USA v. Daas

Decision Date30 December 1999
Docket NumberNo. 98-10490,98-10490
Citation198 F.3d 1167
Parties(9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ABDUL DAAS, a/k/a Abdual Daas, Defendant-Appellant
CourtU.S. Court of Appeals — Ninth Circuit

COUNSEL: David J. Cohen, Cohen & Paik, San Francisco, California, for the defendant-appellant.

Samantha S. Spangler, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; Garland Burrell, District Judge, Presiding. D.C. No. CR-97-574-GEB

Before: Joseph T. Sneed and Harry Pregerson, Circuit Judges, and David O. Carter, District Judge.1

OPINION

CARTER, District Judge:

Abdul Daas appeals his jury conviction and sentence for distributing listed chemicals, specifically ephedrine and pseudoephedrine, with reasonable cause to believe they would be used to manufacture methamphetamine in violation of 21 U.S.C. S 841(d)(2).2

Daas contends that (1) the evidence was insufficient to support his conviction because 21 U.S.C. S 841(d)(2) criminalizes the distribution of pure ephedrine or pseudoephedrine but not the distribution of a mixture, such as Mini Thins and Pseudo Thins, containing these chemicals; (2) the prosecutor improperly vouched for the credibility of its two witnesses who supplied the only direct evidence of Daas's culpable intent; (3) Daas's trial counsel was ineffective for failing to object to the prosecutor's allegedly improper remarks; (4) the district court improperly coerced the jury's guilty verdict by giving it a modified Allen charge after receiving a note that the jury was deadlocked; (5) the district court erred by refusing to entertain Daas's request for a downward departure based on the disparity in his sentence and the sentences received by the informants; (6) the district court erred by imposing a sentence enhancement for obstruction of justice; and (7) the district court improperly failed to exercise its discretion to depart downward on the ground the Daas's conduct reflected aberrant behavior.

We affirm the judgment of the district court, but we remand for further sentencing proceedings based on the disparity in Daas's sentence and the sentences received by the informants.

FACTS

Daas was a supplier of sundry items to various convenience stores in central California, including the Marysville area. Between early 1996 and early 1997, Daas sold to the All-Rite Market in Marysville a large quantity of cases of two overthe-counter decongestants, Mini Thins and Pseudo Thins. Mini Thins and Pseudo Thins contain ephedrine and pseudoephedrine, respectively. Because they are precursor chemicals used to manufacture methamphetamine, ephedrine and pseudoephedrine are each a "listed chemical" whose distribution is criminalized by 21 U.S.C. SS 802(34)(C) & (K), 841(d)(2). Both Mini Thins and Pseudo Thins contain other ingredients and binders in addition to ephedrine and pseudoephedrine. Mini Thins also contain another active ingredient -specifically, guaifenesin (an expectorant).

Working undercover, Drug Enforcement Administration ("DEA") Special Agent Kenneth Wolters purchased Mini Thins from the All-Rite Market. Wolters arrested Makhan Bilkoo, the owner, and his employees Parupkar Bilkoo and Gurvinder Singh. The three identified Daas as one of their suppliers of Mini Thins and Pseudo Thins.

After these arrests, Parupkar Bilkoo met with Daas and twice surreptitiously recorded their conversations. During these conversations, Daas said a person has to be careful selling the product. He acknowledged having told Parupkar Bilkoo to put the Mini Thins in boxes and to sell them in large quantities only to repeat customers.

On November 29, 1997, Daas was indicted on one count of violating 21 U.S.C. S 841(d)(2) for distributing ephedrine and pseudoephedrine between February 12, 1996 and February 10, 1997.

The evidence at trial concerning whether Daas knew the Mini Thins were being used to make methamphetamine included the taped conversations between Bilkoo and Daas; the testimony of the Bilkoos and Singh; documents from the Stanislaus County Drug Enforcement Agency and Mini-Thins supplier Body Dynamics Incorporated ("BDI"), which were retrieved from Daas's home pursuant to a search warrant; and Daas's own testimony.

Parupkar Bilkoo and Gurvinder Singh both testified that more than once they had met Daas in a parking lot to obtain Mini Thins. They testified that Daas knew Mini Thins and Pseudo Thins were used in the manufacture of methamphetamine. They also testified that Daas told them to be careful selling the products, not to sell to unknown customers, not to use the cash register or give receipts, and to conceal the products in other boxes or bags.3

A letter from the Stanislaus County Drug Enforcement Agency stated that ephedrine and pseudoephedrine products were being diverted for use in manufacturing methamphetamine. The BDI documents described the characteristics of suspicious transactions for these products, one of which was larger-than-normal shipments.

Further evidence at trial included various receipts and cancelled checks evidencing the Bilkoos' purchases of Mini Thins from Daas. These records showed that Daas sold 137 cases of Mini Thins to the Bilkoos between February 12, 1996 and February 10, 1997. Of those, all but six were sold in a five-month period. During that same period, Daas sold only 46 cases of Mini Thins to the other markets he supplied.

From some of the receipts, it appeared as though Daas had sold a smaller quantity of Mini Thins over a longer span of time than was actually the case. Together the invoices and the receipts showed that, just days after having supplied several cases of Mini Thins to the Bilkoos, Daas sometimes sold them several more.

Agent Wolters testified that one case of Mini Thins used daily to the maximum dosage would last an individual more than six years, and one case of Pseudo Thins would last just under six years. Both products had expiration dates of two years from their production.

During her summation to the jury, the assistant United States attorney made the following statements, now challenged on appeal:

By the time -by now, the Bilkoos have learned that the government is skilled. Agent Wolters is skilled at figuring out when they haven't told the complete truth. He was able to dig through and find out that they had sold lots more cases of Mini Thins than they told. So they know they better not do that again because it won't work.

Their plea agreement calls for them to be com pletely truthful. If they do that, they can get their sentences reduced. If they don't do that, then they don't get a sentence reduction, and they do more time. So their motive is to tell the truth, not to lie. If they were to lie under oath, they would face perjury prosecution as well.

In the end, they would end up getting more time than less. Also remember that these witnesses are not walking away. Mr. Singh has already done some time in custody, and Bill Bilkoo and Pari Bilkoo expect to do some time in custody as a result of their deal.

After deliberating for about four hours, the jury sent a note to the district court judge stating that it was deadlocked. The judge polled the jurors individually. All confirmed that they were deadlocked and that further deliberations would be futile, but one did so only after some hesitation. Based on the juror's hesitation, the district court judge gave the jury an Allen4 charge after a sidebar conference with counsel. The jury deliberated approximately another hour and returned a guilty verdict.

Daas moved for a new trial. In his motion, Daas raised the three challenges to his conviction that are at issue in this appeal. The district court judge denied Daas's motion.

Daas then filed his objections to the presentence report and sentencing memorandum. Daas (1) objected to the government's two-point obstruction of justice enhancement based on perjury by Daas, (2) requested a downward departure based on the contention that the conviction represented a single instance of aberrant behavior, and (3) requested a downward departure based on the disparity between the Bilkoos' sentence, six months' home detention, and his own. The district court rejected Daas's objections to the presentence report, sentenced Daas to 97 months in prison, and imposed judgment.

On the same day Daas was sentenced, this court issued its opinion in United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1998), which held in part that the same district court judge as in the present case abused his discretion by applying the obstruction of justice enhancement without making a factual finding to support the alleged falsehood. Id. at 524. Four days later, the district court judge issued factual findings to support the obstruction of justice enhancement in Daas's case.

ANALYSIS
A. Sufficiency of the Evidence

Daas contends that the evidence was insufficient to support his conviction because 21 U.S.C. S 841(d)(2) criminalizes the distribution of pure ephedrine or pseudoephedrine but not the distribution of a mixture, such as Mini Thins and Pseudo Thins, containing these chemicals. Daas does not contend that he was improperly convicted if the government's reading of S 841(d)(2) is correct. Thus his challenge to the sufficiency of the evidence is purely a question of statutory construction.

According to Daas, congressional intent to exclude mixtures from the scope of S 841(d)(2) is evidenced by other provisions of Title 21 consistent with his interpretation of S 841(d)(2), by the legislative history of the Controlled Substances Act, and by policy considerations. Specifically, Daas contends that (1) because the term "controlled substance" is defined to include both mixtures and pure substances,5 and because "listed chemical"...

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