U.S. v. Ross, 1093

• Decision Date: 13 October 1983
• Docket Number: No. 1093,D,1093
• Citation: 719 F.2d 615
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin ROSS, Defendant-Appellant. ocket 82-1441.
• Court: U.S. Court of Appeals — Second Circuit

Page 615

719 F.2d 615

UNITED STATES of America, Plaintiff-Appellee, v. Martin ROSS, Defendant-Appellant.

No. 1093, Docket 82-1441.

United States Court of Appeals Second Circuit.

Argued April 19, 1983.

Decided Oct. 13, 1983.

David Liebov, Sp. Asst. U.S. Atty., S.D.N.Y., New York City (John S. Martin, Jr., U.S. Atty., S.D.N.Y., Walter P. Loughlin, Asst. U.S. Atty., New York City, of counsel), for plaintiff-appellee.

Jay Goldberg, New York City (Sheryl Reich, New York City, of counsel), for defendant-appellant.

Before FRIENDLY, WINTER and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Martin Ross appeals from his conviction in the United States District Court for the Southern District of New York on a single misdemeanor count of possessing 1/80 of an ounce of cocaine in violation of 21 U.S.C. Sec. 844 (1976). He was fined $2,500 and given a split sentence requiring him to serve two months in prison and three years on probation.

Ross argues that the district judge erred in instructing the jury that D-cocaine is the chemical equivalent of L-cocaine, in instructing the jury on reasonable doubt, and in refusing to give an instruction pursuant to 18 U.S.C. Sec. 3501 as to the voluntariness of a statement Ross made to federal agents. Ross also claims error in the denial of his pre-trial motions to dismiss the indictment on the ground of selective prosecution and to suppress non-verbal "statements" claimed to have been elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). While we find no reversible error in the other claims, we agree that the trial judge erroneously instructed the jury as to the chemical equivalency of L-cocaine and D-cocaine, and therefore reverse the conviction and remand for a new trial.

FACTS

On June 17, 1982 more than 20 agents of the Internal Revenue Service entered Marty's Restaurant in Manhattan to execute a search warrant issued as part of an IRS investigation into the skimming of income by owners of New York City restaurants. The warrant authorized seizure of "records and documents of Marty's Restaurant which are evidence and instrumentalities of the crimes of evading individual income taxes due and owing to the United States * * *." The agents found Ross, the record owner of Marty's, in the restaurant's business office on the second floor. After Ross read the warrant, agent Doyle explained that Ross was not under arrest and was free to remain at the restaurant or to leave, but if he remained during the search he would be accompanied at all times by an IRS agent.

Ross did not ask to leave. He requested and was given permission to telephone his lawyer, who was unavailable. Refusing to delay the search until Ross's lawyer would be available, agent Doyle began by asking whether Ross had any weapons or large amounts of cash on the premises. Ross first replied that he did not, and then he asked the agents whether they could seize items not specifically included in the warrant. Rather than responding directly, agent Hoffman asked if Ross was worried about drugs, whereupon Ross nodded affirmatively and gestured in the direction of the right-hand drawer of his desk. Agent Hoffman opened the drawer, found cocaine and drug paraphernalia, and seized them. Ross was not arrested immediately, nor was he given Miranda warnings. The agents proceeded to execute the search warrant and seized 71 cartons of business records. Four weeks later, and despite Ross's prior indication that he would voluntarily surrender if requested, Ross was arrested in the bedroom of his home and charged with a single count of possession of cocaine, on which he was convicted after trial. This appeal focuses primarily on the court's charge to the jury.

CHARGE ON COCAINE ISOMERS

The first issue we consider arises out of the so-called "cocaine isomer strategy", United States v. Ortiz, 610 F.2d 280, 281 (5th Cir.), cert. denied, 445 U.S. 930, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); United States v. Bockius, 564 F.2d 1193 (5th Cir.1977), a sophisticated scientific defense grounded in the chemistry of cocaine, which has been frequently asserted in other circuits, e.g., Ortiz, supra; United States v. Luschen, 614 F.2d 1164 (8th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980); Bockius, supra; United States v. Hall, 552 F.2d 273 (9th Cir.1977); United States v. Wilburn, 549 F.2d 734 (10th Cir.1977); United States v. Umentum, 547 F.2d 987 (7th Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977); United States v. Orzechowski, 547 F.2d 978 (7th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977), but never before in this circuit. This strategy, extensively described in Bockius, 564 F.2d at 1194-1196, has its roots in the definitions set forth in Schedule II (a)(4) of 21 U.S.C. Sec. 812(c) (1976). There, a "controlled substance" is defined to include:

Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances * * *.

As explained in the cases cited above, and as confirmed essentially by the testimony of the government's expert at trial, cocaine has eight isomers, only one of which, L-cocaine, is a derivative of the coca leaf. Since the other seven isomers are synthetic, they are "controlled" by the statute only if they are "chemically equivalent or identical with" L-cocaine. The burden was therefore on the government to prove at trial that the substance Ross possessed was either L-cocaine, or that it was chemically equivalent or identical to L-cocaine.

To meet that burden the government called a DEA chemist, Frederick Martorell, who testified on direct examination that he had performed a Marquis test, a cobalt thiocyanate test, a thin-layer chromatography test, a mass spectroscopy test, and a gas-liquid chromatography test. From these five tests he concluded that the substance seized from Ross's desk drawer was cocaine hydrochloride of extremely high quality. He did not, however, attempt on direct examination to distinguish among the various isomers of cocaine.

The cross-examination of Martorell raised serious questions of fact and credibility. Initially Martorell said that there were only two isomers of cocaine. When pressed, however, he conceded that there were eight. He further testified that the L-cocaine is the illegal cocaine and the only one of the eight cocaine isomers covered under the federal statute. Nowhere did he explain that any of the other isomers could be "illegal cocaine" if they were chemically equivalent to or identical with L-cocaine, nor did he nor any other witness testify as to the chemical equivalency or identity of D-cocaine and L-cocaine. Martorell did testify, however, that a polarimeter test would distinguish between D-cocaine and L-cocaine, and that absent the polarimeter test, one cannot tell whether it was D-cocaine or L-cocaine.

Despite his direct testimony about five tests, Martorell remembered on cross that he had performed a sixth test, the polarimeter test. That test, he said, showed the substance found in Ross's desk to be L-cocaine. He conceded that his laboratory notes did not indicate he had performed the test, and he admitted he could not remember actually having done so. He testified that the test was standard procedure and was always the last test he did. The reason he made no note about it was that "it probably slipped my mind."

On the evidence, the jury could reasonably have determined that the substance was either L-cocaine or D-cocaine. And if it was D-cocaine, an acquittal was mandated because no evidence had been offered to prove that the synthetic D-cocaine was "chemically equivalent or identical with" the natural substance, L-cocaine. The jury could properly convict on this record only if it found the substance tested to be L-cocaine, and the court should have so charged. In instructing the jury, however, the court stated that D-cocaine "is the chemical equivalent or identical to L-cocaine." This was error, because it permitted the jury to convict even if it found the substance tested to be D-cocaine. Defendant is therefore entitled to reversal and a new trial. Because there may be a new trial, we discuss briefly other issues raised by defendant.

CHARGE ON VOLUNTARINESS

Ross argues that the trial court was required by 18 U.S.C. Sec. 3501 (1976) to instruct the jury on the weight to be given to the gesture and nod he made in response to an agent's question about drugs. 18 U.S.C. Sec. 3501(a) in pertinent part provides:

If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.

The district court denied Ross's request to charge on this point on the ground that the voluntariness question had not sufficiently been raised at the trial. In fact, however, it was raised--by pre-trial motion, by a request to charge submitted in advance of trial, and by questions on cross-examination of the IRS agents as to the circumstances surrounding Ross's nod and gesture.

In United States v. Barry, 518 F.2d 342, 346 (2d Cir.1975), we commented that "[i]t would be difficult to imagine a clearer imperative than the statutory direction that the judge 'shall instruct the jury' " (emphasis in original). True, some cases after Barry have upheld a failure to give a Sec. 3501 instruction when the defendant did not request the charge and denied making any incriminating statement, or when there was little, if any, evidence from which a jury could infer that the statement was involuntary. United States v. Lewis, 565 F.2d 1248, 1253 (2d Cir.1977), cert. denied, 435 U.S....