U.S. v. Fooladi

• Decision Date: 02 November 1984
• Docket Number: No. 84-1117,84-1117
• Citation: 746 F.2d 1027
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dr. Mike FOOLADI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1027

746 F.2d 1027

UNITED STATES of America, Plaintiff-Appellee, v. Dr. Mike FOOLADI, Defendant-Appellant.

No. 84-1117.

United States Court of Appeals, Fifth Circuit.

Nov. 2, 1984.

Raymond C. Caballero, Barbara Wiederstein, El Paso, Tex., for defendant-appellant.

Edward C. Prado, U.S. Atty., El Paso, Tex., Sidney Powell, C. Larry Matthews, Jr., Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, TATE, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Dr. Mike Fooladi appeals from a conviction by a jury of one count of manufacturing phenyl-2-propanone and one count of attempting to manufacture amphetamines, contrary to 21 U.S.C. Sec. 841(a)(1). Fooladi urges that the evidence was insufficient to support the verdict, and that the district court did not adequately explain to the jury his defense that he did not know that what he was doing was illegal. He also asks us to reconsider an earlier-decided search question arising from the search of his home laboratory. We affirm.

I

Fooladi, a Ph.D. in chemistry, worked for several chemical companies as a researcher. In 1980, he enrolled in a two-year M.D. program at a medical school in Ciudad Juarez, Mexico, near his home in El Paso.

During 1981 and 1982, Fooladi attracted the attention of the DEA by purchasing laboratory glassware for use at a residential address, and by ordering from a doctor in Laredo 25 pounds of sodium acetate, an uncontrolled chemical, but apparently one that can be used in drug manufacturing. When DEA agents discovered that Fooladi had only crossed the Mexican border twice in the past month, they suspected that he was not really a medical student.

DEA agents rented a vacant building next to Fooladi's residence. When they smelled the odor of phenyl acetic acid, another uncontrolled chemical known to DEA agents as a possible ingredient in amphetamines, they obtained a warrant to search Fooladi's residence. The agents executed the warrant and found different chemicals, including phenyl-2-propanone, an immediate precursor of amphetamines and a Schedule II controlled substance. They also discovered several formulas for converting P-2-P into amphetamines. Fooladi told the agents that he was manufacturing P-2-P because he intended "to convert the P-2-P into amphetamines and later into a slow release type drug for use in weight control." They arrested Fooladi.

Before trial, Fooladi moved to suppress the evidence seized from his lab based on the search warrant's alleged illegality. The district court granted the motion, but a panel of this court reversed. United States v. Fooladi, 703 F.2d 180 (5th Cir.1983).

Fooladi was convicted of knowingly or intentionally manufacturing P-2-P and of knowingly or intentionally attempting to manufacture amphetamines, in violation of 21 U.S.C. Sec. 841(a)(1). He did not testify at his trial; at his sentencing hearing, Fooladi for the first time directly told his story. Judge Hudspeth, stating, "I'll give you the benefit of the doubt about the possibility that you might have been doing something that in your own mind you thought was legitimate or non-criminal," sentenced Fooladi to concurrent 3-year suspended sentences on the two counts, and imposed 5 years of supervised probation and a $1500 fine.

II

Over objection, the trial court refused to give three of Fooladi's requested jury instructions. Two of these spelled out his theory that if acting under a good-faith belief that his behavior was legal, or if ignorant of the law, he could not have had the specific intent to commit a crime required for a conviction under Sec. 841(a)(1). ¹ Instead, the court gave a pattern instruction, ² which includes the following passage:

The word "willfully," as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law.

Looking at the charge without the context of trial, Fooladi argues forcefully that the jury should have been given a more complete explanation regarding his contention that he did not know his conduct to be unlawful. The four corners of the charge are not the end of the inquiry, though. To determine whether the trial court's failure to give a requested jury instruction violates a defendant's right to the fair trial guaranteed him by the Due Process Clauses of the Fifth and Fourteenth Amendments, the charge must be examined in the full context of trial including the final arguments of counsel. See United States v. Bush, 599 F.2d 72, 78 (5th Cir.1979). Indeed, we have granted habeas relief to a state prisoner when a jury charge laid alongside a prosecutor's final argument communicated an erroneous theory of law, although the charge did not do so when read in the abstract. Plunkett v. Estelle, 709 F.2d 1004 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984). In declining to review asserted error in the charge in isolation from its tactical scene, we were applying the Supreme Court's caveat that "the process of instruction itself is but one of several components of the trial[.]" Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).

A central purpose of the charge is to provide the framework for the argument by the counsel. Our review of the closing arguments by counsel lead us to the conclusion that Fooladi's contention that he was innocently engaged in research and unaware that producing P-2-P was illegal was fully and completely developed for the jury. As noted, the judge told the jury that the word "willfully" meant that the defendant knowingly did an act which the law forbade, purposely intending to violate the law. Of course, Fooladi could not purposely intend to violate the law if he thought his work was legal. This instruction allowed Fooladi's lawyer to argue his chosen defense, and he did so.

Fooladi's counsel, without objection, explained to the jury in his summation that "they [the prosecution] have to prove by evidence beyond a reasonable doubt that he did it purposefully and intending to violate the law. That's where they don't have any evidence. I mean it doesn't even come close there, purposely intended to violate the law." The closing arguments make plain that issue was joined not over the question of entitlement to the defense but over whether the facts in the case warranted the jury's belief beyond a reasonable doubt that Fooladi knew that what he was doing was unlawful. Reading the record as a whole, we are convinced that Fooladi, as was his constitutional right, had his defenses fully presented to the jury.

This case is therefore distinguishable from cases in which the court failed to charge the jury at all on a central element of the defense, or gave an instruction that thwarted a proper defense theory. In United States v. Schilleci, 545 F.2d 519, 523-24 (5th Cir.1977), for example, the court not only refused to instruct the jury that ignorance of the law negated specific intent, but also charged that "the presumption is that every person knows what the law forbids[.]" See also United States v. Davis, 583 F.2d 190, 193-94 (5th Cir.1978). In such cases, defense counsel would have no skeleton on which to structure their argument to the jury. Compare United States v. Bush, 599 F.2d 72, 76-78 (5th Cir.1979) and United States v. Wellendorf, 574 F.2d 1289, 1290-91 (5th Cir.1978) (jury charge was adequate to allow jury to find lack of specific intent, despite absence of specific charge on ignorance of law).

We have reversed convictions for failure to charge a jury on good faith with a reference to the general principle that "a defendant is entitled to a charge which precisely and specifically, rather than merely generally or abstractly, points to the theory of his defense." United States v. Lewis, 592 F.2d 1282, 1286 (5th Cir.1979), quoting United States v. Wolfson, 573 F.2d 216, 221 (5th Cir.1978); see Coleman v. United States, 167 F.2d 837 (5th Cir.1948). In United States v. Goss, 650 F.2d 1336, 1345 (5th Cir.1981), we held that the giving of a general instruction on specific intent did not "direct the jury's attention to the defense of good faith with sufficient specificity to avoid reversible error."

We do not view our decision today as contradictory of this principle; the deeper question is how precise the instruction must be. As Judge Brown has stated,

... the instructions must be sufficiently precise and specific to enable the jury to recognize and understand the defense theory, test it against the evidence presented at trial, and then make a definitive decision whether, based on that evidence and in light of the defense theory, the defendant is guilty or not guilty.

United States v. Barham, 595 F.2d 231, 244 (5th Cir.1979). As in Bush and Wellendorf, the court's instruction on specific intent allowed the jury to weigh Fooladi's claim of good faith against the evidence it heard.

Goss and Lewis did not evaluate the jury charge or otherwise explain their rationale in the terms of Barham, but arguably instead laid down a per se rule that the failure to give an explicit instruction directly discussing good faith or ignorance of the law is always reversible error. To the extent Goss and Lewis embodied such a rule, they would be inconsistent with Bush and the earlier decided Wellendorf case. We prefer to read them in the reconciling light that neither Goss nor Lewis explained the shortcoming of the charge in the context of trial and closing argument, as we do today. Our review of the trial as a whole leads us to conclude that the court's charge here does not require reversal. This is the Bush and Wellendorf method. While we do not pretend that our decisional line has been straight, the seeming variation...