Best v. State

MOYLAN, Judge. The appellant, Tony Cornelius Best, was convicted by a Prince George’s County jury, presided over by Judge Jacob S. Levin, of 1) possession of cocaine with intent to distribute and 2) possession of marijuana with intent to distribute. Upon this appeal, he raises the following contentions: 1. that Judge Levin erroneously failed to suppress the physical evidence; ²⁴⁶ 2. that Judge Levin erroneously admitted evidence notwithstanding the failure of the State to establish an ostensibly critical link in the legally mandated chain of custody; 3. that Judge Levin erroneously admitted expert testimony regarding the characteristic use of automobile telephones by narcotics dealers; 4. that Judge Levin erroneously failed to instruct the jury fully with respect to the chemical characteristics of contraband cocaine; and 5. that the sentence imposed was illegal. Traffic Law: Signalling a Turn Commendably, counsel for the appellant has simplified the suppression issue for us.

His attack is narrowly focused. Our response will be correspondingly narrow. At about 5:30 p.m. on September 27, 1987, the police stopped a BMW driven by the appellant and occupied by two passengers. We are mercifully spared the minute dissection of an escalating series of events progressing from the failure of the appellant to have his driver’s license with him to his use of a wrong name to the discovery of outstanding arrest warrants for one of the passengers to the subsequent discovery of an open container of an alcoholic beverage to the recovery of marijuana from the passenger compartment followed by the appellant’s attempted flight and subjugation leading in turn to an inventory search of the vehicle which ultimately yielded cocaine from the car trunk.

Bursting forth from every seam of the appellant’s brief is the allusive contention, lurking behind the formal contention, that the traffic stop was but a subterfuge for the search for narcotics. Appellant’s counsel, however, with a sure sense of the juridical limits, recognizes the inherent difficulty with any such complaint. Carefully crafted fact finding, with some supporting evidence, is virtually invulnerable to disciplined appellate review. Legal decisions, unlike factual decisions, are, on the ²⁴⁷ other hand, classic grist for the appellate mill.

The appellant focuses, therefore, upon one such legal decision. The single issue is whether the initial stop for a routine traffic violation was, even granting it surface credibility, legitimate. It is agreed by all that the appellant made a right-hand turn from 55th Avenue onto Quincy Street without giving any directional signal. There is, moreover, some evidence that the police car was travelling on 55th Avenue behind the appellant’s vehicle at the time the appellant made the turn.

At the very least, the police car had been behind the turning vehicle and was still in the immediate area. Md. Transp. Code Ann. § 21-604(c) (1987) provides: “(c) Required signals. — A person may not, if any other vehicle might be affected by the movement, turn a vehicle until he gives an appropriate signal in the manner required by this subtitle.” (Emphasis supplied). The appellant argues that the State failed to show that the police car might have been affected by the movement.

The argument is that unless the State has affirmatively proved that another vehicle is actually following the turning vehicle and following closely enough to be adversely affected by the absence of the signal, the State has failed to prove the condition precedent for the requirement that the warning be given. Such is far too narrow a reading of the traffic law, which deals with left-hand turns and right-hand turns alike and which is intended to alert other vehicles in the vicinity coming in from all points of the compass. Judge Levin ruled, quite properly we hold, that the requirement to signal a turn is intended to benefit all other vehicles in the area, whether such vehicles are following the turning vehicle, approaching the turning vehicle from the front, or moving in upon the turning vehicle from an intersecting highway. Judge Levin ruled: “The Court: All right, fine.

My interpretation of the statute, after I have thought about it over lunch time, is that to adopt your theory, you have eliminated anybody behind you, and fine, there is no point in telling me anything else. Your interpretation of the statute is that ²⁴⁸ you have got to have somebody come in and say, I have to be affected by that failure for him to give a right turn. That is not the intent of this statute. The intent of this statute is to warn all traffic, either intersecting traffic or traffic behind you, that you intend to make a right turn or a left turn.

The statute doesn’t say anything about left turn or right turn, it says, any kind of turn. That you have to give a signal and in my judgment, the purpose of the statute is not only to give a warning to people that are coming at an intersecting highway but also the people that are behind you and accordingly, I find it was a valid stop and accordingly, the motion to suppress is denied.” We hold that Judge Levin was correct. The traffic stop followed a legitimate traffic violation and that is all that is before us on this contention. The Chain of Custody The appellant’s second contention is that the State failed to prove a sufficient chain of custody as to both the marijuana and the cocaine.

Md.Cts. & Jud.Proc.Code Ann. § 10-1003 (1984) provides, in pertinent part: “In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least five days prior to a trial in the proceeding, require the presence of the chemist, analyst, or any person in the chain of custody as a prosecution witness. The provisions of §§ 10-1001 and 10-1002 concerning prima facie evidence do not apply to the testimony of that witness.” 1 (Emphasis supplied). ²⁴⁹ Four months prior to trial, the appellant filed a written request demanding the presence of all persons in the chain of custody. He now complains that a crime lab technician, Fenton Henson, was not called to the stand and that Fenton Henson was a “person in the chain of custody.” We are called upon, inter alia, to determine what the necessary conditions are for one to be deemed “in the chain of custody.” As we begin our analysis, let our approach be clear. We believe that the State in this case carefully touched all of the procedural bases and that there was no failure of compliance, even in the most technical sense, with the even arguable requirements of § 10-1003.

Lest the appellant be diverted onto some wasteful quest to prove to the contrary, however, we would emphasize that our ultimate holding as to the admissibility of the evidence does not depend upon such technical compliance. Under the circumstances, we have no intention of haggling or wrangling needlessly over the punctuation, over the grammar, or over some hyper-literal implication of this or any other rule. A rule — any rule — does not exist for its own sake alone but only to serve an undergirding purpose. When in our judgment that undergirding purpose has clearly been served, we are not about to worry over whether there has been blind and literal obedience to the rule in the tradition of a Prussian drillmaster.

The purpose of the rule under consideration is to guarantee the integrity of the physical evidence. The service of that larger purpose, and that alone, is our guiding principle. Resort to that overriding principle is not necessary in this case, however, because we hold that there was no failure of compliance with § 10-1003, even if the section requires what the appellant thinks it requires. The basic rule with ²⁵⁰ respect to the reception of physical or “real” evidence was well summarized by Judge Lowe in Amos v. State, 42 Md.App. 365, 370 , 400 A.2d 468 (1979): “To be admissible ... ‘real evidence’ must be in substantially the same condition that it was in at the time of the crime and must be properly identified____ Although there is a natural inference or presumption of continuance in the same condition, that inference varies in each case with the nature of the subject matter and the time element____ Whether real evidence is in the same condition as at the time of the crime so as to permit admissibility is not entirely a discretionary matter with the court ...; although the circumstances surrounding its safekeeping in that condition in the interim need only be proven as a reasonable probability____ The proof negating the probability of changed conditions between the crime and the trial, is spoken of as proving the chain of custody, and in most instances is established by accounting for custody of the evidence by responsible parties who can negate a possibility of ‘tampering’ and thus preclude a likelihood that the thing’s condition has changed.” See also Nixon v. State, 204 Md. 475 , 105 A.2d 243 (1954); Breeding v. State, 220 Md. 193 , 151 A.2d 743 (1959); Moore v. State, 73 Md.App. 36, 50-52 , 533 A.2d 1 (1987).

Under those principles, as they "have developed at the common law generally and under the common law of Maryland specifically, what is necessary to negate the likelihood of tampering or of change of condition will vary from case to case and from one type of evidence to the next. Arguably, controlled substances are more vulnerable to tampering or to commingling than would be, for instance, a stolen portrait or a valuable diamond necklace. Although the implementation of the principles will of necessity vary from one set of circumstances to the next, the basic rules remain the same. In the case of the “Chain of Custody” with respect to “Controlled Dangerous Substances,” however, Chapter 794 ²⁵¹ of the Acts of 1974 altered, in several regards, the general common law principles.

Three sections — 10-1001, 10-1002, and 10-1003 — were added to the Courts and Judicial Proceedings Article. The overall purpose of the legislative change was to make it easier to introduce physical evidence, at least in those cases where the integrity of the evidence was not in genuine dispute. Section 10-1001 provides that under certain specified conditions, the report of the chemist or analyst will suffice as prima facie evidence of the test result and it will not be necessary for the State to produce the chemist or analyst as a live witness. That is a sensible and practical shortcut for those cases where the test result is not in serious dispute.

Section 10-1002 provides the same sort of documentary shortcut for the establishing of “the chain of physical custody or control of evidence.” Again, the salutary purpose of the law is to relieve the State of the burden of proving in a vacuum those things that are not genuinely in issue. Section 10-1003 is the safety catch. It spells out two circumstances whereunder the State will not be permitted to resort to such evidentiary shortcuts. One is where the State has failed to give notice to the defendant or his counsel at least ten days prior to the introduction of 1) the written report (in lieu of the chemist) or 2) the written statement as to the chain of custody (in lieu of the live witnesses).

The second is where the defendant, as in this case, has requested the presence in court of “the chemist, analyst, or any person in the chain of custody.” The clear thrust of § 10-1003 is not to establish new rules of admissibility generally but rather to provide exemptions from the “shortcuts” of §§ 10-1001 and 10-1002. The effect of a defendant’s request for the presence of the chemist, the analyst, or any other person in the chain of custody, is clear. “The provisions of Sections 10-1001 and 10-1002 concerning prima facie evidence do not apply to the testimony of that [requested] witness.” (Emphasis supplied). There is yet a further effect. Section 10-1003 ²⁵² makes it clear that the obligation is not cast upon the defendant to produce any of these persons as defense witnesses.

It is rather the case that upon the proper request, "... the prosecution shall ... require the presence of [any such requested person] as a prosecution witness.” (Emphasis supplied). Section 10-1004 provides a similar evidentiary shortcut with respect to bodies delivered to the medical examiner’s office in homicide cases. Unless a defendant specifically requests that a witness who had custody of the body be produced, a written statement establishing the chain of custody will suffice. That the purpose of Chapter 794 of the Acts of 1974 was to facilitate the admission of evidence and not to require the exclusion of evidence was made clear by the preamble to the Act, which provided that it was being enacted “ [f]or the purpose of providing for the admission of written reports of analyses of, and statements of the chain of custody of, suspected controlled dangerous substances as prima facie evidence and for exceptions thereto.” (Emphasis supplied).

In Knight v. State, 41 Md.App. 691, 692 , 398 A.2d 811 (1979), Chief Judge Gilbert discussed this legislative purpose of facilitating the admission of evidence: “By the enactment of Laws 1974, ch. 794, now codified as Courts art. §§ 10-1001 to 10-1003 inclusive, the General Assembly provided that it would not be necessary for the chemist to appear as a witness in a trial of a person for violation of this State’s Controlled Dangerous Substances Laws, Md. Ann. Code art. 27, §§ 276-302, to establish the proper chain of custody unless the defendant complies with the statutory prerequisite spelled out in Courts Art. § 10-1003.” (Footnote omitted). (Emphasis supplied). We spoke to the same effect in Gillis v. State, 53 Md. App. 691, 697-698 , 456 A.2d 89 (1983): ²⁵³ “The Legislature in adopting the sections of the law here under consideration created a prima facie presumption in favor of the report of a chemist analyzing an alleged controlled dangerous substance. See Section 10-1001.

It also provided that for the purpose of establishing custody a statement signed by those persons having custody of the evidence must be delivered to the next person on the list. This is prima facie evidence that the person had custody and made delivery as stated and acts so as to preclude the necessity of the appearance of that person in court. See Section 10-1002.” It is clear with respect to the three new statutory sections that the first two provide evidentiary shortcuts and the third spells out the exceptions to those shortcuts. In Parker v. State, 72 Md.App. 543, 545 , 531 A.2d 1035 (1987), Judge Bell discussed first the two evidentiary shortcuts: “Maryland Courts and Jud.Proc.

Code Ann. § 10-1001 provides a mechanism by which a chemist’s report of analysis of an alleged controlled dangerous substance may be admitted as prima facie evidence, ‘ [f]or the purpose of establishing that physical evidence in a criminal ... proceeding constitutes a particular controlled dangerous substance ...’, without the necessity of the chemist appearing in court. Section 10-1002 makes similar provision as to the chain of custody report.” He went on to examine § 10-1003 and summarized the exceptions it provides, at 72 Md.App. 546 , 531 A.2d 1035 : “Thus, the chemist’s report and the chain of custody form are prima facie evidence of their contents only if (1) they are furnished to the defendant at least ten days prior to their introduction at trial and (2) a defendant does not make written demand, in a timely fashion, for the production of the chemist or persons in the chain of custody as prosecution witnesses.” There is not the remotest suggestion of any legislative intent to make the admissibility of “real” evidence or the proof of a chain of custody more difficult than it had been before the passage of the new statute. The three closely ²⁵⁴ related sections, read in conjunction with each other, clearly facilitate admissibility (subject to the two exceptions) rather than create some new ground for exclusion. When the defendant, pursuant to § 10-1003, demands the production of certain witnesses, the State may not resort to the documentary shortcuts but must follow routine practice as spelled out in such cases as Amos v. State, supra; Moore v. State, supra; Nixon v. State, supra; and Breeding v. State, supra.

When the exceptions apply, the State is no better off than it was before the 1974 statute eased its burden of production. In no event, however, is the State in a more difficult position than it had been in prior to the 1974 statute. In Colesanti v. State, 60 Md.App. 185, 190 , 481 A.2d 1143 (1984), Judge Adkins strongly suggested that the defendant’s demand under § 10-1003 throws the State back upon the general rule of Amos v. State, supra: “Because of his notice under § 10-1003, Colesanti was entitled to require the State to establish that the foil packet was the very packet given by him to Detective Kilmer, that it was unchanged between the time Kilmer received it and the time of trial, and that it contained a controlled dangerous substance. Gillis, supra, 53 Md. App. at 697-98 , 456 A.2d 89 .

Amos v. State, 42 Md.App. 365, 370, 381 , 400 A.2d 468 (1979).” In Gillis v. State, supra, the State’s failure to produce two (perhaps even three) key links in the custodial chain or any alternative guarantee of trustworthiness (“The State did not produce any evidence as to the remaining witnesses’ participation in the handling of the alleged contraband.” 53 Md.App. at 697 , 456 A.2d 89 ) would have required exclusion even under the general principles of Amos v. State, supra. That the entire statutory scheme did not establish any new admissibility requirements but simply permitted “an authenticated method of proof” except where § 10-1003 made that “authenticated method” unavailable was made clear by Judge Bishop, in One 1979 Cadillac Seville v. State, 68 Md.App. 467, 471-472 , 513 A.2d 927 (1986): ²⁵⁵ “Appellant argues that the statute implicitly requires a chemical analysis because its final sentence provides that any party may offer other evidence ‘supporting or contradicting the evidence contained in ... the report.’ Appellant reads this provision out of context and simultaneously ignores the clear language of the statute. The language in § 10-1001 is clear and unambiguous. It does not require the admission of chemical analysis in either a civil or criminal case to prove the identity of a given substance.

The statute simply recognizes that chemical analysis of drugs is reliable evidence and creates a statutory exception to the hearsay rule by providing that it is not necessary to produce the chemist who performed the test to testify to its accuracy in every trial where a chemical analysis conducted by a qualified person under approved procedures has been submitted. The statute permits an authenticated method of proof but does not require a chemical analysis to prove that the substance in question is indeed a controlled substance.” (Emphasis supplied). Judge Gilbert’s very thorough discussion of § 10-1003 in Knight v. State, 41 Md.App. 691 , 398 A.2d 811 (1979), made it clear that that section has no substantive life of its own but simply spells out the procedures that must be followed by the State in order to utilize the evidentiary shortcuts of §§ 10-1001 and 10-1002 and the procedures that must be followed by the defendant to avoid those evidentiary shortcuts. The evidentiary shortcuts are an abridgement of the full-fledged right of confrontation.

Unless the statutory conditions are satisfied, therefore, there is a violation of that right of confrontation. “To admit the report over objection was error going to the fundamental right of an accused to be confronted by her accusers.” 41 Md.App. at 696 , 398 A.2d 811 . The cure for a violation is the production of the live witness rather than the production of an out-of-court declaration (the chemist’s written analysis): ²⁵⁶ “We note that this whole issue could have been avoided if, when the objection to the admission of the report was made, the State had withheld the report and produced the chemist. Alternatively, the trial judge could have declined to receive the report and directed the State to produce the chemist to testify.” 41 Md.App. at 696 , 398 A.2d 811 . In the case before us, of course, the State offered no such out-of-court declaration so as to offend the right of confrontation.

Some of our language in Parker v. State, 72 Md.App. 543, 548 , 531 A.2d 1035 (1987), did, to be sure, treat § 10-1003 as establishing preconditions for the admissibility of this type of evidence rather than simply spelling out the procedures circumscribing the use of the evidentiary shortcuts in the two immediately preceding sections. In partial response, ch. 719 of the Acts of 1988 amended § 10-1002 by defining more modestly the “chain of custody.” Subsection (a) now reads: “(a) In this part: (1) ‘Chain of custody’ means: (1) The seizing officer; (ii) The packaging officer, if the packaging officer is not also the seizing officer; and (iii) The chemist or other person who actually touched the substance and not merely the outer sealed package in which the substance was placed by the law enforcement agency before or during the analysis of the substance; and (2) ‘Chain of custody’ does not include a person who handled the substance in any form after analysis of the substance.” Although that amendment, which became effective on July 1, 1988, does not affect the case before us, it does, we find, reflect a less rigid legislative intent behind all three sections initially enacted by the Acts of 1974. At a more fundamental level, our concern is with the ultimate integrity of the physical evidence. In the service ²⁵⁷ of that concern, the State should establish every important link, perhaps even every link, in the chain of custody rather than bridge gaps, large or small, with a “leap of faith.” In the present case, there were no missing links and, therefore, no leaps of faith were required.

Four distinct stages were involved in the passage of the physical evidence from the arrest scene to the ultimate analysis by the chemist. The first stage involved parallel actions by two separate officers, one with respect to the marijuana and the other with respect to the cocaine. Officer Maurice Hicks seized 19 bags of suspected cocaine from the trunk of the appellant’s automobile, placed them in a lock-sealed envelope, and put the envelope into the drug mailbox at the Hyattsville police station. Officer John Rasmussen seized a plastic bag of marijuana from the passenger area of the appellant’s car, placed it into a lock-sealed envelope, and then placed that envelope into the same drug mailbox at the Hyattsville police station.

Both officers testified and there was no problem with respect to this first link in the chain of custody (more literally, with these respective first links in the two chains of custody). Stage two was the same with respect to both chains of custody. George Robey, a civilian employee in the Property Section of the Prince George’s County Police Department, testified that he removed both State’s Exhibit 4 (the cocaine) and State’s Exhibit 5 (the marijuana), from the drug mailbox at the Hyattsville police station and placed them in the warehouse narcotics vault. There was no problem with respect to this second link in the chain.

The third link involved Corporal A.J. Coleman on two different days. On October 5, 1987, he removed State’s Exhibit 5 from the narcotics vault and hand-carried it to the Prince George’s County drug lab. He did precisely the same thing with State’s Exhibit 4 on October 14. On both occasions, Corporal Coleman delivered the package to Fen-ton Henson, the intake officer at the lab.

It was the failure of the State to call Henson as a witness that gave rise to the present complaint. Had Corporal Coleman departed, ²⁵⁸ leaving sole custody of the evidence in Henson, there would have been, in our judgment, an arguable violation of Parker v. State’s interpretation of § 10-1003. On both occasions, however, Corporal Coleman remained. He stood there watching as Henson opened the packages, examined their contents, saw that what was inside matched the description written on the chain of custody logs, handed the logs back to Corporal Coleman, and placed the exhibits in the lab’s vault.

Everything Henson did was under the watchful eye of Corporal Coleman. Indeed, it was Corporal Coleman who personally resealed the evidence envelopes after their examination and before they were placed in the vault. There was no gap in the chain and no “leap of faith” was required. The integrity of the evidence was not in doubt.

Laura Bosseler, the forensic chemist at the Prince George’s County Police Department’s Drug Analysis Lab, testified that she retrieved the two exhibits from the laboratory vault and conducted the tests upon them. There was no problem with that final link in the chain. We hold that Fenton Henson was simply not an indispensable link in this chain of custody, whose presence was mandated. The chain was complete without him.

During the only stage involving him, two custodians — Henson himself and Corporal Coleman — were contemporaneously present, either of whom could have served as the testimonial guarantor as to the integrity of the evidence during that stage. The extra witness was redundant. Had Fenton Henson had an assistant standing at his side and had Corporal Coleman had a police cadet attending him, those additional witnesses would have been equally redundant. We see no error. 2 ²⁵⁹ Drug Dealers and Car Phones The appellant’s third contention involves a matter which is quintessentially within the wide discretion of the trial judge — a ruling on the relevance of evidence.

Corporal James Tayman testified as an expert witness on the habits, procedures, and mores of the drug culture. He testified, for instance, that the street value of the 59.9 grams of marijuana recovered from the appellant was approximately $250 and that the street value of the 19 packages of cocaine was approximately $1,900. The present complaint is about his expert testimony, over objection, as to the possible significance of the presence of a car phone with respect to the drug culture. That testimony was: “The Witness: Car phones are becoming very common in the drug culture.

One, it gives the drug dealers the mobility to use a phone while they are in the car, calling the potential buyers, telling them to meet them somewhere. It is very hard for the police to put wiretaps or other investigative, what we call, DNE’s, dial number recorders, or such, on car phones. They have become very popular in the drug trade and are frequently used by drug dealers.” Significantly, the appellant here is not arguing the subject of “relevance and its counterweight” of prejudice. He does not urge upon us the proposition that even relevant evidence must sometimes be foregone when the possible prejudice outweighs that relevance.

He is arguing simply about the lack of relevance per se, not about its relative weight in comparison to countervailing prejudice. Evidence is relevant, of course, if it makes the proposition it is offered to prove more likely true than that proposition would be without the questioned evidence. It becomes necessary, therefore, to identify the proposition in this case that the expert testimony was offered to prove. The appellant suggests that it was offered in a vacuum to prove that the appellant dealt in drugs.

He urges that “persons who own car phones” is too broad a class and that ²⁶⁰ most of the members of that class are innocent of any involvement in the narcotics traffic. We think the appellant is focusing on too broad a sample and on too broad a proposition. The State did not need the car phone to prove that the appellant possessed drugs. The appellant was caught red-handed with the drugs.

The car phone could little add or detract in that regard. What then was the issue? Even granted possession, the question remained whether the appellant was guilty merely of simple possession or of possession with intent to distribute. The expert testimony of Corporal Tayman was very relevant on the proposition that the appellant was not a large-scale consumer of drugs but an actual distributor of drugs.

On that issue, the sample became not “all automobiles that have car phones” but rather “all automobiles carrying significant quantities of drugs that have car phones.” This is a much smaller sample and one wherein “the tools of the trade” take on greater significance. Were the members of this Court sitting as jurors, we would find the presence of equipment frequently associated with the selling of drugs probative on the issue of whether a possessor of drugs was also a seller. Guided by the helping hand of the expert, we can appreciate that a busy distributor, far more than a casual consumer, needs to be in regular contact with his agents upon the street. We can appreciate that a frequently exposed distributor, far more than the occasional consumer, has a compelling need to avoid telephonic surveillance.

Were we on the cusp of doubt between mere possession and possession with intent to distribute, the presence of such tell-tale equipment would help us resolve that doubt. By definition, that makes the evidence relevant. A fortiori, the ruling by Judge Levin that it was relevant was not a clear abuse of discretion on his part. The Cocaine Isomer Defense The appellant’s fourth contention goes only to the cocaine charge and has no bearing on the marijuana convic ²⁶¹ tion.

It involves the so-called cocaine isomer defense, which we have not seen before in Maryland. It is both ingeniously clever and intellectually challenging. It offers nothing, either by way of evidence or theory, that is affirmatively exculpatory. It is exclusively a procedural technique, in the tradition of an intercollegiate debater for the negative side, of putting the prosecution through the procedural paces, ideally with no advance warning, and then hoping that the prosecutor fails to clear one of the unanticipated hurdles.

The first time around the league at least, it frequently throws unwary opponents (and legal umpires as well) for a loop. The realization of its inherent lack of substance, however, ultimately catches up with it. It first appeared in the Seventh Circuit in 1976 in the case of United States v. Orzechowski, 547 F.2d 978 (7th Cir. 1976) . It took four more appearances, however, before United States v. Bockius, 564 F.2d 1193, 1194 (5th Cir. 1977) , descriptively pinned down both its provenance and its essential strategy.

As Judge Wisdom described it, the defendant Bockius, freshly returned to Miami from Columbia, “ [a]t the last moment, apparently to surprise the government, ... produced as the chief trial lawyer the architect of the chemical defense theory in prosecutions over the importation, possession, or sale of cocaine.” Judge Wisdom both identified this “architect” and noted his formidability: “The day before trial, the prosecution learned that James Shellow, well known as an expert in defending cocaine charges, would join Bockius' two attorneys who had already filed notices of appearance. Shellow had originated a sophisticated scientific defense grounded in the chemistry of cocaine. In the trial he conducted what may properly be described as an extraordinarily able examination of the witnesses, based on his knowledge of the chemistry of cocaine.” 564 F.2d at 1195 . The federal prosecutor, however, was also resourceful and the Justice Department network was up to the chai ²⁶² lenge.

An additional test was ordered, the results of which were not forthcoming until the trial was well in progress: “The Assistant United States Attorney handling the case was wise enough to confer with a United States Attorney in another office who had faced Shellow before. He learned that Shellow’s trial strategy was to show that the Government had not met its burden of proof. This Shellow did by impeaching government testing procedures. His tactic was to contend that to identify L-cocaine, the government scientists should conduct a polarimeter test.

Until acquiring this information, the United States Attorney in the case had not requested the government expert, Donald A. Cooper, to conduct a polarimeter test. The United States Attorney asked him to do so, but had not received the results of this belated test when he began to present his case. Nor did he know about the results during direct examination. The expert Cooper relied upon other tests to establish that the substance in question was L-cocaine.

Shellow, during cross-examination, asked Cooper if he had conducted the polarimeter test. Cooper answered affirmatively and stated that the substance taken from Bockius’s shoes was L-cocaine.” (Footnotes omitted). 564 F.2d at 1195 ; The Fifth Circuit showed no sympathy when the defense suddenly claimed that it had itself been surprised: “Bockius charges prejudice because he was forced, at the last minute, to change his strategy from one of impeaching the thoroughness of government testing procedure to one of rebutting the actual test results. We do not sympathize with the defense attorneys’ dismay when they discovered that their impeachment defense had been anticipated; obviously they had expected to surprise the government.” 564 F.2d at 1196 . Judge Wisdom elaborated: “The appellant’s claim of prejudice must be weighed in the context of the actions by his own counsel.

Shellow’s ²⁶³ involvement was concealed from the government until the day before the trial. The defense gave no indication it would rely upon the inadequacy of the government testing procedures.” 564 F.2d at 1197 . In affirming the conviction, the Fifth Circuit concluded, “There was an attempted ambush in this case, but ... the defense was the predator.” 564 F.2d at 1198 . Before turning