U.S. v. Palafox

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before BROWNING, Chief Judge, GOODWIN, SNEED, SCHROEDER, FLETCHER, PREGERSON, ALARCON, POOLE, NELSON, NORRIS, and REINHARDT; SCHROEDER; POOLE, Circuit Judge, with whom SNEED; NELSON, Circuit Judge, with whom SNEED
• Citation: U.S. v. Palafox, 764 F.2d 558, 80 A.L.R.Fed. 763 (9th Cir. 1985)
• Decision Date: 24 June 1985
• Docket Number: No. 83-1036,83-1036
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio Pino PALAFOX, Defendant-Appellant.

Page 558

764 F.2d 558

80 A.L.R.Fed. 763

UNITED STATES of America, Plaintiff-Appellee, v. Antonio Pino PALAFOX, Defendant-Appellant.

No. 83-1036.

United States Court of Appeals Ninth Circuit.

Submitted Oct. 1, 1984.

Decided June 24, 1985.

David F. Levi, Sacramento, Cal., for plaintiff-appellee.

James M. Fallman, Fallman & Janof, Sacramento, Cal., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of California.

Before BROWNING, Chief Judge, GOODWIN, SNEED, SCHROEDER, FLETCHER, PREGERSON, ALARCON, POOLE, NELSON, NORRIS, and REINHARDT, Circuit Judges.

SCHROEDER, Circuit Judge.

Antonio Pino Palafox appeals from his conviction on one count of possession with intent to distribute a controlled substance and one count of distribution of a controlled substance under 21 U.S.C. Sec. 841(a)(1). The charges stem from a meeting in a parking lot where Palafox intended to sell a package of heroin to an undercover agent. The agent asked Palafox for a sample of the heroin, took a small quantity from the package and returned the package to Palafox. Almost immediately thereafter agents arrested Palafox. He was charged with distribution of the .12 gram sample and with possession of the remaining 124.58 grams with intent to distribute. Upon conviction, he was sentenced to concurrent terms of five years on each count.

Palafox argues in this appeal that because only one sale was contemplated and both the possession and the distribution were part of the same unconsummated transaction, he should not have been tried on both counts. He asks that we reverse his convictions and order the government to retry him on only one of the charges.

Palafox relies on certain language in decisions of this and other circuits involving convictions for possession with intent to distribute and actual distribution of the same drugs in one transaction. See, e.g., United States v. Oropeza, 564 F.2d 316 (9th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978); United States v. Olivas, 558 F.2d 1366 (10th Cir.), cert. denied, 434 U.S. 866, 98 S.Ct. 203, 54 L.Ed.2d 142 (1977). He recognizes, however, that none of these decisions compel adoption of his position. Rather, the cases upon which he relies approve of the prosecution for both possession with intent and distribution but hold that in the sentencing phase, the defendant should receive only one punishment. In the alternative, therefore, he argues that he should not have been sentenced on both counts.

The government relies upon our decision in United States v. Mehrmanesh, 682 F.2d 1303 (9th Cir.1982). It argues that since the defendant completed the distribution of the sample and retained possession of the remainder with the intent to make a subsequent distribution, he committed two separately punishable offenses.

Mehrmanesh, however, involved two distributions. The first was the giving of a sample and the second was the delivery, several hours later, of the remainder to a different person at a different place. Mehrmanesh lived in Phoenix and arranged for the sale of a quantity of drugs in Tucson. One of Mehrmanesh's men and an undercover agent left Phoenix with the drugs to make the delivery to another undercover agent in Tucson. On the way, and unbeknownst to Mehrmanesh, the undercover agent asked Mehrmanesh's courier for a sample, and he complied with the request. That day they delivered the remainder in Tucson. Mehrmanesh was charged and convicted with aiding and abetting both the delivery in Tucson, which he helped plan, and the giving of the sample, about which he knew nothing.

On appeal, the panel majority rejected his argument that the only punishable offense was the aiding and abetting of the sale in Tucson. The majority held that the statute covers distributions and is not limited to sales. Id. at 1305-07. The majority also rejected the contention that, because Mehrmanesh was not even aware of the sample distribution, there was insufficient evidence to convict him of aiding and abetting it. It went on to hold, in effect, that one who arranges a sale can be punished separately for the distribution of a sample which occurs after the sale is arranged and before it is consummated. Id. at 1307-09.

Because the government recognizes that Mehrmanesh is at the very least factually distinguishable, it takes an alternative position similar to that taken by the appellant. The government therefore argues that if there are not two separately punishable offenses, we should remand for resentencing.

The district court apparently wanted to impose only one punishment but felt bound by Mehrmanesh to impose punishments on each count. We granted en banc review in order to resolve the confusion. We hold, in line with the alternative arguments of both sides, that where the defendant distributes a sample and retains the remainder for the purpose of making an immediate distribution to the same recipients at the same place and at the same time, verdicts of guilty may be returned on both counts but the defendant may be punished on only one. ¹

This conclusion flows from three sources of legal authority. The first is the statute under which the appellant was convicted, the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("Drug Act"), and its legislative history. The second is the United States Supreme Court's interpretation of an analogous statute, the Federal Bank Robbery Act, 18 U.S.C. Sec. 2113. The third is the line of Federal Court of Appeals decisions under the Drug Act in factual situations most analogous to this one.

Our examination of the statute and its history underscores the strong congressional intent to criminalize all aspects of drug trafficking, and it compels us to reject an approach which focuses on sales or commercial transactions. See Mehrmanesh, 682 F.2d at 1306-07; United States v. Pruitt, 487 F.2d 1241, 1245 (8th Cir.1973). Palafox is charged with violating section 841(a)(1) of the Drug Act. The section provides:

(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

21 U.S.C. Sec. 841(a)(1). Congress fixed the maximum punishment for conviction of possession with intent to distribute at fifteen years, with a possible fine of $25,000, 21 U.S.C. Sec. 841(b)(1)(A). ² It fixed the same maximum punishment for distribution. Id. Congress indicated thereby that the offenses were equally serious and should be treated with equal severity. The Drug Act attacks illegal drug traffic by making the price for drug participation in any aspect prohibitive. H.R.Rep. No. 91-1444, 91st Cong., 2d Sess., in [1970] U.S.Code Cong. & Ad.News 4566 passim; cf. Pruitt, 487 F.2d at 1245 ("Congress undoubtedly intended by this new Act to make an all-out attempt to combat illicit drugs by subjecting any individual who knowingly participates in the distribution to substantial, and in some cases severe, penalties....").

Congressional intent to penalize all aspects of the unauthorized use of controlled substances was emphasized by the Eighth Circuit in Pruitt, when it stated that the Drug Act is "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 manufacturing, processing, distribution and use." 487 F.2d at 1245; see also United States v. Gomez, 593 F.2d 210, 213 (3d Cir.) (en banc) (Congress intended to proscribe all drug activity in enacting the Drug Act), cert. denied, 441 U.S. 948, 99 S.Ct. 2172, 60 L.Ed.2d 1052 (1979).

Appellant's position that he could be prosecuted for only one offense and that the government must elect to prosecute either the distribution or the possession with intent to distribute, is contrary to this congressional intent. Id. For this reason, the circuits that have considered this contention have rejected it. United States v. Gonzalez, 715 F.2d 1411, 1412 (9th Cir.1983) (the companion case to this one); United States v. Cortes, 606 F.2d 511, 512 (5th Cir.1979); see also United States v. Woods, 568 F.2d 509, 511-12 (6th Cir.) (election not required), cert. denied, 435 U.S. 972, 98 S.Ct. 1614, 56 L.Ed.2d 64 (1978). This appellant was therefore properly prosecuted for two component offenses of one intended sale.

The next issue is whether the appellant may be punished for two crimes after he has been found guilty of two such component offenses. We are guided here by the United States Supreme Court's interpretation in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), of the Federal Bank Robbery Act, 18 U.S.C. Sec. 2113. ³ In the Federal Bank Robbery Act, as in the Drug Act, Congress created separate offenses, i.e., entry with intent to rob, and robbery, out of what could have been described as one criminal undertaking. See Prince, 352 U.S. at 323, 77 S.Ct. at 404, 1 L.Ed.2d 370. The Supreme Court in Prince upheld prosecution and findings of guilt on multiple counts but permitted punishment for only one. Id. at 329, 77 S.Ct. at 407, 1 L.Ed.2d 370.

Prince came to the Supreme Court because of a conflict among the circuits. The Fifth Circuit in Prince itself had held two sentences were appropriate, Prince v. United States, 230 F.2d 568 (5th Cir.1956), rev'd, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); other circuits had held only one was appropriate. Compare Simunov v. United States, 162 F.2d 314 (6th Cir.1947) (statute permits only one sentence) with Rawls v. United States, 162 F.2d 798 (10th Cir.1947) (multiple sentences allowed) and Durrett v. United States, 107 F.2d 438 (5th Cir.1939) (same). See generally Prince, 352 U.S. at 324 n. 3, 77 S.Ct. at 405 n. 3, 1 L.Ed.2d 370. No circuit had adopted the theory appellant urges in this case that the defendant could be prosecuted for...