U.S. v. Anderson, s. 77-5303

• Citation: 584 F.2d 849
• Decision Date: 19 October 1978
• Docket Number: 77-5304,Nos. 77-5303,s. 77-5303
• Parties: 3 Fed. R. Evid. Serv. 1330 UNITED STATES of America, Plaintiff-Appellee, v. Dan ANDERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tosun Ates YORUK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 849

584 F.2d 849

3 Fed. R. Evid. Serv. 1330

UNITED STATES of America, Plaintiff-Appellee, v. Dan ANDERSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Tosun Ates YORUK, Defendant-Appellant.

Nos. 77-5303, 77-5304.

United States Court of Appeals, Sixth Circuit.

Argued June 21, 1978.

Decided Oct. 19, 1978.

Richard D. Heideman, Bob H. Zeman, Louisville, Ky., for defendant-appellant in No. 77-5303.

John T. Carneal, Paducah, Ky. (Court-appointed), for defendant-appellant in No. 77-5304.

Albert Jones, U. S. Atty., James H. Barr, Louisville, Ky., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and CECIL and PECK, Senior Circuit Judges.

PECK, Senior Circuit Judge.

Appellants Tosun Yoruk and Dan Anderson were jointly tried and found guilty by a jury of participating in a conspiracy to transport marijuana from Florida to Kentucky. They were both sentenced to three years in prison, and have appealed their convictions.

On October 8, 1976, Karl Scarborough and William Boyden were arrested in Ocala, Florida, and charged with possession of marijuana and other drugs. The two gave statements to the Florida police, admitting that they were in Florida to obtain marijuana. They claimed that a Dr. James Ammons, of Murray, Kentucky, had talked them into making the trip, during a visit to Dr. Ammons' home. They said that Anderson and Yoruk were also present at the time, and that Anderson had shown them how to use a marijuana "test kit."

Dr. Ammons was arrested and charged with a variety of drug-related offenses, including possession and distribution of controlled substances, writing illegal prescriptions, and conspiracy to import marijuana into Kentucky. He was tried separately from Yoruk and Anderson, who were charged only with conspiracy.

Before trial, Yoruk and Anderson both agreed to plead guilty, in return for a Government recommendation of a two-year suspended sentence for Anderson, and a one-year sentence, with all but sixty days suspended, for Yoruk. The district court refused to accept the plea, however, and the two were tried together before a jury.

Yoruk's principal argument on appeal is that irrelevant, highly prejudicial evidence was introduced against him, requiring a new trial. The Government called an expert witness, Dr. Green, and he was permitted to testify at length about the "evils" of marijuana, the effects of its abuse on users, and about the characteristics of a variety of other controlled substances. Yoruk argues that this highly prejudicial testimony was wholly irrelevant to the question of whether or not he had participated in a conspiracy. He points out that the question of whether marijuana use is bad, morally or physically, was not an issue in this case, since he did not dispute that it is illegal, and no attempt was made to raise a defense that even if the conspiracy was proved, he should not be punished because marijuana is harmless. Indeed, if he had done so, the Government could have properly objected on grounds of irrelevancy.

Dr. Green's testimony was extensive, covering the use and effects of marijuana, cocaine, and the prescription drugs Cylert and Dilaudid. He testified, with frequent references to the "drug scene" and the "street scene," that marijuana use can result in a person "going berserk or amuck or . . . paranoid," by releasing inhibitions. According to Dr. Green, there may be "severe emotional disturbances, panic, anxiety, depression, paranoia, psychosis, hallucinations and disturbances." Furthermore, marijuana users show "a marked decrease in their motivation, in their personal hygiene. They tend to be sleepy, apathetic, lethargic, disinterested in what's going on around them, their social relationships frequently deteriorate rapidly. If they're married, their marital relationships generally deteriorate. . . . (A student's) grades drop off. His personal hygiene drops off. He sleeps, doesn't care. He is generally irritable, lethargic and indifferent."

The question of the admissibility of this highly prejudicial sort of testimony in a drug conspiracy case has been recently settled in this Circuit by the decision in United States v. Green, 548 F.2d 1261 (6th Cir. 1977), a case which is indistinguishable from this case. In Green, the defendants were charged with conspiracy to manufacture DMT, a controlled hallucinogenic drug. After testifying that the various chemicals found at the defendants' home could only be used to manufacture DMT, the Government's expert witness was permitted to continue on to describe the threat posed by the drug, its bizarre physiological effects upon the body, the procedure through which a drug is classified as a controlled substance, the relationship of DMT to more common abused substances such as LSD, and the "street value" of the drug. This Court, speaking through Judge Celebrezze, held that the trial court "clearly abused its discretion by allowing the Government to introduce extensive expert testimony of both dubious relevance and cumulative prejudicial impact." Id. at 1268. We agree with the panel in Green that testimony of this kind in a conspiracy case can only "engender...