Appeal from the United States District Court for the Eastern District of Wisconsin No. 75 Cr 83 - Robert W. Warren, Judge.
Hastings, Senior Circuit Judge, and Pell and Wood, Jr., Circuit Judges.
WOOD, Jr., Circuit Judge.
By an indictment returned on April 22, 1975, the defendant, Michael Joseph Orzechowski, was charged in two counts with violation of 21 U.S.C. § 841.*fn1 Count I charges that on March 24, 1975, the defendant unlawfully possessed with intent to distribute, 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 occurred 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 imprisonment to run concurrently on each count, to be followed 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 subsequent 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 advised 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 from the defendant a short time later in which the 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 defendant 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 before. 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;*fn2 2) the Government failed to provide defendant with certain Government documents claimed to be exculpatory; 3) the court failed to instruct on what were claimed to be two central issues of the case; 4) the charges in each count were duplications; and 5) the instructions given were also duplications.
THE IDENTIFICATION OF THE SUBSTANCE
The defendant does not dispute that he sold two quantities of a substance he represented to be cocaine to the Government 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 equivalent or identical to the forms which are derived from the plant. Isomers are commonly referred to as chemical relatives. The parties further agree that one of the isomers of cocaine, d-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 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 position is that the powder was not shown to be a controlled substance.
Both the Government and the defendant offered the testimony of experts, but there were critical disagreements 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 thiocyanate; two microcrystalline tests, using plastinic chloride for one and gold chloride for the other; gas chromatography; mass spectromatry; infrared spectrophotometry; and mixed melting point. It was shown that these tests may help to identify the substance, but the only test administered which could distinguish l-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 disagreement. The Government chemist testified that he determined 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 degrees centigrade and that that result justified his conclusion that the white powder was l-cocaine. The defendant, relying on a recognized treatise, claimed that the Government chemist's conclusion could only have been justified by a result showing a melting point of 215 degrees centigrade, not 242 degrees. 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 conclusion. The government also pointed out that the defense expert ...