U.S. v. Zamora, s. 84-2665

• Decision Date: 24 February 1986
• Docket Number: Nos. 84-2665,84-2693,s. 84-2665
• Citation: 784 F.2d 1025
• Parties: 19 Fed. R. Evid. Serv. 1696 UNITED STATES of America, Plaintiff-Appellee, v. Leonard ZAMORA and Jody Ratliff, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1025

784 F.2d 1025

19 Fed. R. Evid. Serv. 1696

UNITED STATES of America, Plaintiff-Appellee, v. Leonard ZAMORA and Jody Ratliff, Defendants-Appellants.

Nos. 84-2665, 84-2693.

United States Court of Appeals Tenth Circuit.

Feb. 24, 1986.

Steve H. Mazer, Albuquerque, N.M., for defendant-appellant Leonard zamora.

Billy R. Blackburn, Albuquerque, N.M., for defendant-appellant Jody Ratliff.

Mark D. Jarmie, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on brief), Albuquerque, N.M., for plaintiff-appellee.

Before BARRETT and SEYMOUR, Circuit Judges, and GREENE, District Judge. ^*

J. THOMAS GREENE, District Judge.

In these related cases, appellants Leonard Zamora and Jody Ratliff appeal criminal convictions on charges of manufacture of a controlled substance and possession of methamphetamine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

FACTS

On August 10, 1984, the Albuquerque Police Department received an anonymous "crimestoppers" tip from a known, reliable informant. The informant told officers he had seen a "speed lab" set up at 7900 Bell Street in Albuquerque, apartment # 6. Acting on the tip, officer Robert Caswell went to the address to investigate. On arriving at the apartment complex, officer Caswell noticed a strong odor of methamphetamine emanating from Apartment # 6. Officer Caswell also noted that the windows of the apartment were covered with blankets.

Based on the observations of officer Caswell and the confidential tip, Caswell and others secured a "no-knock" search warrant and returned to the apartment. They entered the apartment and discovered both appellants in the kitchen. A working "speed lab"--paraphernalia and chemicals used in the manufacture of methamphetamine--was set up on the kitchen counter. This included beakers, condensors, heating elements and drying lamps. The officers also found equipment essential to the manufacture of phenylacetic acid ("P2P"), an illegal intermediate in the manufacture of methamphetamine and a gram-calibrated scale, small plasteen envelopes and syringes. In addition, the police discovered a small plastic bag containing approximately 1/4 gram of methamphetamine, 2 papers with methamphetamine residue, 3 bottles full of a sludge-like liquid containing methamphetamine and a large quantity of P2P, the controlled substance that is a precursor to methamphetamine. Appellants were arrested and the meth lab was shut down. Appellant Ratliff asked permission to change clothes, which she kept in the apartment and proceeded to do so. When booked, she gave as her address 7900 Bell Street, Apartment 6, and admitted that she lived there. Appellant Zamora also listed the apartment as his address.

Prior to trial, appellant Ratliff's counsel sought disclosure of the confidential informant's identity, alleging that the informant could provide exculpating evidence regarding the appellant. The trial court denied the motion. At trial, officer Caswell was called as a witness by the United States. On cross-examination, appellant's counsel attempted to elicit the contents of the crimestopper's call from officer Caswell, but the trial court did not allow the testimony.

The Government introduced evidence regarding the methamphetamine lab and the chemicals present in the apartment through Mark Adams, an analyst with the Albuquerque Police Department Criminalistics Division. Adams testified that he had tested certain chemicals obtained from appellant's apartment, and found methamphetamine and P2P present in substantial quantities. Adams gave as his opinion that between 200 and 250 grams of methamphetamine could be produced from the P2P discovered in the apartment. Appellant Zamora was convicted on one count of manufacturing methamphetamine and one count of possession with the intent to distribute methamphetamine, sentences thereon to run consecutively. Appellant Ratliff was also charged with aiding and abetting, and likewise was convicted on both counts, the sentence on one count being suspended and probation granted.

Appellant Zamora raises four issues on appeal:

1--whether the court abused its discretion in permitting the government's chemical analyst to give expert testimony as to manufacture and quantities;

2--insufficiency of the evidence on intent to distribute;

3--failure to dismiss one of the counts, merge them, or impose judgment and sentence concurrently; and

4--whether it was error for the court to fail to instruct the jury that "any liquid may qualify as methamphetamine only if it is injectable."

Appellant Ratliff raises three additional issues:

5--whether the trial court erred in failing to require disclosure of the identity of the confidential informant;

6--whether the trial court erred in limiting cross-examination of a police officer regarding the confidential informant; and

7--whether there was sufficient evidence beyond mere presence at the scene of a crime to sustain conviction.

1. Abuse of Discretion--Expert Testimony

We note at the outset that on appeal, the trial court's ruling on evidentiary matters will not be disturbed absent an abuse of discretion. United States v. Lowe, 569 F.2d 1113, 1116 (10th Cir.), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed. 2d 529 (1978). The trial court has broad discretion and its judgment will be disturbed only for a clear abuse of discretion in assessing the qualifications of expert witnesses. United States v. Hines, 696 F.2d 722 at 730 (10th Cir.1982) [citing Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 37 (10th Cir.1975).]

Appellant contends that the government's expert, Mr. Adams, was not qualified to testify as an expert on the subjects about which he testified. In this regard, appellant argues that even if Adams was qualified to testify as a chemist, he should not have been permitted to offer opinion testimony that appellant was manufacturing methamphetamine, or testimony as to the quantity appellant could have produced. The record indicates, however, that at the time of trial Adams had extensive practical experience in analyzing controlled substances, including methamphetamine, that he had a degree in biology and chemistry and a background in substance analysis for the City of Albuquerque and the University of New Mexico. Adequate foundation was laid for Adams in his role as an expert in chemical analysis to testify as to the manufacture and the amount of methamphetamine which could be produced from the P2P he personally observed at appellant's apartment. We find no abuse of discretion in the admission of his testimony as an expert as to the matters in question.

2. Sufficiency of the Evidence as to Intent to Distribute

Appellant's next contention is that the United States presented insufficient evidence to create a jury question as to intent to distribute methamphetamine. Appellant's contention is grounded in the small amount of "marketable" methamphetamine found at the apartment. The record indicates that methamphetamine was discovered in four distinct places in the apartment. There was a small plastic bag containing approximately 1/4 gram, 2 papers with residue and 3 bottles filled with a black "sludge" containing methamphetamine.

There is no dispute that appellant could, on this evidence, be found to have possessed methamphetamine. The argument proferred by the appellant is that he had so little street-quality methamphetamine that no reasonable inference could be drawn that he intended to distribute it. In support of this contention appellant cites United States v. Ortiz, 445 F.2d 1100 (10th Cir.1971). In Ortiz, the appellant was convicted of possession of methamphetamine with the intent to distribute and manufacture. The facts in that case are similar to the facts here. Appellants were found in possession of a glass jar containing a small amount of methamphetamine, a small cardboard box containing traces of the drug, and a gallon jug containing 5-6 lbs of 89% methamphetamine in a liquid solution. There, as here, there was no direct evidence of sale, so conviction was based upon inferences from the quantity of drugs in defendant's possession. Id. at 1105. Appellant relies on the following statement in Ortiz:

The government did not adduce evidence establishing either the relative purity of the dl-methamphetamine, or how many typical dosages of speed could be made from the total of nearly 8 1/2 pounds of dl-methamphetamine contained in the two bottles. Had there been positive proof along those lines, undoubtedly there would have been a more powerful inference that Ortiz possessed the drugs for the purpose of disposal to another. In future cases involving a different factual situation, the presence or absence of such proof may be critical.

The Court also said in Ortiz, that "one should not be required to take leave of his senses when he ascends to the bench." Ortiz at 1105. In this case, the evidence is clear that appellant had substantial amounts of methamphetamine in bottles, and sufficient P2P to produce amounts sufficient without more to create a reasonable inference that appellant did intend to sell methamphetamine. Whether or not some third party could be found to purchase the substance is irrelevant if appellant possessed the substance with the intent to distribute it. We believe the record contains ample evidence to raise a question for the jury on that issue.

3. Failure to Dismiss One Count, Merge the Claims or Sentence Concurrently

Appellant next contends that he was convicted twice for exactly the same acts. This claim is without merit. In Blockburger v. United States, 284 U.S. 607, 52 S.Ct. 40, 76 L.Ed. 520 (1931) the test for merger of offenses was stated thusly,

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof...