United States v. Dwayne Dolan

544 F.2d 1219, 1976 U.S. App. LEXIS 6277

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 11, 1976
• Docket: 75-1150
• Status: Published

Opinions

DONALD RUSSELL, Circuit Judge;

Dwayne Dolan¹ was convicted by a jury on four counts of interstate travel with intent to carry on unlawful narcotics business enterprises in violation of 18 U.S.C. §§ 1952(a)(3) and 2.² He was sentenced to four concurrent five-year terms of imprisonment; and he appeals, challenging the sufficiency of the evidence and the propriety of supplemental jury instructions given by the trial court. Finding no merit in his contentions, we affirm.

Appellant’s strongest argument is that the evidence at trial was legally insufficient to prove that the substances involved in the transactions for which he was convicted were, in fact, controlled substances under the federal narcotics law.

Our consideration of this contention is guided by two principles.

First, in passing on the sufficiency of the evidence to sustain a criminal conviction, we decide not whether the evidence would have persuaded us to return a guilty verdict but whether, viewing the record in the light most favorable to the government, there was substantial evidence from which the jurors could have concluded without a reasonable doubt that the defendant committed the offense charged. United States v. Sherman (4th Cir. 1970), 421 F.2d 198, 199, cer. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970).

Second, lay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identify of the substance involved in an alleged narcotics transaction, United States v. Gregorio (4th Cir. 1974), 497 F.2d 1253, 1263, cer. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). Such circumstantial proof may include evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence, United States v. Gregorio, supra (497 F.2d at 1263); United States v. Quesada (5th Cir. 1975) 512 F.2d 1043, 1045, cer. denied, 423 U.S. 946, 96 S.Ct. 356, 46 (1975); United States v. Lawson (7th Cir. 1974), 507 F.2d 433, 438-39, cer. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975); United States v. Atkins (8th Cir. 1973), 473 F.2d 308, 314, cer. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1973); United States v. Fantuzzi (2d Cir. 1972), 463 F.2d 683, 689, n. 7; United States v. Agueci (2d Cir. 1962), 310 F.2d 817, 828-29, cer. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963), and Toliver v. United States (9th Cir. 1955), 224 F.2d 742, 745.

Examination of the record in this case in the light of these principles leads us to conclude that there was sufficient evidence from which the jury could have found, beyond a reasonable doubt, that the substances involved in the incidents alleged in the indictments were illegal narcotics. We summarize below the pertinent evidence with respect to each count on which appellant was convicted.

Count one of Indictment 74-72-CH alleges that appellant traveled from West Virginia to Ohio in the Spring of 1972 with Bob Burgess, Randy Crank, and others, to buy lysergic acid diethylamide [LSD]. Burgess testified that on this trip two hundred tablets (“tabs”) were purchased for $200 in cash. He described the devious manner in which the transaction was effected;³ and he testified that in a discussion among appellant, Crank, himself and the others just prior to the transaction, the members of the group referred to the substance to be purchased as “LSD”. Crank, who indicated that he and others used the substance after returning to West Virginia, testified that it was three hundred “hits” of LSD in the form of little orange pills known as “orange sunshine” or “orange barrels.” He also testified that while he did not actually see appellant take any of the “orange sunshine” while they were in Ohio, appellant must have done so because he was “tripping.” Crank described “tripping” as “the hallucinations and such that you go through when you take LSD” and he stated that “[y]ou can tell anytime anybody is on LSD.”⁴ This evidence was sufficient to permit the jury to conclude that the substance purchased in Ohio was, beyond reasonable doubt, LSD as alleged in the indictment.

Count Five alleges that appellant, Steve Ware, Michael R. Brisendine and Joseph S. Bizek went to Michigan in January, 1974, to buy “phencyclidine, commonly known as TCP’ or ‘THC.’ ” Bizek and Ware testified that on this trip one ounce of a substance, to which members of the group referred as “THC,” was purchased for $800 in cash. Bizek described the substance as a white crystal powder contained in a plastic sandwich bag. He testified that Brisendine tested the substance by “snorting” it⁵ and then said that it was good.⁶ Brisendine, who admitted that he had experience dealing in “THC,” marijuana and LSD, testified that the substance was “crystal THC.” The testimony of Keith Bailey indicated that participants in the transactions involved in this case used “THC” as a synonym for “PCP.”⁷ The jury could properly have found this evidence sufficient to establish that the substance purchased on this trip was, in fact, PCP.⁸

Count Six alleges that in February^ 1974, appellant, Rick Hardway,⁹ Gene Robinson and Keith Bailey traveled from West Virginia to Michigan to buy heroin and marijuana. According to Hardway’s testimony, $275 was paid in cash for one fourth of an ounce of heroin. Hardway testified that appellant tested the heroin and that, after doing so, he appeared to be “high,” his eyes became glassy and his speech slowed. Bailey, who testified that he paid $90 in cash for approximately a gram of heroin, confirmed that appellant tested the heroin by injecting it into his veins. He stated that, after injecting the heroin, appellant said that “it was good.” ¹⁰ Hardway testified that he tested the heroin himself and knew it to be good. This evidence was legally sufficient to establish that the substance was actually heroin.

The single count of Indictment 74-116-CH alleged that appellant, Gary Riddle, Jesse Lee Garrett, Jr., Terry Fink and Michael R. Brisendine traveled to Michigan in December, 1973, to buy lysergic acid diethylamide [LSD] and marijuana. Riddle testified that one thousand to two thousand little orange pills in a plastic bag were purchased on this trip. He stated that appellant took one or two of the pills, which “someone” said were LSD, and reported that they made him “high.” Fink testified that the substance purchased was two or three thousand hits of mescaline; but he did not disclose the basis for his conclusion as to the identity of the drug. Brisendine, who, as stated above, had experience dealing in “THC,” marijuana, and LSC, testified that $350 a thousand in cash was paid for the orange pills which he called “orange microdot.” According to his testimony, orange microdot is also called orange barrels and is “either old LSD or mescaline.” He further testified that LSD and mescaline are “the same thing,” mescaline being “a mild form of LSD.”¹¹ This evidence was sufficient to permit the jury to conclude that the substance purchased on this trip was either mescaline or LSD.

To the extent that proof that the substance purchased during the December, 1973, trip was either mescaline or LSD constitutes a variance from the indictment’s unqualified allegation that the substance was LSD, such variance did not affect appellant’s substantial rights and, therefore, reversal of his conviction is not warranted, Berger v. United States (1935), 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314; United States v. Schrenzel (8th Cir. 1972), 462 F.2d 765, 770, cer. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972) and Rathbun v. United States (10th Cir. 1956), 236 F.2d 514, 516, aff’d, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957). The gist of the charge against appellant was that he traveled in interstate commerce to engage in an unlawful business enterprise involving a Schedule I controlled substance; and both mescaline and LSD are Schedule I controlled substances, 21 C.F.R. § 1308.11(d)(12) & (14). Thus, the indictment sufficiently informed the appellant of the substance of the offense for which he was convicted to enable him to prepare his defense; and the conviction in this case will be a bar to any other prosecution under 18 U.S.C. § 1952(a)(3) for the same conduct, compare, e. g., United States v. Schrenzel, supra, 769-771 (holding that a charge of an illegal sale of d and dl-amphetamine sulfate where the proof showed a sale of d and dl-amphetamine was not a fatal variance) and Bronstein v. United States (8th Cir. 1927), 17 F.2d 12, 14 (holding that a charge of an illegal sale of gin, when the proof showed a sale of moonshine whisky, was not a fatal variance).

Appellant also cites as error supplemental instructions which were given after the jury reported that it was unable to reach a verdict.¹² This claim is without merit. The supplemental charge was substantially similar to the “modified Allen charge” approved by this court in United States v. Sawyers (4th Cir. 1970), 423 F.2d 1335, 1342, n. 7. It was not erroneous.¹³

Because we find no prejudicial error, the judgments are

AFFIRMED.

1 . The appellant testified at trial that the correct spelling of his name is Dewayne Dolin. The attorney for appellant stated for the record that no point was made of the misnomer.

2 . The original indictment, No. 74-72-CH, contained seven counts. Count Four was superseded by No. 74-116-CH, a single-count indictment. Prior to consolidated trial on the two indictments, the government voluntarily dismissed Count Two which alleged unlawful distribution of drugs in violation of 21 U.S.C. § 841(a)(1); and the jury acquitted on Counts Three and Seven which also alleged unlawful distribution. The four counts on which Dolin was convicted were Counts One, Five and Six of No. 74-72-CH and the sole count of No. 74-116-CH.

3 . According to Burgess, the others asked him to carry out the purchase. While they remained at the house of someone known as “the Dutchman” in Dayton, he went with two unidentified men to another house where he gave them the cash. The two men left him alone at this second house and subsequently returned with the tablets which they called LSD.

4 . Crank did not expressly state the extent to which he was familiar with LSD and its effects prior to this trip. While such testimony would have made the evidence much more conclusive, we do not believe that its absence is fatal to the government’s case.

5 . Another witness, Keith Bailey, testified that PCP, also known to him as “THC,” was a hallucinogen which could be “snorted” (insufflated nasally), smoked or injected into a vein.

6 . Bizek also testified that he and others “smoked some of the THC” in Brisendine’s trailer after returning to West Virginia.

7 . Although this usage varies from correct medical terminology (properly used, “THC” is an abbreviation for tetrahydracannibinol, the hallucinogenic agent in marijuana, which is not generally available on the illicit drug market), it is in accord with the practice of many of those who unlawfully deal in phencyclidine, see 24 Bull. of the Hospital Pharmacy and the Drug Information Analysis Service No. 2 (University of Calif., San Francisco, Feb., 1976) and Burns, Lerner, Corrado, James and Schnoll, Phencyclidine: States of Acute Intoxication and Fatalities, 123 The Western Journal of Medicine, 345, 346 (1975).

8 . While Schedule III, 21 C.F.R. § 13.08.13, lists phencyclidine as a controlled substance, it does not indicate whether PCP is another name for phencyclidine and the government presented no evidence on the point. However, we take judicial notice that phencyclidine is commonly known as “PCP.” See Rule 201(b) & (f), Fed.R. Evid. And see, e. g., Oral and Pratt, The U. S. Dispensatory (27th ed. 1973) (indicating that PCP is an abbreviation of phencyclidine) and 24 Bull. of the Hospital Pharmacy and the Drug Information Analysis Service, No. 2 (Univ. of Calif. at San Francisco, February, 1976) (same). Cf., e. g., United States v. Van Buren (10th Cir. 1975), 513 F.2d 1327, 1328, cert. denied, 421 U.S. 1002, 95 S.Ct. 2402, 44 L.Ed.2d 670 (1975) (on appeal from conviction for unlawful distribution, court took judicial notice of fact that cocaine hydrochloride is a controlled substance, even though it is not listed by that name in the statute) and United States v. Mills (1972), 149 U.S.App.D.C. 345, 463 F.2d 291, 296, n. 27 (dictum to same effect).

9 . Although the indictment alleges that Hard-way traveled with appellant and the others from West Virginia to Michigan, the proof established that he lived in the Detroit area and was the group’s contact there.

10 . Bailey also testified that sometime after the return to West Virginia appellant repackaged the heroin in 10 bags for resale.

11 . Technically, Brisendine’s testimony on this point was not accurate. Mescaline is an alkaloid derived from the American peyote plant, see, e. g., Corder, Smith and Swisher, Drug Abuse Prevention 34 (1975); and LSD is d-lysergic acid diethylamide derived from a fungus found in various grasses, id. at 32. However, from the viewpoint of a drug abuser, Brisendine was quite correct. Mescaline and LSD are both hallucinogens with substantially similar effects, see e. g., Hoffer and Osmond, The Hallucinogens, 138-139 (1967) and LSD is the more potent of the two, see, e. g., Corder, Smith and Swisher, supra, 32-34 and S. Einstein, The Use and Misuse of Drugs, 37-39 (1970).

12 . The supplemental charge about which appellant complains stated in pertinent part:

[l]n order to return a verdict in this case, each juror must agree thereto. In other words, your verdict must be unanimous.

In your deliberations jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement if it can be done without violence to individual judgment. Although each juror must decide the case for himself, this should only be one after an impartial consideration of the evidence with his fellow jurors.

In the course of your deliberations a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous. Each juror who finds himself to be in the minority should reconsider his views in the light of the opinion of the jurors of the majority. Conversely, each juror finding himself in the majority should give equal consideration to the views of the minority. No juror should surrender his honest conviction as to the weight or effect of the evidence for his fellow jurors or for the purpose of determining a verdict.

But remember also that after full deliberation and consideration of all the evidence it is your duty to agree upon a verdict if you can do so without violating your individual judgment and conscience.

13 . Appellant also contends that the trial court’s response to an inquiry by the jury was prejudicial. The jury was confused by the fact that marijuana and LSD were both Schedule I substances. In substance, the trial court informed the jury that the scheduling of various drugs was not a matter for its concern in reaching a verdict. It also indicated that marijuana and LSD had no medicinal use and that some other might be much worse but have a medicinal use. We find nothing in this interchange to warrant reversal of appellant’s conviction.