Petition — King v. United States

& Court. U &

FILED |

APR 7 j980 ff

PICHAEL RODAK, JR. CLERR’

IN THE

Supreme Court of the United States

October Term, 1979

79-1564

No

WAYNE BERNARD KING,

Defendant-Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIR-

CUIT

RONALD I. MESHBESHER,

MESHBESHER, SINGER & SPENCE,

LTD.

KENNETH MESHBESHER

CAROL GRANT

1616 Park Avenue

Minneapolis, MN 55404

(613) 339-9121

Attorneys for Petitioner

1980—Northwest Brief Printing Co., 316 Chicago Avenue, Minneapolis 55415--338-5078

TABLE OF CONTENTS

Page

RD ie gk wow co os oes 1

eee MME. 0 Givin Wine 6 6% * s 2

ee ees kw ese wccceees 2

Constitutional and Statutory Provisions Involved .... 2

SONNE Oe ic cc sce wsccvosecce 3

Reasons for Granting the Writ .................. 8

APPENDIX INDEX

Appendix A—Opinion of U.S. Court of Appeals for

En en a A-1

AUTHORITIES CITED

Cases:

Delaware v. Franks, 438 U.S. 154 (1978) ..... maby 12

Nichoalds v. McGlothlin, 330 F.2d 454 (10th Cir.

(RRR E RRS OG Dg EEO ae en aa 12

United States v. Burgos, 579 F.2d 747 (2nd Cir.

| Ene i SPEIER Ec Sane tae 16

United States v. Di Re, 332 U.S. 581 (1948) ..9, 10, 14

United States v. Frol, 513 F.2d 1134 (8th Cir. 1975) 16

United States v. Holder, 560 F.2d 953, 957 (8th Cir.

Ee Waits Hee lis ae ek a 15, 16

United States v. Nixon, 418 U.S. 683 (1974) ........ 14

Statutes:

ee cee ie sce chee cess 2

IN THE

Supreme Court of the United States

October Term, 1979

No.

WAYNE BERNARD KING,

Defendant-Petitioner,

Vs. |

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIR-

CUIT

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the Eighth Circuit Court of Ap-

peals, entered in the above-entitled case on February 5,

1980.

CITATION TO OPINIONS BELOW

This is an appeal from United States of America v.

Wayne Bernard King, No. 79-1392 (8th. Cir. Feb. 5,

1980) and the Eighth Circuit Court of Appeal’s subse-

quent denial of petitioner’s petition for rehearing.

2

JURISDICTION

The original decision affirming petitioner’s conviction

was filed on february 5, 1980. 28 U.S.C. §1257(3) con-

fers on this Court jurisdiction to review the decision in

question by writ of certiorari.

QUESTIONS PRESENTED

I. Was there probable cause to arrest petitioner for

distribution of and conspiracy to distribute cocaine, where

he was not involved in the first sale, his involvement in

the second sale was speculative, and he merely drove the

seller to the third sale?

II. Does an affiant’s intentional failure to reveal that

her “credible” informant, who positively identified defense

counsel instead of petitioner at trial, became an informant

solely to get a lighter sentence and was “taking a kick-

back” for producing defendants, constitute a material

omission in the search warrant affidavit, requiring sup-

pression of its fruits pursuant to Delaware v. Franks, 438

U.S. 154 (1978)?

III. Was ev'dence that petitioner may have used co-

caine and associated with a cocaine seller sufficient to

show that he conspired to distribute and distributed co-

caine?

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment t> the United States Consti-

tution provides that '

“[t]he right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

i

able searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause

”

.

The Fourteenth Amendment to the United States Con-

stitution provides that

“[nlor shall any state deprive any person of life,

liberty, or property, without due process of law . . .”

STATEMENT OF THE CASE

Petitioner was charged with distribution of cocaine on

September 12, 1978, distribution of cocaine on December

13, 1978, and conspiracy to distribute cocaine on both

of those dates. He moved to suppress the evidence which

led to these convictions on the ground that there was no

probable cause to arrest him or search his apartment. At

the suppression hearing, Officer Tom Scalla testified that

an informant had claimed that at some unspecified time,

Stephen Luschen had cocaine on his person when he

“entered or left” a building located at 8851 Goodrich

Avenue South in Bloomington, Minnesota (S. 4).* At 4:00

p-m. on September 12, 1978, undercover agent Belkair

arranged to buy cocaine from Luschen (S. 5). Luschen’s

activities were not monitored until he met Belkair at a

Perkins Pancake House. He said that he would have to go

seven blocks away to pick up cocaine from a man (S. 6).

He was followed to Apartment 206 at 8851 Goodrich

Avenue South.

Although petitioner King and Karen Fuller paid for util-

ities in Apartment 206, nobody had seen King enter the

*References to the supression hearing transcript will be denoted (S. page

number).

4

apartment on September 12. Agents conducting surveil-

lance didn’t know how many people were in the apart-

ment when Luschen entered (S. 10). Some time later he

left, met with Belkair, and consummated a cocaine sale

(S. 7).

On December 13, 1978, Belkair again arranged to buy

cocaine from Luschen. What Luschen did for the next

two and one-half hours is unknown (T. 13). At 5:00,

however, petitioner drove to Luschen’s residence. Luschen

accompanied him to Apartment 206. There was at least

one other person in the apartment (S. 9). King told that

person that he would be back in 45 minutes and drove

Luschen to the point of sale (S. 9). King departed for a

nearby Shell station and Luschen instructed Belkair to

drive to a neighboring Ramada Inn (S. 9). After selling

cocaine, Luschen was arrested. King was separately ar-

rested.

Officers then obtained a warrant to search petitioner’s

apartment. The affidavit supporting their application con-

tained only the observations described at the suppression

hearing and the claim that a “confidential reliable” in-

formant had accompanied Luschen to 8851 Goodrich

Avenue South, where Luschen had either delivered or

purchased cocaine. The affiant alleged, “This informant

has been found to be reliable over the past five months

by introducing undercover officers to persons for the pur-

pose of purchasing narcotics and has further given infor-

mation about narcotics trafficking which when investi-

gated by officers has always been found to be true and

correct.” The judge who issued the warrant found it nec-

essary to add that narcotics sales did, in fact, follow the

informant’s introductions.

5

What the affiant failed to mention was that the infor-

mant had committed an armed robbery, kidnapping and

assault (T. 111).** He was caught and convicted for aid-

ing and abetting theft, for burglary in 1975, and for yet

another burglary in 1978 (T. 73). The only reason he be-

came a government informant was to get a lighter sen-

tence for the 1978 burglary (T. 75). At that time, he was

unemployed (T. 112). His sole source of income, besides

welfare, was the money he made accusing people. The

government paid him by the defendant—he received a

sum for each defendant whom he introduced to govern-

ment agents (T. 76). He also was paid by the defendants

themselves, each time he facilitated a drug transaction

(T. 76). These activities had netted him “about a

grand” so far (T. 76).

The affiant also failed to mention that the informant

and Luschen had had lengthy discussions about the drug

business (T. 79, 80). Luschen had no reluctance to identi-

fy his partner named Brad, who initiated his involvement

and was “the connection he was working with.” (T. 95).

The only thing Luschen said about King was that King

needed money and never kept drugs in his apartment

(T. 96). In fact, Luschen went to St. Paul to buy cocaine

for delivery to Belkair on September 5, 1978 (T. 89,

127-30). The September Sth transaction proceeded just

like the two transactions for which defendant King was

charged—the participants prearranged to meet at a

Perkins Pancake House. The government couldn’t dis-

prove that Luschen went to St. Paul before both of the

**References to the trial transcript will be denoted (T. page number).

6

later sales, and had to concede that he returned to St.

Paul after the September 12 sale.

At trial, defense counsel discovered that the informant

had accompanied Luschen to 8851 Goodrich Avenue

South in December, 1977 and January or February, 1978—

approximately one year before the date of the search war-

rant application (T. 121). The informant testified that on

one of those occasions, a man came out of the building

and gave him cocaine to snort; that he didn’t know who

it was; but that he later discovered it was petitioner (T.

84). During cross-examination, he claimed that he knew

petitioner—by name—at a Halloween perty in 1977 (T.

85). He then positively identified King—only the prob-

lem was, it wasn’t King whom he identified. It was Lusch-

en’s co-counsel, Louis Bass! (T. 86). Bass and petitioner

King had switched seats and the informant hadn’t noticed

(T. 104). He blithely proceeded to incriminate the wrong

person:

“Q. And when you say this is Mr. King here (in-

dicating) this is the same man you saw that gave

you that snort of coke?

Correct.

This man with the herring-bone suit?

Correct.

Right? In the blue shirt?

Correct.

. And the green tie and the reddish beard, is

that correct?

A. Correct.” (T. 86).

OPOro>

When the prosecutor finally stood up and objected, the

informant had a feeling that he hadn’t “done the right

job” (T. 120).

7

The trial court didn’t need much time to assess the in-

formant’s credibility and conclude that he was a liar. He

actually instructed the jury:

“I think you jurors ought to kind of concentrate on

the intelligence of that government informant as to

whether ‘does he have an accurate recollection of

these matters?,’ and his interest in the outcome of the

evidence in the case. The government informant has

an interest. You know, he’s not much of a character,

and you have to disregard his testimony in large part,

except where it is really corroborated and where it

really ties in. Of course, you might find much of it

here recorded and so forth; but kind of don’t trust

him ‘off along by himself, you know’.

That’s the way to handle him: A fellow convicted of

crime he’s not much you know; and then you add to

that the fact that he is snorting this dope, and that

doesn’t help him much; and then on top of that he’s

taking a kickback, and that doesn’t help him much;

and on top of that he is trying to get on the good

side of some judge up in my home territory there,

and that doesn’t help him.

So all of that taken together says don’t give much

credibility to that informant.

And that’s the law; you see, not only is it common

sense, but it is the law.

Nevertheless, he did play a part here—you know,

like a marijuana-sniffing dog; he might sniff a lot

of other things, but he might sniff some marijuana

along the way, too, you see.

Well, now if he is impeached—and he certainly was

impeached when he couldn’t even identify the right

person here, you know—and he was pretty positive

about that, too.

So enough of him .. .

If you find an informer is also a narcotics addict,

he has a constant need for a supply of drugs and for

money to support his habit, and also may have ab-

normal fear of imprisonment in which his supply

of drugs might be cut off. These are special cir-

cumstances—

You can see that I don’t think much of that fellow’s

testimony, and I don’t think you should, either, and

that is the official view of such testimony.” (T.

458-59).

When police searched Apartment 206, they found a

single scale, traces of cocaine and/or inositol in contain-

ers, miscellaneous paraphernalia and a notebook with

some “scribbling,” which a government agent interpreted

as drug notations (T. 334). Karen Fuller, Dale Casper and

Cynthia Kissner were present during the search. When

Kissner was searched, $1,700 cash and marijuana were

discovered (T. 189). Fuller, along with King, paid for

utilities at the apartment.

REASONS FOR GRANTING THE WRIT

I.

THERE WAS NO PROBABLE CAUSE TO ARREST PETI-

TIONER FOR DISTRIBUTION OF AND CONSPIRACY

TO DISTRIBUTE COCAINE WHERE HE WAS NOT IN-

VOLVED IN THE FIRST SALE, HIS INVOLVEMENT IN

THE SECOND SALE WAS SPECULATIVE, AND HE

MERELY DROVE THE SELLER TO THE THIRD SALE.

The Court of Appeals for the Eighth Circuit justified

its conclusion, that there was probable cause to arrest

petitioner, in the following way:

9

“{O]n both September 12 and December 13, after

was arranged so that King was in a position to over-

see the transaction. In addition, the arresting officers

had probable cause based on information by a

government informant who testified at trial and

whom the officers knew to be reliable.”

In United States v. Di Re, 332 U.S. 581 (1948). the de-

fendant was observed in the very car where an illicit ex-

change took place! This Court held that a person’s mere

presence during such an exchange does not create prob-

able cause to believe that he is a participant in criminal

activity.

There was absolutely no proof that King was even

present when Luschen went to 8851 Goodrich Avenue

South on September 12! His mere presence on December

13 could not make him a suspect. At least one other per-

son was in the apartment at that time. Three people were

there when it was searched after petitioner’s arrest, and

one of them carried drugs and $1,700 in U.S. currency.

These people, or someone visited by Luschen during the

lengthy gaps in surveillance beiure the drug sales were

consummated, as likely transferred drugs as King.

The appellate court’s statement that “each buy was ar-

ranged so that King was in a position to oversee the trans-

action” is untrue. King was never observed on September

12. Whether he could see the transaction on December

13 is sheer speculation.

The Court of Appeals apparently understood that the

10

above-described observations could never create probable

cause, because it concluded,

“Facts known to the arresting officers plus the in-

formation by the informant constituted probable

cause. When independent sources corroborate the in-

formation supplied by the informant, there is prob-

able cause for the arrest.”

However, the informant’s information was less illuminating

than subsequent police observations! He never saw peti-

tioner possess or distribute cocaine! He didn’t know what

Luschen was doing at 8851 Goodrich Avenue South or

whethcr petitioner was present when Luschen did it. He

just claimed that Luschen had cocaine on his person

when he left or entered that building, at a time which

could have been years before the informant started work-

ing for the government, for all the police knew. And in-

dependent sources corroborated not one bit of the infor-

mant’s claim, contrary to the Eighth Circuit’s suggestion.

The Court of Appeals may have ignored or misinter-

preted Di Re because it is an old case. This appeal will

give this Court an opportunity to reaffirm the principles

of Di Re, correct the Eighth Circuit’s misstatement of

facts and rectify an injustice.

1]

AN AFFIANT’S INTENTIONAL FAILURE TO REVEAL

THAT HER ‘‘CREDIBLE’ INFORMANT, WHO POSI-

TIVELY IDENTIFIED DEFENSE COUNSEL INSTEAD OF

PETITIONER AT TRIAL, BECAME AN INFORMANT

SOLELY TO GET A LIGHTER SENTENCE AND WAS

“TAKING A KICKBACK” FOR PRODUCING DEFEN-

DANTS, CONSTITUTES A MATERIAL OMISSION IN

THE SEARCH WARRANT AFFIDAVIT, REQUIRING

SUPPRESSION OF ITS FRUITS PURSUANT TO DELA-

WARE VY. FRANKS, 438 U.S. 154 (1978).

Assuming for the sake of argument that the infor-

mant’s claim was the additive factor which supplied prob-

able cause to arrest, it also supplied probable cause to

search Apartment 206. If the officer who applied for the

search warrant failed to reveal that the informant was

unreliable, the omission necessarily undermined probable

cause. The Eighth Circuit’s contrary conclusion, that

“the alleged omissions [in the affidavit supporting the

search warrant] did not undermir 2 probable cause,” is

inconsistent with its conclusion that the informant’s ob-

servations were the “tipping factor” which created prob-

able cause to arrest.

Franks v. Delaware, 438 U.S. 154 (1978) indicates that

evidence must be suppressed when it was seized pur-

suant to warrant obtained upon an affiant’s deliberate

falsehood or reckless disregard for the truth. This rule

necessarily includes material omissions which mislead the

magistrate who issues the warrant. Federal courts prop-

erly have refused to sanction the “white lie” approach to

~

12

evaluating misrepresentations. E.g., Nichoalds v. Mc-

Glothlin, 330 F. 2d 454 (10th Cir. 1964).

The Court of Appeals for the Eighth Circuit appar-

ently does not agree. Petitioner urged that the affidavit

supporting the warrant to search Apartment 206 con-

tained material omissions about the informant’s credibil-

ity. The Court dismissed his protest by saying that the af-

fiant “set out reasons for her belief that [the informant]

was credible . . .” The affianc knew that her informant

had led a criminal lifestyle over an extended period of

time, became an informant as part of a deal which sug-

gested that he would receive a light sentence for the latest

of a string of felonies, and was paid a contingent fee for

production of defendants to prosecute. As the trial court

put it: “[H]e’s taking a kickback . . .” (T. 458).

The trial court was able to tell that the informant was

a liar. The affiant must have known it, too. Nevertheless,

she abused the Spinelli criteria by alleging that the infor-

mant had provided reliable information, without disclos-

ing the myriad of factors which completely undercut his

reliability. To close her eyes to his character constituted

a reckless disregard for the truth, and this Court must

make that clear. Official deceit by omission should be

discouraged now.

The Eighth Circuit also interpreted Franks v. Delaware,

in an unjustified manner which will necessitate constant

pretrial challenges to informants whose credibility is not

suspect. The Court stated that Franks anticipates a pre-

trial procedure, although the opinion contains no such

requirement and in fact observes that

“[o]n occasion, of course, an instance of deliberate

falsity will be exposed and confirmed without a spe-

13

cial inquiry either at trial . . . or at a hearing on the

sufficiency of the affidavit . . .”

Petitioner King had no practical way to challenge the

informant’s credibility before trial. When the informant

testified, however, it became immediately obvious that he

was a liar. This Court must insure that no defendant is

constrained from challenging a search warrant applica-

tion when the reason to challenge becomes apparent dur-

ing, rather than before, trial. Otherwise, defendants will

be forced to insist upon pretrial production of informants

in every case, to test their credibility through cross-exam-

ination. The government will be reluctant to produce its

confidential informants and a flood of unnecessary liti-

gation will be spawned.

This Court also must clarify its direction that allega-

tions of reckless di “egard be accompanied by an offer

of proof:

There must be allegations of deliberate falsehood or

of reckless disregard for the truth, and those allega-

tions must be accompanied by an offer of proof.

They should point out specifically the portion of the

warrant affidavit that is claimed to be false; and

they should be accompanied by a statement of sup-

porting reasons. Affidavits or sworn or otherwise

reliable statements of witnesses should be furnished,

or their absence satisfactorily explained.” 438 U.S.

at 171.

In this case, it was clear what portion of the warrant affi-

davit contained the material omission. Petitioner had no

reason to support his challenge with affidavits of wit-

nesses; the informant’s own testimony supplied him with

14

all the evidence he needed. The Eighth Circuit’s conclu-

sion, that “King did not meet the requirements to obtain a

hearing,” therefore seems hypertechnical.

EVIDENCE THAT PETITIONER MAY HAVE USED CO-

CAINE AND ASSOCIATED WITH A COCAINE SELL-

ER IS NOT SUFFICIENT TO SHOW THAT HE CON-

SPIRED TO DISTRIBUTE AND DISTRIBUTED COCAINE.

Statements made by a coconspirator in furtherance of

the conspiracy are not hearsay and are admissible against

both the declarant and his coconspirators. United States

v. Nixon, 418.U.S. 683 (1974). If there is not substantial

evidence, independent of the challenged hearsay state-

ments, establishing the existence of a conspiracy, the

statements should be excluded. The Court of Appeals

held that there was substantial evidence of conspiracy in

this case:

“Here, the trial court made such a finding basing it

on the drugs, paraphernalia and notebook found in

King’s bedroom; the frequency with which Luschen

returned to King’s apartment after a contact; and

the fact that King drove Luschen to a sale and over-

saw the transaction.”

' This conclusion is inconsistent with the decisions made

by other Eighth Circuit panels. First, there is no evidence

that King could or did oversee any transaction (T. 50,

227). His mere presence at a point near one sale does not

even cast suspic’on upon him. United States v. Di Re,

supra. Luschen returned to Apartment 206 after only one

15

of three transactions and there was no evidence that King

was inside. He returned to a house in St. Paul after every

transaction except the one which led to his arrest, how-

ever.

Traces of drugs, paraphernalia and a record of trans-

actions might be found in a user’s apartment. The ap-

peals court could have assumed for the sake of argument,

however, that the trace drugs, paraphernalia and note-

book found in King’s apartment made him a distributor,

rather than user. The defendant in United States v.

Holder, 560 F.2d 953, 957 (8th Cir. 1977), was a dis-

tributor, too! In that case, the government proved that

“(1) Holder distributed heroin on at least one pre-

vious occasion (the March transaction), (2) The her-

Oin purchased on [the date of the alleged offense]

was packaged [in a unique aluminum cylinder-type

package identical to that used in the March transac-

tion], (3) [the informant] was observed entering

Holder’s apartment [after arranging a heroin pur-

chase] and exiting five minutes later [when the

purchase was made] and (4) Holder stated after his

arrest that he lived alone in his apartment.”

In addition, the informant went to Holder’s residence prior

to two separate heroin transfers and again before the

transfer which led to his conviction. In Holder, there

was no evidence which directly countered the inference of

conspiracy. In this case, there is. Luschen told police that

King kept no drugs in his apartment! The police con-

firmed that King kept no cache of drugs in Apartment

206. Luschen named his partner, and it was not King!

He contacted a St. Paul resident, not King, after each

drug transaction. All of this evidence cannot be over-

16

looked! It affirmatively denies the existence of a con-

spiracy.

The instant decision is not only inconsistent with Hold-

er; it also is inconsistent with United States v. Frol, 513

F.2d 1134 (8th Cir. 1975), and other circuit court deci-

sions such as United States v. Burgos, 579 F.2d 747

(2nd Cir. 1978). The pattern of surveillance described in

these cases will be used by the D.E.A. again and again.

Convicted on the basis of circumstantial observations, de-

fendants will continue to be at the mercy of the particular

panel or court which hears their appeals, unless this

Court establishes a uniform rule regarding the quantum

of evidence necessary to support a finding of conspiracy.

The rule also should define the amount of evidence suf-

ficient to convict an alleged distributor absent his al-

leged co-conspirator’s statements. The evidence that Hold-

er distributed heroin was basically the same as that used

to establish a conspiracy between Holder and the inter-

mediary. There, the panel held that the jury could only

speculate that the intermediary had narcotics on her per-

son before entering Holder’s apartment, that Holder was

in his apartment, that Holder was alone or that he ac-

tually possessed or transferred heroin to the intermediary.

For that reason, Holder’s conviction was reversed. Con-

sistency demands the same conclusion in this case.

Respectfully submitted,

MESHBESHER, SINGER & SPENCE, LTD.

By Kenneth Meshbesher

Carol Grant

1616 Park Avenue

Minneapolis, Minnesota 55404

Telephone: (612) 339-9121 -

A-1

APPENDIX

No. 79-1384

United States of America,

Appellee,

vs.

Steven Elmer Luschen,

Appellant.

No. 79-1392

United States of America,

Appellee,

vs.

Wayne Bernard King,

Appellant.

Appeals from the United States District Court for the Dis-

trict of Minnesota

Submitted: September 14, 1979

Filed: February 5, 1980

Before STEPHENSON and McMILLIAN, Circuit

Judges, and HANSON, * Senior District Judge.

McMILLIAN, Circuit Judge.

Appellants Steven Elmer Luschen and Wayne Bernard

King were charged in a four-count indictment with dis-

*The Honorable William C. Hanson, United States Senior District Judge

for the Southern District of Iowa, sitting by designation.

A-2

tribution of cocaine and conspiracy to distribute cocaine.

They were joined as defendants and tried in U.S. District

Court’ before a jury, which found Luschen guilty of

counts I-IV and King guilty of counts II-[V. On appeal

Luschen alleges several errors relating to the chemical test-

ing of the cocaine and challenges the sufficiency of the

evidence to establish conspiracy. On appeal King cites as

error illegal search and seizure, insufficiency of the evi-

dence, admission of co-conspirator’s statements, expert tes-

testimony interpreting a drug notebook and denial of sev-

erance. For the reasons discussed below, we affirm

both convictions.

This case involves three hand-to-hand sales of cocaine

from appellant Steven Luschen to Drug Enforcement Ad-

ministration (DEA) undercover agent Susan Belkair. On

September 5, 1978, agent Belkair, working with govern-

ment informant Michael Harris, set up a cocaine buy

with Luschen. Luschen was followed after leaving his

home at 8812 Chowen Avenue South by two officers of

the surveillance team with the Minneapolis Police Depart-

ment Narcotics Division. Luschen spent twenty to twenty-

five minutes at 2038 Montreal Avenue in St. Paul. He

then proceeded to Mr. Nibbs, a local restaurant, where

the buy was scheduled to occur, and sold one-half of an

ounce of cocaine for $1,000 to agent Belkair.

On September 12, 1978, Harris and agent Belkair ar-

ranged to meet Luschen at Perkins Pancake House in

Bloomington to discuss another transaction. Luschen in-

structed them to proceed to a phone booth in a church

parking lot, which he said was across the street from

1The Honorable Miles W. Lord, United States District Judge for the

District of Minnesota.

=,

A-3

where the cocaine was located, and he would call them

when the cocaine was ready. Luschen left Perkins Pancake

House and went directly to appellant Wayne King’s apart-

ment building at 8851 Goodrich Avenue South, across

the street from the church lot. While he was in the build-

ing, his acticas were observed by Officer Stone who had ob-

tained a sécurity key from the apartment manager.

Luschen was escorted into apartment 206, King’s apart-

ment, by a young woman. After a short time, Luschen

left King’s apartment and drove to the church lot. He

met Harris and agent Belkair in the rear of the church

parking lot and sold one ounce of cocaine to agent Belkair

for $2,100. After the sale, Luschen was followed to 2038

Montreal Avenue in St. Paul. and then to Luschen’s

home.

On December 13. 1978. agent Belkair arranged to pur-

chase one ounce of cocaine for $2,100 at 6 p.m. at Perkins

Pancake House. At about 5:20 p.m., King arrived at

Luschen’s home. They left together at 5:45 p.m., and

King drove Luschen to King’s apartment. Again they

were observed by Officer Stone. Just after they entered, two

persons, later identified as Dale Casper and Cynthia

Kissner, also entered King’s apartment. Fifteen minutes

later, King drove Luschen to Perkins Pancake House. King

dropped Luschen off and parked with his hood up at a

nearby gas station. Luschen got into agent Belkair’s car,

delivered one ounce of cocaine and received $2,100 in

return. The surveillance officers approached the car and

arrested Luschen. King was also arrested at the service

station. After the arrests, a search revealed a package of

pure cocaine on Luschen and drug paraphernalia consist-

ing of two paper bindles, a razor blade and a straw used

to snort cocaine on King.

A-4

After the arrest, a search warrant was obtained for

King’s apartment. The search, on December 13, 1978, re-

vealed numerous articles commonly associated with drug

dealers: an Ohaus triple beam balance scale, four bottles

containing traces of cocaine plus inositol, one bottle con-

taining only inositol, a SnoSeal containing traces of co-

caine, a cutting mirror, a razor blade, plastic tubes and

plastic bags, small plastic snorting spoons, a money order

receipt in the name of Wayne King, a letter to Wayne

King, a bank statement in the name of Wayne King, a

blank check in the name of Wayne King, a newspaper

clipping about a cocaine arrest and a notebook contain-

ing coded entries regarding drug transactions. The above

items were all found in or on the night stand next to the

double bed in the bedroom. In the closet with King’s

clothes was an empty pack of Marlboro cigarettes contain-

ing paper packets with traces of cocaine and inositol and

a spoon and jar for snorting cocaine. King’s girlfriend,

who was present during the search, specifically denied

being the owner of the Marlboro pack.

On January 12, 1979, the United States Grand Jury re-

turned a four-count indictment charging appellants with

distribution of cocaine and conspiracy to distribute co-

caine. The counts were as follows:

Count I Steven Elmer Luschen—distribution, Sep-

tember 6, 1978, one-half ounce of cocaine;

Count II Steven Elmer Luschen and Wayne Ber-

nard King, each aiding each other—distribution,

September 12, 1978, one ounce of cocaine;

A-5

Count III Steven Elmer Luschen and Wayne Ber-

nard King, each aiding each other—distribution,

December 13, 1978, one ounce of cocaine;

Count IV Steven Elmer Luschen and Wayne Ber-

nard King—Conspiracy to distribute cocaine on

September 12, 1978, to December 13, 1978.

After a jury trial, Luschen was convicted on counts I,

II, III and IV and sentenced to a term of three years plus

a special parole term of three years. King was convicted

on counts II, III and IV and sentenced to a term of eight

years plus a special parole term of three years.

On appeal Luschen argues that there were four errors

relating to the identification of the cocaine: First, the trial

court erred in giving the instruction that, if the substance

was not 1-cocaine, there was no offense. Second, the trial

court erred in denying Luschen’s motion for a post-trial

hearing on the reliability of the gold chloride microcrys-

talline test. Third, the trial court erred in admitting testi-

mony on the physical and chemical analysis without prop-

er foundation on either the chemist’s qualifications or the

test’s conformity to a generally accepted explanatory the-

ory. And, fourth, the trial court erred in allowing the

government to reopen its rebuttal and present additional

testing procedures after Luschen had rested. Because of

the common origin of these contentions, a review of that

part of the evidence may be helpful.

Dawn Speier, a public health chemist for the City of

Minneapolis. testified that she conducted five tests each

on Exhibits 4,9 and 12, which represented the sub-

stances purchased in the first, second and third buys re-

A-6

spectively. The first four tests were to determine the pres-

ence of cocaine. The final test, a gold chloride microcrys-

talline test, was used to distinguish the 1 and d isomers.

It was Speier’s expert opinion that the gold chloride mi-

crocrystalline test was adequate to distinguish the 1 and

d isomers. According to her testimony, the substances

from all three buys contained 1-cocaine and inositol. She

also testified that 1-cocaine and d-cocaine are not chem-

ically equivalent. On cross examination it was revealed

that Mrs. Speier was only vaguely familiar with the polari-

meter and melting point tests which are used to distin-

guish the 1 and d isomers. Then Luschen called to the

stand Dr. Siret Ener, whose expert testimony was that the

gold microcrystalline test could not differentiate 1-cocaine

from d-cocaine.

After both sides had rested, Luschen moved for a di-

rected verdict of acquittal, which was denied by the court.

Over Luschen’s objections, the court granted the govern-

ment’s motion to reopen its rebuttal so that it might run

the melting point and polarimeter tests and present the

results as evidence. The government’s Exhibits 4, 9 and

12 were retested by Ms. Speier using a melting point test

and found to be 1-cocaine. The polarimeter test was run

on Exhibit 12 by T. Dal Lason, and in his opinion the sam-

ple was J-cocaine.

Luschen’s first contention, that the trial court erred in

giving an instruction which shifted the burden to the ac-

cused to disprove an,element of the crime, is not preserved

for review because Luschen failed to object.? Fed. R.

*Luschen presents a novel argument had the issue been properly pre-

served for review. He contends that the trial court’s instructions im-

permissibly shifted the burden of proof from the government to the

A-7

Crim. P. 30. United States v. Collins, 552 F.2d 243, 246

(8th Cir.), cert. denied, 434 U.S. 870 (1977); Armstrong

v. United States, 228 F.2d 764, 766-68 (8th Cir.), cert.

denied, 351 U.S. 918 (1956).

Luschen’s second contention is that the trial court

erred in admitting various expert testimony that the sub-

stance was 1-cocaine. As to the gold chloride microcrys-

talline test, Luschen charges that the government

failed to establish its conformity to a generally accepted

explanatory theory.’ As to the melting point test, Lusch-

appellant. The court instructed in part: “If you find that it 1s no’ 1-

cocaine beyond a reasonable doubt, then there is no offense at . Il.”

These instructions are unnecessarily confusing. In the future, instruc-

tions should be fashioned similar to those found in two Seventh Cir-

cuit Opinions. These cases clearly establish that the burdea is on the

government to prove that the tests conducted are capable of dis-

tinguishing between 1-cocaine and d-cocaine. In United States v.

Umentum, 547 F.2d 987, 992 n.3 (7th Cir. 1976), cert. denied, 430

U.S. 983 (1977), the trial court instructed that the government first

must prove

beyond a reasonable doubt that the substance is a derivative of

coca leaves [and second must] prove beyond a reasonable doubt

the substance is chemically equivalent or identical to a derivative

of coca leaves. You may not ate 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. 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 as

substance chemically equivalent or identical to such derivatives,

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

See United States v. Orzechowski, 547 F.2d 978, 980-81, 983 n.4

(7th Cir. 1976), cert. denied, 431 U.S. 906 (1977).

%As authority for this point, appellant cites United States v. Green, 548

F.2d 1261, 1268 (6th Cir. 1977), in which the Sixth Circuit joined

the Ninth Circuit in finding Rule 702 of the Federal Rules of Fvi-

dence “deficient” when applied to criminal cases and in adopting four

criteria for review of trial court decisions concerning expert testimony:

(1) qualified expert; (2) proper subject; (3) generally accepted expla-

natory theory; and (4) probative value. This circuit has not adopted

those criteria, nor do we need to consider them here. The testimony

On the results of the chemical testing here is easily distinguishable

from the irrelevant and prejudicial dissertations on the “evil properties”

of the drug in Green.

A-8

en challenges the government chemist’s qualifications to

perform it. At base, however, both suggestions relate to

the qualifications of the chemist.

The broad and generally stated test for determining

the qualifications of a given witness to testify as an

expert is whether his knowledge of the subject mat-

ter is such that his opinion will most likely assist

the trier of fact in arriving at the truth. The determi-

nation of the preliminary question is left to the

broad discretion of the trial court and while its reso-

lution will not ordinarily be disturbed, it is not invio-

late and may be reversed if this court is convinced

that it was “manifestly erroneous” and a clear abuse

of discretion. Holmgren v. Massey-Ferguson, Inc., 516

F.2d 856, 857-58 (8th Cir. 1975) (citations omitted).

The government laid an adequate foundation regarding

the expert’s qualifications. She testified as to her educa-

tional background and her eighteen-year career as a pub-

lic health chemist, in which she has analyzed controlled

substances for drug enforcement authorities and has tes-

tified at hundreds of trials. In addition, she explained in

detail the tests she performed, her observations, and her

opinion based upon the results. The trial court properly

allowed her to testify. Her testimony that in her opinion

the gold chloride microcrystalline test could distinguish

I-cocaine from d-cocaine was countered by appellant’s

expert’s testimony that in his opinion it could not (al-

though he had never tried to run one). The weight and

sufficiency of her testimony, once received, rested entirely

with the jury. United States v. Vitale, 549 F.2d 71, 73

A-9

(8th Cir.), cert. denied, 431 U.S. 907 (1977); United

States v. Burden, 497 F.2d 385, 387 (8th Cir. 1974).

Furthermore, Luschen neither objected to her testimony

about the melting point tests nor cross-examined her

about her conclusion that the three substances sold to

Officer Belkair were 1-cocaine. This contention is with-

out merit.

Luschen’s third contention is that the trial court erred

in denying his motion for a post-trial hearing on the re-

liability of the gold chloride microcrystalline test. This is

a rehash of the previous contention. Luschen concedes

that conflicting expert testimony is admissible and that

the jury decides how much weight to accord each. See

United States v. Franks, 511 F.2d 25, 33 (6th Cir.), cert.

denied, 422 U.S. 1042 (1975). There is evidence in the

record that the gold chloride microcrystalline test can dif-

ferentiate between 1-cocaine and d-cocaine. The trial

court did not err in denying appellant’s motion.

Luschen’s fourth contention is that the trial court erred

in allowing the government to reopen its rebuttal after the

appellant had rested. The function of rebuttal is to ex-

plain, repel, counteract or disprove evidence of the ad-

verse party. United States v. Finis P. Ernest, Inc., 509 F.

2d 1256, 1263 (7th Cir.), cert. denied, 423 U.S. 893

(1975). The fact that testimony would have been more

proper for the case-in-chief does not preclude the testi-

mony if it is proper both in the case-in-chief and in the

rebuttal. United States v. Calvert, 523 F.2d 895, 912

(8th Cir.), cert. denied, 424 U.S. 911 (1975). Even if the

parties have rested, it is within the court’s discretion to

permit the government to reopen its case in order to

A-10

permit additional testimony. See United States v. Levin,

443 F.2d 1101, 1107-08 (8th Cir.), cert. denied, 404 USS.

944 (1971). The admissibility of rebuttal evidence is also

entrusted to the sound discretion of the trial court. United

States v. Armstrong, 462 F.2d 408, 411 (8th Cir. 1972).

The question of whether the court abused its discretion is

measured by three factors: (1) surprise to the defendant,

(2) defendant’s opportunity to meet the proof, and (3)

detriment to the defendant because of the order in which

the evidence was introduced. United States v. Powers, 572

F.2d 146, 152-53 (8th Cir. 1978); United States v. Webb,

533 F.2d 391, 395 (8th Cir. 1976).

Appellant’s expert witness had testified that the proper

tests for 1-cocaine were the melting point test and the

polarimeter test, which the government’s witness had not

run. The court allowed the government to have the tests

run and present the results as rebuttal. Appellant says

such evidence was limited to, and necessary to, the

case-in-chief because it proved an element of the crime,

namely that the substance was 1-cocaine. Obviously, that

is not the case. The results of the gold chloride micro-

crystalline test to that effect were already in evidence. The

new tests served the permissible rebuttal function of coun-

teracting the testimony of appellant’s expert witness. Ap-

pellant also says that the trial court abused its discretion

by allowing the government to reopen its rebuttal for this

evidence after defendant had rested. A review of the three

factors shows that this too is groundless. Luschen was not

surprised by the additional tests. On the contrary, Lusch-

en’s 1-cocaine/d-cocaine defense was a surprise to the

government; the additional tests were those suggested by

Luschen’s witness. Luschen was given an opportunity to

A-11

meet the proof. On the same day that his witness testified

about the alternate tests, the government announced its

intention to have those tests run, but Luschen de-

clined the court’s specific invitation to have his expert run

the same tests with the government supplying the neces-

sary equipment. There was no detriment to Luschen’s de-

fense because of the order of proof. The proof itself was

detrimental, but it would have been equally so when-

ever presented. The evidence was admissible as rebuttal,

and there was no abuse of discretion in its timing.

Luschen’s final contention is that there was no substan-

tial evidence, independent of challenged hearsay state-

ments in the testimony of informant Harris, establishing

the existence of a conspiracy. He apparently relies on the

rule that, in deciding whether to admit statements made

by a co-conspirator, the trial judge must be satisfied that,

based on the independent evidence, it is more likely than

not that the statement was made during the course and

in furtherance of an illegal association to which the de-

clarant and the defendant were parties. United States v.

Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). However,

this rule and his authorities apply only to the use of the

declarations and acts of one conspirator against another.

The rule does not prohibit any person from testifying

to the acts and declarations of the accused himself. Klein

v. United States, 472 F.2d 847, 850 (9th Cir. 1973).

Here, informant Harris was testifying as to the acts and

declarations of Luschen himself. This testimony was ad-

missible against Luschen.* Harris’s testimony plus the direct

*The court cautioned the jury that Harris’s statements about Luschen

would not be admissible against King unless there was independent

evidence of the conspiracy.

A-12

evidence of Luschen’s conduct and admissions during the

buys and the circumstantial evidence of his itineraries and

the items found in searches constituted ample evidence of

his participation in a conspiracy to distribute cocaine.

For the above reasons, the conviction of appellant

Luschen is affirmed.

Next, we turn to the contentions of appeliant King.

King asserts that the trial court erred in admitting evi-

dence which was the product of illegal searches and sei-

zures. King challenges the searches on three grounds: that

the arrest was without probable cause, invalidating the

custodial search; that the affidavit in support of the search

warrant for his apartment contained material misrepre-

sentations of essential facts; and that the facts set forth

in the affidavit in support of the search warrant were ob-

tained through a prior illegal search.

King contends that he was arrested solely for his as-

sociation with Luschen at the time of the sale. The cus-

todial search of King revealed a razor blade, a straw and

paper bindles, all associated with cocaine use. “Mere pres-

ence” at the scene of a crime is not probable cause for a

warrantless arrest. United States v. Di Re, 332 U.S. 581,

593 (1948); United States v. Barber, 557 F.2d 628, 631

(8th Cir. 1977). Evidence procured in a custodial search

resulting from an unlawful arrest should be suppressed.

United States v. Di Re, supra, 332 U.S. at 595. However,

probable cause to arrest exists when an officer personally

knows or has been reliably informed of sufficient facts to

warrant his belief that a crime has been committed and

that the person who is to be arrested committed it. United

States v. Stevie, 578 F.2d 204, 208 n.4 (8th Cir. 1977),

affd on rehearing en banc, 582 F.2d 1175 (1978), cert.

A-13

denied, 99 S.Ct. 3102 (1979). Here, King was not arrested

for his “mere presence.” There were facts known to the

police which would lead a reasonable person to believe

that a crime had been committed and that King had com-

mitted it. For example, on both September 12, and De-

cember 13, after arranging the buy, Luschen said that

he had to pick up the cocaine, went directly to King’s

apartment for about fifteen minutes, and then went to

the prearranged location and made the sale. Also, each

buy was arranged so that King was in a position to over-

see the transaction. In addition, the arresting officers had

probable cause based on an information by a government

informant who testified at trial and whom the officers

knew to be reliable. When independent sources corrobor-

ate the information supplied by the informant, there is

probable cause for the arrest. United States v. Bazinet,

462 F.2d 982, 988 (8th Cir.), cert, denied, 409 U.S. 1010

(1972). Here, facts known to the arresting officers plus

the information by the informant constituted probable

cause. The custodial serach was legal, and the drug para-

phernalia found on King’s person was properly introduced

into evidence against King.

The post-arrest search of King’s apartment was done

pursuant to a search warrant. King attacks the validity

of the search warrant on the alternative grounds that the

affidavit in support of the warrant contained material mis-

representations of essential facts or that the facts set forth

in the affidavit were obtained by a prior illegal search.

The former challenge is grounded on Franks v. Dela-

ware, 438 U.S. 154 (1978), on remand sub nom. Franks

v. State, 398 A.2d 783 (Del. Sup. 1979). where, the Su-

preme Court held that once a defendant makes a prelimi-

i

A-14

nary showing of deliberate falsity or reckless disregard for

the truth on the part of the affiant, the court must make

a determination as to whether, absent the falsity, there is

sufficient content in the affidavit to support a finding of

probable cause and, if not, hold a hearing. Officer Bel-

kair’s affidavit was based in part on information from an

informant. On appeal King claims that this information

was false and misleading because it failed to state the

following facts which were elicited at trial: that Harris’s

direct meetings with King were in December 1977, that

the utilities in King’s apartment were listed to both King

and his girlfriend, that Luschen was at 2038 Montreal

Avenue before the first buy and after the second buy,

that Luschen told Harris that King never kept cocaine in

his apartment, and that Harris was working with narcotics

agents in exchange for pay and a more lenient sentence

on a pending felony charge.

King overestimates the breadth of a Franks challenge.

First, Franks anticipates a pretrial procedure. Here, King

did not put forth the unreliability of the informant as a

reason to suppress the evidence until after both sides had

rested, at a conference on jury instructions. A Franks

challenge at that stage of the trial is of questionable valid-

ity. Nevertheless, we will assume without deciding that the

issue is preserved for review. Second, Franks states, “The

deliberate falsity or reckless disregard whose impeachment

is permitted is only that of the affiant not any nongovern-

mental informant.” Jd. at 171. Officer Belka‘r set out rea-

sons for her belief that Harris was credible as required by

United States v. Spinelli, 393 U.S. 410 (1969), modified,

United States v. Harris, 403 U.S. 573, 583 (1971). King did

A-15

not suggest at any time that Officer Belkair did not believe

the information or accept it as true. King cannot use a

supposed Franks challenge to impeach informant Harris.

Third, Franks requires an offer of proof.

There must be allegations of deliberate falsehood or

of reckless disregard for the truth, and those allega-

tions must be accompanied by an offer of proof. .

They should point out specifically the portion of the

warrant affidavit that is claimed to be false; and

they should be accompanied by a statement of sup-

porting reasons. Affidavits or sworn or otherwise re-

liable statements of witnesses should be furnished,

or their absence satisfactorily explained. 438 U.S.

at 171.

At the pretrial suppression hearing,’ King specifically de-

clined to introduce any evidence with regard to the search

warrant. Even his post-trial request that the court “recon-

sider the search warrant matter” in light of the informant’s

testimony did not point out specifically the portion of the

warrant affidavit that he claimed was false, nor was it

accompan‘ed by a statement of supporting reasons and

affidavits of witnesses. Rather, King asserted only that an

informant with a criminal record who was assisting nar-

cotics agents in order to obtain a more lenient sentence

was not reliable. King did not meet the requirements to

obtain a hearing. Finally, as the trial court ruled, the al-

leged omissions did not undermine probable cause. See

also United States v. King, 567 F.2d 785 (8th Cir. 1977),

cert. denied sub nom. Lewis v. United States, 435 US.

‘Officer Belkair did not testify at the suppression hearing due to a back

injury, but Agent Skala’s testimony corroborated her affidavit.

A-16

945 (1978), a pre-Franks decision where this court held

on similar facts that a search warrant issued pursuant to

the affidavit was not invalidated despite failure to state

that another person also resided at that address, discrep-

ancies with evidence introduced at trial, and reliance on

an informant. Jd. at 789.

King’s alternative ground, that the facts set forth in the

affidavit were obtained in a prior illegal search, is based

on surveillance of King’s apartment from the second floor

landing near his apartment door. The apartment building

was a security building. Officer Stone obtained a security

key® from the manager, without procuring a warrant. In

essence, King is asking us to reverse our holding in

United States v. Eisler, 567 F.2d 814 (8th Cir. 1977),

that there is no reasonavle expectation of privacy in halls

and common areas of aj’artment buildings. This we dc-

cline to do. Products of surveillance inside the apartment

building are not rendered inadmissible by failure to obtain

a search warrant where the police officer was not in an

area where the individual had a reasonable expectation

of privacy.

King argues that the trial court erred in the admission

of statements by Luschen which implicated King. In

United States v. Bell, supra, 573 F.2d 1040, this court

held:

An out-of-court statement is not hearsay and is ad-

missible if on independent evidence the district court

is satisfied that it is more likely than not that the

*King makes much of the fact that the key fit King’s apartment as well as

the security door. The fact that the pass key also would have oper-

ated King’s door is irrelevant since Officer Stone made no attempt to

use it for that purpose.

A-17

Statement was made during the course and in the

furtherance of an illegal association to which the de-

clarant and the defendant were parties. Jd. at 1044.

In United States v. Macklind, 573 F.2d 1046 (8th Cir.),

cert. denied, 439 U.S. 852 (1978), we stated that in all

trials commencing after United States v. Bell, the trial

court must make an explicit finding on the record that evi-

dence as to the existence of a conspiracy is sufficient to

render admissible the statements of co-conspirators. Id. at

1049. Here, the trial court made such a finding basing

it on the drugs, paraphernalia and notebook found in

King’s bedroom; the frequency with which Luschen re-

turned to King’s apartment after a contact; and the fact

that King drove Luschen to a sale and oversaw the trans-—

action. This was sufficient evidence of the existence of a

conspiracy. See United States v. Scholle, 553 F.2d 1109

(8th Cir.), cert. denied, 434 U.S. 940 (1977); United States

v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied

sub nom. Hofstad v. United States, 431 U.S. 914 (1977).

Compare United States v. Burgos, 579 F.2d 747 (2d Cir.

1978); United States v. Holder, 560 F.2d 953 (8th Cir.

1977); United States v. Frol, 513 F.2d 978 (8th Cir. 1975).

Luschen’s statements were properly admittted under 801

(d)(2)(E) Fed. R. Evid. and United States v. Bell.

King also complains of the trial court’s failure to give

an instruction on the admissibility of hearsay statements

to the conspiracy count. King did not make an objection

after the trial court gave the jury instructions as required

by Rule 30, Federal Rules of Criminal Procedure. There-

A-18

fore, this issue was not preserved for review.’ See United

States v. Collins, 552 F.2d 243, 246 (8th Cir.), cert. de-

nied, 434 U.S. 870(1977).

King next contends that the evidence adduced at trial

was insufficient to sustain a finding of guilt on counts IT

(September 12 sale), III (December 13 sale), and IV (con-

spiracy). “In considering a challenge to the sufficiency of

the evidence after a jury verdict, this court must accept

as established all reasonable inferences from the evidence

that tend to support the jury’s verdict.” United States v.

Dollins, supra, 552 F.2d at 245; United States v. Over-

shon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419

U.S. 853 (1974). The evidence in this case clearly pro-

vided a sufficient basis from which the jury could infer

that King had participated in the cocaine transactions.

Evidence on count II included, inter alia, Luschen’s state-

ments on the tape of the September 12 buy that he had

to pick up the cocaine across the street from the phone

booth and from a man, followed by his going directly to

King’s apartment and then directly to the buy; the rare

combination of cocaine and inositol involved in both buys

and in the bottles found in the search of King’s bedroom;

and the evidence of drug dealing found in King’s apart-

ment. Evidence on count III included, inter alia, King’s

picking up Luschen immediately after Officer Belkair

placed her order and driving him to King’s apartment

and then to the buy; the drug paraphernalia found on

his person when he was arrested; and the drug parapher-

nalia and notebook found in the search of his apartment.

TIf it had been preserved, there would be no error. The trial court’s

comments at the time Luschen’s statements were admitted as well as

the jury instructions were in compliance with United States v. Bell.

A-19

On count IV, the evidence discussed above, viewed in the

light most favorable to the government, would allow a

reasonable jury to find King guilty of conspiracy to dis-

tribute cocaine. Each time Luschen indicated that he was

going to get cocaine from his source, he went to King’s

apartment and, immediately thereafter, delivered the co-

caine. Also, King was in a position to oversee each buy

from a nearby vantage point. King’s presence at the buys

was not necessary to implicate him as a participant in

each transaction. See United States v. Martinez, 573 F.2d

529 (8th Cir. 1979). The tapes and the products of the

searches confirm his participation in each transaction.

There was sufficient evidence to support King’s convic-

tions.

King contends that the trial court erred in allowing

expert testimony as to the meaning of the notations in the

notebook found in his bedroom. King relies on United

States v. Brown, 584 F.2d 252 (8th Cir. 1978), cert.

denied, 440 U.S. 910 (1979), where this court rejected ex-

peri testimony interpreting pieces of paper found scattered

in two different residences.

The exhibits alleged to be “drug notes” consisted of

numerous pieces and scraps of paper of various

Shapes and sizes, penned in several colors of ink

and pencil, and written in different types of hand-

writing. It is not known who wrote them, and they

are not dated. Jd. at 265.

Furthermore, while there the expert surmised that a few

notations pertained to the price of heroin, other names

and numbers had no meaning to him. Jbid. The facts

A-20

here are dist: guishable: instead of several scraps in var-

ious locations in different handwritings, there was a single

notebook in one handwriting found in King’s drawer

along with drugs and drug paraphernalia. It is not al-

leged that any of the notations were incongruous or unin-

telligible. Who wrote the notebook was established by

the correspondence of the dates and prices to those in-

volved in the case. The fact that no handwriting analysis

was done is not a bar to its admission. Under Rule 90i

of the Federal Rules of Evidence, the contents of a writ-

ing may be used to aid in determining the identity of the

declarant. United States v. Wilson, 532 F.2d 641, 644-45

(8th Cir.), cert. denied, 429 U.S. 846 (1976). Here, ade-

quate circumstantial evidence linked the notebook to King.

There was no error in allowing expert testimony as to

the meaning of the notations in the notebook.

King’s final contention is that the trial court erred in

denying his motion for severance because count I names

only Luschen and because count IV alleges acts occurring

after the date set forth in count I. King failed to renew

his motion for severance at the close of the government’s

case or at the conclusion of all the evidence. King has

therefore waived his right to present the severance issue

on appeal.® United States v. Pelton, 578 F.2d 701, 711

SIf it had been preserved, denial of King’s severance motion would not

be error. Joinder of Luschen and King in an indictment alleging that

they “participated in the same series of acts or transactions” is clearly

permitted by Rule 8(b) of the Rules of Criminal Procedure. In fact,

joinder of persons involved in a single conspiracy is favored where

the changes are based on the same evidence and acts. United States

v. Milham, 590 F.2d 717, 722 (8th Cir. 1979). The trial court, in its

discretion, must weigh the judicial economy of a single trial against

the possible prejudice to the co-defendants of a joint trial; and its

decision whether to grant severance will not be disturbed on ap

absent an abuse of discretion. United States v. Runge, 593 F.2d 66,

A-21

(8th Cir.), cert. denied sub nom. Rich v. United States,

439 U.S. 964 (1978); United States v. Carlson, supra, 547

F.2d at 1361 n. 16.

For the above reasons, the conviction of appellant King

is affirmed.

A true copy.

ATTEST:

Clerk, U.S. Court of Appeals, Eighth Circuit.

73 (8th Cir. 1979); United States v. Milham, supra, 590 F.2d at 722.

In order to prevail on his claim that the trial court abused its discre-

tion in denying his motion to sever, King would have had to make

a showing of real prejudice by demonstrating that the jury was un-

able to compartmentalize the evidence as it related to him and his

I named only defendant Luschen. King hes shown no real prejudi

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