The opinion of the court was delivered by: SWEET
Defendant Ronald Brown ("Brown") was found guilty on December 20, 1984 by a jury of conspiring to sell heroin in violation of 21 U.S.C. § 846. He now moves this court to set aside the verdict and to order a new trial pursuant to Fed. Rules of Crim.P. 29(c) and 33. For the following reason, the motion is denied.
This case arises out of Operation Pressure Point. The facts of this case come from the testimony of Police Officer Grimbal ("Grimbal"). He was the undercover agent who was on duty at approximately 7:30 in the evening on October 9, 1984 at 115th Street and 8th Avenue in Harlem. He was engaged in a buy operation and after he drove to the site he exited his car and "approached a male standing on the corner of 115th Street and 8th Avenue." He asked him for "D."
Explaining that D was a street term for heroin, Grimbal testified that person who he approached who was standing alone was Gregory Valentine (Valentine"). Valentine was reported to respond by asking the officer how much he wanted. At that point the officer said "a joint." In defining a "joint," Grimbal said "a joint, as opposed to a joint of marijuana which is a cigarette of marijuana, is a term for a Harlem quarter of $40.000 worth of heroin."
Valentine asked Grimbal who he knew around the area, and Grimbal asked Valentine "Do you know Scott?" Valentine said no and it was at this point that the defendant Brown came up to the conversation. Valentine said to Brown "he wants a joint, but I don't know him" and Brown said, after looking at Grimbal, "He looks okay to me."
At that point Valentine is reported to have said "Okay, but I am going to leave it somewhere and you can pick it up." Brown, without prompting, then said, according to Grimbal, "You don't have to do that. Just go and get it for him. He looks alright to me. I will wait right here."
Although no money was shown or displayed and no money was talked about, Valentine then said "Okay. Come on with me around to the hotel." Grimbal then followed him to the hotel at 300 West 116th Street where he was told to sit on a car and to give Valentine a few minutes to go and get the drugs. at that point Valentine asked for the money and Grimbal gave him $40.000. Valentine also said, "You are going to take care of me for doing this for you, throw some dollars my way?" Grimbal responded "Yeah."
Valentine went into the hotel and then came back a few minutes later. They then returned to 115th Street and 8th Avenue. Valentine placed a Newport cigarette box on the hood of a nearby parked car, walked away and watched while Grimbal went over to pick up the cigarette box and removed a glassine envelope containing what proved to be heroin. Grimbal removed the glassine, put $5.00 of prerecorded "tip" money inside the box and walked away. As he walked away Valentine asked him whether or not he had taken care of him and Grimbal responded that he had. Valentine then went over to the cigarette box and took the $5.00 that was in it.
Valentine and Brown were subsequently taken into custody and Brown was charged with conspiracy to sell heroin in violation of 21 U.S.C. § 846 and aiding and abetting the sale of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(A). At the trial, the prosecution offered Grimbal as an expert in the sales of narcotics in Harlem on the basis that he was able to testify that such sales "typically involve more than one person."
Characterizing the transaction on trial as a typical one, Grimbal testified that the role of Brown in the transaction was, in his opinion, "a steerer." When asked why he had such an opinion, Grimbal testified: "Because I believe that if it wasn't for his approval, the buy would not have gone down." The jury found Brown guilty on the count of conspiracy but was unable to reach a verdict on the aiding and abetting count and a mistrial was declared on that count.
In his motion, Brown argues that the expert testimony of Grimbal as to street-level narcotics sales was improperly admitted and, therefore, constituted prejudicial error and, alternatively, that there was insufficient evidence to support the jury verdict and that, in judging the sufficiency of the evidence, the court should not consider the expert testimony of Grimbal.
Admissibility of Officer Grimball's Testimony
It is settled law in the Second Circuit that an undercover agent, properly qualified as an expert, may supplement his personal observations with expert testimony as to the conduct of street-level narcotics sales. "The subject of the expert testimony here, i.e., the clandestine manner in which drugs are brought and sold, is unlikely to be within the knowledge of the average layman." United States v. ...