United States of America, Appellee, v. Franklin M. Goldman, Defendant, Appellant, 450 F.2d 873 (1st Cir. 1971)

Defendant appeals from a conviction for the sale of a narcotic drug, morphine, not in pursuance of a written order, in violation of 26 U.S.C. § 4705(a).¹  Uncontradicted evidence at trial established that on August 18, 1970, the defendant sold two unsealed and four sealed bottles of tablets to a federal undercover narcotics agent for $875. Defendant told the agent at the time of the sale that the two unsealed bottles contained a total of approximately 293 tablets of dilaudid,²  and that each of the sealed bottles contained 100 morphine tablets.³  Subsequent chemical analysis revealed that the unsealed bottles were filled with both morphine sulphate and dilaudid pills and that the sealed bottles contained only dilaudid. Defendant's sole defense was that, despite his representations to the agent, he thought all the bottles contained only dilaudid, which he did not know was a narcotic drug.

Defendant raises two contentions on appeal. The first is a fanciful argument that evidence of the morphine sulphate tablets went beyond the scope of the government's bill of particulars. The bill of particulars incorporated a one-page chemical analysis report to describe the form and amount of morphine involved in the sale. Under the heading of "alleged drugs" the report listed the drugs as defendant had represented them to the agent: exhibit #1, the unsealed bottles, was described as dilaudid; and exhibit #2, the sealed bottles, as morphine. The laboratory results reported on the same page indicated that in fact exhibit #1 contained both morphine sulphate and dilaudid tablets and exhibit #2 contained only dilaudid. Defendant argues, by what he calls a "chain of reference," that since the indictment charged him with the sale of "morphine," and in the bill of particulars only exhibit #2 was initially described as "morphine," then the true chemical identity of only exhibit #2 (dilaudid) can be introduced against him. The bill of particulars clearly included both dilaudid and morphine sulphate; the evidence of morphine sulphate did not go beyond the confines of the bill. Adoption of the "chain of reference" argument would allow a defendant's false representations to control the admissibility of evidence and would hallmark a return to the strict common law rules of fatal variance, firmly repudiated in modern judicial practice. See, e. g., Rules 7(f), 36, 52(a), Fed. R. Crim. P. ; Rules 15, 21, Fed. R. Civ. P.

Defendant's second contention is that the judge failed to instruct the jury adequately on his defense of lack of knowledge. Specifically, he claims that the judge should have mentioned the dilaudid tablets in his charge, on the theory that defendant thought all the pills were dilaudid and did not know dilaudid was a narcotic. Defendant argues that the fact that most of the tablets were dilaudid supports this theory, thus making the mention of "dilaudid" an essential element of the knowledge instruction. The record reveals adequate instructions regarding the requirement of knowledge,⁴  and defendant's specific objection to the omission of "dilaudid" as part of this charge comes too late under Rule 30, Fed. R. Crim. P. ⁵  Defendant's only request and objection with respect to dilaudid was the judge's refusal to leave to the jury the question of whether morphine sulphate and dilaudid were narcotic drugs.⁶  Although defendant now claims his objection referred to the omission of "dilaudid" generally, his objection at trial did not meet the qualitative requirements of Rule 30. In light of the court's full instructions of knowledge, it was not error to limit the charge to morphine sulphate.

Affirmed.