Larry's Legal Lessons: Met Lab Owner Gets 188 Months In Jail

Nov. 23, 2007
The U.S. Sentencing Guidelines, allow an increase in a sentence by three offense levels when the defendant has created a "substantial risk of harm to human life."

Legal Lesson Learned: After meth lab fires, seek federal prosecution with maximum sentence for endangering lives of firefighters.

Great decision - on September 7, 2007, in United States of America v. David Donald Turner, 500 F.3d 685, 2007 U.S. App. LEXIS 21466 (can be read at, the U.S. Court of Appeals for the 8th Circuit held (3 to 0) that a Federal District Court judge in Iowa had properly sentenced Turner to 188 months in prison (15 years and 8 months; no parole) after firefighters were called to a fire at his home.

Congress enacted the U.S. Sentencing Guidelines, which authorize federal judges to increase the sentence by three offense levels when the defendant has created a "substantial risk of harm to human life."

Turner was also sentenced to 60 months, to be served concurrently, for perjury - after he lied in the trial of another meth manufacturer.

During Turner's trial, the government proved he had been manufacturing meth in his home since 2004. The 8th Circuit described his manufacturing process:

"Turner combined methamphetamine precursors - red phosphorus, pseudoephedrine, and iodine crystals, all of which he stored in his basement - and heated these chemicals using a hote plate on a table to the right of his basement stairs. He would later 'gas' the methamphetamine liquid with hydrogen chloride to produce methamphetamine hydrochloride flakes, which he filtered out and dried."

On July 23, 2005, a fire started in Turner's home. The court of appeals described the scene, "Neighbors saw him run out of the house without a shirt, blackened by soot and smelling of smoke. After stooping briefly, Turner continued running down the street. Turner's neighbor called 911, and police and firefighters arrived at Turner's home. Turner was eventually found by the police, decontaminated, and detained."

It was a tough fire. One firefighter was treated at the hospital for heath-related injuries. Another firefighter's boots were damaged by the chemicals in the basement. Turner's dog was killed by the fire. One of his neighbors was treated at the scene for minor smoke inhalation.

During the fire, firefighters had observed the meth chemicals in the basement and informed the police. Soon after the fire, police executed a search warrant, and found a wide variety of chemicals and equipment associated with the manufacture of meth. While the fire department could not determine the exact cause of the fire, they could determine it started in the basement.

About four months prior to the house fire, the federal prosecutor's office had another unusual interaction with Turner - during the March 2005 trial of another meth manufacturer, Rex Breitbach. During Breitbach's trial, David Turner boldly appeared as a defense witness. Turner testified under oath that he had "no idea" that Breitbach had used or manufactured meth.

This was false testimony; Turner admitted on cross-examination that in 2004 he had posted bail for Breitbach after Breitbach was arrested for dealing in drugs. Turner also flatly denied ever having "any kind of drug dealing" with Breitbach, or "any involvement with him in manufacturing methamphetamine." Breitbach was nonetheless convicted by the jury.

The U.S. Attorney's office then obtained a grand jury indictment against Turner - not only for the meth discovered in the house fire, but also for perjury in Bretbach trial. The prosecutors called several witnesses who had purchased drugs from Turner. They even called Breitbach, who testified (probably with an immunity grant from the prosecutors) that he had helped Turner produce meth three or four times in Turner's basement in April, 2004, and that they had also smoked meth together on several occasions at Turner's home. The federal jury found Turner guilty of perjury, and attempted manufacture of meth.

The U.S. Sentencing Guidelines Manual, Sec. 2D1.1(b)(8)(B), provides for an increase in three offense levels when the judge finds the defendant's activities posed a "substantial risk of harm to human life." The trial judge reasoned that the fire posed a substantial risk of harm to the lives of both Turner's neighbors, and the firefighters who responded to the house fire.

On appeal, Turner argues that since the fire department could not determine the exact cause of the fire, the trial judge could not sentence him to an enhanced sentence. The Court of Appeals disagreed. "The fire department did determine that the fire had started in Turner's basement in the vicinity of the methamphetamine precursors and manufacturing equipment. The government also presented evidence that these precursors include volatile chemicals, most notably red phosphorus, which can be ignited by 'a small amount of friction or any kind of impact or a high temperature,' and cannot be extinguished by water from a hose."

Turner also admitted after the fire to his friend, John Hoyne, that he had trouble with the "red man" (slang for red phosphorous). Hoyne was called as a prosecution witness during Turner's trial.

The 8th Circuit concluded that the federal district judge therefore had ample evidence on which to increase Turner's sentence.

Larry Bennett is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, Prentice Hall/Brady (2007), that was recently selected for use by the National Fire Academy in its distant learning program. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page. You can contact Larry by e-mail at: [email protected] or at the University of Cincinnati at 513-556-6583.

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