Brewer v. United States

• Decision Date: 17 December 1965
• Docket Number: 18059.,No. 18058,18058
• Citation: 353 F.2d 260
• Parties: Willie B. BREWER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

353 F.2d 260 (1965)

Willie B. BREWER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18058, 18059.

United States Court of Appeals Eighth Circuit.

December 17, 1965.

Paul Festersen, of Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., for appellant.

Franklin D. Carroll, Asst. U. S. Atty., Omaha, Neb., Theodore L. Richling, U. S. Atty., and Frederic J. Coufal, Asst. U. S. Atty., Omaha, Neb., for appellee.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Before us are appeals by the defendant Willie B. Brewer from his conviction on Counts I and III of the indictment in case No. 18,058 and on the single count indictment in case No. 18,059. The cases were consolidated below and here. Each of the three counts charges defendant with a transfer in Omaha, Nebraska, of marihuana to Michael W. Brown, not made pursuant to written order on prescribed treasury form, in violation of 26 U.S.C. § 4742(a). Such counts involve separate transfers of marihuana occurring on different specified dates in August 1963 and involving specified amounts of marihuana.

Defendant entered a plea of not guilty to all counts. He was tried to a jury and convicted on each count and was sentenced to five years imprisonment on each count, said sentences to be served concurrently. Defendant has been permitted to take these appeals in forma pauperis and is represented by court-appointed counsel.

Defendant's basic contention upon these appeals is that the court erred in admitting the testimony of the Government witnesses to the effect that the exhibits offered by the Government contain marihuana for the reason that no proper foundation was laid to establish a chain of possession of the exhibits from the defendant up to the time of analysis; or, otherwise stated, that there is insufficient foundation to establish that the substance analyzed and identified as marihuana by the Government's expert witness was the same substance as was transferred by the defendant. Defendant then goes on to urge that without such expert testimony there is insufficient evidence to support a conviction and that hence, defendant was entitled to have his motion for acquittal sustained. Defendant did at his trial make timely objection to the reception of the expert testimony upon the ground of lack of proper foundation, and he also made motion for acquittal which was renewed after the verdict of guilty.

While the evidence with respect to the different counts varied, the same general pattern with respect to the preservation of the evidence was followed in each instance. All transfers charged were made by the defendant to Michael W. Brown, an undercover agent for the Omaha Police Department. Brown, with respect to each of the transfers, testified that he was acquainted with defendant and that in each instance he bargained for a specific quantity of marihuana and that he received delivery thereof and paid the agreed price. Defendant offered no evidence. The sufficiency of the evidence to show the transfers and payment therefor is not questioned.

It is of course necessary for the Government to show as an essential element of the offenses charged that the substance transferred was marihuana. Marihuana is fungible. There is no intrinsic way that one can identify a specimen observed yesterday with the one presented today. A chemical analysis is required to identify a substance as marihuana. There is substantial evidence, which is uncontroverted, that the exhibits offered in evidence were tested by a skilled chemist by means of recognized tests and were found to contain marihuana.

Defendant's specific contention is, "What the Government has failed to do is to account for * * * the contents of the bags and envelopes it purchased. There is no sufficient showing that the bags or envelopes said to be received from the defendant were handled in such a way as to ensure that their contents, the crucial matter in controversy, remained undisturbed but fully accounted for. Indeed, it is not even clear from the record just what sort of containers were involved."

We believe that the law applicable to the admissibility of exhibits such as here involved is properly stated in Gallego v. United States, 9 Cir., 276 F.2d 914, 917, as follows:

"Before a physical object connected with the commission of a crime may properly be admitted in evidence there must be a showing that such object is in substantially the same condition as when the crime was committed. This determination is to be made by the trial judge. Factors to be considered in making this determination include the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it. If upon the consideration of such factors the trial judge is satisfied that in reasonable probability the article has not been

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