The opinion of the court was delivered by: BRIEANT
On July 16, 1980, following a trial by jury, the Defendant, John Buettner-Janusch, was convicted of (1) conspiracy to manufacture and distribute and possess with intent to distribute certain controlled substances (21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 841(b)(2), ("Count One"); (2) actual manufacture and possession of methaqualone with intent to manufacture and distribute (21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2), ("Count Two"); (3) knowingly making false statements to Government investigators (18 U.S.C. § 1001), ("Counts Five and Six"). He was found not guilty by the jury of distribution and possession with intent to distribute a quantity of Cylert pemoline (21 U.S.C. §§ 812, 841(a)(1) and 841(b)(2), ("Count Three") and acquitted by the Court of conspiracy to obstruct justice (18 U.S.C. §§ 371, 1001, 1503 and 1510), ("Count Four").
By motion filed September 16, 1980, the Defendant moves, pursuant to Rule 29(c), F.R.Crim.P., for a judgment of acquittal notwithstanding the verdict. In support of this motion the Defendant argues that the evidence on Counts One, Two, Five and Six was insufficient for a reasonable jury to find guilt beyond a reasonable doubt. In the alternative, the Defendant seeks an order pursuant to Rule 33, F.R.Crim.P., granting him a new trial. The Defendant challenges the verdict as against the weight of the evidence and specifies trial errors which he claims denied him a fair trial.
Upon considering the Defendant's contentions in light of the applicable standards, the Court denies both motions. The Court finds that the evidence presented at trial is more than sufficient to sustain the verdict. There was adequate proof in the record from which a reasonable jury could find guilt beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1941). Nor has the Defendant succeeded in satisfying the lesser standard for the grant of a new trial. Neither the claim that the verdict is against the weight of the evidence nor the alleged trial errors require a new trial "in the interests of justice." See 8A Moore, Federal Practice P 33.02 (rev. ed. 1980).
In addition to a general verdict on Count One, the jury answered three questions on a Special Verdict in the affirmative indicating that they found the Defendant guilty of conspiring to manufacture, distribute and possess with intent to distribute each of the three controlled substances charged in the indictment, namely, Lysergic Acid Diethylamide ("LSD"), Methaqualone, and Barbitol (Sodium Barbitol).
Regarding the conspiracy to manufacture, distribute and possess with intent to distribute LSD, the Defendant first argues that the physical evidence introduced at trial negates the existence of any conspiracy. Government Exhibit 35, a note written by Dr. Buettner-Janusch was purportedly introduced to show the second step in the manufacture of LSD. Contrary to the Defendant's contentions, however, the fact that the note by chemical symbol expressed a direction for the use of nitric acid rather than nitrous acid does not conclusively establish that the Defendant was not attempting to manufacture LSD. The weight and significance of this discrepancy presented an issue to be determined by the jury. The second tangible piece of evidence the Defendant challenges concerns diethylamine, an essential ingredient in the manufacture of LSD. Defendant claims that the only tangible evidence of the presence of this chemical in the laboratory was a photograph of one sealed bottle and an invoice showing delivery of two bottles on May 12, 1977. (Govt.Ex. 33K.) This evidence shows that those bottles of diethylamine were present in the laboratory. It does not compel an inference that all was used earlier. There was testimony from the Government chemist, Weber, as to the small amount actually necessary. (Tr. 1367-68). Nor does this tangible evidence negate Dr. Buettner-Janusch's admissions to Mr. Dorfman, for example, that he was going to make LSD (Tr. 118) and that LSD in plain view on May 17, 1980 was a decoy and the real LSD was hidden in the cold room (Tr. 155). Although the defendant claims that the Government has, at best, proven only the passive receipt of statements as to the Defendant's intention to make LSD with the aid of the co-conspirator, the existence of an agreement need not be proven directly but may be inferred from such statements and subsequent joint participation in the venture. See United States v. Taylor, 562 F.2d 1345, 1352 (2d Cir.), cert. denied sub nom. Salley v. United States, 432 U.S. 909, 97 S. Ct. 2958, 53 L. Ed. 2d 1083 (1977); United States v. Varelli, 407 F.2d 735, 741-42 (7th Cir. 1969).
Defendant contends that the evidence regarding a conspiracy pertaining to barbitol and methaqualone is insufficient because it is based upon the testimony of Mr. Dorfman and Mr. Cornyetz. His first argument is that such "vague, sketchy and dubious testimony of involved and implicated parties, is, as a matter of law, an insufficient basis for a verdict of guilt." (Deft. Br. 15.) There may well come a point where, as the Defendant contends, any number of witnesses considered alone or together are so incredible and unreliable that their testimony cannot as a matter of law constitute sufficient evidence upon which a reasonable jury could base a guilty verdict. That is not, however, the situation in this case. Such a conclusion is not an inference compelled because the witnesses initially gave testimony exculpatory to Defendant, received immunity, and then recanted and testified for the Government. Many successful prosecutions depend on the testimony of former accomplices and co-conspirators. Such persons usually give varying accounts of their own activities as the investigation progresses. What the law does require is that such exculpatory statements of government witnesses be disclosed to the Defendant, see United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and that the jury be informed of all agreements or deals between the Government and such accomplice witnesses. Thereafter, their credibility is for the jury, unless they are so depraved and uncorroborated that no reasonable juror could believe their testimony. At this trial, the jury was instructed in the approved fashion that, in considering the credibility of Mr. Dorfman and Mr. Cornyetz, it should recognize that, by their own testimony, they were accomplices whose testimony must be viewed with caution. (Tr. 2065-68.)
Defendant's second argument is that the testimony of these two witnesses, Dorfman and Cornyetz, is tainted by the use of illegally-seized evidence in questioning these witnesses. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The Defendant refers specifically to the barbital seized on August 2, 1979 from the basement storage area and chemical precursors of LSD seized on May 17, 1979. These illicit items were suppressed by this Court. (Deft. letter, September 22, 1980.) Considering the factors enunciated by the Supreme Court in United States v. Ceccolini, 435 U.S. 268, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1977), I find there is a sufficient attenuation between the illegally-seized evidence and the testimony of these two witnesses at trial. The suppressed evidence was relatively minor in comparison to the evidence lawfully obtained by the Government from the laboratory. The Government has demonstrated that the identity of Mr. Cornyetz was known prior to the May 17, 1980 search and that seizure of ergotamine tartrate was not used in questioning him or seeking to obtain his cooperation. Likewise, no mention was made of this evidence during the negotiations which resulted in Mr. Dorfman's cooperation. (Affid. of AUSA Roanne L. Mann, filed October 1, 1980.) The Government has also demonstrated that it had knowledge of the presence of these substances in the laboratory independent of the seizures. (Affid. P. 3.) Recognizing that "the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object," 435 U.S. at 280, 98 S. Ct. at 1062, the Court concludes that the testimony was properly admitted at trial.
Count Two of the indictment charged the Defendant manufactured and possessed with intent to distribute methaqualone. The Defendant's argument in support of the motion is based on the provenance of the methaqualone introduced at trial. The Government introduced six plastic jars containing methaqualone in various stages of purification that were seized from the Defendant's laboratory during the Government search on May 17, 1980. Evidence of the "melting points" of the substances recorded in the laboratory notebook by Cornyetz on May 17th was introduced and compared with the melting points of the substances seized by the Government as computed by a chemist of the Drug Enforcement Agency following such seizure. Defendant's argument relies on the opinion testimony of his expert witness, Dr. Arthur Rosenthal, that the substances introduced at trial were not the same substances in the laboratory on the afternoon of May 17, 1979. Defendant's argument assumes the accuracy of Cornyetz's tests and argues that the DEA's tests were likewise accurate. From these assumed facts we are asked to infer that the witness Jolly, contrary to his sworn testimony at trial and in the suppression hearing, fabricated these exhibits after Cornyetz ran his tests and before the DEA ran its tests. This dispute is merged in the verdict. Our jurors were adequately situated to resolve the credibility of the witnesses. The trial record neither permits nor requires a finding by the Court that Prof. Jolly, rather than the conspirators, made the methaqualone seized in the laboratory, or that these exhibits "could not possibly be" the same substances tested by Cornyetz under Defendant's personal supervision on the afternoon of May 17, 1979, and accordingly, that a reasonable juror acting reasonably could not find guilt beyond a reasonable doubt. Nor is it contrary to the weight of the evidence.
Defendant includes Count Five in his motion for a judgment of acquittal based on the insufficiency of the evidence. No further reference has been made to Count Five, however, in the Defendant's Brief or subsequent submissions to the Court. There was ample evidence produced at trial from which a reasonable jury could find that, contrary to his representations to an Assistant ...