U.S. v. Solis, s. 87-1096

• Decision Date: 08 March 1988
• Docket Number: Nos. 87-1096,87-1098,s. 87-1096
• Citation: 841 F.2d 307
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio Lara SOLIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Manuel Salazar SANCHEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 307

841 F.2d 307

UNITED STATES of America, Plaintiff-Appellee, v. Antonio Lara SOLIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Salazar SANCHEZ, Defendant-Appellant.

Nos. 87-1096, 87-1098.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 13, 1988.

Decided March 8, 1988.

Steve Emery Teich, San Francisco, Cal., for defendant-appellant Solis.

Victor Palacios, San Francisco, Cal., for defendant-appellant Sanchez.

Sanford Svetcov, and Robert L. Dondero, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

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

Before NOONAN and THOMPSON, Circuit Judges, and TEVRIZIAN, ^* District Judge.

NOONAN, Circuit Judge:

Manuel Salazar Sanchez and Antonio Lara Solis appeal their convictions for conspiracy to violate the drug laws of the United States and for distributing heroin. We affirm the conviction of conspiracy and reverse the conviction for distributing.

The most substantial point raised on this appeal is the difference between the indictment and the instructions to the jury on Count 4. Count 4 charged Sanchez and Solis with distributing six ounces of heroin. The instructions to the jury included an instruction on distribution and also instructions on possession of heroin--a crime not charged against either defendant. These instructions on possession were specifically given as an element in the crime of aiding and abetting. They were also given apart from the instruction on aiding and abetting in such a way that they could have applied to either defendant. Although the government contends that the instructions were appropriate in indicating an element of the crime of conspiracy to violate the drug laws, there is nothing to connect the instructions to the crime of conspiracy. The government finally contends that the instructions were merely "superfluous." But there was evidence before the jury that the defendants possessed heroin, and, being told the elements of the crime of possessing heroin, the jury could very well have concluded that it could convict for possession of heroin for distribution. It is true, as the government contends, that the court read the indictment to the jury and the court told the jury that the defendants were on trial "only for the crimes charged in the indictment, not for any other activities." But the court told the jury also, of course, that the jury must follow the instructions, and the instructions indicated that this jury could convict these defendants for possession of heroin for distribution. It is also true, as the government argued, that the jury returned a verdict of "Guilty as to count four (4) of the indictment." But this verdict is unenlightening as to whether the jury was under the impression, due to the additional instructions, that they could convict on count 4 if they found possession with intent to distribute.

The statute 21 U.S.C. Sec. 841(a)(1) makes it a crime "to manufacture, distribute, or dispense or possess with intent to manufacture and distribute or dispense a controlled substance." Manufacturing is not distributing. Possessing is not manufacturing or distributing. To possess with intent to distribute is an offense distinct from distributing. See United States v. Carter, 576 F.2d 1061, 1064 (3d Cir.1978). When the jury was told it could convict for possession it was told it could convict for a crime not charged by the grand jury. To the extent that United States v. Montiell, 526 F.2d 1008, 1011 (2d Cir.1975), can be read as expressing a different view, we decline to follow it.

The seminal case in this area is Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), holding it unconstitutional for a court to delete words from an indictment, making the offense narrower than that charged by the grand jury. The modern reading of Bain was supplied by the Supreme Court in 1985, holding that a mere narrowing of an indictment by the court is not in itself unconstitutional, but it is unconstitutional to convict a defendant of "an offense different from that which was included in the indictment." United States v. Miller, 471 U.S. 130, 142, 105 S.Ct. 1811, 1818-19, 85 L.Ed.2d 99 (1985).

In the case at bar Solis and Sanchez have been convicted upon instructions which were not included in the indictment. There are those, no doubt, who may see insistence on conformity with the indictment as a requirement of a technical nature unnecessarily encumbering the course of criminal justice. In a number of quarters the grand jury is not regarded as much of a bulwark for the liberties of citizens--lap dogs for the prosecutor is more likely to be the popular impression. See Tom Wolfe, A Bonfire of the Vanities (1987), 602-614. Nonetheless, despite the lack of respect that the grand jury often has, the grand jury still is a thin line between official zeal and the citizenry. In any event, we are bound by Miller to conclude that the Fifth Amendment is violated when the grand jury charges one crime and the jury convicts of another.

The government objects that the defendants made no objection to the instructions. They not only failed to object, they expressly said they had no objection. Counsel for Solis even collaborated with the court in inserting dates on the instruction on possession. We do not commend counsel for their acquiescence but we are...