Unpublished Disposition, 918 F.2d 181 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 918 F.2d 181 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.James NELSON, Defendant-Appellant.

No. 89-10040.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 9, 1990.* Decided Nov. 14, 1990.

Before CHAMBERS, ALARCON and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Appellant argues that the District Court abused its discretion in admitting the testimony of a Drug Enforcement Administration Agent concerning his experience with the reliability of a chemical field test for controlled substances, and that the error was prejudicial and requires reversal of the conviction. We disagree, and affirm the conviction.

On June 9, 1987, DEA Special Agent Ronald Davis arranged through a confidential informant to purchase one kilogram of cocaine from defendant James Samora. Samora arranged to obtain the cocaine from Gary Lasan, who in turn arranged to obtain the cocaine from Appellant James Nelson ("Appellant").

On June 10, 1987, Appellant told Lasan by telephone that defendant Pat Myers was in possession of the cocaine. Lasan obtained the cocaine from Myers, picked up Samora, and proceeded to the location designated for the drug sale.

At approximately 8:00 p.m., Agent Davis and the confidential informant met Lasan and Samora. Lasan handed the cocaine to the informant, who handed it to Agent Davis. Lasan and Samora were arrested at that time. Lasan agreed to cooperate with the authorities immediately after his arrest.

Lasan, at the instruction of Agent Davis, telephoned Myers to tell him that the cocaine buyer wanted a reduction in the price because the kilogram was short by one ounce. Lasan also stated that the buyer wanted to purchase another five kilograms of cocaine and was interested in the possibility of a volume discount. After three phone conversations with Myers, Lasan telephoned Appellant directly, and Appellant told Lasan that a five kilogram sale of cocaine could be discounted.

On June 18, 1987, a search warrant for Appellant's house was executed. Officers discovered balance scales in the trunk of a car parked in Appellant's garage, and the box for one of the scales in the living room of the house. Packaging material like that normally used in the packaging of a kilogram of cocaine was found in a garbage can.

The grand jury returned an indictment against Appellant on January 8, 1988, alleging conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (West 1981) (count I), possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1) (West 1981) (count II), and illegal use of a communication facility in violation of 21 U.S.C. § 843(b) (West 1981) (counts V, VI, VII, VIII, X, XIII, and XV). Appellant entered a plea of not guilty to all counts.

Appellant's trial to a jury resulted in guilty verdicts as to counts I, II, XIII, and XV. Appellant was sentenced on July 19, 1988, and resentenced on January 18, 1989.1 

A trial court possesses broad authority to admit or exclude expert testimony, and its ruling will be upheld unless manifestly erroneous. United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.), cert. denied, 487 U.S. 1223 (1988).

Shortly before the trial began, DEA Agent Davis performed a presumptive field chemical test on a white residue which had been scraped off of the plastic bag recovered from Appellant's garbage can. The residue tested positive for cocaine.

At Appellant's trial, a DEA chemist testified that a presumptive field test differs from the gas liquid chromatography test performed in a lab, and is not conclusive in establishing that a substance is cocaine. The chemist further testified that a positive result in the presumptive test would indicate that the substance was "probably cocaine," and that compounds normally found in and around the home would not test positive for cocaine in a presumptive field test.

Agent Davis testified that he had been a DEA agent for 18 years and had participated in more than 800 purchases of cocaine. Davis further testified that, in his opinion, the material recovered from Appellant's garbage can was packaging material for a kilogram of cocaine.

Davis also testified concerning his experience with the reliability of presumptive field tests. Davis testified that of all the positive presumptive field tests he had personally performed that had later been sent to a lab for infrared testing, none had ever come back negative.

Appellant objected at trial, and argues on appeal, that Davis was not an expert as to the reliability of the presumptive field test, and that his testimony as to such impermissibly invaded the purview of the jury.

It is undisputed that Davis qualifies as an expert in the area of criminal narcotics trafficking investigation. It is also undisputed that Davis is not an expert in the chemical analysis of drugs. The question before this court is whether Davis' testimony as to the reliability of the presumptive field test was proper, considering the limited nature of his expert testimony. We hold that it was.

Davis did not testify as to whether or not Appellant was involved in drug trafficking, but as to the nature of the substance on the packaging material recovered from Appellant's garbage can. Davis was competent to testify as to his experience regarding the reliability of the presumptive field tests he has used. The practical reliability of the test was a piece of evidence properly before the jury.

Further, the jury was properly instructed as to how Agent Davis' testimony should be evaluated. Under these circumstances the district court did not abuse its discretion in allowing Davis' testimony as to the reliability of the test.

Additionally, we note that the weight of the evidence was such that, even if Davis' testimony had been improperly admitted, such error was harmless.

The judgment of the district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

 1

Resentencing was necessary because the trial court neglected to inform Appellant of his right to appeal at his original sentencing. This failure is not raised as an issue on appeal