Appeal from a judgment of the District Court for the Southern District of New York, Robert W. Sweet, Judge, after a jury trial, convicting appellant on one count of two-count indictment, which charged him with conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. § 846. Appellant argues that his conviction should be reversed on the ground of impermissible admission of testimony of the investigating officer as an expert and of insufficiency of the evidence. Affirmed.
Before FRIENDLY, OAKES and WINTER, Circuit Judges.
This is another case, see United States v. Peterson, 768 F.2d 64 (2 Cir. 1985), where the federal narcotics laws have been invoked with respect to the New York City Police Department's Operation Pressure Point in Harlem. Here, as in Peterson, Officer William Grimball, acting under cover as an addict, procured a "joint" of heroin, and a backup team promptly pounced on those thought to have been involved in the sale.
The indictment, in the District Court for the Southern District of New York, contained two counts. Count One charged appellant Ronald Brown and a codefendant, Gregory Valentine, with conspiring to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. § 846. Count Two charged them with distribution of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. After a three day trial, the jury convicted Brown on Count One but was unable to reach a verdict on Count Two.*fn1 After denying, in a written opinion, motions under F.R. Crim. P. 29 and 33 for entry of judgment of acquittal or a new trial, the judge suspended imposition of sentence on Count One and placed Brown on three years' probation. Count Two was dismissed with the Government's consent. This appeal followed.
Officer Grimball was the Government's principal witness. He testified that early in the evening of October 9, 1984, he approached Gregory Valentine on the corner of 115th Street and Eighth Avenue and asked him for a joint of "D".*fn2 Valentine asked Grimball whom he knew around the street. Grimball asked if Valentine knew Scott. He did not. Brown "came up" and Valentine said, "He wants a joint, but I don't know him." Brown looked at Grimball and said, "He looks okay to me." Valentine then said, "Okay. But I am going to leave it somewhere and you [meaning Officer Grimball] can pick it up." Brown interjected, "You don't have to do that. Just go and get it for him. He looks all right to me." After looking again at Grimball, Brown said, "He looks all right to me" and "I will wait right here."
Valentine then said, "Okay. Come on with me around to the hotel." Grimball followed him to 300 West 116th Street, where Valentine instructed him, "Sit on the black car and give me a few minutes to go up and get it." Valentine requested and received $40, which had been prerecorded, and then said, "You are going to take of me for doing this for you, throw some dollars my way?," to which Grimball responded, "Yeah."
Valentine then entered the hotel and shortly returned. The two went back to 115th Street and Eighth Avenue, where Valentine placed a cigarette box on the hood of a blue car. Grimball picked up the cigarette box and found a glassine envelope containing white powder, stipulated to be heroin. Grimball placed $5 of prerecorded buy money in the cigarette box, which he replaced on the hood. Valentine picked up the box and removed the $5. Grimball returned to his car and made a radio transmission to the backup field team that "the buy had went down" and informed them of the locations of the persons involved. Brown and Valentine were arrested. Valentine was found to possess two glassine envelopes of heroin and the $5 of prerecorded money. Brown was in possession of $31 of his own money; no drugs or contraband were found on him. The $40 of marked buy money was not recovered, and no arrests were made at the hotel.
The Government sought to qualify Officer Grimball as an expert on the bases that he had made over 30 street buys of small quantities of cocaine in Harlem, had received two 8-1/2 hours seminars at the Organized Crime Control Bureau "in respect to street value of drugs, safety, integrity," had once been assigned to the Manhattan North Narcotics Division where he had informal seminars with undercover detectives experienced in making street buys in Harlem target area, and had participated in "ghost operations," where he as undercover would be placed "on the set" and would observe an experience undercover detective in an actual buy operation. The judge having ruled him to be qualified as an expert, he testified that the typical drug buy in the Harlem area involved two to five people. As a result of frequent police sweeps, Harlem drug dealers were becoming so cautious that they employed
people who act as steerers and the steerer's responsibility is basically to determine whether of not you are LYactually an addict or a user of heroin and they are also used to screen you to see if there is any possibility of you being a cop looking for a bulge or some indication that would give them that you are not actually an addict. And a lot of the responsibility relies [sic] on them to determine whether or not the drug buy is going to do down or not.
Officer Grimball was then allowed, over a general objection, to testify that based on his experience as an undercover agent he would describe the role that Ronald Brown played in the transaction as that of a steerer. When asked why, he testified, again over a general objection, "Because I believe that if it wasn't for his approval, the buy would not have gone down."
Objections to the Admissibility of Officer Grimball's Expert Testimony
We deal first with appellant's contention that all the testimony given by Grimball as an expert should have been excluded because Grimball was unqualified. In reviewing the district court's decision to treat Grimball as an expert, we note that "the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 8 L. Ed. 2d 313, 82 S. Ct. 1119, (1962); see also Fernandez v. Chios Shipping Co., 542 F.2d 145, 153 (2 Cir. 1976). The decision that Grimball possessed sufficient knowledge and experience was by not means manifestly erroneous. F.R.E. 702, entitled Testimony by Experts, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or ...