U.S. v. Green

• Decision Date: 11 February 1977
• Docket Number: Nos. 76-1461,76-1462,s. 76-1461
• Citation: 548 F.2d 1261
• Parties: 2 Fed. R. Evid. Serv. 661 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Essington GREEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel S. FRANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1261

548 F.2d 1261

2 Fed. R. Evid. Serv. 661

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Essington GREEN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Daniel S. FRANO, Defendant-Appellant.

Nos. 76-1461, 76-1462.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 7, 1976.

Decided Feb. 11, 1977.

Thomas Paris, Cleveland, Ohio (Court-appointed CJA), for defendant-appellant in No. 76-1461.

Michael G. Dane, Richard A. Damiani, Cleveland, Ohio, for defendant-appellant in No. 76-1462.

Frederick M. Coleman, U. S. Atty., Nancy C. Schuster, Cleveland, Ohio, for plaintiff-appellee.

Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

Appellants ask us to overturn their convictions after a joint trial by jury upon a one-count indictment charging conspiracy to knowingly or intentionally manufacture a Schedule I controlled substance, Dimethyltryptomine ("DMT"), in violation of 21 U.S.C. § 841(a)(1); ¹ 21 U.S.C. § 846. The indictment charged that during a two month period commencing on or about October 24, 1974, Appellants conspired to manufacture DMT. In furtherance of this illicit agreement, they allegedly amassed all of the paraphernalia needed to accomplish their illegal objective, including a booklet containing a "recipe" for synthesizing the hallucinogenic drug and quantities of all of its chemical constituents ("precursors").

In this consolidated appeal, Appellants advance three grounds for reversal of their convictions. First, they jointly assert that the evidence presented by the Government was legally insufficient to prove the existence of a criminal conspiracy. Second, Appellant Frano individually contends that the trial court committed reversible error by permitting government agents to testify to the substance of three out-of-court statements attributed to him which he asserts were improperly withheld from the defense prior to trial and then erroneously received in evidence through misapplication of the co-conspirator's exception to the hearsay rule. Third, Appellant Green claims that the court denied Appellants a fair and impartial trial by sanctioning the admission into evidence of government expert testimony concerning matters which were irrelevant to proving the crime charged and which confused and prejudiced the jury.

Appellants' five-day trial commenced on September 15, 1975. The Government presented seven witnesses during its direct case. Following the trial court's denial of Appellants' motions for acquittal, Frano took the stand in his own defense. Green did not testify or present any witnesses.

In summary, the Government's evidence established the following relevant facts:

On October 15, 1974, an unidentified man using the name "Dennis Green" purchased five chemical precursors of DMT from Fisher Scientific Company in Warrensville Heights, Ohio. On October 24th, a man also identifying himself as "Dennis Green" placed a telephone order with Sargent-Welch Company, a chemical supply house located in Garfield Heights, Ohio, for two additional precursors of DMT. The company notified agents of the Federal Drug Enforcement Taskforce ("DEA") who responded by setting up a street surveillance of the premises on November 20th, the day on which the purchaser was expected to pick up his order. On that same day William P. Lehman, a local police officer posing as a stockman, was stationed in Sargent-Welch.

That afternoon Appellants were observed to enter Sargent-Welch together. Once inside, Green identified himself as an employee of "Shaker Ford." Frano knew at the time that Green did not work there. Sargent-Welch had an established policy of never selling chemicals to individuals. Although Green paid for the single chemical which the company had in stock at the time, both Appellants individually inspected the package. At this point Frano was overheard to say to Green: "Let's see if they have any ether while we're here." Ether is itself a DMT precursor. Thereupon, Green immediately ordered and paid for a quantity of ether. Appellants exited the premises together. They each carried one of the two packages, although both items could have been handled easily by one person. They left the scene in Green's automobile and were followed by agents to the vicinity of Frano's residence. Frano exited the vehicle and Green proceeded to his own residence.

In December of 1974, Green placed a second telephone order with Sargent-Welch for additional DMT precursors. On December 17th, officer Lehman telephoned Green and notified him that his order was ready for pick-up. Green's residence had been under surveillance. Shortly after Lehman's call, agents observed Green leave his residence by automobile, pick up Frano at his home, and drive to Sargent-Welch. Appellants entered the company premises together. While they were waiting for the order to be filled, they perused a laboratory glassware catalogue. At this time Frano was overheard to remark to Green: "Why don't we wait until we see what we have in Ashtabula first before we buy any glass." Both Appellants in turn inspected the chemical packages, Green paid the bill, and they then left the premises. They drove in Green's automobile to their respective residences.

On December 20th, Government agents obtained a search warrant and raided Green's residence. They discovered and seized a box containing quantities of nine chemicals, constituting all of the DMT precursors, and a booklet entitled "Drug Manufacturing for Fun and Profit." Included in the booklet were complete instructions for synthesizing DMT in the home. Green was placed under arrest. On December 26th, Frano was arrested at which time he stated to the agents involved: "I've been waiting for you. Thanks for waiting 'til after Christmas."

David Parmalee, a supervisor of chemical analysis for the Food and Drug Administration, qualified as an expert witness for the Government. He described the chemical composition of DMT and the administrative procedure by which it was classified as a Schedule I controlled substance. He also explained the significance of that designation. He testified at length concerning the drug's psycho-pharmacological properties and analogized its hallucinogenic effects upon human beings to those of LSD. He estimated that approximately one-thousand "dosage units" of DMT could be produced from the quantity of precursor chemicals seized in Green's residence, and he concluded that no other substance could be synthesized from this unique array of components.

DEA Agent George Simmons, after a prolonged recitation of his experience as an undercover purchaser of dangerous drugs on the street, testified that the average, illicit sale price of a DMT "dosage unit" ranged from seventy cents to six dollars, depending upon prevailing supply and demand and upon the quantity of drug involved.

Appellants challenge the sufficiency of this evidence to sustain the verdicts. Once there has been a conviction in a criminal case, appellate courts are bound to view the totality of the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Dye, 508 F.2d 1226, 1231 (6th Cir. 1974). Concomitantly, all reasonable inferences must be drawn which are consistent with the verdict. United States v. Scales, 464 F.2d 371, 373 (6th Cir. 1972). Inferential proof may be controlling where the offense charged is so inherently secretive in nature as to permit the marshalling of only circumstantial evidence. This is the norm in drug conspiracy prosecutions, see, e. g., United States v. Sin Nagh Fong, 490 F.2d 527, 530 (9th Cir. 1974). The Government presented no direct evidence that a conspiratorial agreement existed between Frano and Green and that the aim of such an agreement was the manufacture of DMT. Rather, the jury was called upon to infer from circumstantial evidence alone the existence of the elements necessary to prove Appellants' guilt.

This Court has long recognized that purely circumstantial evidence may be sufficient to sustain a conspiracy conviction. United States v. Chambers, 382 F.2d 910, 913 (6th Cir. 1967). The permissible inferences to be drawn from such evidence need not be consonant only with an hypothesis of guilt, United States v. Luxenberg, 374 F.2d 241, 249 (6th Cir. 1967), providing that the totality of the evidence is substantial enough to support a finding of guilt beyond a reasonable doubt. By our own definition:

Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred.

United States v. Martin, 375 F.2d 956, 957 (6th Cir. 1967).

The Government's burden in this trial was to prove that Appellants intentionally agreed to manufacture DMT and that one or both of them committed an overt act in furtherance of that joint criminal venture. United States v. Craig, 522 F.2d 29, 31 (6th Cir. 1975). Our reading of the record convinces us that the evidence was sufficient to make out all of the elements of a prima facie case. Therefore, the trial court was correct in denying Appellants' motions for acquittal and allowing the case to go to the jury.

Appellants were observed together on three separate occasions, under circumstances which could reasonably have been construed by the jury as sharing a nexus to the manufacture of DMT. The jury was entitled to infer that these were not coincidental tandem appearances, but rather some proof that Appellants were embarked upon a joint undertaking. United States v. McGruder, 514 F.2d 1288, 1290 (5th Cir. 1975). The jury could also infer from the substance of Frano's three out-of-court statements, two of which were made to Green, that Frano was a knowing participant in the criminal venture and that he was conscious of...