United States v. Brown, 73-1135.

• Citation: 482 F.2d 1226
• Decision Date: 08 August 1973
• Docket Number: No. 73-1135.,73-1135.
• Parties: UNITED STATES of America, Appellee, v. Carlee BROWN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

482 F.2d 1226 (1973)

UNITED STATES of America, Appellee, v. Carlee BROWN, Appellant.

No. 73-1135.

United States Court of Appeals, Eighth Circuit.

Submitted June 13, 1973.

Decided August 8, 1973.

John A. Blumenfeld, Clayton, Mo., and Paul R. Ferber, Hazelwood, Mo., for appellant.

James E. Reeves, U. S. Atty., and Jerry J. Murphy, Asst. U. S. Atty., St. Louis, Mo., and Frederick J. Dana, Sp. Atty., Dept. of Justice, Office for Drug Abuse Law Enforcement, St. Louis, Mo., for appellee.

Before GIBSON, LAY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

The appellant, Carlee Brown, was indicted, tried, and found guilty of two counts of knowing and intentional distribution of heroin in violation of 21 U.S. C. § 841(a) (1). We affirm the judgment of conviction.

The two sales, which were the grounds for the conviction, were made to Charles Bullock, an individual cooperating with the St. Louis Office for Drug Abuse Law Enforcement (DALE) on two consecutive days. On each occasion, Bullock was searched at the DALE office before the purchase was to take place, given Government funds, driven by a DALE officer to a designated site, and observed while an apparent purchase was transacted. Immediately after the exchanges between Bullock and Brown, Bullock returned to the DALE officer's automobile and handed him three tinfoil packages which the officer later examined, field tested, weighed, sealed and mailed to the Bureau of Narcotics and Dangerous Drugs (BNDD) Regional Laboratory in Chicago, Illinois. The testimony of both Bullock and the DALE officer was substantially corroborated by other surveilling DALE officers.

At trial a BNDD chemist testified to the procedures he followed in determining the contents of the packages he received as a result of the purchases by Bullock. The tests on the two packages were conducted independently and at different times, and each package was found to contain heroin.

On appeal, Brown raises four arguments dealing with: 1) the admission of the heroin packages into evidence; 2) the scope of redirect examination permitted the Government in the examination of a witness; 3) the scope of cross-examination permitted the appellant in the examination of a witness; and 4) the adequacy of the jury instructions.

I.

Brown contends that the chain of custody of the heroin packages was not adequately established so as to permit the introduction of the Government exhibits into evidence. He bases this contention upon the fact that the quantitative and qualitative tests, which consumed approximately one and one-half hours, were conducted over a forty-eight hour period. Brown urges this position despite the testimony elicited from the Government's expert as to the precision and detail of the laboratory procedures employed, the religious recordation thereof, and the customary laboratory security that attends analysis of substances submitted to BNDD.

The criteria governing admission of exhibits into evidence is that there must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed. That determination is to be made by the trial judge, not the jury, and may not be overturned except for a clear abuse of discretion. Factors to be considered in making the determination of admissibility include the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of others tampering with it. If upon the consideration of such factors, the trial judge is satisfied that in reasonable probability the article has not been changed in any important respect, he may permit its introduction in evidence. Brewer v. United States, 353 F.2d 260, 262 (8th Cir. 1965) adopting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2nd Cir. 1943).

Brewer further explicates that in the absence of any evidence to the contrary, the trial judge is entitled to assume that an official would not tamper with the exhibits or their contents:

". . . Where no evidence indicating otherwise is produced, the presumption of regularity supports the official acts of public officers, and courts presume that they have properly discharged their official duties." Brewer v. United States, supra, 353 F.2d at 263.

Here, the evidence adequately establishes the chain of custody, and the likelihood of any intermeddling with these exhibits was extremely remote. There was no evidence that any tampering with the exhibits was present, and the trial judge certainly did not abuse his discretion in admitting the evidence.

II.

Brown also contends that upon redirect examination of one of the surveilling DALE officers, the Government was permitted to elicit testimony which tended to implicate Brown in prior sales of narcotics. It is his contention that such testimony was irrelevant and constitutes reversible error. However, the substance of the testimony which is the subject of this argument does not contain any allegations of prior narcotics sales by Brown. Rather the inquiries centered upon the witness' knowledge of the traffic in a general area and general habits of narcotics dealers.

The questioning by the Government was in direct response to the inquiries of Brown's counsel upon cross-examination. During that cross-examination, Brown's counsel asked the DALE officer...