U.S. v. Faymore

• Decision Date: 01 October 1984
• Docket Number: No. 83-3010,83-3010
• Citation: 736 F.2d 328
• Parties: 15 Fed. R. Evid. Serv. 1256 UNITED STATES of America, Plaintiff-Appellee, v. Leonard FAYMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 328

736 F.2d 328

15 Fed. R. Evid. Serv. 1256

UNITED STATES of America, Plaintiff-Appellee, v. Leonard FAYMORE, Defendant-Appellant.

No. 83-3010.

United States Court of Appeals Sixth Circuit.

Argued May 4, 1984.

Decided June 6, 1984.

As Amended July 5, 1984.

Certiorari Denied Oct. 1, 1984.

See 105 S. Ct. 213.

Keith A. Suek (argued), Avon Lake, Ohio, Leonard Faymore, pro se, for defendant-appellant.

Ralph Cascarilla, Asst. U.S. Atty. (argued), Cleveland, Ohio, for the U.S.

Before LIVELY, Chief Judge, JONES, Circuit Judge, and TIMBERS, Senior Circuit Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

This case is currently before the Court upon Leonard F. Faymore's (Faymore's) appeal from a jury verdict finding him guilty of eleven counts of the unlawful possession with intent to distribute various controlled substances in violation of 21 U.S.C. Sec. 841(a)(1) and one count of the use of a dangerous weapon against Drug Enforcement Administration (DEA) agents in the course of their official duties in violation of 18 U.S.C. Secs. 111, 114. On appeal, Faymore alleges twelve assignments of error. Because we find none of those assignments meritorious, we affirm appellant's convictions.

Appellant Faymore was graduated from the College of Osteopathic Medicine and Surgery in Des Moines, Iowa. In 1968, he began working at the Doctors Clinic and eventually purchased the facility. In the 1970's, Faymore operated at the Clinic a Drug Dependency Program. The Clinic received a DEA Certificate of Registration to dispense controlled substances. In 1980 and 1981, however, customers flocked to the Clinic, often spending from $200 to $300 for "prescriptions" of controlled substances. Faymore received a $10 fee on each prescription for his "defense fund."

On December 7, 1982, the Lorain County Common Pleas Court issued an order which abated the public nuisance at the Doctor's Clinic and prohibited Faymore from practicing medicine. The State of Ohio Medical Board as well revoked Faymore's license to practice medicine. On December 11, 1981, the DEA suspended Faymore's Certificate of Registration. The DEA then began an undercover operation to arrange to sell Faymore large quantities of Quaaludes.

On June 11, 1981, Julio DeLeon, an agent of Faymore, asked Theresa Bennett, a confidential government informant, if she knew of a source of Quaaludes. Bennett introduced DeLeon to DEA agent F. Ray Price. In a recorded conversation, DeLeon indicated that he worked for Faymore and that his "doctor friend" could arrange the sale. DeLeon instructed Price to use the code name "white shoes" to describe the operation. Agent Price phoned DeLeon several times using the "white shoes" code.

On July 23, 1982, Bennett traveled to Faymore's residence. Faymore indicated on tape his desire to purchase a large quantity of drugs. Faymore also told Bennett that he would be interested in meeting her drug contact. On July 29, 1982, Bennett informed Faymore that her drug contact had materialized. Faymore requested Bennett to bring her "friend" to his residence. After Price and Bennett arrived at Faymore's residence, Faymore searched Price and then agreed to purchase 1,000 Quaaludes for $2,500. On tape, Faymore told Price that if the latter was in fact a police officer, he would only lose a couple thousand dollars and could contend in his defense that he was only playing with the Government and had no intention of selling the pills. Faymore told Price to call him when he had secured the pills.

On August 11, 1982, Price met Faymore at the Doctors Clinic and showed him 1,000 Quaaludes. Faymore indicated that he would bring the money the next day and asked Price if he would like to purchase any of the Talwin tablets hidden in the Clinic. During the conversation, Faymore confirmed that he was the "doctor friend" of whom DeLeon spoke. Faymore also claimed to have prescribed over one million units of controlled substance and asked Price if he could secure the Schedule II drug, Dilaudids. On August 12, 1982, in a recorded meeting, Price sold Faymore 1,000 Quaaludes for $2,500. Later that day, Price negotiated with Faymore an additional sale of 20,000 Quaaludes. Faymore stated that he could sell 5,000 Talwins and that he reserved 2,200 Talwins in order to make a deal with the government. On August 13, 1982, Price again met Faymore and agreed to sell 18,000 Quaaludes for $10,000, 7,200 Talwins and 7,200 PBZ's. During this recorded meeting, Virgil Fluker arrived, tendered $15,000 to Faymore and agreed to call later that afternoon. After Fluker left, Faymore and Price agreed to meet one hour later at a bus turn-around.

At the bus turn-around, the exchange was completed. Price then drew his service revolver and attempted to place Faymore under arrest. After a struggle, the weapon discharged injuring Faymore's right ear. Faymore however managed to gain possession of the gun from Price and drove away at high speed. Special agent Magoch and investigator Krebs chased Faymore. At one point in the high-speed chase, Faymore swerved his car into the agents' path. The agents however eventually captured Faymore and placed him under arrest.

During trial, Faymore claimed that he had offered Price a $100,000 reward for uncovering a DEA conspiracy against him. In search of that reward, Faymore testified, agent Price sold him DEA files and narcotics seized earlier by the DEA from the Clinic. Faymore's defense was that he and Price agreed to the sale in an effort to embarrass the DEA by crossing up two of its investigative teams. The jury, however, did not credit Faymore's testimony and rejected his defense. Faymore was convicted of all charges and now appeals those convictions to this Court.

Appellant contends that the imposition of consecutive sentences violated the Double Jeopardy Clause. Faymore was sentenced to a total of 40 years imprisonment on the twelve counts. The double jeopardy clause protects a defendant from multiple punishments for the same offense. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In order to determine whether Faymore was convicted and sentenced more than once for the same offense, we must decide "[i]f each requires proof of a fact that the other does not." Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Double Jeopardy Clause is not violated even where the prosecution relies upon a "substantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785, 95 S.Ct. 1284, 1293, 43 L.Ed.2d 616 (1975). A single act or transaction, moreover, may produce distinct offenses under separate criminal statutes. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

Faymore's drug convictions were entered with respect to multiple counts under one criminal statute. In United States v. Finazzo, 704 F.2d 300 (6th Cir.1983), this Court held that the "question of whether separate punishments may be imposed [under the same statute] is primarily one of Congressional intent." Where Congress intended to provide multiple sentences, the double jeopardy clause places no restraint upon a court's power to impose such sentences. Albernaz, 450 U.S. at 340, 101 S.Ct. at 1143.

We must determine, therefore, whether Congress intended to provide multiple punishments under the Comprehensive Drug Abuse and Control Act of 1970, 21 U.S.C. Sec. 801 et seq. Faymore contends that "possession with intent to distribute" under Sec. 841(a)(1) creates one punishable offense. In United States v. Davis, 656 F.2d 153 (5th Cir.1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982), however, the Fifth Circuit held that "Congress intended, in enacting 21 U.S.C. Sec. 841, to provide trial judges with maximum flexibility in sentencing, and therefore intended to permit punishment for possession of each controlled substance." Moreover, in United States v. McDonald, 692 F.2d 376 (5th Cir.), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983), the Fifth Circuit concluded that separate physical deliveries of a controlled substance constituted separate criminal acts under the Comprehensive Drug Abuse Prevention and Control Act of 1970 for which consecutive punishments were legitimate. Although we have not addressed the precise issue before us, this Court in United States v. Pope, 561 F.2d 663 (6th Cir.1977) held that the simultaneous possession of two different controlled substances in violation of Sec. 841(a)(1) amounted to separate offenses for purposes of indictment and sentencing. Where as here the defendant is convicted of more than a single sale of one controlled substance under Sec. 841(a)(1), compare United States v. Merlino, 595 F.2d 1016 (5th Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980), the double jeopardy clause does not prohibit the district court from imposing consecutive sentences.

Faymore contends in the alternative that the possession with intent to distribute counts should have merged into the lesser included offense of possession. Possession of a controlled substance is a lesser included offense within possession with intent to distribute. United States v. Wade, 502 F.2d 144 (6th Cir.1974). While a charge of possession with intent to distribute based on a single act must merge into a distribution charge for sentencing purposes, see United States v. Stevens, 521 F.2d 334 (6th Cir.1975), multiple acts involving multiple controlled substances are not so-merged. In the case before us, Faymore was charged and convicted of separate counts, each of which represents a distinct criminal act or a distinct substance. Although, as Faymore contends, the government produced no hard evidence of an actual delivery of controlled substances, the intent to distribute can be inferred by the jury from circumstantial...