U.S. v. Bockius, 77-5128

• Decision Date: 22 December 1977
• Docket Number: No. 77-5128,77-5128
• Citation: 564 F.2d 1193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert BOCKIUS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1193

564 F.2d 1193

UNITED STATES of America, Plaintiff-Appellee, v. Robert BOCKIUS, Defendant-Appellant.

No. 77-5128.

United States Court of Appeals, Fifth Circuit.

Dec. 22, 1977.

Selig I. Goldin, Gainesville, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Nathaniel H. Speights, Asst. U. S. Atty., Joel C. Fanning, Sp. Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM and GEE, Circuit Judges, and VAN PELT, ^* District Judge.

WISDOM, Circuit Judge:

L-cocaine or D-cocaine? That is the question. There are eight isomers of cocaine, but allegedly the only illegal form is the L-cocaine isomer. ¹

Robert Bockius was charged with knowingly importing cocaine into the United States in violation of 21 U.S.C. § 952(a) and 960(a)(1) and possessing cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). The defendant complains that the government did not inform him before trial that it had conducted the critical polarimeter test to identify the substance he brought into the country as L-cocaine. The government could argue, however, that defense counsel set a trap into which he fell. At the last moment, apparently to surprise the government, he produced as the chief trial lawyer the architect of the chemical defense theory in prosecutions over the importation, possession, or sale of cocaine. This theory rests on the scientific basis that absent a polarimeter test, government testing procedures to determine whether cocaine is L-cocaine are not conclusive. The defendant doth protest too much. The government had not received the results of that test before the trial began and did not use the results in presenting its case against the defendant; knowledge of its having been conducted came out in cross-examination. The district judge recessed the trial to enable the defendant's expert to perform his own polarimeter test. This he did. There was much throwing about of brains. Defense counsel exhibited models of the molecular structure of cocaine isomers and skillfully extracted from his expert and the government expert as much or more knowledge of the cocaine isomers than a jury could absorb. The question was for the jury. The jury decided it against the defendant. We affirm.

I.

Bockius returned to the United States from Colombia, South America, in September 1976. He aroused the suspicion of customs agents at the Miami International Airport. They searched him, and found 332.1 grams of a white powder concealed in his shoes. Field tests identified the powder as cocaine, a Schedule II narcotic controlled substance.

When Bockius was arraigned, the magistrate entered a standing discovery order. This order largely tracked the language of Rule 16 of the Federal Rules of Criminal Procedure. Among other things, it required the prosecution to "immediately reveal" to opposing counsel the results of scientific tests or experiments made in connection with the case.

The day before trial, the prosecution learned that James Shellow, well known as an expert in defending cocaine charges, would join Bockius's two attorneys who had already filed notices of appearance. Shellow had originated a sophisticated scientific defense grounded in the chemistry of cocaine. In the trial he conducted what may properly be described as an extraordinarily able examination of the witnesses, based on his knowledge of the chemistry of cocaine.

Schedule II of controlled substances, 21 U.S.C. § 812 includes:

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 . . .

According to Shellow's theory, which is generally accepted in the scientific community, only one of the eight cocaine isomers, L-cocaine, falls within the Schedule II definition. ² D-cocaine has a molecular structure that is the mirror image of L-cocaine. Often the two are found mixed. The government, therefore, had to prove that the substance in question was L-cocaine, rather than another form of the drug.

The Assistant United States Attorney handling the case was wise enough to confer with a United States Attorney in another office who had faced Shellow before. He learned that Shellow's trial strategy was to show that the Government had not met its burden of proof. This Shellow did by impeaching government testing procedures. His tactic was to contend that to identify L-cocaine, the government scientists should conduct a polarimeter test. ³

Until acquiring this information, the United States Attorney in the case had not requested the government expert, Donald A. Cooper, to conduct a polarimeter test. The United States Attorney asked him to do so, but had not received the results of this belated test when he began to present his case. Nor did he know about the results during direct examination. ⁴ The expert Cooper relied upon other tests to establish that the substance in question was L-cocaine. ⁵ Shellow, during cross-examination, asked Cooper if he had conducted the polarimeter test. Cooper answered affirmatively and stated that the substance taken from Bockius's shoes was L-cocaine.

After the trial judge allowed the jury to leave for lunch, the defense complained about the last minute polarimeter test. The following colloquy then took place THE COURT: How long does it take to run that test?

MR. SHELLOW: About 20 minutes.

THE COURT: You have got Mr. Shapiro (the defense expert) here. I want the Government to make its lab available to Dr. Shapiro to make his own test.

MR. SPEIGHTS: Objection, Your Honor.

THE COURT: I don't care.

To give Dr. Shapiro time to conduct his test, the court excused the jury until the next morning. He told them:

Ladies and gentlemen, we have run into a problem. I don't know whether you were here when I ordered the government to make available to Dr. Shapiro this substance so he could make his own test. That is what they are doing now. The test will not be ready until two o'clock. . . . It might be better if we would just recess for the afternoon and have you come back tomorrow morning at 9:00 o'clock.

The defense did not object to this comment. It did move, however, to strike all of Cooper's testimony on the ground that the government had violated the discovery order. The court denied this motion.

The next day, Dr. Shapiro testified that his polarimeter test showed that the substance found in Bockius's shoe was not L-cocaine. The court's instructions incorporated the L-cocaine theory of the defense. The jury convicted on both counts of the indictment.

II.

We assume that under the standing discovery order the government should have informed the defense before the trial began that it had requested a polarimeter test. Generally, the choice of remedy for a violation of discovery requirements rests with the trial judge. E. g., United States v. Saitta, 5 Cir. 1971, 443 F.2d 830; Gevinson v. United States, 5 Cir. 1966, 358 F.2d 761. This discretion will be overturned and a new trial ordered only if the defendant can show that a shortcoming in discovery caused prejudice not cured by the trial court's remedy. See United States v. Saitta, 443 F.2d at 831; Hansen v. United States, 8 Cir. 1968, 393 F.2d 763.

Bockius charges prejudice because he was forced, at the last minute, to change his strategy from one of impeaching the thoroughness of government testing procedure to one of rebutting the actual test results. We do not sympathize with the defense attorneys' dismay when they discovered that their impeachment defense had been anticipated; obviously they had expected to surprise the government. The government properly conducted tests necessary to turn back the impeachment attack. The question is whether the defendant had an adequate opportunity to prepare a defense in response to the government's case.

The district court's order that the government make its facilities available to Dr. Shapiro provided that opportunity. Indeed, Dr. Shapiro flatly testified that the substance found in the appellant's shoes was not L-cocaine. Appendix at 244-45. The appellant now complains that the district court did not give the defense enough time. In his brief, the appellant argues "this last minute test . . . put Shapiro in a bad light because he had to rush and rely upon various government equipment and data which undermined the credibility of his testimony". Appellant's brief at 17. Bockius also contends that he might have brought in a second expert to bolster Dr. Shapiro's testimony had he realized it was necessary to rebut actual test results and that "there was no way for Defendant with one expert to properly evaluate the Government polarimeter because no data was provided to the Defendant".

The record discloses no place where the defense brought these problems to the trial judge's attention. Instead, the defense told the court that twenty minutes was all Dr. Shapiro needed. If Dr. Shapiro had needed certain data to evaluate the government's test, the defense should have asked for time and the trial judge could have ordered the government to produce the tests to be evaluated. If Dr. Shapiro really needed more time, or if the defense wanted an opportunity to recruit a second expert, defendant's experienced counsel should have asked the court for more time.

Bockius relies upon United States v. Kelly, 2 Cir. 1969, 420 F.2d 26. The defendants in Kelly were police officers accused of selling through a third party cocaine they had seized during a narcotics raid. To prove that the cocaine sold by the officers came from the batch of drugs seized in the original raid, the prosecutor introduced the results of a neutron activation test. Although the test had been performed well before trial, the government did not honor its obligation under the discovery rules to reveal it to the defense....