Petition — Umentum v. United States

‘Supreme Court, U.S

| FILED ;

No. ner 27 1976

| MICHAEL RODAK, JR., GLERS

In the

Supreme Court of the United States

Octoser Term, 1976

76-8864

Petitioner,

CLARK J. UMENTUM,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JAMES M. SHELLOW

STEPHEN M. GLYNN

222 East Mason Street

Milwaukec, Wisconsin 53202

Attorneys for Petitioner

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UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

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Reason for granting the Writ —................c..-..0.ccccsccecees

The Decision Below Is In Direct Conflict With

The Decisions Of Other Courts Of Appeals On

I

A. The holding of the court below that a single

count of an indictment is not duplicitous when

it alleges both distribution of a controlled sub-

stance and possession with intent to distribute

a controlled substance is in direct conflict with

holdings of the Court of Appeals for the

EE: IIIT © dics sliccdsdinthaczhansoshsesiatepebcnniaslabinialinieasialblansen

B. The holding of the court below that it is not

necessary to instruct the jury on the necessity

of finding an overt act in order to convict in

a eonspiracy case is in direct conflict with

the holding of the Court of Appeals for the

SED CITE (slat icant biinananeasiiibuaiemnidinihents

Nn vale NENT oem aL RO OD On, CU RE

PAGE

Appendix:

Opinion of United States Court of Appeals for

the Seventh Cireuit in United States vy. Clark

NMR WUE ry SA eels Sarr W ATEN Mee PCH ce

Opinion of United States Court of Appeals for

the Seventh Cireuit in United States v. Michael

PO GE | cantdantaibtisinciialiiaicmbicians

Opinion of United States District Court for the

Eastern District of Wisconsin, the Hon. Myron

L. Gordon, presiding, in United States v. Clark

J. Umentum, et al. (excerpts) ............------.--0--+-

CITATIONS

Cases:

Bingler v. Johnson, 394 U.S. 741 (1969) 20000.

Cordova v. United States, 303 F.2d 454 (10th Cir. 1962)

United States v. Atkinson, 512 F.2d 1235 (4th Cir.

1975), petition for cert. filed, 45 U.S.L.W. 3011 (July

Ce IC IR eS er RO Sr ENO

United States v. Costello, 483 F.2d 1366 (5th Cir. 1973)

United States v. Curry, 512 F.2d 1299 (4th Cir.),

cert. aented, 423 U.S. 832 (1975) 22.22.2222... -.ecccneese

United States v. DeJesus, 520 F.2d 298 (1st Cir.),

cert. denied, 423 U.S. 865 (1975) -....------.--s---coessoeseeeesoees

United States v. Herbert, 502 F.2d 890 (10th Cir.),

cert. dented, 420 U.S. 931 (1974) 0.2.2... eee eececeeeeee

United States v. Hobbs, 392 F.Supp. 444 (D.Mass.

ENE caidhnsssvienvsnsiapninisdilaamuidiaiiaiaeesniiatbamanaaeiieeansdetalintaiies

la

ili

PAGE

United States v. Horsley, 519 F.2d 1264 (5th Cir. 1975),

cert, denied, 96 S.Ct. 1413 (1976) .........2..........-.20000-- 6

United States v. King, 521 F.2d 61 (10th Cir. 1975) ... 7

United States v. Nichols, 491 F.Supp. 1377 (E.D.Mich.

aE SEE is et a 6

United States v. O’Malley, 383 U.S. 627 (1966) —.......... 5

United States v. Michael Joseph Orzechowski, No. 76-

1315 (7th Cir., November 24, 1976) ......0...00..000000000....- 1, 2,4

United States v. Stevens, 521 F.2d 334 (6th Cir. 1975) 6

Statutes:

I a eseeenincnanianss 3

RES Ee 2, 3, 6

EE Ts A 2, 3, 7

I adie srternmrenenentinaniiinte 2

In the

Supreme Court of the United States

Octosper Term, 1976

No.

CLARK J. UMENTUM,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Seventh Circuit entered

in this proceeding on November 24, 1976.

OPINION BELOW

The opinion of the Court of Appeals has not yet been

reported, but it appears in the Appendix at la, infra. The

opinion in the Court of Appeals relies in large part upon

the opinion filed the same date by the Court of Appeals

in the case of United States v. Michael Joseph Orzechowski,

2

No. 76-1315. The Orzechowski opinion is also set forth in

the Appendix at 14a, infra.

The opinion of the United States District Court for the

Eastern District of Wisconsin is published at 401 F.Supp.

746 (E.D.Wis. 1975). So much of the District Court opinion

as pertains to the issues raised in this petition is set forth

in the Appendix at 33a, infra.

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Cireuit was entered on November 24, 1976. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the offense of distribution of a controlled

substance is distinct from the offense of possession of a

controlled substance with intent to distribute, so that a

single count of an indictment alleging both offenses is

duplicitous.

2. Whether it is necessary to instruct a jury concern-

ing the requirement of a finding of the commission of an

overt act in a conspiracy prosecution under 21 U.S.C. § 846.

STATUTES INVOLVED

21 U.S.C. § 841(a) (1):

‘*(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or inten-

tionally—

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance; ...’’

21 U.S.C. § 846:

‘Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both but may not exceed

the maximum punishment prescribed for the offense,

the commission of which was the object of the offense

or conspiracy.”’

STATEMENT OF THE CASE

On June 4, 1975, petitioner, together with four others,

was indicted for a conspiracy to distribute and to possess

with intent to distribute cocaine in violation of 21 U.S.C.

§§ 841(a)(1) and 846 and 18 U.S.C. § 2. Three of those in-

dicted entered pleas of guilty; petitioner and a co-defen-

dant went to trial. The co-defendant was acquitted; peti-

tioner was convicted of both counts and sentenced to two

concurrent seven year terms of imprisonment followed by

a statutory three year special parole period. The United

States Court of Appeals for the Seventh Circuit affirmed

the convictions on November 24, 1976.

The indictment was framed in two counts: a conspiracy

count under 21 U.S.C. § 846, and a substantive count under

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The conspiracy

allegation, Count I, alleged no overt act in furtherance of

the conspiracy, and the jury was not instructed as to any

requirement that such an overt act need be found from the

evidence before a guilty verdict could be reached.

The substantive count, Count II, charged petitioner both

with the possession with intent to distribute and with the

actual distribution of cocaine.

By pretrial motion, petitioner challenged the sufficiency

of Count I because it failed to allege any overt acts; this

same challenge was made to the court’s instructions at the

4

close of evidence because the instructions did not require

the jury to find an overt act from the evidence in order to

convict petitioner. Count II was challenged by pretrial mo-

tion as being duplicitous on the ground that it alleged two

distinct offenses in a single count.

The District Court rejected petitioner’s challenges to

the indictment and his request for an instruction requiring

the finding of an overt act. Appendix at 33a, infra. The

Court of Appeals affirmed petitioner’s conviction, relying

in large part upon its decision entered the same day in

United States v. Michael Joseph Orzechowski, No. 76-1315,

set forth infra in the Appendix at 14a.

REASON FOR GRANTING THE WRIT

The Decision Below Is In Direct Conflict With The

Decisions Of Other Courts Of Appeals On The Same

Matters.

A. The holding of the court below that a single count of

an indictment is not duplicitous when it alleges both

distribution of a controlled substance and possession

with intent to distribute a controlled substance is in

direct conflict with holdings of the Court of Appeals

for the Fifth Circuit.

The number of cases reaching the Courts of Appeals

which deal with controlled substance offenses is steadily

increasing. It has become popular among federal prose-

cutors to charge defendants who distribute controlled sub-

stances both with possession of the substance with intent

to deliver it and with the substance’s actual distribution.

This cha.ging scheme has resulted in numerous chal-

lenges to controlled substance indictment with a corre-

sponding increase in decisions by Courts of Appeals con-

cerning the legitimacy of such charges. This phenomenon

ordinarily would not raise a problem requiring resolution

by this Court. However, the appellate decisions on this

issue have not been harmonious. For this reason, this

Court should accept the petition and grant certiorari.

Bingler v. Johnson, 394 U.S. 741 (1969); United States v.

O’Malley, 383 U.S. 627 (1966).

The Court of Appeals for the Fifth Cireuit has held

that possession with intent to distribute a controlled sub-

stance and distribution of the same controlled substance

are separate offenses since they require proof of different

6

facts and elements. United States v. Costello, 483 F.2d

1366 (5th Cir. 1973). Since they are separate offenses,

a defendant could be sentenced for each separate offense

with the sentences to run consecutive to one another.

Similarly, in the Fifth Cireuit, a single count of an indict-

ment joining distribution with possession with intent to

distribute would be duplicitous.

Other circuits, including the Seventh Cireuit, have held

that the acts of possession with intent to distribute and

actual distribution are but different means of violating

the same statute, 21 U.S.C. § 841(a)(1), and therefore con-

stitute but one offense. Cordova v. United States, 303 F.2d

454 (10th Cir. 1962); United States v. Stevens, 521 F.2d

334 (6th Cir. 1975); United States v. Curry, 512 F.2d°1299

(4th Cir.), cert. denied, 423 U.S. 832 (1975).

This conflict in decisions is real and apparent, and this

Court has never granted certiorari to resolve the conflict.

See, e.g., United States v. Horsley, 519 F.2d 1264 (5th Cir.

1975), cert. denied, $6 S.Ct. 1413 (1976); United States v.

Herbert, 502 F.2d 890 (10th Cir.), cert. denied, 420 U.S.

931 (1974). Because the issue has never been resolved,

cases continue to flood the Courts of Appeals where the

issue is decided differently, thereby exposing defendants to

disparate treatment. See, e.g., United States v. Atkinson,

512 F.2d 1235 (4th Cir. 1975), petition for cert. filed, 45

U.S.L.W. 3011 (July 12, 1976); United States v. Stevens,

421 F.2d 334 (6th Cir. 1975); United States v. Nichols, 401

F.Supp. 1377 (E.D.Mich. 1975) ; United States v. Hobbs, 392

F.Supp. 444 (D.Mass. 1975).

In this circumstance, it is not only appropriate but

essential that this Court issue its writ and clarify what is

presently a hodgepodge of conflicting decisions.

7

B. The holding of the court below that it is not necessary

to instruct the jury on thé necessity of finding an overt

act in order to convict in a conspiracy case is in direct

conflict with the holding of the Court of Appeals for

the Tenth Circuit.

Just as it is currently in vogue for prosecutors to charge

both delivery and possession with intent to deliver a con-

trolled substance, so is it also a prevalent practice to in-

clude a conspiracy count whenever more than one person

is present at the time of delivery. As a consequence,

challenges to conspiracy counts frequently arise, and the

lower courts must determine the sufficiency of the allega-

tions, proof and instructions.

Although the lower courts are in apparent agreement

that the conspiracy statute, 21 U.S.C. § 846, does not re-

quire allegation of overt acts, see United States v. DeJesus,

520 F.2d 298 (1st Cir.), cert. denied, 423 U.S. 865 (1975),

and United States v. King, 521 F.2d 61 (10th Cir. 1975),

the courts are clearly not in harmony on the question of

whether the jury must be instructed on the necessity of

finding an overt act before conviction is allowed. Compare

United States v. King, supra, with the instant case.

In King, the Court of Appeals for the Tenth Circuit held

that conspiracy was not punishable as a state of mind and

becomes a crime only if an overt act is performed. 521

F.2d at 63. In the case sub judice, the Seventh Circuit

held that no overt act is required in the allegations, the

proof, or the instructions of a conspiracy count.

The conflict is clear: a defendant in Chicago may be

punished for his thoughts while a defendant in Denver

is acquitted by a properly instructed jury. This Court

must resolve the conflict.

CONCLUSION

Because of these clear conflicts in the decisions of the

Courts of Appeals, this petition for a writ of certiorari

should be granted.

Respectfully submitted,

James M. SHELLOW

StepHen M. Giynn

222 East Mason Street

Milwaukee, Wisconsin 53202

Attorneys for Petitioner

APPENDIX

la

APPENDIX

In the

United States Court of Appeals

For the Seventh Circuit

No. 76-1210

Unrrep States Or America,

Plaintiff-Appellee,

Ciark J. UMENTUM,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Wisconsin

No. 75 Cr 103 — Myron L. Gordon, Judge.

Argued September 21, 1976—-Decided November 24, 1976

Before Hastines, Senior Circuit Judge, and PEeitu and

Woop, Jr., Circuit Judges.

Woop, Jr., Circuit Judge. On June 4, 1975, defendant,

together with four others, was charged in Count I of the

indictment with conspiracy to possess and distribute co-

caine, a Schedule II Narcotic Drug Controlled Substance,

in violation of 21 U.S.C. § 841(a)(1) and § 846, and 18

U.S.C. § 2; and in Count II with possession with intent

to distribute and distribution of 878.5 grams of cocaine,

a Schedule II Narcotic Drug Controlled Substance, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Two

other counts are not involved in this appeal. Three of the

defendants entered pleas of guilty to certain counts, one

2a

was found not guilty. The defendant was found guilty of

both Counts I and II following trial by jury and sentenced

to two concurrent seven year imprisofiment terms, fol-

lowed by a statutory three year special parole period. In

United States v. Umentum, 401 F.Supp. 746 (E.D. Wis.

1975), the pretrial matters in this case are considered.

The transactional evidence is not in dispute. Following

two telephone conversations in April, 1975, between a spe-

cial agent of the Drug Enforcement Administration with

one of defendant’s co-conspirators, two special agents

not known by the defendant to be special agents, met in

person with the defendant and other co-conspirators for

the purpose of concluding a sale of 25 ounces of cocaine

for $40,625. This meeting terminated with the arrest of

the defendant and the seizure by the agents of the plastic

bag of white powder which had been represented by the

defendant to be cocaine.

The defendant raises six issues on appeal:

(1) Failure of the Government to produce certain in-

ternal memoranda of the Drug Enforcement Ad-

ministration ;

(2) Duplicity of the indictment resulting from

charges of possession with intent to distribute

and distribution;

(3) Duplicitous instructions;

(4) Failure of the court to give an instruction with

Count I, the conspiracy allegation, concerning

the requirement of a finding of the commission

of an overt act;

(5) The giving of a partial instruction on reasonable

doubt; and

(6) Other objectionable instruction matters.

3a

I.

The memoranda which the defendant claims were ex-

culpatory and should have been produced prior to trial

were certain internal government memoranda which re-

lated generally to the topic of isomers of cocaine and test-

ing procedures which might be used to identify the iso-

mers of cocaine. These memoranda did not directly relate

to this case. This material was made available to the de-

fense during trial and admitted as defense exhibits 8, 9,

and 9A. These documents which were desired by the de-

fense for cross-examination purposes were used for that

purpose. The trial court granted defendant’s motion for

a continuance after the trial had begun due to some addi-

tional tests run by the Government witness shortly before

trial. During this time the defendant came into posses-

sion of the Government’s memoranda and was permitted

to reopen cross-examination of the Government witness

to make use of the memoranda.

We do not believe that these internal memoranda were

required to be produced pursuant to Fed.R.Crim. P. 16

or Brady’ as recently interpreted in United States v.

Agurs, ........ i: onieveen , 44 U.S.L.W. 5013 (U.S. June 24,

1976). We consider the memoranda neither exculpatory

nor material to the defendant’s defense. This same issue

is discussed more fully in United States v. Orzechowski,

No. 76-1315, an opinion issued simultaneously with this

opinion. In addition, in the present case the defendant

had the use of these memoranda during trial. As the trial

judge stated, to hold otherwise ‘‘would mean that the

government would be obliged to turn over every single

piece of internal study, research, communication, and

point of view that the laboratories of the D.E.A. may have

utilized on any phase of the world of cocaine.’’

1 Brady v. Maryland, 373 U.S. 83 (1963).

4a

II. and ITI.

The issue of the duplicity in Count II charging posses-

sion with intent to distribute and distribution has like-

wise been resolved adversely to defendant in Orzechowski,

supra, and merits no further discussion here. The issue

of the instructions being likewise duplicitous is similarly

resolved in Orzechowski, supra.

IV.

Count I of the indictment charging conspiracy alleges

no overt act in furtherance of the conspiracy, nor was

the jury instructed as to any requirement that such an

overt act need be found from the evidence before a guilty

verdict could be reached.

First, it is to be noted that neither § 846 of Title 21 nor

its predecessor § 174, in contrast to the general conspiracy

statute, 18 U.S.C. § 371, has in its language any require-

ment concerning an overt act.

In the lower court defendant claimed that it was neces-

sary for the Government to charge an overt act in the

indictment. He does not pursue that here, taking notice

of numerous cases contrary to that claim, including United

States v. King, 521 F.2d 61 (10th Cir. 1975), which, how-

ever, defendant relies on to require an overt act instruc-

tion. See also United States v. Garfoli, 324 F.2d 909 (7th

Cir. 1963); United States v. DeJesus, 520 F.2d 298 (1st

Cir. 1975), cert. denied, 423 U.S. 865. Nor is the issue on

appeal the absence of proof of acts which might have been

labeled overt acts since they are obvious in the record as

the defendant candidly concedes in footnote 8 in his brief,

page 18.

The issue remaining is should the jury have been in-

structed nevertheless that there was an overt act proof

requirement upon the Government? The defendant relies

oa

upon United States v. King, supra. That court held that

such an instruction was necessary in a § 846 conspiracy

charge regardless of the absence in the statute of an overt

act requirement, and regardless of the strength of the

evidence. Other cases cited by defendant, such as United

States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973), cert.

denied, 417 U.S. 915 (1974), seem to assume that an overt

act is a requirement of § 846 without the issue being di-

rectly raised. Hutchinson cites for its assumption cases

involving a § 371, Title 18, charge, or a charge under its

predecessor, which by their language required an overt

act.’

Defendant further relies on other cases, such as United

States v. Robinson, 503 F.2d 208 (7th Cir. 1974), cert. de-

nied, 420 U.S. 949 (1975). A prosecution under 18 U.S.C.

§ 241, which likewise contains no overt act requirement.

In that case there was proof of overt acts. The opinion

does not reveal whether or not overt acts were also al-

leged. The issue we have here was not raised. However,

in United States v. Morado, 454 F.2d 167 (Sth Cir. 1972),

cert. denied, 406 U.S. 917, it was held that § 241 does not

require that any overt act be shown.

Defendant also cites other cases, such as United States

v. Floyd, 496 F.2d 982 (2d Cir. 1974), cert. denied, 419

U.S. 1069, a § 846 prosecution, in which it appears that

overt acts were charged in the indictment. Therefore the

particular issue we have was not raised.

We do not believe that these cases are controlling. The

matter has been previously touched on in this cireuit. In

United States v. Cortwright, 528 F.2d 168 (7th Cir. 1975),

2 United States v. Skillman, 442 F.2d 542 (8th Cir. 1971), cert.

denied, 404 U.S. 833; United States v. Falcone, 311 U.S. 205

(1940)

6a

a § 846 conspiracy prosecution in which overt acts were

alleged, the court was concerned with the sufficiency of

the evidence. The court, however, explains that all that

is required in a § 846 prosecution is an agreement be-

tween two or more persons to commit any offense under

the Controlled Substances Act, and at 528 F.2d 172 n.1

elaborates:

This cireuit has not required allegation or proof

of an overt act in furtherance of a drug conspiracy.

United States v. Garfoli, 324 F.2d 909 (7th Cir. 1963).

In Garfoli, supra, Judge Duffy, writing for the panel,

stresses that § 174, now repealed but similar io the pres-

ent § 846, contains no requirement that an overt act be

alleged or proved in contrast to a § 371 conspiracy prose-

cution. The court held ihat the act of conspiracy was by

itself sufficient, citing Nash v. United States, 229 U.S. 373

(1913).

In Nash, a Sherman Act prosecution, the Court con-

sidered a situation where no overt act was alleged. Ii

held that the Act punished conspiracies on a common law

footing in that the Act did not contain a requirement for

the doing of any other act beyond conspiring. The Court

distinguished other statutes which contain the added re-

quirement and declined to read into the Sherman Act more

than it found there.

In the laier case of Singer v. United States, 323 U.S. 338

(1945), a Selective Training & Service Act conspiracy

prosecution, the Court recognized that that Act also did

not require an overt act for the offense of conspiracy but

punished conspiracy ‘‘on ihe common law footing.’’

Cases other than Cortwright, supra, in other jurisdic-

tions, have also recognized the precedent of older cases

holding that no overt act was required under the prior

7a

act. These cases aid in the determination of whether an

overt act is required undcr § 846. Nothing in the congres-

sional history of § 846 weakens the force of the earlier

interpretations. United States v. DeJesus, supra; United

States v. DeViteri, 350 F.Supp. 550 (E.D.N.Y. 1972);

United States v. Miller, 387 F.Supp. 1097 (D.Conn. 1975).

We see no justification for departing from the reason-

ing of these latter cases and this cireuit’s Cortwright and

Garfoli decisions, supra.

At common law conspiracy did not require an overt act.

The Supreme Court has recognized the power of Congress

to create a common law type conspiracy for specific pur-

poses. Section 846 requires no overt act as distinguished

from § 371, so we decline to read such a requirement into

§ 846.

An overt act, therefore, need not be charged in a § 846

conspiracy. If an overt act need not be charged, it need

not be proved. If an overt act need be neither charged nor

proved, there remains nothing about which to instruct on

that issue.

In addition, in this case the court and counsel discussed

at length this aspect of the conspiracy instructions. It is

not easy to follow and understand that discussion by read-

ing the record, but the trial court determined that the de-

fendant preferred that the overt act requirement instruc-

tion not be used. The defendant disputes that that was

what was intended. We need not resolve that aspect of

the controversy.

V.

The next issue involves the instruction on reasonable

doubt. On the matter of reasonable doubt the only in-

struction given to the jury was:

8a

It is not required that the Government prove guilt

beyond all possible doubt. The test is one of reason-

able doubt.

The defendant interprets this as not defining what reason-

able doubt is, but what it is not.

The court apparently was relying on this court’s opin-

ion in United States v. Shaffner, 524 F.2d 1021 (7th Cir.

1975), cert. denied, 424 U.S. 920 (1976). The balance of

the instruction given made it quite clear that to overcome

the presumption of innocence the burden was on the Gov-

ernment to prove guilt beyond a reasonable doubt. To

justify a guilty verdict the jury was instructed that it

would have to be satisfied of the defendant’s guilt beyond

a reasonable doubt after careful and impartial considera-

tion of all the evidence, rejecting suspicion or conjecture.

We do not approve of the abbreviated form used in

this case, but it is less objectionable than the instruction

used in Shaffner, supra, which was likewise not approved

but which did not require reversal. In Shaffner, supra, the

instruction elaborated on what was given here by adding,

among other things, that ‘‘If that were the rule, few men,

however guilty they might be, would be convicted.’’ That

language, missing in the present instruction, more nearly

parallels in meaning the language found objectionable in

United States v. Bridges, 499 F.2d 179 (7th Cir. 1974),

cert. denied, 419 U.S. 1010. The instruction in that case

stated that ‘‘reasonable doubt’’ was not for the purpose

of ‘‘permitting guilty men to escape.’’ What was given

in the present case merely limited to some extent the outer

extremities of proof beyond a reasonable doubt. In no

event can reasonable doubt be equated with requiring

proof beyond ‘‘all possible doubt.’’ This instruction, ex-

cluding the necessity of Government proof beyond ‘‘all

possible doubt,’’ is not as objectionable as equating rea-

9a

sonable doubt with substantial doubt. See United States

v. Wright, No. 76-1007, (7th Cir. Sept. 27, 1976).

Reasonable doubt was not slighted in final arguments.

The defense argued in part:

So, the question is: What is a reasonable doubt?

It’s a difficult thing to define. The Court won’t de-

fine it for you. You have to think it through and

think what the words mean. It means certainly not

frivolous. It means certainly not emotional. It means

the same thing the words mean; a reasonable doubt

is a doubt that’s founded in reason; it’s a doubt for

which you can give a reason. Are there doubts for

which you can give reasons in this case? Certainly.

Let’s look at some of them, and we are going to go

over them very quickly at this time because we will

come back to each of them.

In the circumstances of this case, considering the in-

structions as a whole, we do not believe the instruction

given requires reversal.

VI.

Other objections of the defendant are to instructions

given or not given.

First, the defendant objects to the failure of the court

to give an instruction defining that portion of the lan-

guage of 21 U.S.C. § 812(c), Schedule II (a) (4), ‘‘chemi-

cally equivalent or identical.’’ That issue was adversely

resolved to defendant in United States v. Orzechowski,

supra, decided this date and requires no further discus-

sion.

Next, the defendant objects to so much of the court’s

instructions as stated that ‘‘l-cocaine is clearly covered

by the statute.’’ Even though this factual proposition was

not controverted at trial or on appeal, the defendant ob-

jected in the absence of an instruction to the effect that

10a

the other isomers of cocaine were not controlled. For the

court in its instructicns to assume the existence of a fact

which is undisputed or proved beyond controversy is not

reversible error. United States v. Jonikas, 197 F.2d 675

(7th Cir. 1952).

In the instruction conference the trial judge clearly

stated his position on the issue with which we find no

fault:

Court: Well, I have held that cocaine is a con-

trolled substance in the pretrial motions of this case,

and believe that the proper way to present this case

to the jury is very much in the manner that Judge

Warren did, as reflected in Instruction 61A.

I think the defendant is entitled to argue to the

jury that the Government’s testing is insufficient to

establish that the substance in question fitted the 21

U. 8S. Code, 812 Schedule II(a)(4) definition, and I

think the Court should instruct the jury that l-cocaine

is within the Schedule and that it is for them to de-

termine whether the evidence persuades the jury

whether the Government has shown beyond a reason-

able doubt that in light of the language of Il(a)(4)

the substance tested was a controlled substance.

It seems to me that’s consistent with the way the

case was presented to the jury. I think it enables the

Government to have the benefit of the Court’s pre-

vious conclusion that cocaine is a controlled substance

and still admits to the defense their theory that cer-

tain isomers are not, and if you think the Government

has failed to prove it was not one of the isomers, you

can argue that the Government has failed to prove

it was not one of the isomers which is fairly to be

interpreted within Subsection 4.

When so much of the instruction as defendant objected

to is considered in the text of the balance of the instruc-

tion it can be seen that the law as applied to this case was

lla

fairly stated.* Adequate allowance was also made for the

’ The court instructed in part:

In considering whether the Government has met its burden

of proof as to the identity of the substance allegedly sold by the

defendants, you may consider approaching the problem in the

following fashion :

At the outset, you have already been instructed that the de-

fendant in a criminal case has no burden. The burden never

shifts from the Government to establish its case beyond a reason-

able doubt. You may draw no inference whatsoever from the

failure of the defendant’s chemist to test the substance in ques-

tion.

You may first consider whether the Government has proven

beyond a reasonable doubt that the substance tested was coca

leaves, or any salt, compound, derivative or preparation of coca

leaves, or any salt, compound, derivative or preparation thereof

which is chemically equivalent or identical to any of these sub-

stances.

The testimony in the case has revealed that cocaine is an al-

kaloid with a variety of isomers. It is not disputed that the

only isomer which is naturally derived from the coca plant is

l-cocaine. L-cocaine can be synthetically constructed from non-

coca leaf origins. L-cocaine is clearly covered by the statute.

Therefore, you may first consider whether or not the substance

tested was l-cocaine. If you find beyond a reasonable doubt

that the substance tested was I-cocaine, then you have found

that this substance is a Schedule II controlled substance.

In arriving at this decision, you may consider whether or not,

or to what degree, the tests performed by the Government chem-

ist were specified for l-cocaine.

If you find that the substance tested was something other than

l-cocaine then, having heard the testimony of the expert wit-

nesses with regard to the degree of specificity and certainty as-

sociated with the various tests, you must determine whether or

not the substance tested was “chemically equivalent or identical”

with coca leaves, or any salt, compound, derivative, or prep-

aration of coca leaves. If you find beyond a reasonable doubt

that the substance tested was “chemically equivalent or identi-

(Footnote continued)

12a

defendant’s theory of the case which was that only l-co-

caine was controlled and that the other seven isomers, not

being derived from coca leaves nor chemically equivalent

or identical, were not controlled. The Government’s test

evidence was required to demonstrate, according to the

defendant, that the powder was |-cocaine.

(Footnote continued)

cal” then you have found that this substance is a Schedule II

Controlled Substance.

One of the elements of the offense charged in Count II is

that the substance tested by the Government chemist is cocaine

as cocaine is defined in the Controlled Substances Act—Con-

trolled Substances Act, Title 21, Section 841(a)(1}, Schedule

II(a) (4).

I have previously read to you the language of that statute.

That statute, and that statute only, covers those forms of co-

caine which are derivatives of coca leaves or which are chemi-

cally equivalent or identical to such derivatives. The defen-

dants cannot be convicted of Count II unless the Government

has proved beyond a reasonable doubt that the substance tested

by the Government chemist is a form of cocaine that is either

a derivative of coca leaves or a substance chemically equivalent

or identical to such a derivative.

There are only two ways in which the Government could

meet its burden of proving that the substance tested by its chem-

ist falls within the statute.

The first is to prove beyond a reasonable doubt that the sub-

stance is a derivative of coca leaves. The second is to prove

beyond a reasonable doubt that the substance is chemically

equivalent or identical to a derivative of coca leaves. You may

not speculate as to the identity of the substance. If you have

a reasonable doubt that the substance tested by the Government

chemist is a form of cocaine covered by the statute, you must

find the defendants not guilty of Count II. Similarly, if all that

the Government has proved is that the substance is cocaine

without proving that it is either a derivative of coca leaves or a

substance chemically equivalent or identical to such derivatives,

then the Government has not proven its case as to Count II.

—_t*

13a

The jury was not instructed that the transactional

powder was l-cocaine. The instructions left to the jury

the question of whether the transactional powder was or

was not l-cocaine, or whether it was in the language of

the statute some other substance chemically equivalent or

identical thereto.

The defendant further argues that the instructions per-

mitted a non-unanimous verdict of guilty since part of

the jury might have believed that the proof showed this

powder to be l-cocaine and the balance of the jury might

have found it to be some substance chemically equivalent

or identical to l-cocaine. The indictment charged that the

powder involved was a controlled substance, and consider-

ing the evidence under the instructions the jury found

that it was, and consequently rendered a verdict of guilty.

That was all that was required. If it had been considered

that it was important to know how the jury arrived at its

verdict, what its thinking or conclusion was about the

particular identity of the controlled substance, a special

verdict could have been requested by the defendant.

Though we may seriously question the general use of spe-

cial verdicts in the federal courts, we note no such request

in the record.

As a whole we find no reversible error in the instruc-

tions given nor in the other issues raised in this appeal,

and therefore we affirm.

. AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

l4a

In the

United States Court of Appeals

For the Seventh Circuit

No. 76-1315

UNITED STATES OF AMERICA,

Plaintiff -A ppellee,

v.

MICHAEL JOSEPH ORZECHOWSKI,

Defendant-A ppellant.

Appeal from the United States District Court for the

Eastern District of Wisconsin—No. 75 Cr 83

Robert W. Warren, Judge.

Argued September 21, 1976—Decided November 24, 1976

Before Hastines, Senior Circuit Judge, and Pett an

Woon, Jr., Circuit Judges.

Wooop, Jr., Circuit Judge. By an indictment returned

on April 22, 1975, the defendant, Michael Joseph Orze-

chowski was charged in two counts with violation of 21

U.S.C. § 841." Count I charges that on March 24, 1975.

1 In pertinent part § 841 provides:

. . it shall be unlawful for any person knowingly or intention-

ally

(1) to manufacture, distribute, or dispense, or possess with in-

tent to manufacture, distribute, or dispense, a controlled

substance. . . .

15a

the defendant unlawfully possessed with intent to distrib-

ute, and did distribute 13.602 grams of cocaine, a Schedule

II Narcotic Drug Controlled Substance. Count II charges

a similar offense involving 27.493 grams of cocaine oc-

curred the following day. After a three day jury trial the

defendant was found guilty. The defendant’s Motions for

Judgment of Acquittal and New Trial were denied, and on

March 15, 1976, defendant was sentenced to 120 days im-

prisonment to run concurrently on each count, to be fol-

lowed by a three year special parole term on each count.

This appeal followed.

The transactional evidence is not in dispute. A special

agent of the Drug Enforcement Administration received

a telephone call on March 24, 1975, from the defendant

offering to sell cocaine for $1,350 per ounce to the agent,

not known by defendant to be an agent. During a subse-

quent phone conversation that day the agent offered to

buy only a half ounce of cocaine as he explained he wanted

to check its quality. Later that same day the agent and

the defendant met in person to close the transaction. At

this time the defendant represented the cocaine as being

of ‘‘very high quality,’’ which, he explained, was due to

the fact that his partner was the smuggler. The defendant

also represented that he could supply a large quantity of

cocaine, four or five ounces, and that the more purchased

the higher the quality would be, up to 85% in purity. The

agent then paid the defendant $680 and received in return

a clear plastic bag containing white powder. The following

day the defendant again called the agent to see if he was

satisfied with the cocaine delivered on the prior day and

to inquire about a possible additional sale. The agent ad-

vised the defendant that the quality was satisfactory but

it had not yet been decided how much cocaine would be

purchased the next time. This led to another telephone call

16a

from the defendant a short time later in which tne agent

stated that he desired on this second occasion to buy a full

ounce to better help determine what the quality of the

cocaine would be if he later purchased as much as a pound.

Shortly after that, by agreement, the agent and the defen-

dant met to close this second transaction. The defendant

represented the ounce of cocaine being sold to the agent

as being of better quality than the cocaine of the day be-

fore. The price was again $1,350 per ounce. Defendant

expressed a desire to deal in larger quantities, pounds and

half pounds, as in this way, he explained, he could earn

between $2,000 and $3,000 per week, which was preferable

to working. The agent gave the defendant $1,350 and the

defendant gave the agent in return the second clear plastic

bag containing white powder.

The defendant raises five issues on appeal claiming:

1) the Government failed to identify the white powder in

each transaction as being a controlled substance;? 2) the

Government failed to provide defendant with certain Gov-

ernment documents claimed to be exculpatory; 3) the court

* The term controlled substance is described in 21 U.S.C. § 802

(6), as a “Drug or other substance, or immediate precursor, in-

cluded in Schedule I, II, III, IV or V” of Part B of that subchap-

ter. The indictment refers to a Schedule II substance. Section 812

(b)(2) identifies a Schedule II drug as a drug or other substance

which (a) has a high potential for abuse, (b) has a currently ac-

cepted medical use in the United States, or has a currently accepted

medical use with severe restrictions, and (c) abuse may lead to se-

vere psychological dependence. Thereafter in §812 set forth in

Schedule II (a) (4) is the following listing as a controlled substance :

Coca leaves and any salt, compound, derivative, or preparation

of coca leaves, and any salt, compound, derivative, or prepara-

tion thereof which is chemically equivalent or identical with

any of these substances... .

17a

failed to instruct on what were claimed to be two central

issues of the case; 4) the charges in each count were du-

plications; and 5) the instructions given were also duplica-

tions.

I.

Tue IDENTIFICATION oF THE SUBSTANCE

The defendant does not dispute that he sold two quanti-

ties of a substance he represented to be cocaine to the Gov-

ernment agent, but does dispute that the Government’s

evidence established beyond a reasonable doubt that those

substances were in fact controlled substances as alleged in

the indictment.

The manner of the listing of substances in the schedules

is not uniform. Many are listed by chemical name. The

listing here in question controls substances related to, or

derived or prepared from coca leaves, but the control is

also extended to any such substances or preparations which

are ‘‘chemically equivalent or identical with any of these

substances.’’

The parties agree on the import of this listing. Those

isomeric forms of cocaine which can be derived from coca

leaves are controlled, but any isomers that cannot be so

derived are controlled only if they are chemically equiva-

lent or identical to the forms which are derived from the

plant. Isomers are commonly referred to as chemical rela-

tives. The parties further agree that one of the isomers

of cocaine, |-cocaine, can be obtained from the plant, but

that one of the other isomers of cocaine, d-cocaine, cannot

be so derived. D-cocaine to be controlled, therefore, must

be shown to be chemically identical or equivalent.

The Government claims that the white powder obtained

from the defendant in both instances was l-cocaine, but if

18a

not, it was d-cocaine, which it claims is chemically identical

or equivalent, and therefore also controlled. In effect the

Government’s position is that it makes no difference which

isomer it was. The defendant claims that the Government

failed to prove that the powder was l-cocaine, and that,

therefore, if the powder may have been d-cocaine, it was

not shown to be chemically equivalent or identical to those

substances derived from the plant. The defendant’s posi-

tion is that the powder was not shown to be a controlled

substance.

Both the Government and the defendant offered the tes-

timony of experts, but there were critical disagreemenis

in their testimony.

The Government chemist testified that in his opinion,

after the performance of seven various tests, the white

powder in both transactions was l-cocaine. The tests used

to arrive at this conclusion were a spot or strength test

using cobalt thicyanate; two microcrystalline tests, using

plastinic chloride for one and gold chloride for the other;

gas chromatography; mass spectromatry; infrared spec-

trophotometry; and mixed melting point. It was shown

that these tests may help to identify the substance, but the

only test administered which could distinguish 1-cocaine

from d-cocaine was the mixed melting point test.

This latter test, the mixed melting point test, is the one

in question. The defendant claims that it was not properly

performed since the results obtained were not in line with

authoritative literature on the subject. Thus this test

was unreliable to determine which isomer, l-cocaine or

d-cocaine, may have been involved, the defendant argues.

It is not necessary to technically explore the specifics

of this or other tests except to note the area of disagree-

19a

ment. The Government chemist testified that he aeter-

mined from this test that the substances tested, the known

substance and the two quantities of the white powder, all

melted separately and in combination of 242° centigrade

and that that result justified his conclusion that the white

powder was l-cocaine. The defendant, relying on a recog-

nized treatise, claimed that the Government chemist’s con-

clusion could only have been justified by a result showing

a melting point of 215° centigrade, not 242°. Therefore,

the defendant concludes, either the test was improperly

administered so that it had no evidentiary value or the

white powder was not l-cocaine. The Government chemist

thought otherwise and explained that the manner in which

the substances were prepared for the tests by him could

have affected the melting point, but not his resulting con-

clusion. The Government also pointed out that the defense

expert recognized from his examination of literature on

the subject that there could exist some variance in melting

points. The record reveals that the defendant’s expert had

never actually run such a test himself to determine the

melting point of l-cocaine. The defendant’s defense did not

include an independent test of any kind of the white pow-

der involved.

The defendant next argues that since the mixed melting

point test as run was not determinative, the Goverament

should have run in addition a polarimetry test which, it is

also agreed, could likewise distinguish between the d- and

l- isomers of cocaine.

The next critical area of chemical testimony between the

experts, which becomes important only if the l-cocaine

identity conclusion of the Government witness is to be dis-

regarded leaving the possibility that the white powder

20a

might be d-cocaine, is whether or not d-cocaine is chemi.

cally identical or equivalent to l-cocaine. The Government

chemist testified that in his opinion d-cocaine was chemi-

cally equivalent or identical to the substance derived from

the plant. The defense expert took a different view and

explained that d- and 1- isomers of cocaine react differently

with other chemical reagents and in living organisms. The

defendant characterizes the Government expert’s opinion

on this issue as only a guess and not entitled to any weight

as an expert opinion.

The quality of the Government’s case on the issue of

identification of the white powder substances left some-

thing to be desired, but not so much as to require that

the jury’s verdict be set aside. The record reveals that

the informed defense helped educate the Government on

what its laboratory evidence should have been if all doubt

was to be resolved about the identity of substances. No one

expects, however, all experts to agree. It is apparent that

the Government’s laboratory work ran the risk of jeop-

ardizing the success of the undercover agent’s efforts.

In reviewing the sufficiency of this evidence we do not

act as the trier of the facts to reconsider guilt or innocence.

Our purpose is to determine if a rational trier of the fact

could have found beyond a reasonable doubt that the de-

fendant sold a controlled substance as charged. In re-

solving that issue we must view the evidence and all rea-

sonable inferences therefrom in the light most favorable

to the Government, remembering, also, the jury’s right

to weigh the evidence, determine the credibility of wit-

nesses, and draw justifiable inferences. Glasser v. United

States, 315 U.S. 60 (1942); United States v. Scher, 476

F.2d 319 (7th Cir. 1973); United States v. Cardi, 478 F.2d

2la

1362 (7th Cir. 1973), cert. dented, 414 U.S. 852 and 414

U.S. 1001; United States v. Isaacs, 493 F.2d 1124 (7th Cir.

1974), cert. denied, 417 U.S. 976.

The Government chemist sufficiently explained the con-

duct of the tests and accounted for the possible variation

in the melting point. That being true, the mixed melting

point test was adequate for identification purposes and the

running of the polarimetry test, as advisable as it may

have been, was not absolutely required. Also, if the mixed

melting point test as run was adequate, there could remain

no need to consider the other alternative, whether or not

l-ecocaine and d-cocaine are chemically equivalent or identi-

eal, but in the circumstances of this case that issue will

also be examined.

Even though the Government’s expert’s foundation for

his opinion that l- and d- cocaine are chemically equivalent

or identical was limited, he was found to be an expert by

the court, and his training and experience justified per-

mitting him to state and explain his opinion. That his

opinion was disputed and contradicted by the defendant’s

expert who stated the contrary as a matter of scientific

fact does not require that the Government expert’s opinion

be totally rejected by this court as a matter of law. The

defendant cites United States v. Cooper, 277 F.2d 857 (5th

Cir. 1960), fer the proposition that an expert may give

his opinion based on assumptions stated by him, but if

those assumptions are not proved, testified to or otherwise

taken to be true, the opinion is to be rejected as worthless.

That was a civil condemnation case where the court held

that one qualified as a hydraulic engineer was not thereby

qualified to state his opinion on the issue of the probability

of the use of certain real estate for a dam within the rea-

sonably near future as might affect the issue of damages.

22a

That expert was recognized only as an expert as to the

practicability of building a dam, not as an expert as to

future real estate values. In the present case the subject

matter was one within the general area of expertise of the

Government expert who testified as to his opinion.

The determination of the qualifications of an expert is

a matter ordinarily left to the discretion of the trial court.

In this case the Government witness was a forensic chem-

ist with a Bachelor of Science degree in chemistry em-

ployed by the Drug Enforcement Administration for the

last seven years. He testified that he had analyzed sub-

stances over 3600 times. We can find no abuse of discre-

tion by the district court in permitting the Government ex-

pert to testify and state his opinion. That opinion could be

given such weight as the jury might see fit in accordance

with the court’s instructions.

The jury was fully instructed on the consideration, if

any, to be given to the testimony of the experts on the

identification issue.*

3 The court instructed that :

The defendant cannot be convicted of these offenses unless the

Government has proved beyond a reasonable doubt that the sub-

stances tested by the Government chemist are a form of cocaine,

that is, either a derivative of coca leaves or a substance chemi-

cally equivalent or identical to such a derivative. There are only

two ways that the Government could meet its burden of proof,

that the substances tested by its chemist fall within the statute;

the first is to prove beyond a reasonable doubt that the sub-

stances are a derivative of coca leaves. The second is to prove

beyond a reasonable doubt that the substances are chemically

equivalent or identical to a derivative of coca leaves. You may

not speculate as to the identity of these substances. If you have

reasonable doubt that the substances tested by the Government

chemist are a form of cocaine covered by the statute you must

find the defendant not guilty. Similarly, if all the defendant

(Footnote continued)

23a

This whole subject matter was further well explained

and argued to the jury by defense counsel. The jury was

also fully instructed by the trial judge on the defendant’s

theory of the case.* There is no reason to believe that the

(Footnote continued)

(sic) has proven is that the substances are cocaine, without

proving that they are either derivatives of coca leaves or sub-

stances chemically equivalent or identical to such derivatives,

then the Government has not proven its case.

* * *

The jury should consider all of the facts and circumstances and

evidence to determine which of the witnesses are worthy of

greater credence.

. * .

The rules of evidence ordinarily do not permit witnesses to tes-

tify as to opinions or conclusions. An expert witness, however,

is in a separate category. An expert witness is someone who by

education and experience has become expert in some science,

may state an opinion as to relevant and material matters in

which they profess to be an expert, and may also state the rea-

sons for the opinion. Expert witnesses have testified in this

case. In determining what weight you should give to their opin-

ions, you may consider their experience, educational background,

theoretical understanding of the scientific discipline and the

knowledge they have gained through reading authoritative sci-

entific treatises and periodicals.

4 The court further instructed:

It is the defendant's theory of this case that l-cocaine is a deriva-

tive of coca leaves and that d-cocaine is neither a derivative of

coca leaves nor a substance which is chemically identical or

equivalent to a derivative of coca leaves. That d-cocaine and

l-cocaine react differently with the chiral reagents and have dif-

ferent chiral reagents, and have different physiological effects,

and that the only substance which is chemically identical or

equivalent to the I-cocaine, which is a derivative of coca leaves,

is synthetically produced, I-cocaine. It is further his theory that

prior to performing the tests in this case, the Government chem-

ist had no experience in performing a mixed melting point test

(Footnote continued)

24a

jury did not understand the issues and follow the court’s

instructions conscientiously. United States v. Harris, 211

F.2d 656 (7th Cir. 1954), cert. denied, 348 U.S. 822.

What a substance is represented to be by one offering

to sell it in such circumstances is ordinarily entitled to

little or no weight. The defendant in this case at the time

of the first sale represented the white powder to be good

quality cocaine. He then came back to sell a second time

after knowing that the buyer intended to check the pow-

der he had sold him the first time. The defendant repre-

sented the powder to be high quality cocaine and expressed

a strong desire and motivation for future larger sales

based on that representation. The jury, therefore, had

some basis under these circumstances for giving this de-

fendant at least a little credit for knowing what he was

talking about when he represented the powder to be good

quality cocaine.

(Footnote continued)

on substances suspected of being I-cocaine, that he was not pres-

ent when the supposed standard of l-cocaine was received in the

laboratory, and never tested the proposed standard that the

mixed melting point which he obtained was subs:antially higher

than what he would have obtained had the substance which he

tested been cocaine chloral platinate, and that if the substances

which he tested by the mixed melting point were not pure, then

the mixed melting point of the purer substance would have been

even higher than the temperature which he measured. It is

further his theory that the government chemist relied neither on

standard reference spectra nor recognized scientific treatises in

the field of analytic chemistry and that he did not compare his

test results with that which appears in the scientific literature.

If the evidence you have heard in support of the defendant's

theory creates in your mind a reasonable doubt that the tests

performed in this case are specific for a derivative of coca leaves

or a substance which is chemically equivalent or identical to such

a substance, then you must find the defendant not guilty.

—_——

<~ SOs

i ee es

25a

II

FatLure Or GOVERNMENT TO Provipe Derenpant WITH

Certain Documents Cuatmep To Be ExcuLpatory

Before and during trial the defendant sought and was

denied access to certain Drug Enforcement Administra-

tion, internal memoranda which related, among other

things, to the tests necessary for determining whether a

substance represented to be cocaine was an unlawful iso-

mer of cocaine. The existence of these memoranda was

verified during cross-examination and made available to

the trial judge after the jury retired. Otherwise there

were no discovery complaints as the Government followed

an ‘‘open file” policy. Those papers, now a part of the

record, included: (1) an internal general technical re-

search report transmitted between two divisions of the

Drug Enforcement Administration regarding research in-

to an identification of optical isomers of cocaine; (2) a

general internal Drug Enforcement Administration memo-

randum dealing with when, as a matter of general policy,

the Drug Enforcement Administration should perform

special polarimetry tests on cocaine evidence samples; and

(3) a general internal Drug Enforcement Administration

memorandum making lower Drug Enforcement Adminis-

tration officials aware of potential optical isomers issues

in the identification of cocaine evidence. This memoran-

dum included several other general memoranda from vari-

ous attorneys in the Drug Enforcement Administration

and the Justice Department for the purpose of generally

warning personnel within the Drug Enforcement Admin-

istration that the l-d isomer issue might arise in cocaine

prosecutions. None of these allegedly exculpatory memo-

randa were concerned specifically with the appellant’s

prosecution; none were used by attorneys for the Govern-

ment preparing for or trying the case; and none contained

the statements of any witness who testified.

26a

The defendant claims and the Government denies that

the documents were producible under Fed.R.Crim.P. 16.

The Government relies on the exclusion provided in Rule

16(a)(2).° The defendant contends that the exclusion is

not applicable since the papers were not ‘‘made by the

attorney for the government or other governmental agents

in connection with the investigation or prosecution of the

case’’; because the exclusion applies to pretrial, not trial,

disclosures; and because the research report falls within

(a)(1)(D) of the Rule to which (a)(2) does not apply.®

The defendant correctly argues on the basis of United

States v. Nobles, 422 U.S. 225 (1975), that Rule 16 is de-

signed to govern pretrial disclosure, not to constrict a

district court’s control over evidentiary questions arising

during trial. Since the defendant continuously sought dis-

5 Rule 16(a)(2) reads:

(2) Information Not Subject to Disclosure. Except as pro-

vided in paragraphs (A), (B), and (D) of subdivision (a)(1),

this rule does not authorize the discovery or inspection of re-

ports, memoranda, or other internal government documents

made by the attorney for the government or other government

agents in connection with the investigation or prosecution of

the case, or of statements made by government witnesses or

prospective government witnesses except as provided in 18

U.S.C. § 3500.

® Rule 16(a)(1)(D) reads:

(D) Reports of Examinations and Tests. Upon request of

a defendant the government shall permit the defendant to in-

spect and copy or photograph any results or reports of physical

or mental examinations, and of scientific tests or experiments,

or copies thereof, which are within the possession, custody, or

control of the government, the existence of which is known, or

by the exercise of due diligence may become known, to the

attorney for the government, and which are material to the

preparation of the defense or are intended for use by the gov-

ernment as evidence in chief at the trial.

27a

closure of the memoranda throughout the trial, the (a) (2)

exclusion is of no avail to the Government. Nor is sub-

section (a)(1)(D) of avail to the defendant since the

memoranda, even if we consider them to be reports of ex-

amination and tests within the language of that subsec-

tion, admittedly were not made in connection with this

ease. The Notes of the Advisory Committee state that

the ‘‘obligation of disclosure applies only to scientific

tests or experiments ‘made in connection with the par-

ticular case.’ ’’ Fed.R.Crim.P. 16, Notes of Advisory Com-

mittee, 1974 Amendment, 18 U.S.C. at 1318 (Supp. V.,

1975). The rule does not compel disclosure.

Since these memoranda did not include the prior state-

ment of any witness who testified, they were not produc-

ible under the Jencks Act, 18 U.S.C. § 3500.

A remaining consideration is the application of Brady

v. Maryland, 373 U.S. 83 (1963), as the memoranda are

claimed by the defendant to be material and exculpatory.

We believe they are neither. The defendant is not entitled

to a reversal unless in the light of all the evidence intro-

duced at trial the unrevealed evidence is material. United

States v. Esposito, 523 F.2d 242 (7th Cir. 1975), cert. de-

nied, 444 U.S.L.W. 3564 (April 5, 1976). The most recent

ease dealing with this subject is United States v. Agurs,

alan U.S. ......., 44 U.S.L.W. 5013 (U.S. June 24, 1976).

The omission to disclose, it is held, in a constitutional

sense must be found to have deprived the defendant of a

fair trial as evaluated in the context of the whole record

before reversal is required The test of materiality, the

Court indicates, may vary according to the circumstances,

but the case is not read as requiring, even in circumstances

where the threshold test of materiality may be low, that

as a matter of constitutional law everything must be dis-

closed which might influence a jury. Evaluating the omis-

28a

sion here in the context of the entire record, we cannot

find that the failure to supply these memoranda, not di-

rectly related to this case, was of such significance that

the defendant was thereby deprived of a fair trial. The

memoranda only evidenced a Government awareness and

concern with the same cocaine isomer issue which the

defendant raised and thoroughly explored at trial. His

defense on that issue was not dependent on the memo-

randa. Every nondisclosure is not material. If this was

error it was harmless. After considering the memoranda

submitted to him at the conclusion of the trial, the trial

judge summed up his view in these terms:

In the context of this case it is apparent that no

substantial deprivation was inflicted upon the defense

by virtue of the failure to produce these documents

during the course of or prior to the trial. The defen-

dant’s attorneys were well versed in the science of

chemistry and were very much aware of the analyses

disclosed by these materials. The defense devoted

lengthy direct and cross-examination to these very

principles and theories. In view of this circumstance

the Court cannot now hold that substantial prejudice

has resulted from the conduct of the government’s

agents and attorneys.

Ill.

INSTRUCTIONS

The defendant concedes that to a large measure his

tendered instructions were given. His first objection, how-

ever, is to the fact that the court permitted the jury, under

the instructions, to consider the Government’s alternate

theory that d-cocaine and |-cocaine were chemically iden-

tical or equivalent, instead of limiting the issue to whether

or not the Government had proven that the powder was

l-cocaine. The basis of this objection is the claim that the

29a

Government’s evidence was insufficient to permit the al-

ternate theory to go to the jury. We find no merit to that

position, and based on evidence we have already dis-

cussed, believe the question was a question of fact prop-

erly left for the jury.

Next, the defendant contends that he was entitled to

an instruction defining the term ‘‘chemical equivalents.”’

The jury was instructed that the Government’s burden

of proof required that the powder be shown to be either

l-cocaine or alternatively d-cocaine, provided d-cocaine

was also shown to be ‘‘chemically equivalent or identical

to l-cocaine.’’ No instruction as to the meaning of the

statutory phrase ‘‘chemically equivalent or identical’’

was given. The defendant urged the giving of an instruc-

tion to the effect that to be chemically equivalent or iden-

tical the substances must not only have the same chemical

formula but the substances must also have the same chem-

ical reaction with other che_sicals. Both the Govern-

ment and defense experts agree in principle with this ex-

planation of the terms. The meaning of the phrase was,

therefore, not in dispute between them, only the result of

its application. Although the statute defines certain other

of its own terms, it offers no definition of this phrase.

None is needed. The terms have a common meaning and

were used in the conventional sense. The similarities or

differences of the two isomers were fully explored in the

evidence and arguments before the jury. As in United

States v. Kramer, 355 F.2d 891 (7th Cir. 1966), partially

vacated and remanded on other grounds, 384 U.S. 100

(1966), in some circumstances an elaboration on the mean-

ing of statutory words may be preferred, but here, as

there, it cannot be said that the instructions were so in-

adequate that the jury could not fairly determine the is-

sue. If it was error not to instrnet on the meaning of these

terms, it also was a harmless error.

30a

IV.

DvuPLicity

Defendant claims that each of the two counts is duplic-

itous in that each charges possession with intent to dis-

tribute, together with the actual distribution of cocaine.

Title 18 U.S.C. § 841(a)(1) makes it unlawful to ‘‘dis-

tribute’’ or to ‘‘possess with intent to distribute’’ a con-

trolled substance. The question resulting is whether or

not this is a case of alleging in one count the commission

of multiple acts in violation of the same statutory provi-

sion, or a case of separate and distinct offenses being

alleged in the same count.

‘‘Duplicity’’ is the joining in a single count of two or

more distinct and separate offenses. 1 Wright, Federal

Practice and Procedure, § 142, at 306 (1969 ed.) One of

the vices of duplicity is, as defendant argues, that the

verdict does not reveal whether the jury found the defen-

dant guilty on both or one or the other of the offenses

charged.

The cireuits are not in agreement. The Fourth and

Sixth Cireuits have taken the position that in cases where

a single sale of a controlled substance gives rise to sepa-

rate counts charging possession and sale there is in effect

a merger of the two offenses permitting only one sentence

. upon conviction of both counts. United States v. Atkinson,

512 F.2d 1235 (4th Cir. 1975), petition for cert. filed, 45

U.S.L.W. 3011 (July 12, 1976); United States v. Curry,

512 F.2d 1299 (4th Cir. 1975), cert. denied, 423 U.S. 832

(1975); United States v. Stevens, 521 F.2d 334 (6th Cir.

1975). See also United States v. Nichols, 401 F.Supp. 1377

(E.D. Mich. 1975). Therefore, following this reasoning,

to join possession and distribution in one count may not

be duplicitous.

3la

The Fifth Circuit takes another view. Upon conviction

on separate counts of possession with intent to distribute,

and distribution of a controlled substance, each count

stands separately for sentencing purposes. There is no

merger. The ‘‘different evidence’’ test is applied. Con-

victions for separate offenses arising out of the same fac-

tual situation are held to be permissible if the statute pro-

scribing the conduct requires proof of different facts and

elements as to each of the separate offenses. United States

v. Horsley, 519 F.2d 1264 (5th Cir. 1975), cert. denied, 96

S.Ct. 1413 (1976) ; United States v. Costello, 483 F.2d 1366

(5th Cir. 1973). It follows, therefore, that in that circuit

to join possession with intent to distribute and distribu-

tion in one count would be duplicitous.

The Tenth Circuit has also considered the problem. It

has held that it is not duplicitous to charge possession

with intent to distribute together with distribution in one

count since § 841(a)(1) sets forth several ways in which

the statute may be violated, including both distribution

and possession with intent to distribute. Therefore, it is

proper to allege in the conjunctive without the indictment

being duplicitous. United States v. Herbert, 502 F.2d 890

(10th Cir. 1974), cert. denied 420 U.S. 931; Cordova v.

United States, 303 F.2d 454 (10th Cir. 1962). Accord,

United States v. Hobbs, 392 F.Supp. 444 (D.Mass. 1975) ;

United States v. DiLaura, 394 F.Supp. 770 (D.Mass. 1974).

The approach of the Tenth Circuit has been followed

in other statutory situations. United States v. Zeidman,

No. 76-1173 (7th Cir. Aug. 20, 1976); Troutman v. United

States, 100 F.2d 628 (10th Cir. 1938); Joyce v. United

States, 454 F.2d 971 (D.C. Cir. 1971), cert. denied, 405

U.S. 969; United States v. Astolas, 487 F.2d 275 (2d Cir.

1973), cert. denied, 416 U.S. 955.

32a

Former § 4704(a) of Title 26 U.S.C., repealed in 1970,

provided that it was unlawful to purchase, sell, dispense

or distribute a narcotic drug not in or from the original

package bearing tax stamps. The defendant in Turner v.

United States, 396 U.S. 398 (1970), was charged in one

count with purchasing, dispensing and distributing heroin

in violation of that section. Although duplicity was not

directly raised as an issue, the Supreme Court stated that,

‘‘The general rule is that when a jury returns a guilty

verdict on an indictment charging several acts in the con-

junctive ... the verdict stands if the evidence is sufficient

with respect to any one of the acts charged.’’

We see no reason why that general rule should not be

applicable here. The offense charged in each count, pos-

session with intent to distribute and distribution, alleged

in the conjunctive, was statutory language drawn from

the same sentence of subsection (a)(1). We hold that the

counts are not duplicitous.

There being no duplicity found in the charges, none is

found in the instructions.

We affirm.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

33a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,

Plaintiff,

v. No. 75-CR-103

CLARK J. UMENTUM,

JOHN OTTO MITTELSTAEDT,

MARILYN JOSETTA PIECHOTA,

CHERYL GIBBONS, and

DAVID ALAN WINKKA,

Defendants.

DECISION and ORDER

The defendants in this action have filed motions to dis-

miss the first two counts of the indictment, to compel the

government to elect between counts and between offenses

within counts, to compel disclosure of exculpatory evi-

dence, for a bill of particulars, and to suppress certain

physical evidence and statements. An evidentiary hear-

ing was held on September 12, 1975, in connection with

the defendants’ motions to suppress as evidence certain

property seized from an automobile; the latter motions

to suppress were denied. The other motions are before

me now for decision.

oO & s

MOTION TO DISMISS OR ELECT

The defendants Umentum a1 Piechota have moved to

dismiss count II of the indictment or, in the alternative,

for an order requiring the government to elect to pursue

one of the two offenses which they contend are charged

34a

in count II. That count charges the defendants with pos-

sessing with intent to distribute and distributing cocaine,

in violation of 21 U.S.C. § 841(a)(1). The defendants

contend that possessing with intent to distribute and dis-

tributing are separate and distinct offenses, and that count

II is defective for charging both offenses in one connt.

Some statutes are directed against certain defined

modes for accomplishing a general object and impose

criminal penalties upon the doing of any of several speci-

fied things, each having reference to that object. Under

such statute, the doing of the prohibited thing in each and

all of the prohibited modes may be charged in the con-

junctive in one count. Crain v. United States, 162 U.S.

625 (1896) ; United States v. Amick, 439 F.2d 351 (7th Cir.

1971). I believe that 21 U.S.C. § 841 is directed generally

against the process of distributing controlled substances

in this country and that possession with intent to distrib-

ute and distribution itself are only different modes of

violating the statute’s proscriptions. See United States

v. Herbert, 502 F.2d 890 (10th Cir. 1974). Accordingly,

the defendants’ motion to dismiss or elect will be denied.

CONCLUSION

Therefore, It Is Ordered that the motions of the defen-

dants Mittelstaedt, Gibbons, Umentum and Piechota to

dismiss counts I and II of the indictment be and hereby

are denied.

It Is Also Ordered that the motions of the defendants

Mittelstaedt, Gibbons, Umentum and Piechota to dismiss

count I of the indictment be and hereby are denied.

It Is Further Ordered that the motion of the defen-

dants Mittelstaedt and Gibbons to compel the government

to elect between trying count I or count II of the indict-

ment be and hereby is denied.

35a

It Is Further Ordered that the motion of the defen-

dants Umentum and Piechota to dismiss or elect directed

to count II of the indictment be and hereby is denied.

It Is Further Ordered that the motions of the defen-

dants Umentum and Piechota for the disclosure of excul-

patory evidence and for a bill of particulars be and hereby

are denied.

It Is Further Ordered that the motions of the defen-

dants Gibbons and Piechota to suppress as evidence prop-

erty and statements taken from them subsequent to their

arrests be and hereby are denied.

Dated at Milwaukee, Wisconsin, this 19 day of Septem-

ber, 1975.

/s/ Myron L. Gordon

U. S. District Judge