IN THE COURT OF APPEALS OF IOWA

No. 13-1827

Filed December 24, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

BROCK MCREY BURGDORF,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Warren County, Richard B. Clogg, 

Judge.

The defendant appeals from a conviction of conspiracy to manufacture 

methamphetamine. REVERSED AND REMANDED.

Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney 

General, John Criswell, County Attorney, and Douglas A. Eichholz, Assistant 

County Attorney, for appellee.

Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VAITHESWARAN, J.

In this appeal from a judgment and sentence for conspiracy to 

manufacture methamphetamine, the primary issue is whether the State 

established a foundation for the admission of electronic pseudoephedrine 

tracking records.

I. Background

Pseudoephedrine is the active ingredient in certain over-the-counter cold 

medications. See State v. Heuser, 661 N.W.2d 157, 164 (Iowa 2003). 

Pseudoephedrine also is a key ingredient in methamphetamine. See Iowa Code 

§ 124.212(4)(c) (2013) (listing pseudoephedrine as a precursor to 

methamphetamine). 

In 2005, the legislature limited the amount of pseudoephedrine a person 

could purchase within a twenty-four-hour period and within a thirty-day period. 

See id. § 124.213. The legislature also restricted retailers from selling more than 

the amounts set forth in section 124.213 and imposed notification and monitoring 

requirements on the retailers. See id. § 126.23A. Later, the legislature 

strengthened the monitoring requirements and authorized the Governor’s Office 

of Drug Control Policy to create a “real-time electronic repository to monitor and 

control the sale of . . . products containing any detectable amount of 

pseudoephedrine.” See id. §§ 124.212B(1); .101(21); see also id. § 124.212A. 

The legislature charged the office with adopting rules to administer the provision.

See id. § 124.212B(8).

The office promulgated rules, as directed. See Iowa Admin. Code rs. 

657–100.1 to –100.5. The rules require all pharmacies dispensing 
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pseudoephedrine without a prescription to participate in the electronic 

pseudoephedrine tracking system. See Iowa Admin. Code r. 657–100.3. The 

rules afford law enforcement officers access to the data but reaffirm the statutory 

delegation of control over the repository to the Governor’s Office of Drug Control 

Policy. See Iowa Admin. Code rs. 657–100.1, .4(2). 

According to the State, Brock Burgdorf became involved in a scheme to 

circumvent these laws and regulations. Under the scheme, a known 

methamphetamine manufacturer enlisted a team of methamphetamine users to 

purchase allowed quantities of pseudoephedrine in exchange for a portion of the 

completed drug. The State charged Burgdorf and others with conspiracy to 

manufacture methamphetamine. See Iowa Code §§ 124.401(1)(b)(7), .413. 

Before trial, the prosecutor expressed an intent to introduce records 

obtained from the electronic pseudoephedrine tracking system, also known as 

the National Precursor Log Exchange System, or NPLEx. Burgdorf’s attorney 

filed a motion in limine seeking to exclude the documents. The district court 

overruled the motion, reasoning the documents would likely fall within the 

business records exception to the rule prohibiting admission of hearsay 

evidence. See Iowa Rs. Evid. 5.801, .802. 

At trial, the State began by eliciting general testimony about NPLEx 

records from a special agent with the Iowa Department of Public Safety. In the 

midst of his testimony, the State moved to amend the minutes of evidence to add 

a witness who would testify about specific NPLEx records pertaining to the 
4

involvement of Burgdorf and his claimed coconspirators. The district court 

granted the belated motion.

1

 

The State called a sergeant with the Army National Guard, who offered 

thirteen NPLEx exhibits as well as a fourteenth “summary” exhibit. Burgdorf’s 

attorney strenuously objected on several grounds, including lack of foundation

and hearsay. The district court overruled the objections. Following trial, a jury 

found Burgdorf guilty of conspiracy to manufacture methamphetamine.

Burgdorf raises several issues on appeal, one of which we find dispositive: 

the absence of proper authentication or foundation for admission of the NPLEx 

records. Certain other issues will be addressed to the extent they bear on this 

issue.

II. Authentication, Foundation of NPLEx Records

Iowa Rule of Evidence 5.901 requires authentication or identification of 

documents as a condition precedent to admissibility. This requirement “is 

satisfied by evidence sufficient to support a finding that the matter in question is 

what its proponent claims.” Iowa R. Evid. 5.901. The rule sets forth several 

examples of conforming evidence, including the following:

(1) Testimony of witness with knowledge. Testimony that a 

matter is what it is claimed to be.

. . . .

(7) Public records or reports. Evidence that a writing 

authorized by law to be recorded or filed and in fact recorded or 

filed in a public office, or a purported public record, report, 

 

1 Burgdorf challenges the court’s ruling. Because Bergdorf knew of the records from the 

outset, we conclude he was not prejudiced by the district court’s grant of the motion. 

See State v. Wells, 522 N.W.2d 304, 307 (Iowa Ct. App. 1994) (“Prejudice does not 

arise simply because an amendment to the minutes is allowed. Prejudice generally 

looks to the existence of some legitimate surprise visited upon the defendant which 

undermines an aspect of the defense to the charge or renders defendant’s evidence 

inapplicable.”). 
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statement, or data compilation, in any form, is from the public office 

where items of this nature are kept.

Iowa R. Evid. 5.901(b) (emphasis added). Rule 5.902 enumerates certain selfauthenticating documents, such as “domestic public documents under seal,” 

certified “domestic public documents not under seal,” “certified copies of public 

records,” and “certified domestic records of regularly conducted activity.” See

Iowa R. Evid. 5.902(1), (2), (4), (11). Specifically, subsection 4 provides:

Certified copies of public records. A copy of an official record or 

report or entry therein, or of a document authorized by law to be 

recorded or filed and actually recorded or filed in a public office, 

including data compilations in any form, certified as correct by the 

custodian or other person authorized to make the certification, by 

certificate complying with rule 5.902(1), (2), or (3) or complying with 

any Act of Congress or rule prescribed by the United States 

Supreme Court pursuant to statutory authority, or statutes of Iowa 

or any other state or territory of the United States, or rule 

prescribed by the Iowa Supreme Court.

Iowa R. Evid. 5.902(4). Subsection 11, pertaining to business records, requires 

a written declaration of its custodian or other qualified person . . . 

certifying that the record—

(A) was made at or near the time of the occurrence of the 

matters set forth by, or from information transmitted by, a person 

with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; 

and

(C) was made by the regularly conducted activity as a 

regular practice.

Iowa R. Evid. 5.902(11). The subsection further requires advance notice of the 

declaration. See Iowa R. Evid. 5.902(11).

Burgdorf contends the NPLEx exhibits were not admitted “by anyone who 

may have actually entered the data from which the logs were compiled, nor by 

anyone who was an actual custodian of the records.” In his view, these records 

lacked “proper authentication and foundation” generally or as business records. 
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A ruling on a foundation objection usually is reviewed for an abuse of discretion. 

See State v. Musser, 721 N.W.2d 734, 750 (Iowa 2006). The presence or 

absence of a foundation for the admission of business records is reviewed for 

errors of law. State v. Reynolds, 746 N.W.2d 837, 841 (Iowa 2008).

The State did not call anyone from the Governor’s Office of Drug Control 

Policy to authenticate or lay a foundation for the NPLEx records. Nor did the 

State obtain a certification from the office stating the proffered records were what 

they purported to be. The two witnesses who were called admitted to lacking 

foundational knowledge of the NPLEx records. The special agent essentially 

conceded he had nothing to do with culling the NPLEx records. The sergeant 

acknowledged he was not a custodian of the thirteen NPLEx exhibits nor were 

they records he kept in the ordinary course of business. See id. at 842-43

(noting State failed to meet all requirements of business records exception 

foundation where it failed to call anyone with knowledge of how Federal Reserve 

reports were generated); State v. Warick, No. 13-1396, 2014 WL 3511875, at *1

(Iowa Ct. App. July 16, 2014) (noting foundation for NPLEx exhibits was partially 

established through a records custodian attestation). The sergeant also admitted 

the information contained in the records was input by someone other than him—

“a pharmacist, a pharmacist tech, or a person trained to operate the system in 

various stores and pharmacies.” The State failed to call a pharmacist or retailer 

to testify about this process or procedure. See Warick, 2014 WL 3511875, at *1 

(noting the State called a pharmacist to testify “regarding the process and 

procedure by which a covered retailer obtained and recorded identification 

information and a signature at the point of sale and the process and procedure 
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by which that information was placed into the electronic repository”); State v.

Quang, No. 12-0739, 2013 WL 4504934, at *3-4 (Iowa Ct. App. Aug. 21, 2013)

(concluding the State “presented sufficient evidence to show the exhibit was what 

the State purported it to be” where the State offered the testimony of sixteen 

pharmacists). Absent compliance with these “conditions precedent,” the 

documents were inadmissible either generally or as business records. See Iowa 

R. Evid. 5.901.

We turn to the prejudice component. See Reynolds, 746 N.W.2d at 843-

44. This component is drawn from rule 5.103(a), which states, “Error may not be 

predicated upon a ruling which admits or excludes evidence unless a substantial 

right of the party is affected.” Iowa R. Evid. 5.103(a). We presume prejudice and 

reverse unless the record affirmatively establishes otherwise. State v. Sullivan, 

679 N.W.2d 19, 30 (Iowa 2004). The record may affirmatively establish 

otherwise if the properly admitted evidence is overwhelming. See id. at 30-31. 

The record also may affirmatively establish otherwise if substantially the same 

evidence is already in the record. State v. Brown, 656 N.W.2d 355, 361 (Iowa 

2003). 

This record does not affirmatively establish otherwise. The State heavily 

relied on the NPLEx records to establish a pattern of sales in furtherance of a 

conspiracy to manufacture methamphetamine. The pattern was not discernable 

from other duly-admitted evidence. While coconspirators implicated Burgdorf in 

the scheme, they did not replicate the precise times and amounts of 

pseudoephedrine purchases contained in the NPLEx records. Nor did a GPS 

tracking device placed on the methamphetamine manufacturer’s vehicle do more 
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than identify possible players in the scheme and document stops outside retail 

establishments. 

We are left with video recordings showing Burgdorf purchasing 

pseudoephedrine at Wal-Mart. These recordings were admitted through the 

special agent, over defense counsel’s foundational objection. The admission of 

these recordings is raised as a separate assignment of error. The recordings 

were inadmissible without foundational testimony from a Wal-Mart

representative. See State v. Deering, 291 N.W.2d 38, 39 (Iowa 1980) (requiring 

“preliminary proof that the picture projected from the film be an accurate 

reproduction of the event which it depicts”). Accordingly, we decline to consider 

the video recordings in determining whether Burgdorf was prejudiced by the 

admission of the NPLEx records. 

We conclude the NPLEx records were not cumulative of other evidence 

contained in the record and the other evidence was far from overwhelming. In 

other words, Burgdorf’s substantial rights were affected by the admission of the 

NPLEx records and the summary. The erroneous admission of these exhibits 

requires reversal. 

The only remaining question is whether we reverse and remand for a new 

trial or whether we reverse for dismissal. The answer to this question turns on 

how we resolve Burgdorf’s additional challenge to the sufficiency of the evidence 

supporting the jury’s finding of guilt. If Burgdorf’s challenge is successful, 

double-jeopardy principles would preclude retrial. See State v. Dullard, 668 

N.W.2d 585, 597 (Iowa 2003). Accordingly, we proceed to this issue. 
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III. Sufficiency of the Evidence

“In determining whether retrial is permissible all the evidence admitted 

during the trial, including erroneously admitted evidence, must be considered.” 

Id. at 597. Our review is for substantial evidence. State v. Hennings, 791 

N.W.2d 828, 832-33 (Iowa 2010). 

The jury was instructed the State would have to prove the following 

elements of conspiracy to manufacture methamphetamine:

1. Between August 7, 2010 and October 20, 2012, the 

Defendant agreed with one or more persons that:

a. One or more of them would manufacture 

methamphetamine; or

b. Attempt to manufacture methamphetamine.

2. The Defendant entered into the agreement with the intent 

to promote or facilitate the manufacture of methamphetamine.

3. The Defendant or his coconspirators committed an overt 

act.

4. The coconspirators were not law enforcement agents 

investigating the manufacture of methamphetamine or assisting law 

enforcement agents in the investigation when the conspiracy 

began.

Burgdorf contends “there was never a showing [of] an agreement to engage in 

the manufacture of methamphetamine by this defendant” or that he “intended to 

participate in the actual manufacturing of methamphetamine.” 

The special agent testified to the scheme of collecting pseudoephedrine 

following the implementation of the tracking system. He also identified a known 

methamphetamine manufacturer and the manufacturer’s affiliation with other 

individuals who purchased pseudoephedrine. He corroborated Burgdorf’s 

involvement with the NPLEx records and Wal-Mart video recordings as well as 

GPS tracking of the methamphetamine manufacturer’s vehicle. Additionally, two 

coconspirators testified against Burgdorf. While the testimony of one was 
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severely impeached, credibility determinations are ultimately for the fact finder. 

State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). 

Considering the entire record, including the erroneously admitted 

evidence, we discern substantial evidence to support the jury’s finding of guilt. 

Accordingly, dismissal is not warranted.

IV. Disposition

The erroneous admission of the NPLEx records requires reversal and 

remand for a new trial.

REVERSED AND REMANDED.