U.S. v. Wilburn, 76-1065

Decision Date15 February 1977
Docket NumberNo. 76-1065,76-1065
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Henry WILBURN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Drew C. Arena, Asst. U. S. Atty. (James L. Treece, U. S. Atty., Daniel T. Smith, Asst. U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.

Joseph Saint-Veltri of Davies & Saint-Veltri, Denver, Colo., for defendant-appellant.

Before BARRETT and DOYLE, Circuit Judges, and CHILSON, * Senior District Judge.

CHILSON, Senior District Judge.

An indictment was returned December 3, 1970, charging the appellant-defendant with a violation of Title 26, U.S.C. § 4705(a), Sec. 7237, and Title 18, U.S.C. § 2. A guilty verdict was returned on November 25, 1975. From that conviction, defendant prosecutes this appeal.

Section 4705(a) provides:

"It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate."

Insofar as here pertinent, the term "narcotic drug" is defined in Title 26, U.S.C. § 4731 as follows:

"The words 'narcotic drugs' as used in this part shall mean any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(1) Opium, isonipecaine, coca leaves, and opiate;

(2) Any compound, manufacture, salt, derivative, or preparation of opium, isonipecaine, coca leaves, or opiate;

(3) Any substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in clauses (1) and (2); . . . ."

The Government's case was based on the testimony of three witnesses: Mr. Keifer and Mr. Hanks, special agents of the then Bureau of Narcotics and Dangerous Drugs and Mr. Schreiber, a Government chemist. The special agents testified they met with the defendant on November 5, 1970, and defendant at various times on that date delivered to agent Hanks packages identified and admitted into evidence as Exhibits 1, 2, 2A and 3. A field test of the contents of the packages was positive for cocaine and the defendant was placed under arrest.

The Government chemist, Mr. Schreiber, testified to further tests he made of the contents of the packages and that the contents contained cocaine hydrochloride.

Insofar as § 4731 applies to cocaine, it is clear that the term " narcotic drugs" includes not only the substance produced by extraction from coca leaves but also substances produced independently by means of chemical synthesis which are chemically identical with substances obtained by extraction from coca leaves.

Defendant called two chemists, Dr. Shapiro and Dr. Wingeleth, who testified that it is possible by means of chemical synthesis alone to produce a substance similar to cocaine extracted from coca leaves, but which is not chemically identical thereto. These witnesses and defendant's counsel refer to this substance as "pseudo-cocaine." Substances obtained by extraction from coca leaves or substances obtained by independent chemical synthesis which are chemically identical with substances obtained from coca leaves are referred to as "authentic cocaine." These witnesses further testified that it was not possible by the tests which Mr. Schreiber used, to rule out the possibility that the substance here in evidence is pseudo-cocaine. The defendant asserts that the Government had the burden of proving that the substance was in fact authentic cocaine and not pseudo-cocaine.

Upon the basis of the testimony of Dr. Shapiro and Dr. Wingeleth, the defendant contends that the Court committed error in admitting Exhibits 1, 2, 2A and 3 into evidence and in denying defendant's motions for judgment of acquittal.

Mr. Schreiber, while admitting it is possible by chemical synthesis to produce a substance referred to as "pseudo-cocaine," also testified that the tests which he made were sufficient to determine that the substance here involved was "authentic cocaine" and not "pseudo-cocaine." He stated "This is the cocaine. It is not the pseudo-cocaine. A pseudo-cocaine has an infrared that is different from this." (Page 78, Volume No. IV, Original Record.)

This conflict in the testimony of the expert witnesses was resolved by the jury's verdict which in effect found from the evidence that from his tests, Mr. Schreiber was able to and did determine that the substance here involved was authentic cocaine and not pseudo-cocaine. The trial court was not in error in admitting Exhibits 1, 2, 2A and 3 into evidence and was not in error in denying the defendant's motions for acquittal.

It is pertinent to note that neither Dr. Shapiro nor Dr. Wingeleth examined or tested the substance here in question and they did not testify that the substance was in fact pseudo-cocaine. Their testimony was limited to their opinions that, because of incomplete testing by Mr. Schreiber, it was possible that the substance was pseudo-cocaine and not authentic cocaine. The evidence is sufficient to sustain the jury's verdict.

The defendant assigns as error the following redirect examination of Mr. Schreiber by Government counsel.

"Q. You testified on direct examination that plaintiff's Exhibits 1, 2, 2A and 3 in your opinion were cocaine?

"A. That's right, Sir.

"Q. Then on cross-examination, we started talking about pseudo-cocaine.

"Are you still satisfied with your opinion that what is there is cocaine?

"A. There is no doubt in my mind, Sir; that is cocaine."

(P. 81, V, IV, Original Record.)

Defendant did not object, but nevertheless assigns this interrogation as error. In view of the cross-examination by defendant's counsel, this interrogation by Government counsel on redirect examination was not improper and the assignment of it as error is without merit.

With respect to the Statute § 4731, the Court instructed the jury as follows:

"Under the federal statute applicable here, narcotic drugs are defined to include cocaine which in turn is defined as any compound, manufacture, salt, derivative or preparation of coca leaves, whether produced directly or indirectly by extraction from coca leaves or independently by means of a chemical synthesis, so long as the synthetic substance is chemically identical with the cocaine produced from coca leaves."

Defendant objected to the instruction stating in his brief at page 17:

"The effect of this instruction was to equate all forms of synthetic cocaine with authentic cocaine."

We do not so read the instruction. The instruction clearly states that if the substance is independently produced by means of chemical synthesis, it must be chemically identical to cocaine produced from coca leaves to be a "narcotic drug" within the meaning of Sec. 4731. The objection to the foregoing instruction is without merit.

During the course of the jury's deliberations, the jury inquired of the Court: "Is pseudo-cocaine legally cocaine?" The trial judge then repeated his original instruction (supra) defining a narcotic drug to the jury in open court and in the presence of counsel. The adoption of this method to respond to the jury's inquiry was within the Court's discretion and does not constitute error. Whitlock v. United States, 429 F.2d 942 (10th Cir. 1970); DeVault v. United States, 338 F.2d 179 (10th Cir. 1964).

During the course of the jury's deliberations, the foreman of the jury sent a verbal message to the trial judge, through the bailiff, stating that the jury was unable to reach a verdict. The bailiff relayed the message to the judge who instructed the bailiff to tell the jury to continue its deliberations. The bailiff did so. At the time, neither the Government nor defense counsel were present and neither was made aware of the communication at that time. The incident occurred at about 4:30 P.M. in the afternoon and the jury returned its verdict of guilty at 5:00 P.M.

Defendant's counsel assigned error in that the trial judge's communication with the jury in the absence of counsel was a violation of Rule 43 of the Federal Rules of Criminal Procedure which states that:

"The defendant shall be present . . . at every stage of the trial including the impaneling of the jury and the return of the verdict . . . except as otherwise provided by this rule."

Rule 52(a) of the Federal Rules of Criminal Procedure provides:

"Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

That a violation of Rule 43 may in some circumstances be harmless error was recognized by the Supreme Court in Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1. "Deprivation of a defendant's right to be present at every stage of trial is subject to the harmless error rule and exchanges between the judge and jurors will not constitute reversible error lacking showing of clear prejudice to the absent defendant. United States v. Freed, 460 F.2d 75 (10th Cir. 1972); United States v. Jorgenson, 451 F.2d 516 (10th Cir. 1971), cert. denied 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972); Little v. United States, 73 F.2d 861 (10th Cir. 1934)."

United States v. Baca, 494 F.2d 424, 428 (10th Cir. 1974).

We find nothing in this...

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