U.S. v. Hall, 76-1140

• Citation: 552 F.2d 273
• Decision Date: 25 February 1977
• Docket Number: No. 76-1140,76-1140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Hugh HALL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 273

552 F.2d 273

UNITED STATES of America, Plaintiff-Appellee, v. Donald Hugh HALL, Defendant-Appellant.

No. 76-1140.

United States Court of Appeals,

Ninth Circuit.

Feb. 25, 1977.

Rehearing Denied April 12, 1977.

Craig Mehrens, Phoenix, Ariz., argued, Mehrens & Pearce, Phoenix, Ariz., for defendant-appellant.

Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., Thomas N. Crowe, Asst. U. S. Atty., argued, Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before WRIGHT and WALLACE, Circuit Judges, and BURNS, ^* District Judge.

WALLACE, Circuit Judge:

Hall was convicted of three counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and (b). Hall claims that the district judge improperly defined cocaine to the jury and refused to instruct the jury on his theory of the case. He also claims that the district judge erred in denying his motion for judgment of acquittal. We affirm.

I

Hall's challenges to the guilty verdict are based upon one central contention: The substance which he sold to government agents was not properly proven to be cocaine. Under federal narcotics law, cocaine is defined as:

Coca leaves (9040) 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, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine (9041) or ecgonine (9180).

21 C.F.R. § 1308.12, Schedule II(b)(4); see 21 U.S.C. § 812(a) and (c), Schedule II(a)(4). Thus it was necessary for the government to prove that the substance which Hall sold was either "natural" cocaine, derived from coca leaves, or a chemical equivalent thereof.

The government's expert witness, Medina, testified that he had performed various tests and concluded that "cocaine was detected in the exhibits submitted." On cross-examination, Medina stated that cocaine, like most organic compounds, has many "isomers." Isomers are two or more compounds which have the same molecular formula but different molecular structures. The variations in structure may give rise to different chemical characteristics. Medina testified that he had not tested the substance to determine whether it consisted of the "levo" isomer of cocaine (l-cocaine) or the "dextro" isomer (d-cocaine). L-cocaine is "natural" cocaine, a drug derived from the coca leaf, whereas d-cocaine is a chemically synthesized compound. Although use of a polarimeter would have distinguished between the two isomers, Medina did not employ the device, nor did he conduct any of the other tests which could have been used in order to make the distinction.

Having thus sought to cast doubt on the government's proof that the substance was natural cocaine, Hall called his sole witness, Shapiro, to testify concerning the properties of the two isomers. Shapiro testified that d-cocaine is not the chemical equivalent to l-cocaine and that d-cocaine would have a different physiological effect on the human body than l-cocaine. Prior to this testimony, Medina had also discussed the properties of the two isomers, stating that they "would behave chemically equivalent (sic) . . . except for the rotation of the polarized light . . . in the polarimeter." Thus, both witnesses indicated that there were some differences between the two isomers, although there was an apparent conflict as to whether there was a chemical equivalency.

II

Hall contends that the court erred in refusing to give a requested instruction concerning his theory of the case. ¹ While it is true that a defendant is entitled to an instruction on his theory of the case if it is supported by law and has some foundation in the evidence, United States v. Noah, 475 F.2d 688, 697 (9th Cir.), cert. denied, 414 U.S. 821, 1095,94 S.Ct. 119, 38 L.Ed.2d 54 (1973); United States v. Shewfelt, 455 F.2d 836, 838 (9th Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972), the court is not required to accept a proposed instruction which is manifestly intended to influence the jury towards accepting the evidence of the defendant as against that of the prosecution. See United States v. Wayman,510 F.2d 1020, 1026-27 (5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975). Here the requested instruction was argumentative. There was a question of fact whether the two isomers were chemically equivalent within the congressional meaning of this term. ² Where the evidence raises a factual issue, an instruction dictating the result invades the ultimate fact-finding role of the jury. See Travelers Ins. Co. v. Ryan, 416 F.2d 362, 364 (5th Cir. 1969); Nunley v. Pettway Oil Co., 346 F.2d 95, 99 (6th Cir. 1965). Thus, the district judge committed no error in rejecting it.

Also, the district judge properly instructed the jury on this issue. After reading the indictment and enumerating the elements of the offense, he stated:

Now, cocaine is 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.

So it's a jury question in this case whether the substance is you have to decide whether the substance is, one, either chemically equivalent to cocaine or whether the substance here is, in fact, the natural substance or derivative of the coca leaf.

Now, if you find the substance is chemically equivalent to cocaine or that it is, in fact, cocaine or a derivative thereof, then the substance here is violative of the law.

In this instruction, the district judge pointed out that a conviction must rest on a determination that...