U.S. v. Gavic

Decision Date04 August 1975
Docket NumberNo. 74-1715,74-1715
Citation520 F.2d 1346
Parties1 Fed. R. Evid. Serv. 16 UNITED STATES of America, Appellee, v. Thomas GAVIC, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Marc G. Kurzman, St. Paul, Minn., for appellant.

Richard E. Vosepka, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before MATTHES, Senior Circuit Judge, HEANEY and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Thomas Gavic was convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Numerous issues are presented on this appeal. Gavic contends that he was denied his constitutional right to a speedy trial, that the contraband found in his home and his automobile should have been suppressed, and that he was denied a fair trial because the trial judge 1 improperly commented upon the evidence and erroneously instructed the jury. Gavic further contends that the trial judge committed reversible error in prohibiting the introduction of evidence concerning the polytypic nature of cannabis and overruling the defense's motion to strike certain expert testimony concerning a laboratory test of the marijuana found in Gavic's residence and automobile. We affirm the judgment of conviction.

The relevant portions of the record disclose that on November 28, 1973, a warrant authorizing the search of Gavic's home was issued by the United States Magistrate on the basis of an affidavit signed by Agent John Boulger of the Drug Enforcement Administration. In his supporting affidavit, the agent stated that a reliable confidential informant, who had recently provided information concerning other controlled substances, had observed a large quantity of brownish tablets which one of the occupants of the house had described to her as THC (tetrahydrocannabinol).

Gavic's home was searched pursuant to the warrant on the following day. There, special drug enforcement agents found LSD, amphetamines and a substance alleged to be marijuana. Gavic and his roommate, Gerald Seekon, were placed under arrest. 2 Each was then asked for permission to search his automobile which was parked nearby. Gavic signed a "consent form" under circumstances sharply contested both in this appeal and before the court below. The subsequent search of Gavic's automobile yielded an additional seven pounds of suspected marijuana.

On the day of his arrest, Gavic appeared before a United States Magistrate; he waived a preliminary hearing and was released on his own recognizance. On July 2, 1974, some seven months later, an indictment was returned against him, charging him with possession with intent to distribute approximately nine pounds of marijuana, seven pounds of which had been seized from his automobile and the balance from his residence. Gavic was arraigned on July 15, 1974, and following the denial of his pretrial motions to suppress the evidence seized from his residence and his car and to dismiss the indictment for failure to afford him a speedy trial, trial commenced on July 29, 1974. In accordance with a stipulation entered by the parties, the sole disputed issue presented to the jury was whether the substance seized from Gavic's home and auto was, in fact, marijuana.

The government offered one expert witness who testified that the substance was indeed marijuana, and the defense offered an expert who testified that the tests employed by the government witness were too inconclusive to establish the presence of marijuana beyond reasonable doubt. The jury resolved the issue against the defendant.

I. SPEEDY TRIAL

Gavic first contends that the delay between his arrest, on the one hand, and his indictment and trial, on the other, was sufficiently long, unjustified and prejudicial to require dismissal of the indictment on Sixth Amendment grounds. 3 Assuming, without deciding, that the eight-month delay between arrest and trial was sufficiently long to be "presumptively prejudicial," Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), 4 we nonetheless determine that under the ad hoc balancing test announced in Barker v. Wingo, supra, 5 dismissal is not required here.

While it is true that the government has failed to offer an adequate reason for the delay in this case, 6 this fact is offset by Gavic's own failure to assert his right to a speedy trial. More importantly, he was not incarcerated during this period, and we discern no substantial prejudice to the defendant arising out of the delay. As the result of a pre-trial stipulation, moreover, the only witnesses at trial were experts who testified regarding the chemical properties of the substance seized by the arresting officers, thus minimizing any prejudice the delay may have engendered.

Conceding that the delay did not directly prejudice that phase of his case, Gavic nonetheless contends that he was seriously disadvantaged in his pre-trial motions for suppression of evidence because Gerald Seekon, who testified in his behalf, was unable to recall all the circumstances surrounding the challenged search of Gavic's automobile. Based upon what recollection he had left, however, Seekon stated unequivocally at the suppression hearing that Gavic consented to a search of his automobile only after the agents threatened to tow his car away and have it searched. Gavic himself gave similar testimony, adding that the agents threatened to "bust (the) trunk open," while the prosecution elicited evidence from two narcotics agents that the consent had not been so coerced. In weighing such evidence, Judge Cooper credited the testimony of the agents rather than that of Gavic and Seekon. In so doing, Judge Cooper stressed not the gaps in Seekon's testimony but rather Gavic's obvious interest in the outcome of the case as well as his past criminal record. The trial court's finding of lack of prejudice must stand unless clearly erroneous. United States v. Jackson, 504 F.2d 337, 341 (8th Cir. 1974), cert. denied, --- U.S. ---, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). We cannot say that these circumstances, standing alone, warrant "the severe remedy of dismissal of the indictment." Barker v. Wingo, supra, 407 U.S. at 522, 92 S.Ct. at 2188.

II. THE SEARCH WARRANT

Gavic contends that the warrant pursuant to which his residence was searched was defective because the underlying affidavit contained hearsay and possibly unreliable information.

In the challenged affidavit, John Boulger, an agent of the Drug Enforcement Administration, recited that a reliable confidential informant had reported to him that she had observed at Gavic's residence "a large number of brownish tablets which one of the occupants identified as THC." The affidavit further noted that "(b)ecause of the difficulty of producing THC it is usual that other drugs are sold as THC," i. e., LSD or phencyclidine. While acknowledging the statement in the affidavit that the same informant had recently provided other accurate information concerning controlled substances, 7 Gavic asserts that, in questioning whether the substance observed was in fact THC, Boulger was impliedly questioning the informant's reliability. Thus, he contends that the affidavit failed to satisfy the criteria set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We disagree.

Under Aguilar, two conditions must be met in order for an affidavit based on the statements of an undisclosed informant to support a search warrant:

* * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable'.

378 U.S. at 114, 84 S.Ct. at 1514; see United States v. Marihart, 472 F.2d 809 (8th Cir. 1972) (en banc).

In this case, the informant's statement that she had personally observed the tablets at defendant's residence clearly satisfies the first of these requirements. See United States v. Harris, 403 U.S. 573, 578-79, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (opinion of Burger, C. J.). Moreover, Boulger's unequivocal attestation to the informant's reliability, note 7 supra, leaves no room for doubt that the additional comment was nothing more than it appears to be on its face an observation that other contraband is often sold as THC. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965) ("affidavits for search warrants * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion"). Aguilar's second requirement is thus also satisfied.

Gavic contends in the alternative that, notwithstanding the reliability of the informant herself, her identification of the tablets as THC was predicated on a statement of an occupant and, since nothing in the affidavit attested to the occupant's own reliability, the accuracy of the information upon which the warrant was issued was open to question. In our view, however, a statement that there is a controlled substance on the premises by an occupant thereof is sufficiently adverse to his penal interest to create an inference of reliability. 8 See United States v. Harris, supra, 403 U.S. at 583-85, 91 S.Ct. 2075; United States v. Carmichael, 489 F.2d 983, 986-87 (7th Cir. 1973) (en banc); Advisory Committee's Notes to Rule 804(b)(3), Federal Rules of Evidence for United States Courts and Magistrates, Pub.L. No. 93-595 (Jan. 2, 1975). We are satisfied that the affidavit met the ultimate test: whether it demonstrated adequate probable cause to support the issuance of a search warrant. United States v. Harris, supra; United States v. Marihart, supra; see United States v. Kleve, 465 F.2d 187 (8th Cir. 1972); United States v. Smith, 462 F.2d 456, 458-60 (8th...

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