U.S. v. Luschen

• Decision Date: 05 February 1980
• Docket Number: 79-1392,Nos. 79-1384,s. 79-1384
• Citation: 614 F.2d 1164
• Parties: 5 Fed. R. Evid. Serv. 696 UNITED STATES of America, Appellee, v. Steven Elmer LUSCHEN, Appellant. UNITED STATES of America, Appellee, v. Wayne Bernard KING, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1164

614 F.2d 1164

5 Fed. R. Evid. Serv. 696

UNITED STATES of America, Appellee, v. Steven Elmer LUSCHEN, Appellant.

UNITED STATES of America, Appellee, v. Wayne Bernard KING, Appellant.

Nos. 79-1384, 79-1392.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1979.

Decided Feb. 5, 1980.

Louis D. Bass, Minneapolis, Minn., for appellant, Luschen; John L. Holahan, Jr., Minneapolis, Minn., on the brief.

Phillip S. Resnick, Meshbesher, Singer, & Spence, Minneapolis, Minn., for appellant, King; Kenneth Meshbesher, Minneapolis, Minn., on the brief.

James A. Morrow, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Thorwald H. Anderson, Jr., U. S. Atty. and Susan K. Savela, Legal Intern, Minneapolis, Minn., on brief in No. 79-1384; Thorwald H. Anderson, Jr., U. S. Atty. and Raymond R. Peterson, Legal Intern, Minneapolis, Minn., on brief in No. 79-1392.

Before STEPHENSON and McMILLIAN, Circuit Judges, and HANSON, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Appellants Steven Elmer Luschen and Wayne Bernard King were charged in a four-count indictment with distribution of cocaine and conspiracy to distribute cocaine. They were joined as defendants and tried in U.S. District Court ¹ before a jury, which found Luschen guilty of counts I-IV and King guilty of counts II-IV. On appeal Luschen alleges several errors relating to the chemical testing of the cocaine and challenges the sufficiency of the evidence to establish conspiracy. On appeal King cites as error illegal search and seizure, insufficiency of the evidence, admission of co-conspirator's statements, expert testimony interpreting a drug notebook and denial of severance. For the reasons discussed below, we affirm both convictions.

This case involves three hand-to-hand sales of cocaine from appellant Steven Luschen to Drug Enforcement Administration (DEA) undercover agent Susan Belkair. On September 5, 1978, agent Belkair, working with government informant Michael Harris, set up a cocaine buy with Luschen. Luschen was followed after leaving his home at 8812 Chowen Avenue South by two officers of the surveillance team with the Minneapolis Police Department Narcotics Division. Luschen spent twenty to twenty-five minutes at 2038 Montreal Avenue in St. Paul. He then proceeded to Mr. Nibbs, a local restaurant, where the buy was scheduled to occur, and sold one-half of an ounce of cocaine for $1,000 to agent Belkair.

On September 12, 1978, Harris and agent Belkair arranged to meet Luschen at Perkins Pancake House in Bloomington to discuss another transaction. Luschen instructed them to proceed to a phone booth in a church parking lot, which he said was across the street from where the cocaine was located, and he would call them when the cocaine was ready. Luschen left Perkins Pancake House and went directly to appellant Wayne King's apartment building at 8851 Goodrich Avenue South, across the street from the church lot. While he was in the building, his actions were observed by Officer Stone who had obtained a security key from the apartment manager. Luschen was escorted into apartment 206, King's apartment, by a young woman. After a short time, Luschen left King's apartment and drove to the church lot. He met Harris and agent Belkair in the rear of the church parking lot and sold one ounce of cocaine to agent Belkair for $2,100. After the sale, Luschen was followed to 2038 Montreal Avenue in St. Paul and then to Luschen's home.

On December 13, 1978, agent Belkair arranged to purchase one ounce of cocaine for $2,100 at 6 p. m. at Perkins Pancake House. At about 5:20 p. m., King arrived at Luschen's home. They left together at 5:45 p. m., and King drove Luschen to King's apartment. Again they were observed by Officer Stone. Just after they entered, two persons, later identified as Dale Casper and Cynthia Kissner, also entered King's apartment. Fifteen minutes later, King drove Luschen to Perkins Pancake House. King dropped Luschen off and parked with his hood up at a nearby gas station. Luschen got into agent Belkair's car, delivered one ounce of cocaine and received $2,100 in return. The surveillance officers approached the car and arrested Luschen. King was also arrested at the service station. After the arrests, a search revealed a package of pure cocaine on Luschen and drug paraphernalia consisting of two paper bindles, a razor blade and a straw used to snort cocaine on King.

After the arrest, a search warrant was obtained for King's apartment. The search, on December 13, 1978, revealed numerous articles commonly associated with drug dealers: an Ohaus triple beam balance scale, four bottles containing traces of cocaine plus inositol, one bottle containing only inositol, a SnoSeal containing traces of cocaine, a cutting mirror, a razor blade, plastic tubes and plastic bags, small plastic snorting spoons, a money order receipt in the name of Wayne King, a letter to Wayne King, a bank statement in the name of Wayne King, a blank check in the name of Wayne King, a newspaper clipping about a cocaine arrest and a notebook containing coded entries regarding drug transactions. The above items were all found in or on the night stand next to the double bed in the bedroom. In the closet with King's clothes was an empty pack of Marlboro cigarettes containing paper packets with traces of cocaine and inositol and a spoon and jar for snorting cocaine. King's girlfriend, who was present during the search, specifically denied being the owner of the Marlboro pack.

On January 12, 1979, the United States Grand Jury returned a four-count indictment charging appellants with distribution of cocaine and conspiracy to distribute cocaine. The counts were as follows:

Count I Steven Elmer Luschen distribution, September 6, 1978, one-half ounce of cocaine;

Count II Steven Elmer Luschen and Wayne Bernard King, each aiding each other distribution, September 12, 1978, one ounce of cocaine;

Count III Steven Elmer Luschen and Wayne Bernard King, each aiding each other distribution, December 13, 1978, one ounce of cocaine;

Count IV Steven Elmer Luschen and Wayne Bernard King Conspiracy to distribute cocaine on September 12, 1978, to December 13, 1978.

After a jury trial, Luschen was convicted on counts I, II, III and IV and sentenced to a term of three years plus a special parole term of three years. King was convicted on counts II, III and IV and sentenced to a term of eight years plus a special parole term of three years.

On appeal Luschen argues that there were four errors relating to the identification of the cocaine: First, the trial court erred in giving the instruction that, if the substance was not 1-cocaine, there was no offense. Second, the trial court erred in denying Luschen's motion for a post-trial hearing on the reliability of the gold chloride microcrystalline test. Third, the trial court erred in admitting testimony on the physical and chemical analysis without proper foundation on either the chemist's qualifications or the test's conformity to a generally accepted explanatory theory. And, fourth, the trial court erred in allowing the government to reopen its rebuttal and present additional testing procedures after Luschen had rested. Because of the common origin of these contentions, a review of that part of the evidence may be helpful.

Dawn Speier, a public health chemist for the City of Minneapolis, testified that she conducted five tests each on Exhibits 4, 9 and 12, which represented the substances purchased in the first, second and third buys respectively. The first four tests were to determine the presence of cocaine. The final test, a gold chloride microcrystalline test, was used to distinguish the 1 and d isomers. It was Speier's expert opinion that the gold chloride microcrystalline test was adequate to distinguish the 1 and d isomers. According to her testimony, the substances from all three buys contained 1-cocaine and inositol. She also testified that 1-cocaine and d-cocaine are not chemically equivalent. On cross examination it was revealed that Ms. Speier was only vaguely familiar with the polarimeter and melting point tests which are used to distinguish the l and d isomers. Then Luschen called to the stand Dr. Siret Ener, whose expert testimony was that the gold microcrystalline test could not differentiate l-cocaine from d-cocaine.

After both sides had rested, Luschen moved for a directed verdict of acquittal, which was denied by the court. Over Luschen's objections, the court granted the government's motion to reopen its rebuttal so that it might run the melting point and polarimeter tests and present the results as evidence. The government's Exhibits 4, 9 and 12 were retested by Ms. Speier using a melting point test and found to be l-cocaine. The polarimeter test was run on Exhibit 12 by T. Dal Lason, and in his opinion the sample was l-cocaine.

Luschen's first contention, that the trial court erred in giving an instruction which shifted the burden to the accused to disprove an element of the crime, is not preserved for review because Luschen failed to object. ² Fed.R.Crim.P. 30. United States v. Collins, 552 F.2d 243, 246 (8th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977); Armstrong v. United States, 228 F.2d 764, 766-68 (8th Cir.), cert. denied, 351 U.S. 918, 76 S.Ct. 710, 100 L.Ed. 1450 (1956).

Luschen's second contention is that the trial court erred in admitting various expert testimony that the substance was l-cocaine. As to the gold chloride microcrystalline test, Luschen charges that the government failed to establish its conformity to a generally accepted explanatory theory. ³ As to the melting point test, Luschen challenges the government chemist's qualifications to perform it. At base, however, both suggestions relate to the qualifications of the chemist.

The broad and generally stated test for determining the qualifications of a given witness to testify as an expert is...