Before: GURFEIN and VAN GRAAFEILAND, Circuit Judges, and DOOLING, District Judge.*fn*
Consolidated appeals from two judgments entered by the United States District Court for the Eastern District of New York (Mishler, Chief Judge ) after jury trials, one convicting appellant of possession of methaqualone with intent to distribute and one convicting her of conspiracy to possess and distribute methaqualone.
With respect to the possession conviction, the Court of Appeals held that appellant had waived any challenge to venue and that the Government had introduced sufficient evidence to establish appellant's constructive possession of methaqualone in the Eastern District. As to the conspiracy conviction, the court held: (1) the Government's failure to give pretrial notice of its intent to introduce expert microscopic comparison testimony and its failure to produce laboratory test results was not prejudicial since appellant refused a continuance offered by the trial judge and such evidence was merely cumulative; and (2) the procedure by which methaqualone was added to the schedule of controlled substances was constitutional.
In this consolidated appeal, defendant Annette Boney appeals from judgments of conviction entered on August 18, 1977 and September 29, 1977 after jury trials in the United States District Court for the Eastern District of New York (Mishler, Chief Judge ). At the first trial, appellant was found guilty under Count Three of the indictment of possessing with intent to distribute 20 kilograms of methaqualone, a controlled substance, in violation of 21 U.S.C. § 841(a)(1),*fn1 and was acquitted on one count of possession, and one count of distribution under the same section. In the second trial, appellant was found guilty of one count of conspiracy to possess and distribute methaqualone, in violation of 21 U.S.C. § 846.*fn2 A co-defendant, Stuart First, was acquitted.*fn3
Annette Boney was originally indicted on January 27, 1977 on three substantive counts. The first count charged Boney with possessing with intent to distribute about 60,000 tablets of methaqualone (commonly called "qualudes") on November 17, 1976; the second count charged distribution on the same date; and the third count (presently on appeal) charged possession of 20 kilograms of methaqualone on December 21, 1976. On the morning of May 2, 1977, the grand jury returned a superseding indictment which was identical to the original except that it included a fourth count charging appellant and one Stuart First with conspiracy to possess and distribute approximately 129,300 tablets of methaqualone from October 22, 1976 through January 10, 1977. It was agreed that the trial on the first three counts would begin that day and that the conspiracy count would be severed.*fn4
A. The Evidence Relating to the November 1976 Transactions (Counts I and II)
The Government's principal witness was Michael Cantor, who in return for his cooperation, had been allowed to plead guilty to a violation carrying a maximum penalty of four years' imprisonment and a $30,000 fine.
Cantor testified that he met Annette Boney in October 1976 in Dallas, Texas, while traveling as a salesman for a sweater manufacturer. Boney, who lived in Dallas, was working for one Stuart First, the manufacturer's sales representative in Texas. Appellant reportedly offered to supply Cantor with any quantity of qualudes that he wanted, and agreed to sell him twenty thousand tablets for between $1.95 and $2.00 a tablet.
On October 28 or 29, 1976, Annette Boney and Stuart First arrived in New York and provided Cantor with two suitcases of qualudes in exchange for $39,000 in cash.
Boney subsequently agreed to sell and additional forty thousand tablets to Cantor for $68,000, and on November 16, Boney arrived at Cantor's apartment with sixty thousand tablets. Robert Goldman, a friend of Cantor's, testified that he was in Cantor's apartment when Boney arrived with two suitcases containing qualudes. Counts One and Two of the ...