DEA office to call the three local distributors and inquire as to whether they had ever dealt with any of the persons or companies on the list. General Radio and TV Company was included on Agent Moran's list and that name brought a positive response from Scientific Equipment Company. Thereafter, Agent Moran spoke with the proprietor of Scientific Equipment Company, Ronald McCutcheon, and procured from him the five invoices involved herein. Based upon these facts, we find that the Scientific Equipment Company business records and the testimony of Ronald McCutcheon were not obtained as the result of the search of the defendant's wallet, but were obtained as the result of the independent investigation conducted by the Government. For the foregoing reasons, the Court denied the defendant's motion to suppress.
3. Did the Court err in permitting the Government to use a photograph taken by a Government agent of certain chemicals and chemical equipment?
At trial, the Government introduced a photograph which showed the various chemicals and chemical equipment which the defendant had purchased from Scientific Equipment Company. The defendant contends that the Government placed the items all in one photograph in a manner which gave the appearance of a laboratory for the purpose of creating the inference that the defendant purchased the chemicals for use in a drug laboratory.
It is well settled that the admission of photographs rests largely in the trial court's discretion. Burns v. Beto, 371 F.2d 598 (5th Cir. 1967); United States v. Odom, 348 F. Supp. 889 (M.D.Pa.1972); United States ex rel. Victor v. Yeager, 330 F. Supp. 802 (D.C.N.J.1971). The photograph introduced here was helpful to explain the testimony concerning the chemicals and equipment the defendant purchased from Scientific Equipment Company. The Court carefully examined the photograph before admitting it into evidence and again after the trial and we can find no support for the defendant's contention that the items were arranged to depict a laboratory scene. Nor can we say that one viewing the photograph would find that it inadvertently has the appearance of a laboratory. Furthermore, the defendant, as part of his defense, brought into Court all the chemicals and chemical equipment which were shown by the business records of Scientific Equipment Company to have been purchased by the defendant. The jury not only had the Government's photograph but also the defendant's chemicals and chemical equipment and could determine for themselves whether the chemicals were to be used in a laboratory. Thus, there was no error in admitting the Government's photograph into evidence.
4. Did the Court err in permitting the Government's witness, John Fascinello, to testify as an expert?
At the outset of the trial, pursuant to the defendant's request, the Court ordered the sequestration of witnesses who were scheduled to testify. The defendant, in his defense, testified extensively concerning his business use of the chemicals which he had purchased from Scientific Equipment Company. In an effort to impeach this testimony of the defendant and in rebuttal of the defendant's explanation of his use of the chemicals which he purchased from Scientific Equipment Company, the Government presented John Fascinello, a DEA chemist who was present in court during the presentation of the defense. The defendant objected to the testimony of Mr. Fascinello on the grounds that permitting him to testify would violate the Court's prior sequestration order. The Government contended, however, that Mr. Fascinello was originally brought into court to aid it in the cross-examination of the defendant, and only after the defendant had testified at length concerning his use of the chemicals in question did it become apparent that his testimony as an expert would be required.
Sequestration of witnesses is a matter which is committed to the trial judge's sound discretion. United States v. Strauss, 473 F.2d 1262 (3d Cir. 1973); United States v. Mallis, 467 F.2d 567 (3d Cir. 1972). The purpose for sequestering a witness is "to prevent the shaping of testimony by witnesses to match that given by other witnesses." United States v. Cozzetti, 441 F.2d 344, 350 (9th Cir. 1971). In this case, Mr. Fascinello was called as an expert, not to corroborate the evidence which the prosecution presented in its case, but to rebut the defendant's testimony as to his use of the various chemicals which the defendant purchased from Scientific Equipment Company. Mr. Fascinello was not called as a fact witness and his testimony was limited to his expert opinion as to various chemical reactions. This expert opinion testimony required an informed factual basis upon which to base the opinion. The Court does not consider such an expert witness, who is called in rebuttal and whose questioning was confined to the effect of the use of certain chemical combinations, the use of which had been previously testified to by the defendant, to be within its sequestration order. In fact, at the time that the sequestration was ordered the Court stated that the order did not apply to rebuttal testimony. (N.T. 2-14).
Defendant further contends that Mr. Fascinello was not qualified to testify as an expert chemist. The competency of a witness to give an opinion concerning a matter of expertise lies largely within the trial court's discretion. Salem v. United States Lines Company, 370 U.S. 31, 82 S. Ct. 1119, 8 L. Ed. 2d 313 (1962); United States v. Kienlen, 415 F.2d 557 (10th Cir. 1969); White v. United States, 399 F.2d 813 (8th Cir. 1968); United States v. Alker, 260 F.2d 135 (3d Cir. 1958). Mr. Fascinello testified that he worked for the DEA as a forensic analytical chemist and had testified on numerous occasions for that agency. He stated that he was a college graduate with a Bachelor of Science degree in chemistry, had undergone chemistry training with the DEA, and was currently enrolled in graduate courses and was working toward a master's degree in Forensic Sciences. After finding Mr. Fascinello competent to testify as an expert, the Court instructed the jury that they should consider each expert opinion received in the case and give it only such weight as they thought it deserved and that they should disregard the opinion if not based upon sufficient education and experience. United States v. Jackson, 138 U.S.App.D.C. 143, 425 F.2d 574 (1970).
5. Did the Court err in permitting the attorney for the Government to refer to the United States of America as his "client"?
During his closing argument, the Assistant United States Attorney referred to the United States of America as his "client". Defendant contends that by this comment the United States Attorney was telling the jury that he was the attorney for their Government and that this comment was prejudicial.
In assessing claims of prosecutorial misconduct due to allegedly prejudical remarks, we must first determine whether the defendant was prejudiced by the characterizations. United States v. Somers, 496 F.2d 723, 738 (3d Cir. 1974). As the Third Circuit stated in United States v. Leftwich, 461 F.2d 586, 590 (3d Cir. 1972):
[Improprieties] of argument by counsel to the jury do not call for a new trial unless they are so gross as probably to prejudice the defendant and the prejudice has not been neutralized by the trial judge before submission of the case to the jury.