U.S. v. Davis, 80-9083

• Decision Date: 14 September 1981
• Docket Number: No. 80-9083,80-9083
• Citation: 656 F.2d 153
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Morris O'Neal DAVIS, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 153

656 F.2d 153

UNITED STATES of America, Plaintiff-Appellee, v. Morris O'Neal DAVIS, Defendant-Appellant.

No. 80-9083.

United States Court of Appeals, Fifth Circuit.

Unit B

Sept. 14, 1981.

Fred Blanton, Birmingham, Ala., for defendant-appellant.

Holly L. Wiseman, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before FRANK M. JOHNSON, Jr. and HATCHETT, Circuit Judges, and SCOTT ^*, District Judge.

HATCHETT, Circuit Judge:

Morris O'Neal Davis appeals his conviction and sentence for possession with intent to distribute marijuana and possession with intent to distribute quaaludes, both in violation of 21 U.S.C. § 841(a)(1). Davis complains (1) that the district court committed plain error by giving certain jury instructions; (2) that multiple sentences for the simultaneous possession of two drugs are not authorized by the statute; and (3) that the sentence imposed under one count exceeded the punishment permitted by statute. We affirm Davis's conviction and multiple sentences, but because the trial court imposed a sentence on one count in excess of that permitted by statute, we remand with instruction to resentence Davis.

BACKGROUND

Davis was convicted in the district court on two counts of possession of a controlled substance in violation of 21 U.S.C. § 841(a)(1). Count I charged Davis with possessing with intent to distribute marijuana, a Schedule I controlled substance. Count II charged Davis with possessing with intent to distribute quaaludes, a Schedule II controlled substance. The trial court sentenced Davis under Count II to one year confinement, followed by a special parole term. The district court sentenced Davis under Count I to six years confinement, to be followed by a special parole term. Upon Davis's release from the confinement imposed under Count II, the period of incarceration under Count I would begin.

Davis raises three points on appeal. First, he contends that a jury instruction on specific intent, to which no objection was raised at trial, was so narrow in scope as to constitute plain error. Second, Davis argues that although he was in possession of two drugs, this possession constituted one act, i. e., possession of a controlled substance. Relying on Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), Davis contends that imposition of consecutive sentences for simultaneous possession of two drugs is not authorized by 21 U.S.C. § 841(a). Finally, Davis contends that the trial court's sentence of six years incarceration for possession of marijuana under Count I exceeds the punishment permitted by 21 U.S.C. § 841(b)(1)(B).

The government argues that the jury instruction on specific intent was adequate, and that defense counsel actually requested the court to apply it to a third count not challenged on appeal as well as to Counts I and II. Relying on the categorizing of drugs into four schedules in 21 U.S.C. § 812, which places marijuana and quaaludes in different schedules, the government argues that consecutive sentences for simultaneous possession of marijuana and quaaludes is authorized by statute. Finally, the government agrees with Davis that the trial court imposed a sentence under Count I in excess of that permitted by statute.

ISSUES

We must determine (1) whether the trial court committed plain error in giving the challenged jury instruction; (2) whether Congress intended, in enacting 21 U.S.C. § 841, to permit multiple sentences for a concurrent possession of two different drugs; and (3) whether the district court erred in imposing a sentence in excess of the punishment allowed by statute.

THE JURY INSTRUCTION

As a part of his defense at trial, Davis pointed out that he had worked as an informant for drug enforcement agency officials. Davis contended that on the day of his arrest, he was merely setting up a drug sale for purposes of arresting the sellers. In his charge to the jury, the trial court instructed as follows:

To rebut ... the element of possession with intent to distribute, and also to rebut the element of willfulness ... the defendant has offered to you evidence that he was working as an undercover agent for law enforcement officials ... and that any possession of a controlled substance ... was in that capacity. That evidence is relevant to your determination of the defendant's state of mind.... (Q)uite clearly a person would lack the requisite state of mind under Count One or Count Two if indeed he were authorized to act on behalf of law enforcement officials and was so acting at the time.

Davis complains that this charge on intent is too narrow in that it limits the jury in its consideration of the facts concerning Davis's activities with law enforcement agencies. Davis contends this charge states that law enforcement officials had to authorize him to act and he had to act under such authorization in order for the jury to find lack of mental intent.

Davis did not object to this instruction at trial. This court will not take note of error raised for the first time on appeal unless our refusal to do so would result in manifest injustice. Calmaquip Engineering West Hemisphere Corp. v. West Coast Carriers Limited, 650 F.2d 633 (5th Cir. 1981). Read as a whole, the instruction does not unduly restrict the jury to the question of Davis's actual authority to act on behalf of government officials. Rather, the wording allows the jury properly to consider Davis's mental intent. While the instruction could have been worded more clearly, it was not so prejudicial as to result in a manifest injustice.

THE MULTIPLE SENTENCING

We now turn to the more difficult question of whether Congress intended to allow consecutive sentencing for a simultaneous possession of two types of drugs. "If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty." Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436-1437, 63 L.Ed.2d 715 (1980).

The government argues that the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), applies to this case and authorizes the multiple sentences imposed upon Davis. This assertion is erroneous. Blockburger's conviction resulted from a single sale of narcotics in violation of two statutory provisions, 26 U.S.C. § 692 prohibiting the sale of a drug not in the original stamped package, and 26 U.S.C. § 696 prohibiting the sale of a drug not in pursuance of a written order of the purchaser. He received consecutive sentences for violation of these statutes. The Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182. Applying this test, the Court found that although there was only one sale, two offenses were committed because two statutory sections were violated, ¹ and therefore consecutive sentencing was in order. ²

The Court's latest expression of the Blockburger rule is found in Albernaz v. United States, --- U.S. ----, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), also relied upon by the government. Albernaz was convicted on separate counts of conspiracy to import marijuana in violation of 21 U.S.C. § 963 and conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. Consecutive sentences were imposed. Applying the Blockburger test, the Court found that conviction of each section required elements of proof not required by the other, and therefore Congress had intended to permit the imposition of consecutive sentences for violation of these two sections.

Both Blockburger and Albernaz are inapposite to our discussion because both cases involve a defendant charged with violating two statutes by the commission of a single act. Davis was charged with violating only one statute proscribing the possession of a controlled substance. We must determine whether Davis's simultaneous possession of two drugs constituted two "acts" for which multiple sentences may be imposed.

Davis's argument regarding consecutive sentencing raises a constitutional as well as a statutory issue. The Supreme Court has recently debated the constitutional theory behind use of multiple sentencing. In Whalen, the majority opinion stated, "The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so." 445 U.S. at 689, 100 S.Ct. at 1436. (emphasis added). Justice Blackmun, in a separate opinion, wrote: "I believe that the Court should take the opportunity presented by this case ... to hold clearly that the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed." 445 U.S. at 698, 100 S.Ct. at 1441.

Justice Blackmun's suggestion was adopted by the Court in Albernaz, where it stated, "(T)he question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended ... to impose multiple punishment, imposition of such sentences does not violate the Constitution." --- U.S. at ----, 101 S.Ct. at 1145.

It thus appears that the Supreme Court has decided that Congress can never violate the double jeopardy clause in imposing criminal penalties. Rather, the double jeopardy clause is aimed at prosecutors and judges to ensure that a defendant is not placed in jeopardy twice for the same offense. The Blockburger test, then,...