Leave Him Alone, Norm
Roper, Foreign Law, and Separation of Powers

Statistical Evidence and Selling Sudafed

United States v. Sdoulam, No. 03-3946 (8th Cir., Mar. 2, 2004).

Sdoulam was a convenience store owner who sold pseudoephedrine in violation of 21 U.S.C. § 841(c)(2), which makes it a crime to "possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance." Pseudoephedrine, which is found is many over-the-counter medications, can be used to manufacture methamphetamine.

At trial, an expert testified that Sdoulam's sales of pseudoephedrine products exceeded the national average.  The argument was that Sdoulam must have had "reasonable cause to believe" that he was selling pseudoephedrein to a meth dealer because his sales exceeded the national average.  The problem is that an expert can not testify about a defendant's given mental state.  Thus, in a murder trial an expert may not testify that, "I conclude the defendant had the requisite intent to kill." 

Isn't that what the expert is doing here -- "Because Sdoulam's sales exceeded the national average, he must have had 'reasonable cause to believe' the medicine was going to meth makers?"  Here is the panel's answer:

We hold that the District Court did not abuse its discretion in admitting Robbin's testimony. First, we reject Sdoulam's argument that Robbin's testimony amounted to improper evidence of the statistical probability that Sdoulam was guilty. The standards governing expert testimony of statistical probabilities are set out in United States v. Kandiel. 865 F.2d 967 (8th Cir. 1989). In Kandiel, the defendant was convicted on thirteen counts, including making false representation of citizenship and making false statements in applications for passports. Id. at 969. The issue of the defendant's true identity was critical, as the defendant asserted that he was not Mohammed Kandiel, the Egyptian national charged in the indictment but, rather, was Jeff Howard, the son of a Native American woman. Id. At trial, the government introduced the testimony of an expert who compared a genetic marker in the defendant's blood to random population studies of blood group typings. Id. at 970. Based on this comparison, the expert testified that the defendant was "seventeen times more likely than someone from a random population" to be the brother of Ahmed Kandiel, an Egyptian national. Id. at 971. The expert further testified that the genetic tests indicated that there was only a "one in 1,000" chance that the defendant was the child of a Native American. Id. The defendant argued that such testimony "impermissibly established by mathematical certainty that [he] was Egyptian-born Mohammed Kandiel." Id. On appeal, this Court upheld the admittance of the expert testimony, ruling that "[s]tatistical evidence is not inadmissible per se." Id. at 971–72. We deemed the testimony proper because the expert laid adequate "foundational support" for the statistical probabilities by relying on scientific studies and because the testimony did not "serve to reduce the ultimate question of guilt or innocence to one of mathematical probabilities." Id. at 971.

We find Robbin's testimony materially indistinguishable from the expert testimony admitted in Kandiel. As in Kandiel, Robbin laid adequate foundational support for his conclusions by explaining their bases—national census population and marketing data and the business records of Sdoulam's wholesale suppliers. Moreover, Robbin made no statement regarding the mathematical probability that Sdoulam was guilty of the crimes charged. Robbin's testimony consisted of nothing more than a
comparison of the amount of expected monthly sales of pseudoephedrine products by the average convenience store to the amount of estimated sales of pseudoephedrine products by the Kansas store. While this testimony made the government's burden of proof on a critical element of the crimes charged more likely satisfied than not, as in Kandiel, the jury was left to draw whatever conclusions it wished from this comparison.

 Although the expert testified that Sdoulam's sales exceeded the national average, it was still up to the jury to conclude whether this evidence made or more or less probable that Sdoulam knew that he was selling to meth dealers. The expert therefore never testified as to Sdoulam's mens rea.  A very good decision.  This case is a reminder not to sell pseudoephedrine containing products to meth dealers.   And being willfully blind is no defense.