of all drug evidence seized by law enforcement over the past several
years. The Court believes that even Mr. Bono, the expert retained by Nyala and
Irwin, would find that extreme. The foundation of his opinion rests on the
inability to identify a particular culpable individual and it is only because one has
not been identified that he opines all evidence at the lab is suspect. The Court
shares his frustration but does not find credible a suggestion that all cases have
26
been tainted. That conclusion is not supported by the evidence and is simply
wrong,
There are clearly cases, perhaps the majority of cases, that went to the
OCME drug lab, where in spite of the problems documented during the hearing,
there is no evidence to suggest that the drug evidence had been tampered with or
altered in any way. To deny those cases their day in court would be an injustice
that simply cannot be justified. That said, given the sheer magnitude of the issues
that plague the OCME drug lab, it would be equally unfair to allow cases to be
tried in a sterile proceeding as if this conduct never occurred. Therefore, a fair
balance of these concerns needs to occur.
The decision whether to admit evidence in particular circumstances is
generally within the trial judge’s discretion.19 Under Delaware Rule of Evidence
901, the party offering the evidence at trial must present “evidence sufficient to
support a finding that the matter in question is what its proponent claims.”20 The
State may authenticate an item offered as evidence by either having “witnesses
visually identify the item as that which was actually involved with the crime,” or
by “establish[ing] a ‘chain of custody’ which indirectly establishes the identity
‘9 See Tricoche v. State, 525 A.2d 151, 152 (Del. 1987).
20 D.R.E 901.
27
and integrity of the evidence by tracing its continuous whdeabouts.”21 As a
general rule, since drug evidence does not have any unique characteristic that
would distinguish it from other drugs, the Court has utilized the chain of custody
process to ensure reasonable probability that the evidence proffered has not been
misidentified or altered. When chain of custody is used to establish the
admissibility of evidence, the Court must determine “whether there is a reasonable
probability that the evidence offered has been properly identified and that no
adulteration or tampering occurred.”22 While the State is required to authenticate
the evidence proffered and eliminate possibilities of adulteration or tampering,
their burden is not to “prove beyond all possibility of doubttthe identity of the
evidence or the improbability of tampering; it need only prove that there is a
reasonable probability that no tampering has occurred.”23 Any “alleged
deficiencies or ‘breaks’ in the chain of custody go to the weight of the evidence
rather than to its admissibility.”24 The Court continues to believe this time tested
process is an appropriate manner to test the authenticity of evidence when it is
attempted to be introduced in cases where the drugs went to the OCME drug lab.
This will allow for an individualized review of the circumstances surrounding
7‘ Whitfieiii 7. State, 524 A.2d—13, 16 (Del. 1987).
22 Murphy v. State, 632 A.2d 1150, 1153 (Del. 1993).
23 T atman v. State, 314 A.2d 417, 418 (Del. l973)(citing Clough v. State, 295 A.2d 729 (Del. Super. 1972)).
2“ Baker v. State, 551 A.2d 825 (Del. 1988) (TABLE) (citing United States v. Gay, 774 F.2d 368, 374 (10th Cir;-
1985)); see also State v. Croce, 1997 WL 524070, at *3 (Del. Super 1997).
28 -u'.
each case, including an analysis of that case’s preservation and custody while at
the OCME drug lab and whether that evidence suggests a likelihood the drugs
have been tampered with.25 Once the Court has found the evidence has been
sufficiently authenticated, it allows the jury to determine the significance of any
evidentiary discrepancy and the weight to give it.
_$ Over the years, to assist in this process, the General Assembly has passed
legislation to define what witnesses are required to sufficiently establish the chain
of custody26 and when the testing chemist is required to actually testify.27 Given
the outrageous conduct uncovered during the hearings in these matters, it is
difficult to envision that the underlying premise that supported these “shortcuts”
can be justified in the OCME drug lab cases. Certainly the parties would have to
agree that any certification coming from the OCME, as required by the statute,
would under the circumstances, be suspect. As such, while the Court finds that
requiring the State to clearly establish a chain of custody continues to be the fair
way to determine the admissibility of drug evidence, these cases are far from the
norm, and the Court believes more is required. Thus, the Court finds in cases
25 Whitfield v. State, 524 A.2d at 16 (“Factors relevant in a chain of custody analysis include ‘the nature of the
article, the circumstances surrounding its preservation in custody, and the likelihood of interrneddlers having
tampered with it.” (internal citations omitted».
25 See 10 Del. C. §4331.
27 See 10 Del. C. §4330.
29
where the evidence was submitted to the OCME drug lab, some enhanced
procedures should be required.
While the law generally does not require the State to present a perfect chain
of custody to authenticate evidence, even the State has acknowledged in its report
dated June 19, 2014 that there were “systematical operational failings” including
lack of management, oversight, security, and the lack of effective policies and
procedures at the OCME drug lab. As such, there is no question that the
improprieties at the lab have raised significant questions regarding whether the
drug evidence submitted at the lab could have been altered or tampered with.
While the State still is not required to prove the chain of custody “beyond all
- possibility of doubt” as it relates to the probability that the evidence was tampered
with, the Court finds that because of the improprieties discovered at the OCME
drug lab, in order for the State to meet the burden of “reasonable probability” a
more complete chain of custody is required.
Therefore, in these cases, for the evidence to be admitted the State will be
required to call all available witnesses in the chain of custody from the time the
evidence was submitted to the OCME drug lab until it was taken from Troop 2
and sent to the independent lab for testing. The use of “available” instead of all to -.
describe the required chain of custody is done only because the Court recognizes
30
These issues were documented in a 36-page report issued by the Attorney
General’s Office on June 19, 2014.3
The investigation, although still ongoing, has thus far resulted in three
OCME employees being suspended, two of those employees being indicted in this
Court,4 and the firing of the Chief Medical Examiner. However, the full extent of
the criminal conduct at the OCME drug lab is still unknown.
The issues uncovered, and those anticipated to be revealed as the
investigation continues, have prompted hundreds of motions from indicted and
convicted defendants at all stages of the criminal process. In an attempt to
logically and procedurally address these motions, the Court decided to first
attempt to address cases that were awaiting trial. To do so, the Court reached out
to the State and the defense bar to schedule hearings on pending matters within
that category. With the professional coordination of all parties involved, the Court
has held two hearings to gather evidence regarding the events at the OCME drug
lab. The first hearing, which started on July 8, 2014, involved defendants Dilip
Nyala (“Nyala”) and Michael Irwin (“Irwin”). The second hearing, which was
held in late August 2014, involved defendants Hakeem Nesbitt (“Nesbitt”) and
3 The Court notes that on pages 47 to 61 of the brief filed by Mr. Nyala and Mr. Irwin, counsel specifically reviews
13 cases identified in the Attorney General’s report. While this information was provided to counsel, it was not
introduced in the hearings and thus has not been considered by the Court.
4 The indictments of these employees arose out of the OCME investigation by the Delaware State Police but were not
directly related to the drugs missing from the OCME drug lab.
that due to the continuing criminal investigation of the OCME drug lab, on
occasion an employee or former employee of OCME may refuse to testify in fear
of incriminating themselves. If this occurs, it would not prevent the State from
meeting their authenticity obligations set forth in this Opinion but will open the
door for the defendant to present evidence regarding the OCME investigation as
it relates to the role that employee played in the receiving and handling of
evidence at the lab. Of course, the decision whether to continue to pursue those
cases remains within the discretion of the Attorney General’s Office.
While at first blush this may seem burdensome, the Court is confident,
based on the evidence presented at the hearings, that the individuals involved in
the chain of custody can be reasonably identified and their contact with the
evidence established. The Court recognizes this is beyond what is normally
required to establish a chain of custody and it wants to be clear, this requirement
only applies to drug cases that were sent to the OCME drug lab and are awaiting
trial. It is not the Court’s intent to generally change the chain of custody
requirements but, under the unique circumstances here, the Court believes that
fairness requires a higher obligation to authenticate the drug evidence.
With this ruling, the “auditing” officers are now a part of the chain of
custody that the Court has ruled must be established and the Court is concerned
31
that their conclusions, if presented at trial, would perhaps unfairly influence the
jury’s determination of the reliability of that evidence. The significance of the
audit was a concern to counsel at the hearing as well as in the briefing that
followed. It is certainly clear to the Court that the audit performed by the police
was not consistent with any reasonable forensic review of the evidence. There
were no standards or guidelines established and no forensic expert was consulted
to ensure compliance with standards for such a review. The oversight process
was inconsistent, and the significance of the findings by the audit team, to a large
degree, depended upon the supervisory officer on duty that day. Without
consistent guidelines, the determination of whether there were any discrepancies
from the original description of the evidence was left to the discretion of the
auditing officers,
But what is lost in the arguments made by counsel is the underlying
purpose of this audit. The Delaware State Police had opened a criminal
investigation regarding the activities at the OCME drug lab, in particular
regarding the theft of controlled substances at that facility. The unmistakable
intent of the audit here was to determine whether there were other cases that
reflected discrepancies that would be evidence of criminal conduct. This was by
no means a scientifically conducted forensic audit or inventory of the evidence
32
maintained at the lab, but was simply an investigative effort to determine the
extent of the criminal conduct that was yet to be disclosed. Therefore, from the
Court’s perspective the results of the officers “audit” have no significance in the
admissibility of the evidence. The officers finding of “no discrepancy” is not
conclusive of anything and certainly has no evidentiary value.
Because of this, in drug cases that went to the OCME drug lab and were
part of the audit process, the Court believes it would be inappropriate to allow
counsel to solicit from the auditing officers in their case in chief any indication as
to their findings. If for some reason, unfathomable to the Court at this moment,
defense counsel wanted to explore this area, the State then may request
permission to rebut any improper suggestions made by counsel’s questions.
Frankly, the Court would strongly urge counsel to stipulate that during the
transfer of the drugs to Troop 2, following the shutdown of the OCME drug lab,
that additional officers assisted in the transfer but the parties have agreed they are
not required to testify regarding their handling of the evidence. This would
alleviate the issue and any potential unfair weight the jury may give to an
unsolicited comment during the auditing officers’ testimony.
The Court next will require the State in each case that proceeds to trial to
test at a minimum the amount of drugs that correspond to the tier level for which
33
that Defendant is charged with committing. In other words, the drugs that were
allegedly seized from the defendant must be completely tested for the given
weight, or volume, for which the State is proceeding to trial,
The final issue raised in the motions filed with the Court in these cases is to
what extent the parties may question the witnesses or present evidence regarding
the investigation of the OCME drug lab during the trial. Beyond the testimony
presented during the hearings, the parties have the unusual presentation of a
report from the Attorney General’s Office outlining problems at the OCME drug
lab found by their investigation. During the hearings, the State presented
explanations for some of the discrepancies that have occurred between what was
seized by the police and what has been found in subsequent examination by the
outside lab. Those explanations include the use of different scales, the officers’
use of standardized measurements to determine weights, the natural reduction in
weight of some material due to decompensation, police error and the destruction
of some of the evidence during testing. Any of these conclusions may provide a
reasonable explanation of a particular discrepancy, and it is fair, appropriate and
necessary for the State to present such evidence to establish its burden of proof.
However, it does not eliminate the alternative possibility that a discrepancy is the
result of drugs being mishandled or stolen as a result of the mismanagement at the
34
OCME drug lab. As such, it would be equally unfair to prohibit the defense from
reasonably exploring, with witnesses, the OCME investigation as an explanation
for a reduction in weight or for some other discrepancy in the evidence.
Obviously, the benefit of that testimony will depend upon the unique facts of each
case and the litigation strategy of counsel. In cases where the discrepancy in the
evidence is not significant and a reasonable explanation has been provided, it is
likely the fact that an OCME investigation occurred will have little impact, and
pursuing such questions may actually diminish counsel’s credibility before the
jury. In other cases, where the discrepancy is more significant, it may have a
much greater impact.
While the Court has no intention of limiting the discretion given the trial
judge under Delaware Rule of Evidence 403,28 regarding the extent of questioning
that will be allowed relating to the OCME investigation, it does believe that
fundamental to the introduction of such evidence is its relevance under Delaware
Rule of Evidence 402.29 The Court expects that in the vast majority of cases there
.'__,-_-.=p—-i_—__.
2" Delaware Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or
needless presentation of cumulative evidence.
29 Delaware Rule of Evidence 402 provides: I.
All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules
applicable in the courts of this State. Evidence which is not relevant is not admissible.
35
will be a discrepancy between what the officer indicated he seized and what is
indicated by the report from the testing laboratory. And as previously indicated,
in those cases, the Court believes it is fair to allow evidence into the trial
regarding the OCME investigation. However, there will be cases in which there
is no evidence of tampering and the evidence seized and tested reflects no
disparity, making the OCME investigation not only irrelevant but would clearly
be either confusing or misleading to the jury. As a result, the Court believes it is
appropriate to establish a bright line that must be crossed before allowing -
questioning regarding the investigation. Therefore, the Court has decided that if a
case was sent to the OCME drug lab for testing, the defense will be free to
question the State’s witnesses or to present evidence regarding the OCME
investigation only if there is either evidence of tampering of the packaging
submitted by the police or a discrepancy in weight, volume or contents from that
described by the seizing officer. If evidence of tampering is not present and there
is no discrepancy, the OCME investigation is not relevant under Delaware Rule
of Evidence 402 or at least would be misleading and unfair under Rule 403. In
such cases, therefore, evidence of the investigation should not be introduced.
In creating this bright line, the Court recognizes that discrepancies in
weight and volume are not uncommon in drug cases regardless of whether the
36
evidence had any connection to the OCME drug lab. The Court considered
attempting to create definitive lines for the admissibility of the OCME
investigation specific to each type of drug based upon what would be a
reasonable deviation in weight or volume for that drug. However, the Court
found it could not reasonably do so because of the multitude of factors that could
affect those values. Unfortunately, the bright line created by this Opinion will
undoubtedly lead to the OCME drug lab investigation door being opened to
defense counsel in more cases than perhaps appropriate. However, the reasonable
safeguard here is not in whether it is admissible but the extent it is admitted.
While the Court expects the bright line regarding the admissibility of the OCME
investigation to be generally accepted and followed by the Court, each case is
unique and the discretion to limit the extent of the evidence regarding the OCME
investigation remains with the trial judge. They will be in the best position to
gauge to what extent such evidence is appropriate based upon the facts of the case
they are trying and the circumstances that arise during the course of the trial.
That said, the universe of these cases remaining to be tried is not
significant and this judge encourages his colleagues to recognize that fairness
dictates that there be some leeway given to strike a reasonable balancing of the
explanations given to the jury so that they may weigh the evidence and determine
37
whether they are convinced that the drug evidence offered at trial is that which
was seized by the police from the defendant.
V. APPLICATJQN TO NESBITT N YALA AND IRWIN
The primary focus of counsel at the two hearings in these matters was to
present the circumstances surrounding the mismanagement and inappropriate
conduct at the OCME drug lab to the Court, and to show why those circumstances
suggest the drug evidence against them should be ruled inadmissible. In doing
so, many of the witnesses that the Court, 'by this ruling, has indicated must testify
at trial did so at the hearing. However, the parties did not have the benefit of the
Court’s ruling or knowledge of the enhanced burdens created by this Opinion,
therefore it would be unfair at this juncture to make any additional ruling beyond
deciding the motions in limine. These cases will, unless resolved beforehand,
proceed to trial before this judge and the State will have its opportunity to fully
comply with the requirements of this Opinion. Since the evidence as to each of
the defendants here has established discrepancies in the amounts allegedly seized
by the police and that tested by the independent lab, the defendants will be given
an opportunity to explore this difference including cross-examining witnesses
about the OCME investigation or presenting such evidence in their cases if they
find appropriate.
38_
VI. CONCLUSION
The situation that developed over time at the OCME drug lab that led to the
overall investigation has had a profound effect on the criminal justice system.
Important drug cases have been placed in jeopardy; other cases have been
dismissed or were allowed to plea to reduced charges; extensive judicial
resources to address the issues have and will continue to be utilized; many
incarcerated defendants have waited while the issues were appropriately litigated;
and significant resources have been expended to test drug evidence at other labs.
The conditions at the OCME drug lab have had significant consequences for the
prosecution efforts of the State, and the Attorney General’s Office has had to
defend an entity managed by another state agency in which it had no control or
administrative oversight. Regardless of the decisions made here, there are no
winners in this situation. While this Opinion may make some cases difficult to
prosecute, the Court believes it has struck a fair and appropriate balance of the
issues presented by the parties.
Since the Court is not willing to conclude that the conditions at the OCME
drug lab mandate a finding that all evidence stored at the location was unreliable,
Dilip Nyala’s Motion In Limine to Exclude Drug Evidence; Michael Irwin’s
Motion In Limine to Exclude Drug Evidence; and Hakeem Nesbitt’s Motion In
39
Limine to Exclude Proffered Expert Testimony Concerning the Chemical
Composition and Weight of the Substance Seized and to Exclude any Analyses,
Reports or Tests Relied Upon in Rendering Hisfller Opinion is hereby DENIED.
The Motion In Limine to allow the defendants here to cross-examine the
State’s lab and chain of custody witnesses regarding the investigation and
operation of the OCME drug lab is, consistent with the rulings set forth in this
Opinion, GRANTED in part and DENIED in part.
IT IS SO ORDERED.
'c" - _ .'
._»$-. =_ _,_—-.
J u
dge William C. CaEn;
40
Braheim Reed (“Reed”). During that August hearing, testimony uncovered that
evidence in the Reed case had a significant discrepancy between what the officers
seized and what was actually tested at the independent lab retained by the State.5
As a result, the State entered a nolleprosequi of the Reed case. Therefore, this
Court’s decision relates only to the Nesbitt, Irwin and Nyala cases.6 By deciding
these three cases the Court’s intent is to establish a framework for addressing the
volume of cases awaiting trial for drug offenses that at one time were stored at the
OCME drug lab. The facts surrounding these specific cases involve drug
evidence that was sent to the OCME drug lab for testing but was never actually
tested by a chemist at that location. However, it is expected that the Court’s ruling
will also have an impact on cases where the drugs were tested by the OCME drug
lab, and potentially the hundreds of petitions that have been filed pursuant to
Superior Court Criminal Rule 61.
5 NMS Labs, located in Willow Grove, Pennsylvania, was the independent lab used by the State after the OCME
facility was closed. In the Reed case, fifty additional bags of heroin were received by NMS for testing than that
allegedly seized by the police and counted by the officers during their audit.
5 Subsequent to the hearing relating to the Nyala matter, another judge of this Court granted a Motion to Suppress.
The State filed a Motion for Reconsideration which was denied on September 12, 2014. The State has subsequently
certified that the evidence that was suppressed was essential to the prosecution and the State could not proceed
without such evidence. As a result, the State requested the Court to issue a written order of dismissal pursuant to 10
Del. C. §9902(b) which was signed by the Court on September 18, 2014. Such action allows the suppression issue to
be addressed by the Delaware Supreme Court. Counsel for Nyala has asked the Court to continue to include Nyala
in this Opinion and to specifically address the OCME issue in the event the suppression decision is overturned by the
Supreme Court.
Defendants are challenging the State’s ability to use drug evidence at trial
through filing various motions in limine. The Court will first highlight the
specific factual and procedural background of each case, summarize guidance
found from other jurisdictions facing similar drug lab improprieties, decide the
principles to be used for cases involving drug evidence sent to the OCME drug lab
and finally apply those principles to_ each specific defendant.
II. FACTUAL BACKGROUND
A. Michael Irwin
On September 17, 2013, the Delaware State Police arrested Irwin after he
fledfrom an attempted traffic stop and was observed discarding suspected drug
evidence, later identified as ecstasy, out of the window of his vehicle. Upon
taking Irwin into custody, marijuana was also located in his car. On September 18,
2013, the Delaware State Police executed a search warrant at Irwin’s residence of
2182 Washington Avenue, Elsmere, Delaware. During the search, the Delaware
State Police located additional marijuana and ecstasy. Irwin was subsequently
indicted by the Grand Jury on November 25, 2013 for drug dealing (ecstasy),
aggravated possession (ecstasy), disregarding a police officer’s signal, tampering
with physical evidence, possession of marijuana, resisting arrest, drug dealing
(marijuana), possession of drug paraphernalia, and endangering the welfare of a
child. The evidence seized from Irwin was properly documented and stored in the
drug locker at the officer’s troop until retrieved by Sergeant Scott McCarthy, an
evidence custodian officer of the Delaware State Police.
Sergeant McCarthy was responsible for transporting evidence from the
various Delaware State Police troops located in New Castle County to the OCME
drug lab. Prior to transportation of the evidence envelopes, he would visually
examine the evidenCe for signs of tampering and would enter an evidence
submission report listing the evidence he intended to submit to the drug lab on
that day into the OCME drug lab’s Forensic Laboratory Information Management
System (“F LIMS”).
The evidence receipts generated in Irwin’s case established that Sergeant
McCarthy delivered the evidence in the case on two different occasions. The first
occurred on September 24, 2013 at 1:10 pm and was turned over to Kelly
Georgi, and a second submission was turned over on November 5, 2013 at 1:00
pm. to James Daneshgar. Ms. Georgi and Mr. Daneshgar were both employed at
the OCME as forensic evidence specialists whose duties were to receive evidence
from officers and to secure and transfer the drug evidence to the chemist for
testing. With these submissions, Sergeant McCarthy submitted the following
evidence to the OCME drug lab for testing:
(a) 25.3 grams of ecstasy assigned number FE09736
(b) 2 marijuana blunts totaling .8 grams assigned number FE08433
(c) An additional 30.9 grams of marijuana and ecstasy totaling 2.3 grams and
were assigned number FE08434. However, the submission was split into --
two separate containers (A) for marijuana and (B) for ecstasy.
The submission receipt signed by the officer and an OCME drug lab
employee reflects that the evidence initially submitted by Sergeant McCarthy was
received on September 24, 2013, but it was not logged into FLIMS until
September 30, 2013 at 12: 19 pm As to the November 5th submission, the receipt
and chain of custody documents reflect that Sergeant McCarthy delivered the
evidence on November 5, 2013 at 1:00 pm, but it was not entered into FLIMS
until 4: 10 pm on that date.
As the OCME investigation proceeded, the evidence in the Irwin case was
moved to Troop 2 and an audit of the materials contained in the envelopes was
conducted. Upon opening the envelopes the officers weighed the substances and
confirmed there was no discrepancy from that noted by the arresting officer.
Subsequent testing by the independent lab, however, resulted in a finding that the
drug evidence submitted in the Irwin matter contained 16.01 grams of marijuana,
a difference of 14.89 grams from the weight originally documented by the police.
B. Dilip Nyala
On October 1, 2013, Wilmington Police officers received information from
a confidential informant that an individual known as “Chin” was in possession of
a semi-automatic firearm, and a revolver, and that he had recently received a large
quantity of heroin. The informant described “Chin’s” physical appearance and
connected him to Building D at 2702 Eastwood Road, Manchester Arms
Apartments in Elsmere. The informant also advised the officers that “Chin”
distributed heroin while driving a silver 2012 Nissan Ultima and would keep the
heroin in his girlfriend’s second floor apartment in the 2700 block of West 5th
Street in Wilmington. Upon receiving the information, the officers responded to
the Manchester Arms Apartments and observed the Nissan Ultima parked in front
of Building D. They subsequently ran the license tag of the vehicle and
determined it was registered to Nyala and his mother and obtained a photograph
of Nyala from his driver’s license. The informant was subsequently shown the
photograph and positively identified Nyala as “Chin.”
During subsequent searches of Nyala’s apartment, his girflriend’s
residence, as well as the Nissan Ultima, the officers discovered 17.14 grams of
heroin contained in 857 bags, 2.6 grams of heroin in l30-bags, 48 grams of crack
cocaine, 66 grams of marijuana, various drug paraphernalia and a 9 mm. semi-
automatic handgun together with a substantial amount of United States currency.
Nyala was subsequently arrested and indicted on aggravated possession, drug
dealing, possession of a firearm by a person prohibited, and possession of drug
paraphernalia. The evidence seized from Nyala was taken to the Wilmington
Police Department and placed in the Department’s drug locker. Subsequently, the
evidence control officer for the Wilmington Police Department, Corporal Arnold
Lewis, who was responsible for storing, collecting and transporting the evidence
seized by the Wilmington Police Department to the OCME drug lab, retrieved the
evidence and logged it into the police’s computer tracking system. In Nyala’s
case the drugs were divided into two packages with Package A indicating that it
contained 48 grams of crack cocaine, 66 grams of marijuana and 17.4 grams of
heroin. Package B indicated that it contained 2.6 grams of heroin.
Prior to transporting the evidence to the OCME drug lab, Corporal Lewis
generated an evidence submission report and placed that information into FLIMS.
From the evidence presented during the suppression hearing, it appears Corporal
Lewis delivered the drug evidence in Nyala’s case to the OCME drug lab on
October 7, 2013 at 1:00 pm The evidence was received by Aretha Bailey, an
administrative assistant at the OCME drug lab who was acting at the time as a
forensic evidence specialist. Notwithstanding the evidence submission report to
10