U.S. v. Mehrmanesh

• Decision Date: 05 August 1982
• Docket Number: No. 81-1305X,81-1305X
• Citation: 682 F.2d 1303
• Parties: 10 Fed. R. Evid. Serv. 1065 UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Reza MEHRMANESH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1303

682 F.2d 1303

10 Fed. R. Evid. Serv. 1065

UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Reza MEHRMANESH, Defendant-Appellant.

No. 81-1305X.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 14, 1981.

Decided June 11, 1982.

Rehearing Denied Aug. 5, 1982.

William F. McDonald, Jr., Tucson, Ariz., for defendant-appellant.

Negatu Molla, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and SCHROEDER, Circuit Judges, and HENDERSON, ^* District Judge.

WALLACE, Circuit Judge:

Mehrmanesh was convicted of two counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and was sentenced to consecutive prison terms of 15 years on each count. Two principal issues are presented on appeal: (1) whether the offenses alleged in counts 1 and 2 of the indictment were in fact one offense for which only one sentence should have been imposed, and (2) whether the district court erred in denying Mehrmanesh's motion to prevent the government from using a prior conviction for purposes of impeachment and from inquiring into other "bad acts" upon cross-examination. We affirm.

I

On December 10, 1980, Sergeant Wolff of the Tucson, Arizona, Metropolitan Narcotics Squad discussed a possible heroin transaction with Melchi, a government informant. Melchi was to act as a liaison between the purported buyers, represented by Wolff, and the supplier, Mehrmanesh, through Mehrmanesh's associates Napier and Reedy.

Shortly after midnight on December 13, Melchi met with Mehrmanesh, Napier, and Reedy to discuss the sale of approximately 500 grams of heroin to Melchi's buyers. When Melchi asked for a sample to show to the buyers, Mehrmanesh stated that the heroin was buried in the desert and that it was then too late to get it. Mehrmanesh promised to have the heroin picked up and delivered to Reedy's home the next morning. Reedy testified that Mehrmanesh arranged for him to pick up the heroin from his wife. The next morning, Mehrmanesh's wife gave Reedy a tool box which contained over 500 grams of heroin wrapped in air-conditioning duct tape. Later that day, a Saturday, Napier furnished Melchi with a four-gram sample of heroin. This sample, however, was never delivered to the law enforcement authorities.

Because Melchi stated that the transaction could not be concluded over the weekend as the buyers had their money in a bank, Reedy, Napier, and Melchi drove to Tucson the following Monday to consummate the heroin transaction with Wolff. At Picacho Peak, between Phoenix and Tucson, Melchi indicated that the buyers wanted another sample and that this would be a convenient time for Reedy to give him one. Reedy complied and gave Melchi a sample of approximately 2.28 grams of heroin. This transfer formed the basis for the first count in the indictment.

After delivering the sample to the narcotics agents in Tucson, Melchi contacted Napier and Reedy and informed them that the buyers liked the sample and that he had seen the money. After the balance of the heroin was delivered to the agents, Reedy and Napier were arrested. The delivery of this heroin, approximately 594 grams, formed the basis for the second count in the indictment.

II

Mehrmanesh contends that he should have been sentenced upon only one count. This raises the question of what Congress intended to be the "appropriate unit of prosecution" for violations of 21 U.S.C. § 841(a)(1). ¹ See United States v. Universal CIT Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). The issue is whether delivery of the sample can form the basis of a separate crime.

The government relies in part on the double jeopardy cases of Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). These cases, however, involve a different question than the one presented here. In Gore, the issue was whether a single narcotics sale could serve as the basis for convictions under three different statutory provisions. The Court sustained the convictions and in doing so reaffirmed the Blockburger rule, which provides that two offenses may derive from the same act if each statutory provision requires proof of a fact which the other does not. But here we are not concerned with the question of whether the double jeopardy clause precludes separate convictions under two criminal statutes for the same act. Rather, we are concerned with the narrower question of what operative facts Congress intended to constitute a violation of 21 U.S.C. § 841(a)(1). We must determine whether Congress intended that the delivery of a sample, prior to the consummation of a narcotics sale, should be a separate and distinct violation of section 841(a)(1). See United States v. Universal CIT Credit Corp., supra, 344 U.S. at 221-23, 73 S.Ct. at 229-30; United States v. Reed, 647 F.2d 678, 681 (6th Cir. 1981).

Mehrmanesh contends that the distribution of the 2.28 grams of heroin as alleged in count 1 of the indictment was part of the total transaction to distribute all of the heroin as alleged in both counts and, therefore, count 1 should have been dismissed by the district judge on the ground that it was multiplicitous. In support of this "transactional approach," Mehrmanesh cites United States v. Ferguson, 498 F.2d 1001 (D.C.Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 183, 42 L.Ed.2d 145 (1974), in which the District of Columbia Circuit held:

Finally, on the point of sentencing, we do find that the appellant has a valid objection. There clearly was intended to be one sale of narcotics; however, due to some misunderstandings, the full quantity of narcotics purchased was not delivered on May 19, 1969. Thus, the May 20, 1969, exchange, we believe, should be treated as part and parcel of the May 19 sale, and concurrent sentences should be imposed rather than consecutive ones under count one of each indictment.

Id. at 1009. The government correctly points out that Ferguson dealt with a violation of 26 U.S.C. § 4705(a), which was repealed and replaced by the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the Act). Section 4705(a) had provided for the issuance of order forms by the Secretary of the Treasury and required their use in the sale of narcotics. In the present case, Mehrmanesh was convicted of violating 21 U.S.C. § 841(a)(1), the part of the Act which makes distribution an offense. The conduct prohibited by this section is neither the sale of controlled substances nor being continuously engaged in the business of distributing controlled substances. As the Eighth Circuit observed in discussing the limits of the Act:

These prior concepts have been discarded in the Controlled Substances Act which contains no sale or buying requirement to support a conviction; there is now an offense of participation in the transaction viewed as a whole. The Comprehensive Drug Abuse Prevention and Control Act of 1970 is extremely broad in scope, no longer restricted to the narrower concepts of buy and sell, but all inclusive in covering the entire field of narcotics and dangerous drugs in all phases of their manufacture, processing, distribution and use. All distribution is controlled or prohibited, legitimate or illegitimate. Any individual who participates in any manner in the unauthorized distribution of such "controlled substances" is amenable to the Act and the sanctions provided therein.

United States v. Pruitt, 487 F.2d 1241, 1245 (8th Cir. 1973).

Although the legislative history of the Act does not expressly reject Mehrmanesh's proposed transactional approach, a comparison of the language in the two statutes and an examination of the specific definitions provided in the Act reveal that Congress did not intend the unit of prosecution under section 841(a)(1) to be construed so broadly. This is especially true in light of the principal purpose of the Act: to deal in a comprehensive fashion with the growing menace of drug abuse in the United States and to strengthen existing law enforcement authority in the drug field. See H.R.Rep.No.91-1444, 91st Cong., 2d Sess., in (1970) U.S.Code Cong. & Ad.News 4566, 4567.

The Act makes it a crime to "... distribute, or dispense ... a controlled substance." 21 U.S.C. § 841(a)(1). Distribution is defined in section 802(11) as "to deliver (other than by administering or dispensing) a controlled substance." The term "deliver" is defined as an "actual, constructive, or attempted transfer of a controlled substance." Id. § 802(8). On its face, therefore, the Act proscribes each act of delivery, rather than each purchase or sale as under section 4705(a) of the old statute. By punishing deliveries rather than transactions, Congress has made it unnecessary to establish that a defendant participated in a particular transaction as either a buyer or seller, thus expanding the scope of the Act to parties who act merely as an agent for the buyer or seller. See generally United States v. Pruitt, supra, 487 F.2d at 1244-45. If the transactional approach urged by Mehrmanesh were accepted, courts would have the unenviable task of examining each transaction and determining whether a particular delivery was sufficiently separate from prior or future deliveries to constitute a distinct transaction separately punishable under section 841(a) (1). It seems unlikely that Congress intended to expand the scope of section 841(a)(1) to include all participants in the chain of distribution, while at the same time limit the scope of a single offense under the section only to those acts which are reasonably construed as constituting a distinct transaction between a buyer and seller. Yet, if we were to accept the reasoning used by the court in Ferguson and argued for by Mehrmanesh, we would impute just such an intent to Congress.

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