* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 1 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Nos. 99-3144, 99-3154

v. D. Kan. MARK HENRY ALLERHEILIGEN,

Defendant-Appellant. (D.C. No. 97-40090-01-DES)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY , and LUCERO , Circuit Judges.

The appellant, Mark Henry Allerheiligen, entered a conditional plea of no contest to possession with intent to distribute mar ijuana in violation of 21 U.S.C. § 841(a)(1). The district court gave Mr. Allerheil igen safety valve credit and sentenced him to a term of imprisonment of 41 month s. Mr. Allerheiligen appeals, asserting error in the f ollowing: (1) denial of his motion to suppress; (2) exclusion of videotape evid ence that would allegedly-2-

depict wild marijuana growing in the same area from which the government seized cultivated marijuana plants over a year afte r the seizure; (3) exclusion of testimony from three proffered expert witnesses on the differences between marijuana grown for personal use versus distributio n; (4) exclusion of expert testimony regarding Mr. Allerheiligen’s psychologic al and/or psychiatric condition; (5) denial of his motion to exclude test imony regarding evidence the government had seized but not preserved; and (6) br each of the plea agreement. We exercise jurisdiction pursuant to 28 U.S.C. § 12 91 and, for reasons discussed below, affirm Mr. Allerheiligen’s conviction and se ntence.

I. BACKGROUND On the morning of August 27, 1997, at the request o f Marshall County Sheriff Kenneth Coggins, Special Agent David Christy of the Kansas Bureau of Investigation (KBI) flew over Mr. Allerheiligen’s f arm property in a fixed-wing aircraft. Special Agent Larry Dixon and Sheriff Co ggins were also present in the aircraft at that time. Mr. Allerheiligen’s property is located in a rural area in Marshall County, Kansas. During the fly-over, Agent Christy caught sight of what he believed to be several hundred cultivated marijuana plants in aclearing in the trees behind a-3-

residence. Agent Christy also observed a two-storywhite house and five out buildings. From the aircraft, and using a Cannon T-50 camera w ith a 35 to 85mm lens, Agent Christy photographed the clearing conta ining what he believed to be marijuana plants and a pathway leading from the plants to a fence which contained a gate at the back of a barn. He also ph otographed the residence and out buildings. Two days later, using the open field doctrine, Agen ts Dixon and Sabel and Sheriff Coggins walked into the marijuana field and made the following observations: numerous marijuana plants had been b roken off 10-12 inches above the ground; one plant had been pulled and had a grow cup (pot cup) still attached to the root system; a fairly new candy wrapper was found in the marijuana patch; there was a foot trail leading fro m the marijuana patch to a gate; and the marijuana patch was within a fenced-off are a with barbed wire and other fence encasing it. On September 2, 1997, Agent Christy submitted an af fidavit to the magistrate judge containing all of the aforemention ed facts in support of an application for a warrant to search the property, i ncluding Mr. Allerheiligen’s residence, all out buildings, and any other structu res with foot trails leading to or-4-

from the marijuana field. Based on the information Agent Christy submitted, the magistrate judge issued the warrant. The warrant was executed the following day. Agents discovered marijuana in four different areas — three separate outdoor p atches and an indoor marijuana grow room. The agents seized 782 marijuana plants from the patch north of Mr. Allerheiligen’s barn, 232 plants from the patch near a corn crib, 143 plants from the patch south of a marijuana grow shed, and 19 pl ants from the indoor grow

room. The agents additionally seized 179 dead plants from one of the outdoor patches as evidence that Mr. Allerheiligen had “sex ed” the plants by removing only the male plants and leaving the females. The officers testified that the majority of plants seized contained peat pot matterwithin the root system, which is indicative of cultivated marijuana that is start ed in a peat pot and later transplanted to the ground. In the indoor marijuana grow room, agents located “ bags of miracle grow, potting soil, 57 pots to transplant plants, 23 plan t trays and approximately 10 pots that had previously been used.” App. vol. VIII, at9 (Presentence Report). In the grow room, lights, an air conditioner, and a fan we re being regulated on a timer. Other items seized during the search of Mr. Allerhe iligen’s property included a-5-

book on marijuana botany, a marijuana grower’s guid e, balance scales, marijuana seeds, a suitcase containing marijuana residue, and numerous weapons. Mr. Allerheiligen filed a motion to suppress, raisi ng various challenges to the constitutionality of the search of his property . On June 1, 1998, the district court held an evidentiary hearing, following which the court denied the motion. Both the government and Mr. Allerheiligen filed pre -trial motions seeking to exclude evidence. The court conducted an eviden tiary hearing on these motions. In a subsequent written order, the court granted the government’s motion in limine, thereby excluding expert testimony on Mr. Allerheiligen’s psychological and/or psychiatric condition and test imony regarding the videotapes allegedly depicting wild marijuana on hi s property over a year after the seizure. The court also excluded the proffered expert testimony of Ed Rosenthal, William Logan, and Walt Carroll regardin g the differences between wild and cultivated marijuana and the condition of his property after the seizure. The court denied Mr. Allerheiligen’s motion to excl ude testimony regarding marijuana plants and peat pots the government had n ot preserved. On November 3, 1998, prior to trial, Mr. Allerheili gen entered into a plea agreement with the government. Pursuant to this ag reement, Mr. Allerheiligen pleaded guilty to the § 841(a)(1) charge but reserv ed the right to appeal most of the pretrial rulings. The government, in turn, agr eed to a contested sentencing-6-

hearing on the number of marijuana plants attributable to Mr. Allerheiligen. The government further agreed not to oppose application of the safety valve, pursuant to 18 U.S.C. § 3553(f) and USSG §5C1.2, if the prob ation officer who prepared the presentence report determined it to be appropri ate. The presentence report attributed 1,346 marijuana p lants to Mr. Allerheiligen. The probation officer who authored the report approved application of the safety valve. However, in a chambers conference prior to sentencing, the court advised both parties’ counsel that it would not be inclined to award safety valve credit if Mr. Allerheiligen c ontested the number of plants which had been attributed to him in the presentence report. Consequently, Mr. Allerheiligen withdrew his object ions to the number of plants attributed to him in the presentence report and received safety valve credit. The court sentenced him to 41 months’ imprisonment.

II. DISCUSSION

A. Motion to Suppress When reviewing a district court’s denial of a motio n to suppress, we consider the totality of the circumstances and view the evidence in the light most favorable to the government, accepting the districtcourt’s factual findings unless they are clearly erroneous. See United States v. Long , 176 F.3d 1304, 1307 (10th-7-

Cir. 1999). “The credibility of witnesses, the wei ght to be given evidence, and the reasonable inferences drawn from the evidence f all within the province of the district court.” Id. “[T]he ultimate determination of reasonableness u nder the Fourth Amendment[, however,] is a question of law” we review de novo. Id.

1. Material Falsehoods or Omissions in the Affidavit Mr. Allerheiligen contends Agent Christy provided f alse and misleading information to the magistrate in his affidavit unde rlying the search warrant. A search warrant must be voided and the fruits of the search excluded where a defendant establishes by a preponderance of the evi dence that the affiant knowingly or recklessly submitted false statements or omitted information material to the magistrate’s finding of probable cause. See United States v. Kennedy , 131 F.3d 1371, 1376 (10th Cir. 1997) (citing Franks v. Delaware , 438 U.S. 154, 155-56 (1978) and Stewart v. Donges , 915 F.2d 572, 581-82 (10th Cir. 1990)). The burden, therefore, falls upon the defe ndant to establish “the affiant in fact entertained serious doubts as to the truth of his allegations.” Bruning v. Pixler , 949 F.2d 352, 357 (10th Cir.1991) (internal quotations omitted). Recklessness may be inferred where the omitted info rmation was “clearly critical” to the probable cause determination. DeLoach v. Bevers , 922 F.2d 618, 622 (10th Cir.1990) (internal quotations omitted). Mere negligence or innocent-8-

mistake is insufficient to void a warrant. See Franks , 438 U.S. at 171; see, e.g. , United States v. Clapp , 46 F.3d 795, 800-801 (8th Cir. 1995). “Whether false statements or omissions are intentio nal or reckless is a factual finding reviewed under the clearly erroneou s standard. Whether misstatements and omissions are material to a findi ng of probable cause is subject to de novo review.” United States v. Dozier , 844 F.2d 701, 705 (9th Cir. 1988) (citations omitted).

a. The Altitude of the Fly-over Mr. Allerheiligen contends Agent Christy falsely st ated in his affidavit that he flew over Mr. Allerheiligen’s property at an alt itude of approximately 1,000 feet. He asserts the “uncontradicted scientific ev idence shows” Agent Christy was flying at approximately 300 feet. Aplt’s Br. at 11-12. Mr. Allerheiligen further argues that a fly-over conducted at an alti tude of 300 feet violated his Fourth Amendment rights. Contrary to Mr. Allerheiligen’s assertion, the evid ence of Agent Christy’s actual altitude during the fly-over presented at th e suppression hearing was contradictory. Jerry G. Cusick testified as an exp ert for the defense that one of Agent Christy’s photographs of Mr. Allerheiligen’s property had been taken at an altitude of 231 feet, and that two others had been taken from approximately 360-9-

feet. Agent Christy, however, testified that he wa s flying at an altitude of 1,000 feet. He explained that his assessment of the alti tude during the fly-over was based on his altimeter. On cross-examination AgentChristy admitted that his altimeter “could have been out of certification” be cause there is no certification requirement for altimeters on the type of aircraft he was flying. App. vol. IV, at 29. However, he also testified that he had no reas on to believe that his altimeter was not working properly. After considering both witnesses’ testimony, the di strict court nevertheless found that the fly-over occurred at an altitude of approximately 1,000 to 2,000 feet, and therefore, under California v. Ciraolo , 476 U.S. 207 (1986), Mr. Allerheiligen’s Fourth Amendment rights had not been violated. Although we are troubled by the great disparity in testimony re garding the altitude at which Agent Christy conducted the fly-over, we must “not disturb a sentencing court’s factual findings unless they are without factual su pport in the record, or if after reviewing all the evidence we are left with the def inite and firm conviction that a mistake has been made.” United States v. Moore , 130 F.3d 1414, 1416 (10th Cir. 1997) (internal quotations omitted). Here, the court’s finding that the fly-over occurre d at approximately 1,000 feet is supported in the record by Agent Christy’s testimony. We must give1 Because we defer to the court’s factual finding t hat the fly-over was

conducted at approximately 1,000 feet, we do not ad dress Mr. Allerheiligen’s argument that a fly-over at approximately 300 feet is a Fourth Amendment violation of his private airspace. However, we do note our court has held that a helicopter search of marijuana gardens at “an altit ude substantially less than five hundred feet” does not violate the Fourth Amendmentwhere the marijuana gardens are located in open fields and thus not part of the curtilage of the defendant’s home. United States v. Swepston , 987 F.2d 1510, 1512, 1515-16 (10th Cir. 1993). Here, Mr. Allerheiligen does notchallenge the court’s finding that the marijuana was located in an open field notwithin the curtilage of his home. -10- substantial deference to the district court’s decis ion to judge Agent Christy’s testimony as more credible than that of the defendant’s expert, Mr. Cusick. Further, we note, as did the district court, that the Supreme Court has approved of aerial surveillance at an altitude as low as 400 feet. See Florida v. Riley , 488 U.S. 445, 451-52 (1989). Moreover, we agree with the district court that the photographs Agent Christy took of Mr. Alle rheiligen’s property during the fly-over “‘are not so revealing of intimate det ails as to raise constitutional concerns.’” App. vol. I, at 214 (quoting Dow Chem. Co. v. United States , 476 U.S. 227, 238 (1986)). Thus, our review of the record does not leave us “w ith the definite and firm conviction that a mistake has been made.” United States v. Bautista , 145 F.3d 1140, 1146 (10th Cir. 1998). Accordingly, we conclude the court’s finding was not clearly erroneous. 1-11- b. Other Alleged Falsehoods and Omissions in the Affi davit Mr. Allerheiligen alleges Agent Christy submitted o ther materially false or misleading statements in the affidavit. In supportof these allegations, Mr. Allerheiligen directs us to Agent Christy’s testimo ny at the suppression hearing, as well as that of other witnesses, arguing they co ntradict Agent Christy’s assertions in his affidavit and therefore prove suc h assertions are false or misleading. However, this evidence is unconvincin g and fails not only to prove the statements were false or misleading, but it fai ls to establish that the statements were material to the determination of probable cause. See Kennedy , 131 F.3d at 1375. First, Mr. Allerheiligen alleges Agent Christy liedabout not observing any wild marijuana on his property during the fly-over. His only evidence in support of the falsity of this statement is testimony from various witnesses that wild marijuana is prevalent in the area generally, espec ially along the creek bed that runs south of Mr. Allerheiligen’s property. The te stimony from these witnesses does not establish Agent Christy’s statement was knowingly false or misleading.
See Kennedy , 131 F.3d at 1376. Agent Christy did not deny the existence of wild marijuana in the area, rather, he only submitted th at he did not observe any on Mr. Allerheiligen’s property during the fly-over. See, e.g. , United States v.-12-

Searcy , 181 F.3d 975, 980 (8th Cir. 1999) (“Minor errors in the warrant which do not reflect deliberate falsehoods are insufficient to mandate suppression . . . .”). Second, Mr. Allerheiligen takes issue with Agent Ch risty’s statement in the affidavit that “[t]he plants and paraphernalia are located in an area which were not visible from the county roadway and had a distance that would make normal gardening very laborious.” App. vol. I, at 44 (Aff. of Agent Christy). Specifically, he argues use of the word “parapherna lia” was misleading. In support of this argument he points to Agent Christy ’s testimony that “paraphernalia” referred only to a garden hose he o bserved next to the barn during the fly-over and a peat pot the agents observed when they walked through the marijuana patch. Although use of the word “par aphernalia” may have been somewhat of an overstatement, Mr. Allerheiligen poi nts to nothing in the record to suggest Agent Christy chose that word with the i ntention of misleading the magistrate. Moreover, there is no evidence that us e of the word “paraphernalia” was material to the magistrate’s finding of probabl e cause. Finally, Mr. Allerheiligen contends Agent Christy’s ability to discern between wild and cultivated marijuana required view ing the tops of the plants, and, therefore, his failure to include this fact in his affidavit underlying the search warrant was a material omission. In supportof this contention, he relies on Agent Christy’s testimony at the suppression hearing that “the plants that [he]-13-

saw were not consistent with plants that grow natur ally on this continent. The plants [he] observed had round tops, rather than po inted.” App. vol. IV, at 11. He further argues the photographs, as well as AgentChristy’s own testimony, illustrate that he could not have made such an iden tification at an altitude of 1,000 feet. Again, this argument is without merit. The distric t court found Agent Christy had observed both wild and cultivated marij uana on over 300 separate occasions and had fourteen years of experience in a erial identification of marijuana. Nothing in Agent Christy’s testimony du ring the suppression hearing suggested that viewing the tops of the plants is th e only means by which to distinguish cultivated from wild marijuana. In fac t, in the affidavit Agent Christy stated he believed the plants he observed were cult ivated, as opposed to wild, based partly on the fact that “[t]he height, the sh ape and dissimilar shade of green . . . [was] consistent with [his] previous observat ions of growing cultivated marijuana.” App. vol. I, at 123 (Aff. of Agent Ch risty). Agent Christy’s testimony does not conflict with his statements in the affidavit. Thus, there is no support for the contention that Agent Christy omitt ed any material information. Further, Mr. Allerheiligen has presented no evidenc e that Agent Christy could not distinguish between rounded and pointed t ops from 1000 feet. Contrary to Mr. Allerheiligen’s position, during hi s testimony at the suppression2 Within his probable cause challenge, Mr. Allerhei ligen makes additional

allegations that Agent Christy submitted false or m isleading statements in the affidavit underlying the search warrant. For instance, he asserts the “foot path” the agents allegedly observed during the walk-in wa s really a cattle path. Moreover, he asserts the statement in the affidavitthat the marijuana patch was in a fenced-off area was misleading because the fencin g was around the entire pasture, not just the marijuana patch. However, we conclude that, “[d]isregarding the[se] allegedly false [or mislead ing] statements in [the] affidavit, the other evidence presented by the gove rnment amply supported a finding of probable cause.” United States v. Salameh , 152 F.3d 88, 114 (2d Cir. 1998); see United States v. Myers , 106 F.3d 936, 940 (10th Cir. 1997). -14- hearing, Agent Christy did not retreat from his statement in the affidavit that he could identify cultivated marijuana plants through aerial surveillance. Rather, he only conceded that his identification from the air could never be certain. Accordingly, the district court did not err in reje cting Mr. Allerheiligen’s contentions of material falsehoods and omissions in the affidavit. See United States v. Haimowitz , 706 F.2d 1549, 1556 (11th Cir. 1983).

2. There was probable cause to search the residence. Mr. Allerheiligen asserts there was insufficient ev idence of probable cause to search his residence. 2 He contends “none of the information in [Agent] Christy’s affidavit that was gathered from his fly- over or from the Kansas officers’ invasion of [his] property during the wal k-in can properly be relied upon in testing the sufficiency of the warrant.” Aplt’s Br. at 15.-15-

It is true that, in order to determine whether the search warrant was valid and issued upon probable cause, the supporting affi davit must be analyzed without facts that are tainted by prior illegality. See United States v. Anderson , 981 F.2d 1560, 1568 (10th Cir. 1992). However, we have already concluded the aerial search over Mr. Allerheiligen’s property didnot violate his constitutional rights. We have further concluded there is no evid ence to support Mr. Allerheiligen’s assertion that Agent Christy intent ionally misled the magistrate in his affidavit underlying the search warrant. There fore, we may consider Agent Christy’s observations during the fly-over in testi ng the sufficiency of the

warrant. Moreover, the district court found the walk-in on M r. Allerheiligen’s property was constitutional. The court reasoned th e marijuana field was an “open field” not within the curtilage of Mr. Allerheilige n’s home and, therefore, was not entitled to Fourth Amendment protection. Mr. A llerheiligen does not challenge this finding on appeal. Thus, we may con sider the agents’ observations during the walk-in in testing the sufficiency of th e warrant. Probable cause means that “there is a fair probabil ity that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates , 462 U.S. 213, 238 (1983). We give great deference to t he magistrate’s determination of probable cause and will uphold that conclusion i f the “totality of the-16-

information contained in the affidavit provided a s ubstantial basis for finding there was a fair probability that evidence of crimi nal activity would be found.” United States v. Janus Industr. , 48 F.3d 1548, 1553 (10th Cir. 1995) (internal quotations omitted). In the affidavit, Agent Christy submitted that duri ng aerial surveillance he observed what he believed to be several hundred cul tivated marijuana plants in a clearing behind Mr. Allerheiligen’s residence. He furthered stated that he observed a pathway leading from the plants to a fen ce which contained a gate at the back of a barn. Agent Christy’s affidavit also relayed the following observations by the agents who performed the walk-i n: there were numerous marijuana plants broken off ten to twelve inches ab ove the ground, one plant that had been pulled had a peat pot still attached to th e root, and there was a fairly new candy wrapper in the marijuana patch. The agents’ observations during the walk-in, couple d with those made by Agent Christy during the fly-over, clearly support the magistrate’s finding of probable cause to search Mr. Allerheiligen’s residence. See, e.g. , United States
v. Emmons , 24 F.3d 1210, 1215 (10th Cir. 1994) (affirming pr obable cause determination in part because “the judge who issued the warrant was certainly entitled to consider the large quantity of marijuan a discovered during the two expeditions onto [the defendant’s] property, an amo unt totally at odds with purely-17-

personal consumption” and rejecting the defendant’s “argu[ment] that even if the marijuana could give rise to an inference of distri bution, it could not fairly be inferred that evidence would be found in his home.”); United States v. Morehead , 959 F.2d 1489, 1499 (10th Cir. 1992) (holding that “officers’ observations of marijuana plants in the trailer and shop building a djacent to the [defendant’s] residence” provided a substantial basis for the con clusion that there was a fair probability that evidence of a crime would be found on the property); United States v. Wilson , No. 97-5201, 1998 WL 482786, at ** 3 (10th Cir. A ug. 12, 1998) (“The affiant’s statement that during an aeri al fly-over he viewed marijuana plants on land where Defendant resided an d the other statements in the affidavit that Defendant exhibited behavior consist ent with those involved in the production of marijuana established a fair probabil ity that a crime was being committed and support a finding of probable cause”); United States v. Malin , 908 F.2d 163, 166 (7th Cir. 1990) (upholding magistrate ’s probable cause finding where the affidavit underlying the warrant to searc h the defendant’s house did not directly link the marijuana observed by officer s to the house or cite any evidence of cultivation), abrogation on other grounds recognized in United States
v. Monroe , 73 F.3d 129 (7th Cir. 1995); United States v. Fuesting , 845 F.2d 664, 671 (7th Cir. 1988) (stating “probable cause existe d for the search given the-18-

observations of the officers in the helicopter”). Accordingly, we conclude that the district court did not err in denying the motio n to suppress.

B. Exclusion of videotape evidence allegedly depictin g the condition of Mr. Allerheiligen’s property a year after the seizu re The crux of Mr. Allerheiligen’s defense was that he cultivated only a few marijuana plants for personal use and that the restof the marijuana seized by the government was wild. Prior to trial, Mr. Allerheil igen disclosed to the prosecution a list of witnesses, some of whom would testify regarding two videotapes allegedly depicting approximately 1,500 wild marijuana plants growing on his farm in September of 1998, approximately a year after the seizure. The government filed a motion in limine to exclude this evidence under Federal Rule of Evidence 403. In granting the gove rnment’s motion the court reasoned that “evidence that there was wild marijuana growing on some portion of defendant’s property on September 9, 1998, over a year after the search warrant was executed, is irrelevant to the allegati ons contained in [the] Indictment.” App. vol. III, at 126 (Order, dated N ov. 19, 1998). We review a district court’s decision to exclude re levant evidence under Federal Rule of Evidence 403 for abuse of discretion. See United States v. Castillo , 140 F.3d 874, 884 (10th Cir. 1998). Pursuant to this rule, “relevant-19-

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the is sues, or misleading the jury, or by considerations of undue delay, waste of time, orneedless presentation of cumulative evidence.” Fed. R. Evid. 403. Here, the district court noted that the governmentadmitted wild marijuana grows annually in numerous rural areas in Marshall County, Kansas, where Mr. Allerheiligen’s property is located. Moreover, in the presentence report the probation officer agreed with Mr. Allerheiligen that “there were likely wild marihuana plants growing in the marihuana patchs [s ic] which were seized from the defendant’s property.” App. vol. VIII, at 13, ¶ 37. However, the report further “concluded that [Mr. Allerheiligen] had ado pted those marihuana plants as his own and cared for them as he did the plants that he personally planted” and, therefore, those plants were attributable to him. Id. Thus, the existence of wild marijuana in the area was not in dispute, ther eby, demonstrating the minimal probative value of the proffered videotape evidence . Moreover, evidence regarding the condition of Mr. Allerheiligen’s prop erty a year after the seizure would likely have confused the issues or misled the jury. Finally, the KBI made a videotape and took photographs of Mr. Allerheiligen’s property during the marijuana seizu re in 1997. Mr. Allerheiligen has not offered any legitimate explanation as to wh y the 1997 KBI videotape and-20-

photographs do not accurately reflect his property on the day of the seizure. Accordingly, we find no abuse of discretion in the court’s decision to exclude any evidence regarding the 1998 videotapes allegedl y depicting Mr. Allerheiligen’s property a year after the seizure. Cf. , United States v. Culpepper , 834 F.2d 879, 883 (10th Cir. 1987) (upholding the t rial court’s denial of defendant’s request to allow the jury to view the m arijuana field two months after the seizure because rain had changed the field’s co ndition and because there were undisputed photographs of the field on the day of t he seizure).

C. Exclusion of Expert Witnesses Offered to Testify a s to the Differences Between Marijuana Grown for Personal Use Versus Dis tribution As stated previously, Mr. Allerheiligen’s defense w as that he only planted a few marijuana plants for personal use, not distri bution. Because possessing a large quantity of drugs is a strong indicator of in tent to distribute, he set out to prove he did not cultivate the 1,346 marijuana plants attributed to him. See, e.g. , United States v. Wood , 57 F.3d 913, 918 (10th Cir. 1995) (“A large quant ity of the drug will support a reasonable inference that adefendant intended to distribute it.”); United States v. Eng , 753 F.2d 683, 687 (8th Cir. 1985) (“The harvesting of [over thirteen pounds] of marijuana i s inconsistent with Eng’s personal use claim.”).-21-

In support of his defense Mr. Allerheiligen sought to present three expert witness, Ed Rosenthal, Walt Carroll, and William Lo gan, to testify regarding the differences between marijuana grown for personal us e and marijuana grown for commercial distribution. The district court exclud ed all three of Mr. Allerheiligen’s expert witnesses, finding they were not qualified to testify on the subject matter of their proffered testimony. Mr. A llerheiligen contends exclusion of all three expert witnesses was in error. A district court may allow expert testimony “[i]f [ the expert’s] scientific, technical, or other specialized knowledge will assi st the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. T he Supreme Court has held that Rule 702 imposes a spec ial obligation upon a trial judge to ensure that all expert testimony, even non -scientific and experiencebased expert testimony, is both relevant and reliable. See Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147 (1999); Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 592-93 (1993). In Daubert , the Court stated that, in determining reliability , the trial judge may consider: (1) whether a “theory or technique . . . can be (and has been) tested”; (2) whether it “has been subjected to peerreview and publication”; (3) whether, in respect to a particular technique, ther e is a high “known or potential rate of error” and whether there are “standards con trolling the technique’s-22-

operation”; and (4) whether the theory or technique enjoys “general acceptance within a relevant scientific community.” 509 U.S. at 593-94. However, the Supreme Court has stressed that “the t rial judge must have considerable leeway in deciding in a particular cas e how to go about determining whether particular expert testimony is reliable.” Kumho Tire , 526 U.S. at 152. “Thus, whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.” Id. at 153. Accordingly, a trial judge’s ruling on t he admission or exclusion of expert testimony will notbe overturned unless it is manifestly erroneous or an abuse of discretion. See General Elec. Co. v. Joiner , 522 U.S. 136, 142 (1997); United States v. Diaz , 189 F.3d 1239, 1246 (10th Cir. 1999).

1. Ed Rosenthal At the hearing on the government’s motion to exclud e Mr. Rosenthal’s testimony, defense counsel made a lengthy proffer r egarding Mr. Rosenthal’s qualifications and the subject matter of his testim ony. In essence, Mr. Rosenthal would have testified “about the quantity and quality of marijuana plants which distinguishes personal use from commercial cultivat ion” and “the anticipated-23-

yield of the marijuana seized from [Mr. Allerheilig en’s] property.” App. vol. II, at 110 (Defendant’s Witness List). Mr. Rosenthal proffered similar testimony in United States v. Kelley , 6 F. Supp.2d 1168, 1179-85 (D. Kan. 1998), which the court excluded. In Kelley , the court’s decision to exclude the testimony was based on its finding that he was not qualified to testify on the issues of yield, intent , general practices of outdoor marijuana growers, and processing and use of marijuana in Kansas. See id. at 1184-85. The decision in Kelley was based in part on transcripts of Mr. Rosenthal’ s testimony in State v. Hood and United States v. Wyman & Hadley , D. Kan. No. 94-40038-01/02-RDR. In Hood the court characterized Mr. Rosenthal’s testimony as a “serious disappointment” and “ideolo gically driven to the point where [the court thought Mr. Rosenthal] had no objectivity at all.” Kelley , 6 F. Supp.2d at 1183-84 (quoting Trans. Aug. 20, 1993, p.171). Similarly, in Wyman and Hadley the court expressed regret over allowing Mr. Rosen thal to testify. Specifically, Judge Rogers voiced concern over Mr. Rosenthal’s qualifications and referred to his work as “almost voodoo research.” Id . at 1184 (quoting Trans. January 27, 1995, at 98-100). Here, the district court similarly “observe[d] seve ral areas where [Mr.] Rosenthal’s purported testimony extend[ed] beyond h is demonstrated areas of-24-

specialized knowledge.” App. vol. III, at 130. In excluding Mr. Rosenthal’s testimony, the court explained:

Even given the additional substantial information r egarding [Mr.] Rosenthal provided to this court by the parties, th e fact that [Mr.] Rosenthal writes books on marijuana growing and reg ularly writes a popular advice column for High Times magazine does not tell the court anything about the scientific reliability of his op inions expressed therein. There is no evidence that any of [Mr.] Ro senthal’s writings on marijuana have been recognized as a valid research effort or reference book in the field of botany. Nor is there anything of record that would lead this court to believe that it should rely on readers of High Times magazine or others having an interest in growing marijuana as a valid indicator of reliability. Based upon the court’s opinion in Kelley , the transcript from Wyman and Hadley and the affidavit of Dr. Mahmoud A. ElSohly, the Director of the Marijuana Project at the Universityof Mississippi since 1980, the court finds that [Mr.] Rosenthal’s qualif ications are largely a matter provable only through his own opinion. He lacks any academic background, formal education or training, and experience that would qualify him as an expert on the subject of gr owing, harvesting, and processing of marijuana. His unique exposure t o these topics is limited to his self-directed efforts at reading ref erence works, talking with some researchers and growers, and then summari zing the work of others in to popular “how-to” guides. Id. at 130-31. The district court undertook a careful and thorough review of Mr. Rosenthal’s qualifications and proffered testimony. In light of the “considerable leeway” we give trial judges “in deciding in a part icular case how to go about determining whether particular expert testimony is reliable,” we conclude the court’s decision to exclude Mr. Rosenthal’s testimo ny was not an abuse of-25-

discretion. Kumho Tire , 526 U.S. at 152; see, e.g. , Taylor v. Cooper Tire & Rubber Co. , 130 F.3d 1395, 1397 (10th Cir. 1997) (affirming d istrict court’s exclusion of expert testimony where, although the e xpert “was qualified generally in materials failure, particularly metals,” the cou rt found the expert was not qualified to testify as to the critical issue of wh ether “the tire failure in [the] case was the result of a manufacturing defect”); Broadcort Capital Corp. v. Summa Med. Corp. , 972 F.2d 1183, 1195 (10th Cir. 1992) (concluding exclusion of expert testimony was not an abuse of discretion whe re “[t]he district court found that [the expert’s] general experience and educatio n did not qualify [him] as an expert in the securities area.”); United States v. Chang , 207 F.3d 1169, 1173 (9th Cir. 2000) (holding “[i]t was not an abuse of discr etion for the district court to determine that [the proffered expert’s] ‘practical experience in international finance’ did not amount to practical experience det ermining whether a particular security is counterfeit, the fact at issue in th[e] case.”).

2. Walt Carroll and William Logan Mr. Allerheiligen argues the court also erred in ex cluding expert witnesses Mr. Carroll and Mr. Logan. Neither Mr. Carroll norMr. Logan appeared at the hearing on the government’s motion to exclude both witnesses’ testimony.-26-

Instead, Mr. Allerheiligen submitted their respecti ve resumes and submitted a proffer of their testimonies. Mr. Carroll has been a law enforcement officer for over twenty-five years and has served as an expert witness and training in structor in the area of drug detection, inderdiction and prosecution of drug cas es. Mr. Allerheiligen submitted that Mr. Carroll would “testify as to the presence of wild marijuana on the Allerheiligen property; evidence of spraying in the marijuana field; his observations during his inspection of the Allerheil igen property in 1997; pictures taken by him of the Allerheiligen property; [and] a ll other issues addressed in [Mr. Carroll’s] report and affidavit.” App. vol. I I, at 108. Mr. Allerheiligen asserts Mr. Carroll’s testimony was significant bec ause he inspected Mr. Allerheiligen’s property two weeks after the search and found no evidence of cultivation. Mr. Logan is a criminal defense lawyer. He has cal led Mr. Rosenthal to testify on behalf of his clients in various cases. Mr. Allerheiligen sought to call Mr. Logan to “testify to [the] defining elements wh ich constitute personal use of marijuana” and “the expected yield of the marijuanaseized.” App. vol. II, at 109. After reviewing the proffered evidence, the court concluded “that the purported testimonies of [Mssrs.] Logan and Carroll extend[ed] beyond their respective demonstrated areas of specialized knowle dge.” App. vol. III, at 151.-27-

As with Mr. Rosenthal, the court found that “the in formation provided to [it] by the defendant t[old] the court nothing about the sc ientific reliability of the opinions proffered by [Mssrs.] Logan and Carroll.” Id. With respect to Mr. Carroll, the court found that h is “credentials evidence no training, experience or schooling in matters spe cifically related to marijuana identification, marijuana eradication, marijuana pr ocessing, [and] marijuana use.” Id. Moreover, the court found nothing in the record t o justify relying on “Mr. Carroll’s perusal of [Mr. Allerheiligen’s] propertyafter [the marijuana seizure] . . . as evidence of the yield of the plants seized.” Id. at 152. As to Mr. Logan, the court stated, “[t]here is nothing of record that wo uld lead this court to believe that it should rely on Mr. Logan’s former clients, members of the California criminal defense bar, California marijuana users orthe readers of his articles as a valid indicator of reliability.” Id. The court carefully and meticulously reviewed the p roffer of evidence submitted by Mr. Allerheiligen in support of Mssrs. Carroll and Logan, ultimately finding their proffered testimonies were not scient ifically reliable. Our review of the record supports that finding. As stated previo usly, “the law grants the trial judge broad latitude to determine” what are “reason able measures of reliability.” Kumho Tire , 526 U.S. at 123. Accordingly, we conclude the cou rt’s decision to-28-

exclude the testimony of Mr. Carroll and Mr. Logan was not an improper exercise of its discretion.

D. Exclusion of Expert Testimony Regarding Defendant’ s Mental and Physical Condition On the defense witness list, Mr. Allerheiligen list ed Dr. Stuart Twemlow as an expert witness who would have testified as to Mr . Allerheiligen’s “physical, medical and psychological condition.” App. vol. II , at 110. Dr. Twemlow examined Mr. Allerheiligen pursuant to a court orde red evaluation as a condition of his pre-trial release. The defense also listed Dr. Matthew Schlotterback, who would have testified as to his knowledge of Mr. All erheiligen’s “medical history.” Id. The government’s motion in limine sought to exclu de the testimony of both witnesses. The district court granted the government’s motion, finding that the “[Mr. Allerheiligen’s] true intent [was] to offer a ‘just ification’ defense through the use of this testimony.” App. vol. III, doc. 101, at 12 2. Mr. Allerheiligen had represented on the Omnibus Hearing Report that his sole defense was “general denial; put the government to proof,” and did not l ist “justification as a defense.” Thus, the court found that allowing the testimony w ould violate the Omnibus Hearing Report. Additionally, the court found the proffered testimony was akin to a medical necessity defense, which is not a prop er defense to possession of-29-

marijuana with intent to distribute, the charge at issue in this case. Finally, the court found the testimony was irrelevant and collat eral to the issues at trial and therefore would confuse and distract the jury. Upo n this finding, the court excluded the testimony pursuant to Federal Rules of Evidence 401, 402, and 403. On appeal, Mr. Allerheiligen asserts the court’s fi nding that the testimony was offered as a justification or medical necessity defense was in error. He maintains the testimony was not offered to prove ju stification or to negate intent, but rather solely to prove he only grew a few marij uana plants for personal use, not distribution. Moreover, the testimony was rele vant because it was offered to bolster the credibility of Mr. Allerheiligen’s stat ements to KBI agents during the search of his property that he only grew a few mari juana plants for personal use. As explained in the previous section, we review the exclusion of expert testimony for abuse of discretion and we will not o verturn the court’s decision unless it is manifestly erroneous. See General Elec. Co. , 522 U.S. at 142; Diaz , 189 F.3d at 1246. Without deciding whether all of the court’s reasons for excluding the proffered testimony were proper, we a ffirm the court’s decision to exclude the testimony pursuant to Rule 403. Under Rule 403, “relevant evidence may be excluded if its probative value is substanti ally outweighed by the danger of unfair prejudice, confusion of the issues, or mi sleading the jury, or by-30-

considerations of undue delay, waste of time, or ne edless presentation of cumulative evidence.” Fed. R. Evid. 403. At the hearing on the government’s motion to exclud e testimony on Mr. Allerheiligen’s psychiatric condition and medical h istory, defense counsel proffered the following testimony:

[Mr. Allerheiligen] has a medical condition that causes chronic pain since the late 60s. [He] tried various prescri ption medications. [He] has a psychiatric/psychological problem that d oes not amount to the size of a problem as a bipolar disorder, but itcauses extreme hyperactivity and periods of depression similar to what we would call manic depression . . . . He’s had it since birth. . . . And only recently [Dr. Twemlow] has confirmed through his treatment and care of [Mr. Allerheiligen] that that disorder exists. [Mr. Allerheiligen] is currently on enough medicati on to shock almost anybody. . . . It maintains him at a level o f functioning that allows him to participate on a day-to-day basis with his wife and his family and society. That is the type of testimony we anticipate out of [Dr. Schlotterback] and [Dr. Twemlow]. This is not a new problem. It’s a longstanding pro blem. It’s a problem, which for almost 30 years he monitored and treated himself with marijuana. He has readily admitted that. That’s never been an issue in this case. App. vol. V, at 54-55. The probative value of the proffered testimony on M r. Allerheiligen’s psychiatric condition and medical history was minim al at best. Establishing Mr. Allerheiligen is a chronic user of marijuana is onl y marginally relevant to-31-

whether he intended to distribute the large quantity of marijuana found on his property. Further, the minimal probative value of this testim ony is substantially outweighed by the likelihood it would inject collat eral issues at trial that would confuse and mislead the jury. See Fed. R. Evid. 403. Regardless of Mr. Allerheiligen’s true purpose for this testimony, psychiatric evidence (1) will only rarely negate sp ecific intent, (2) presents an inherent danger that it will distract the jury from focusing on the actual presence or absence of mens rea, and (3) may easily slide into wider usage that opens up the jury to theories of defense more akin to justification, [therefore,] district courts mustexamine such psychiatric evidence carefully to ascertain whetherit would, if believed, support a legally acceptable theory of la ck of mens rea. United States v. Cameron , 907 F.2d 1051, 1067 (11th Cir.1990) (internal quotations and citations omitted) . Moreover, Mr. Allerheiligen had acknowledged throug hout that he is a chronic marijuana user and had already admitted to growing at least some of the marijuana on his property for personal use. As def ense counsel conceded, Mr. Allerheiligen’s personal use of marijuana has “neve r been an issue in this case.” App. vol. V, at 55. Thus, the proffered testimony was also partly cumulative. Accordingly, the district court’s exclusion of the proffered psychiatric and medical history testimony under Rule 403 was not an abuse of discretion.-32-

E. Evidence the Government Seized but Allegedly Faile d to Preserve The presentence report attributed 1,346 marijuana p lants to Mr. Allerheiligen. See App. vol. VIII, at 14, ¶ 44. Mr. Allerheiligen al leges the government only seized a representative sample of t hese plants and failed to seize, preserve, or record any of the peat pots on the plants. Although Mr. Allerheiligen has framed the issue on appeal as whe ther “the district court abused its discretion in denying [his] motion to exclude t estimony about evidence the government had seized but not preserved,” his entir e argument is evidently dedicated to the legal proposition that the governm ent’s alleged failure to preserve exculpatory evidence, i.e., the marijuana plants and the peat pots, denied him due process. After reviewing the record, we co nclude Mr. Allerheiligen never presented this argument to the district court

. The motion Mr. Allerheiligen submitted to the distr ict court was entitled “Motion In Limine To Exclude Testimony About Eviden ce Which Has Not Been Preserved And To Prohibit Any Testimony Regarding O pinions Based On Scientific, Technical, Or Other Specialized Knowled ge.” App. vol. III, at 1. Within this motion, Mr. Allerheiligen argued that b ecause the government did not designate any witnesses as experts on its witness l ist, the witnesses should be prohibited from testimony based on scientific, tech nical or specialized knowledge under Federal Rule of Evidence 702. He asserted th at, as a result of the-33-

government’s failure to designate any of the witnes ses as experts, the proposed witnesses should be limited to testimony based on p erception only, as opposed to opinion, as required under Rule 701. Accordingly, he argued, no witnesses should be allowed to speculate as to the number of cultivated marijuana plants or peat pots present on Mr. Allerheiligen’s property d uring the seizure that were not videotaped, photographed, recorded or otherwise pre served. Although the motion contains a citation to California v. Trombetta , 467 U.S. 479 (1984), which outlines the standard for de termining when the government’s failure to preserve, or destruction of , evidence violates due process, it is cited for the more general propositi on that “[t]he government has a duty to preserve all evidence that is expected to p lay a significant role in a suspect’s defense.” App. vol III, at 3. The motio n makes no allegation of a due process violation, nor does it attempt to argue the elements of the Trombetta test. More importantly, Mr. Allerheiligen never alleged i n his motion that the government failed to preserve or destroyed exculpat ory evidence, which is the sole focus of Mr. Allerheiligen’s argument on appea l. The district court’s order lends support to our con struction of Mr. Allerheiligen’s motion. In denying the motion, the court explained:

After establishing to the court’s satisfaction thata witness can offer an opinion as a lay witness under Federal Rule of Evidence 701, witnesses may testify to their rel evant observations, upon proper foundation, whether conta ined-34- in a report or not. If an agent offers testimony n ot contained in a report, this may be inquired into on crossexamination to challenge the credibility of the statement. This goes to the weight of the evidence and not to its admissibility. App. vol. III at 147 (Order, Nov. 19, 1998). The c ourt made no mention of Mr. Allerheiligen’s current due process argument and di d not discuss or cite to any cases regarding such. Because Mr. Allerheiligen failed to raise his due p rocess argument to the district court, our review is limited to plain error. See United States v. Orr , 864 F.2d 1505, 1508 (10th Cir. 1988) (“On appeal we will only consider the specific ground of the evidentiary objection in the trial co urt, unless the ground not raised constitutes plain error resulting in manifest injus tice.”) (internal quotations omitted); see also Goulah v. Ford Motor Company , 118 F.3d 1478, 1483 (11th Cir. 1997) (“An objection on one ground will not pr eserve an error for appeal on other grounds.”). Plain error is that which affect s substantial rights and undermines the “fairness, integrity, or public repu tation of judicial proceedings.” Johnson v. United States , 520 U.S. 461, 466-67 (1997). The plain error doc trine is to be “‘used sparingly, solely in those circumst ances in which a miscarriage of justice would otherwise result.’” United States v. Oberle , 136 F.3d 1414, 1422 (10th Cir. 1998) (quoting United States v. Frady , 456 U.S. 152, 163 n. 14 (1982)). Mr. Allerheiligen cannot establish plain error occurred here.-35-

Specifically, Mr. Allerheiligen takes issue with th e government’s failure to preserve the peat pots. He argues, “[h]ad [the gov ernment] seized all of the marijuana plants with peat pots, it would have eith er supported [his] claim that he only planted 12-15 plants, or disproved such a clai m.” Aplt’s Br. at 27. However, to establish a violation of § 841(a)(1), t he government did not need to prove Mr. Allerheiligen actually planted the mariju ana, only that he possessed it with the intent to distribute. See United States v. Silver , 84 F.3d 1317, 1321-22 (10th Cir. 1996); App. vol. V, at 41 (defense attor ney acknowledging Mr. Allerheiligen “[didn’t] have to grow [the marijuana ] in order to possess it with the intent to distribute”). Moreover, the existenc e or lack of peat pots was not necessary to attribute the marijuana plants to Mr. Allerheiligen for purposes of sentencing. As stated previously, the presentence report concluded Mr. Allerheiligen “had adopted [the wild] marihuana plants as his own and cared for them as he did the plants that he personally plante d,” and, therefore, considered those plants in determining his base offense level. App. vol. VIII, at 13, ¶ 37. Thus, the peat pot evidence was only potentially ex culpatory. When potentially exculpatory evidence has not been preserved, in order to establish a due process violation, the defendant mu st show the government acted in bad faith. See United States v. Gomez , 191 F.3d 1214, 1219 (10th Cir. 1999) (citing Arizona v. Youngblood , 488 U.S. 51, 58 (1988)). Here, Mr. Allerheiligen-36-

alleges “the Kansas and federal authorities were we ll aware of the importance of the number of plants seized,” and “the methodology used to count the plants . . . was unclear and uncertain.” Aplt. Br. at 29. He f urther argues the government’s explanation for failing to preserve all of the mari juana plants including the peat pots, namely, lack of storage space and difficulty in pulling each plant, evinces bad faith. We are not convinced that this evidence alone is su fficient to establish the government acted in bad faith. See United States v. Deaner , 1 F.3d 192, 201 (3d Cir. 1993) (concluding that even though the governm ent destroyed seized marijuana because of limited storage space instead of retaining a representative sample as required by statute, the defendant could not establish bad faith); United States v. Beldon , 957 F.2d 671, 673-74 (9th Cir. 1992) (concluding the government did not act in bad faith where officers pulled marijuana plants from their pots or cut them above the roots, and failed to preserve the root systems because it was routine police practice and there was a lack of storage space); see,
e.g. , Gomez , 191 F.3d at 1219 (no due process violation where the defendant could not show the police destroyed marijuana in ba d faith). Because Mr. Allerheiligen cannot establish the KBI acted in bad faith in failing to preserve potentially exculpatory evidenc e, his due process claim fails. Accordingly, he cannot establish plain error.-37-

F. Plea Agreement Mr. Allerheiligen challenges his sentence, alleging the government breached the plea agreement. “Whether government conduct has vi olated a plea agreement is a question of law . . . we review de novo.” United States v. Hawley , 93 F.3d 682, 690 (10th Cir. 1996). Plea bargains are governed by contract principles, and if any ambiguities are present, the y will be resolved against the drafter. See id. The defendant has the burden of proving by a prep onderance of the evidence the underlying facts establishing the prosecution’s breach of the plea agreement. See Cunningham v. Diesslin , 92 F.3d 1054, 1059 (10th Cir. 1996). Because Mr. Allerheiligen asserts the gover nment breached the plea agreement for the first time on appeal, however, ou r review is limited to plain
error. See United States v. Peterson , No. 99-2042, 2000 WL 725478, *1 (10th Cir. June 6, 2000). Pursuant to the plea agreement the government agree d not to oppose a contested sentencing, thereby allowing Mr. Allerhei ligen to rebut the number of marijuana plants the presentence report attributed to him for purposes of calculating his offense level. The government also agreed not to oppose application of the safety valve provisions. Mr. Allerheiligen contends that during a chambers m eeting prior to sentencing, the government “sided with the court” w hen the court announced to-38-

both parties’ counsel that it would not be inclined to apply the safety valve if Mr. Allerheiligen contested the number of marijuana plants at sentencing. Aplt. Br. at 30. Mr. Allerheiligen asserts this constituted a breach of the government’s agreement not to oppose a contested sentencing on t he number of plants attributable to him. Following the in-chambers meeting, Mr. Allerheilige n filed a “Motion To Reconsider Rulings Made In Chambers With Regard To Sentencing Issues.” App. vol. 3 at 156. Although Mr. Allerheiligen didnot argue within this motion that the government breached the plea agreement, th e motion did present the district court with the factual issue of what occur red during the in chambers meeting. In its order denying Mr. Allerheiligen’s motion to reconsider, the district court made the following findings with respect to w hat occurred during the inchambers meeting: The conversation in chambers prior to sentencing wa s held primarily for the defendant’s benefit. The court made no rul ings in chambers, but merely indicated to counsel for both sides that the court was inclined to apply the safety valve provision to thi s case. The court further indicated to counsel that the court did notbelieve defendant would be eligible for the safety valve provision if defendant continued to argue his objections with regard to the number o f marijuana plants because he would no longer meet the fifth requireme nt for application of the safety valve by truthfully providing to the government all information and evidence the defendant has concerni ng the offense. See USSG §5C1.2 and 18 U.S.C. § 3553(f). This belief was based not only upon the court’s review of the KBI videotape o f the counting of-39-

the marijuana plants, but also on the court’s revie w of [inconsistent] statements provided by the defendant prior to sente ncing. App. vol. III, at 185-86 (Order, dated May 6, 1999) . The court then concluded: Upon review of the transcript of the sentencing hearing, the court finds that defense counsel never argued to the court thatdefendant should be allowed to contest the number of plants and still b e eligible for the safety valve. Defendant’s counsel also did not voi ce any objection, either in chambers or during the sentencing hearing , with respect to the court’s view of the applicability of the safety val ve. Therefore, the defendant did not make any kind of record regarding the applicability of the safety valve if he contested the number of p lants. If the defendant believed that he should be allowed to con test the number of plants and still remain eligible for the safety val ve, then he should have raised that argument with the court so that it coul d be addressed on the record. Id. at 186-87. There is nothing in the record that would permit us to review the court’s findings with respect to what occurred during the i n chambers meeting, or Mr. Allerheiligen’s contention that the government brea ched its agreement through statements made therein. Mr. Allerheiligen did notrequest that the conversation in chambers be placed on the record, nor did counse l attempt to make any sort of record once the court was in session for the senten cing hearing. Where the evidentiary record is insufficient to permit assess ment of an appellant’s claims of error we must affirm. See Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80 (10th Cir. 1992); see also 10th Cir. R. 10.3(B) (“When the party asserting an-40-

issue fails to provide a record sufficient for cons idering that issue, the court may decline to consider it.”).

IV. CONCLUSION For the foregoing reasons we AFFIRM Mr. Allerheilig en’s conviction and

sentence.

Entered for the Court,

Robert H. Henry Circuit Judge