U.S. v. Valentine, 81-1850

• Decision Date: 20 April 1983
• Docket Number: No. 81-1850,81-1850
• Citation: 706 F.2d 282
• Parties: 13 Fed. R. Evid. Serv. 623 UNITED STATES of America, Plaintiff-Appellee, v. William Joseph VALENTINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 282

706 F.2d 282

13 Fed. R. Evid. Serv. 623

UNITED STATES of America, Plaintiff-Appellee, v. William Joseph VALENTINE, Defendant-Appellant.

No. 81-1850.

United States Court of Appeals Tenth Circuit.

April 20, 1983.

Vince D'Angelo of D'Angelo, McCarty & Vigil, Albuquerque, N.M., for defendant-appellant.

Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M. (R.E. Thompson, U.S. Atty., Albuquerque, N.M., was also on the brief), for plaintiff-appellee.

Before HOLLOWAY and SEYMOUR, Circuit Judges, and KELLY, District Judge. ^*

HOLLOWAY, Circuit Judge.

William Joseph Valentine brings this direct appeal from his conviction on all counts of a seven count indictment. Counts One and Three charged Valentine with possession on or about April 7, 1981, of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Count Two charged distribution on or about April 7, 1981, of cocaine under the same statutes. Counts Four and Five charged receipt on or about March 20, 1981, of firearms, after former conviction of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. Secs. 922(h)(1) and 924(a). Counts Six and Seven charged possession on or about April 7, 1981, of the same firearms involved in Counts Four and Five, after former conviction, in violation of 18 U.S.C.App. Sec. 1202(a).

On each of the first three counts Valentine was sentenced to concurrent terms of eight years' imprisonment with a special parole term of five years. On each of Counts Four and Five a sentence of five years was imposed, and on each of the final two counts Valentine was sentenced to two years' confinement. The latter four sentences also were ordered to run concurrently with the sentences on the first three counts.

I

For convenience the basic facts will be outlined as a background for our consideration of the issues presented.

The evidence shows that Valentine was suspected of being a dealer in cocaine because of information supplied by a confidential informant, one "Mickey" Rooney. Rooney told Detective Robert Milliman of the Albuquerque Police Department that Carolyn Chalamidas was willing to sell cocaine. ¹ Rooney further informed Milliman that Chalamidas's source for cocaine was a man named "Bill" or "Bill Valentine," and that Valentine lived on Sixth Street. ²

Detective John Hearn arranged to meet Chalamidas through Rooney. On the afternoon of April 7, 1981, one day after Rooney contacted Milliman, Hearn met Chalamidas at her apartment. Hearn gave Chalamidas $2,500 in one hundred dollar bills for the purchase of one ounce of cocaine. The serial numbers of the bills had been recorded by photocopying. Hearn, Chalamidas and Rooney then drove to a doughnut shop near Valentine's residence where the two men were to wait while Chalamidas made the cocaine purchase. Valentine's residence was under surveillance at this time by various federal and local officers. IV R. 121. Chalamidas was seen arriving at Valentine's residence a few minutes after leaving Hearn and Rooney. She entered the house, stayed about ten minutes, and came out accompanied by Valentine. She and Valentine talked briefly before she departed. IV R. 122.

Chalamidas then picked up Rooney and Hearn and the three of them returned to her apartment. Chalamidas produced an ounce of cocaine in a plastic bag which she carefully weighed for Hearn. IV R. 102-03. Chalamidas took out five grams of the powder as her fee for arranging the purchase and gave Hearn the remaining twenty-three grams, IV R. 103. This twenty-three gram package was Government's Exhibit One at trial and is the subject of Counts One and Two.

Upon completing the purchase Hearn stepped outside the apartment and signaled to other officers who were waiting at the scene. Chalamidas was then arrested and the entire apartment searched pursuant to a search warrant that had been obtained earlier that day. IV R. 104. One of the one hundred dollar bills given Chalamidas for the drug purchase was found in her purse.

A few hours later, at about 7:30 p.m., Valentine was arrested when the officers executed the search warrant for his house. The guns involved in Counts Four through Seven were seized along with two other weapons, a bag of cocaine weighing about twelve ounces (Exhibit 5, the subject of Count Three), a number of plastic bags, scales, and a number of substances that could have been used to dilute cocaine. After a search of Valentine's person, four of the one hundred dollar bills given to Chalamidas by Hearn were also discovered. One other person was present when the warrant was executed. He also was placed under arrest, but was not charged with Valentine.

II

Valentine first challenges the ruling by the trial court refusing to permit a line of cross-examination of a Government expert. The facts pertaining to this issue follow.

Among the witnesses testifying for the prosecution at trial was Martin Brady, "criminalist" for the Albuquerque Police Department. Brady testified that he had analyzed the substances found in Government's Exhibits One, Two and Five, ³ and that all three substances were uncut cocaine. Based on his analysis Brady testified that the cocaine could have come from the same source.

On cross-examination, Valentine's attorney attempted to refute Brady's conclusion that the three samples of cocaine could have come from the same source. Counsel first elicited from Brady the statement that he could not testify that the samples did in fact come from the same source. Next the defense attorney questioned Brady about the descriptions Brady had given in his reports. Brady confirmed that he had described Exhibits One and Two as powdery substances with lumps, and that Exhibit Five was different, being one large lump that broke into a powder. Further, Brady testified that he noticed a strong odor from Exhibits One and Five but not from Exhibit Two.

At that point in the cross-examination defense counsel sought to have Brady open the packages to make a closer visual inspection of the cocaine samples. The trial judge interrupted and questioned the necessity of such an examination. Counsel explained that he expected the visual examination of the exhibits would show that Exhibits One and Two were composed of flakes and that Exhibit Five had a powdery composition. This would strongly tend to disprove the prosecution's theory that Exhibits One and Two came from the bag of cocaine found in Valentine's house (Exhibit Five). The court refused to allow counsel to conduct this examination. After making an offer of proof counsel elicited from Brady the testimony that different samples of uncut cocaine may have different textures and that such a difference could indicate that such samples did not come from a common source. Brady stated that he had not conducted such an examination of the exhibits.

Valentine contends that the limitation of his cross-examination of Brady deprived him of his constitutional right to due process under the Fifth Amendment and of his Sixth Amendment rights of confrontation and effective assistance of counsel. The trial court ruled that the proposed line of questioning was not "proper cross-examination" and was "not probative of anything." IV R. 196-97.

It is difficult to agree that the proposed questioning was without probative value. The prosecution's case on Counts One and Two was entirely circumstantial--the only link between Valentine and the cocaine that he is charged with possessing and distributing under those counts was Chalamidas. Proof that this cocaine came from a source other than the bag of cocaine found at Valentine's house would weaken the inference that Chalamidas acquired the cocaine from Valentine. Nevertheless we are not persuaded that any reversible error occurred.

We have held that errors in limiting cross-examination are of two types. When such an error precludes inquiry into an entire area of relevant cross-examination, the right of confrontation derived from the Sixth Amendment is infringed. United States v. Jorgenson, 451 F.2d 516, 519 (10th Cir.1971). The second type of error limits only the extent of cross-examination; this is a matter of the trial judge's discretion and will not lead to reversal unless an abuse of discretion, clearly prejudicial to the defendant, is shown. Jorgenson, 451 F.2d at 520; United States v. Alderete, 614 F.2d 726, 728-29 (10th Cir.1980); United States v. Walton, 552 F.2d 1354, 1363-64 (10th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977).

The record here clearly shows that Valentine was not excluded completely from the area of cross-examination that he attempted to pursue. Counsel was allowed to question Brady concerning the inference that the cocaine could have come from the same source and succeeded in demonstrating that some of Brady's own observations were not entirely consistent with that inference. Therefore we turn to the question whether the limitation on questioning of Brady was clearly prejudicial to Valentine.

We conclude that Valentine has failed to show that his defense was clearly prejudiced. We are unable to agree with Valentine's appraisal of the importance of the proposed line of questioning. Even if the proposed inquiry and study of the samples had been allowed and had produced the result that Valentine apparently expected, the jury might well have concluded simply that Valentine had more than one "batch" of cocaine at his residence. Moreover, when the alternatives are considered it is clear that this is not mere speculation but instead is the most reasonable conclusion in the circumstances.

The testimony was that approximately fifteen to twenty minutes elapsed from the time when Chalamidas left Hearn and Rooney at the doughnut shop until she returned, that Chalamidas was in Valentine's house for about ten minutes during this interval and outside the house talking to Valentine for another few minutes, and $400 of the...