United States v. Smaldone, 73-1081.

• Decision Date: 14 August 1973
• Docket Number: No. 73-1081.,73-1081.
• Citation: 484 F.2d 311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene L. SMALDONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

484 F.2d 311 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Eugene L. SMALDONE, Defendant-Appellant.

No. 73-1081.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted July 11, 1973.

Decided August 14, 1973.

Rehearing Denied August 31, 1973.

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COPYRIGHT MATERIAL OMITTED

James M. Shellow, Milwaukee, Wis. (Stephen M. Glynn, of Shellow & Shellow, Milwaukee, Wis., and Peter H. Ney, Englewood, Colo., of counsel, on the brief), for defendant-appellant.

Paul D. Cooper, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., on the brief), for defendant-appellant.

Before PHILLIPS, HILL and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The appellant seeks reversal of a judgment of conviction and a sentence of ten years. He was charged in Count III of the indictment with conspiracy to import cocaine in violation of 21 U.S.C. § 963. He had been charged also in the same indictment in Count II with aiding and abetting importation of cocaine contrary to 21 U.S.C. § 952(a) and 18 U.S. C. § 2, and Count IV charged him with possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). Trial was to a jury which returned verdicts of not guilty as to Counts II and IV and of guilty of Count III, conspiracy.

In the third count it was alleged that on or about March 29, 1972, and continuing to June 9, 1972, defendant and Larry A. Merkowitz wilfully and knowingly combined, conspired, confederated and agreed together with each other and with Craig Mundt, Ronald Greenspan and other persons to knowingly and intentionally import cocaine. The overt acts set forth in Count III of the indictment state that on May 11, 1972, Larry A. Merkowitz gave to Ronald Nocenti $18,500 with which to purchase cocaine in Peru; that Eugene L. Smaldone caused a sum in excess of $9,000 to be delivered to Larry A. Merkowitz to pay for the cocaine; that Ronald Greenspan and Craig Mundt met with Ronald Nocenti at Aurora; that Greenspan and Mundt went to Peru; and that Merkowitz and Smaldone accepted delivery of cocaine imported from South America.

The evidence established that Larry A. Merkowitz was a pharmacist who operated a drugstore in Aurora, Colorado, and Nocenti was a paid government informant. The plan called for Mundt, Greenspan and Nocenti to go to Peru, buy the cocaine and deliver it to Merkowitz and Smaldone. All of this commenced in April 1972, when Smaldone first met Merkowitz who told him of the scheme. According to Merkowitz, Smaldone said that he was interested in investing in the deal, and subsequently Smaldone was told that cocaine would cost $6,500 per kilo. Thereafter, Smaldone met with Merkowitz at his pharmacy and delivered $8,750 stating that he would furnish an additional $1,000 so that he could buy one and one-half kilos. An equal amount was contributed by Merkowitz and the total was transferred to Nocenti who went to Peru and there by prearrangement met Mundt and Greenspan. Merkowitz had had some previous transactions in cocaine, and on or about April 13, 1972, he told Nocenti that Mundt and Greenspan wanted Nocenti to participate in smuggling cocaine from Ecuador. Later, Merkowitz told Nocenti that he was to be included. Two days after that Merkowitz met Smaldone at the apartment of one Judy Good. The discussion had to do with obtaining vitamins for Good's racing dogs. According to Merkowitz, he asked Smaldone on this occasion if he knew Mundt and Greenspan and was aware of their proposed smuggling venture. According to further testimony of Merkowitz, Smaldone stated that he would be interested in investing in this. On May 4, 1972, Merkowitz took Nocenti to Mundt's ranch east of Broomfield. Nocenti there met with Mundt and Greenspan. The very next night Merkowitz told Smaldone that Mundt, Greenspan and Nocenti had made arrangements for the trip to Peru and the cocaine was to cost $6,500 per kilo. According to Merkowitz, Smaldone said that he did not trust Mundt and he was curious as to the trustworthiness of Nocenti. He questioned Merkowitz about this. Smaldone also said that he was not sure that he wanted his share of the cocaine to be sold by Nocenti or to be sold by himself. Merkowitz in turn borrowed money from the Aurora National Bank and delivered $9,750, the same amount that Smaldone had furnished to Nocenti on May 11, 1972. Nocenti returned from Peru on May 29, 1972.¹

On May 29, 1972, Smaldone informed Merkowitz that Nocenti was back in town. Merkowitz tried to arrange a meeting between him, Nocenti and Smaldone. Merkowitz met Nocenti and following the delivery of a briefcase to him Merkowitz was arrested.

Nocenti also contacted Smaldone. The latter went to the Sheraton Motor Inn and met with Nocenti, accepting a packet containing alleged cocaine and he was arrested on that occasion.

Merkowitz testified at great length, particularly on cross-examination. His pretrial investigative statements were furnished to the defendant. Included was an affidavit which he had made to the agents of the Bureau of Narcotics and Dangerous Drugs. Also included was a question and answer statement (13 pages long) and a statement which he had given to the probation officers in connection with the presentence investigation which they conducted. A few days before trial he was examined extensively by the Assistant United States Attorney who, according to the finding of the court, was then preparing for trial. These were questions and answers, and in some instances the U. S. Attorney had Merkowitz verify the answer that he had just given.

Some difficulty arose during the trial concerning the sufficiency of the government's proof to establish that the substance delivered was cocaine. It would appear that this is largely the reason for the acquittal on Counts II and IV.

Numerous and varied points are advanced by Smaldone in support of this appeal. There are a number of pretrial motions (1) seeking dismissal on the ground that the classification of cocaine as a narcotic is invalid; (2) that the motion for a bill of particulars to require identity of persons alleged in the indictment to be to the Grand Jury unknown was denied, and also denial of the requested disclosure of unindicted co-conspirators; (3) the motion for pretrial discovery of results or reports of scientific tests or experiments. (4) It is also contended that the court committed error in limiting cross-examination of Merkowitz and particularly in refusing to require the production of the question and answer statement taken by the U. S. Attorney just before the trial. It is said that this was subject to production under the Jencks Act, 18 U.S.C. § 3500; (5) refusal of the court to allow defendant's counsel to elicit the present address of the witness Nocenti; (6) refusal of the court to give submitted instructions and the giving by the court of an erroneous instruction on intent.

I. CROSS-EXAMINATION OF MERKOWITZ AND THE 18 U.S.C. § 3500 PROBLEM

Complaint is made that the trial court limited counsel's cross-examination of the witness Merkowitz and committed specific error in refusing to require the U. S. Attorney to produce his own notes taken while interviewing Merkowitz immediately prior to trial.

It is important to note that the cross-examination extended over some 90 pages in the record. It addressed itself to a variety of subjects and there is no evidence to suggest that it was curtailed or limited. The one point which requires discussion is the refusal of the court to require the U. S. Attorney to produce his notes. On this it is important to mention that virtually every investigative statement made by Merkowitz was furnished to the defense. Merkowitz had given an extensive and detailed affidavit to the narcotics agents and this was furnished to the defendant. So also was a question and answer statement conducted by the narcotics agents (13 pages in length). The court even allowed the defense to have the statement given by Merkowitz to the probation officers following his plea of guilty, noting that this was not in the custody of the prosecution and hence was not strictly speaking a § 3500 statement, but the court gave it over regardless. In the course, however, of the very thorough and competent cross-examination by counsel for the defendant, it appeared that Merkowitz had been questioned by the prosecution a few days prior to testifying. There was a questioning on Wednesday and further questioning on Thursday. Notes were made by the Assistant U. S. Attorney on a yellow pad. On cross-examination defense counsel brought out that the Thursday interview was a two-hour one by the U. S. Attorney at which some of the answers were written down. Merkowitz stated that the U. S. Attorney "made notes." He was then asked if the U. S. Attorney would read them back to him on occasion to make sure that they were accurate. The response was "Sometimes." Based upon that one answer, counsel moved for production of the yellow pad. The court reserved a ruling on that, presumably to allow counsel to develop the subject further. Counsel did not, however, choose to do so.

At the conclusion of Merkowitz' cross-examination, the court noted that it had not ruled on counsel's demand. The U. S. Attorney objected, citing United States v. Myerson, 368 F.2d 393 (2d Cir. 1966). Defense counsel offered no authority, merely saying that there was a conflict between the work product of the U. S. Attorney and the mandate of § 3500, and that in any criminal case the work product of the U. S. Attorney must yield. Counsel then demanded that the court conduct an in camera inspection of those notes. Based upon the facts presented by defense counsel, the court ruled that the material demanded was not a § 3500 statement. The Judge said:

THE COURT: Well, the Court\'s ruling on this is that in view of the testimony here that was related and the taking of notes by Mr. Cooper who is trying the case for the Government, just within the last

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