United States v. Mancuso

• Decision Date: 01 May 2013
• Docket Number: 12–30201.,Nos. 12–30174,s. 12–30174
• Citation: 718 F.3d 780
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jerome Daniel MANCUSO, Defendant–Appellant. United States of America, Plaintiff–Appellant, v. Jerome Daniel Mancuso, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

718 F.3d 780

UNITED STATES of America, Plaintiff–Appellee,

v.Jerome Daniel MANCUSO, Defendant–Appellant.

United States of America, Plaintiff–Appellant,

v.Jerome Daniel Mancuso, Defendant–Appellee.

Nos. 12–30174, 12–30201.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 6, 2013.

Filed May 1, 2013.

Michael W. Meyrick (argued), Law Offices of Michael Meyrick, P.C., Canon City, CO, for Defendant–Appellant/Appellee.

J. Bishop Grewell (argued) and Michael W. Cotter, United States Attorney's Office, Billings, MT, for Plaintiff–Appellee/Appellant.

Appeal from the United States District Court for the District of Montana, Richard F. Cebull, Senior District Judge, Presiding. D.C. No. 1:10–cr–00100–RFC–1.

Before: RICHARD R. CLIFTON and CARLOS T. BEA, Circuit Judges, and JAMES C. MAHAN, District Judge.^*

OPINION

BEA, Circuit Judge:

Jerome D. Mancuso appeals his convictions and sentence imposed for one count of possession of cocaine with intent to distribute, one count of distribution of cocaine, and two counts of maintaining a drug-involved premises. The government cross-appeals the district court's denial of forfeiture of the seized equity from the sale of Mancuso's home. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm his conviction on Count I, vacate his convictions on Counts II, III, and IV, and remand for further proceedings consistent with this opinion. We also reverse the district court's denial of the government's forfeiture request and remand for further forfeiture proceedings.

Facts and Procedural History

Mancuso was a dentist who distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana. On August 23, 2010, he was charged with several crimes relating to cocaine possession and distribution. Counts One and Two of the indictment read as follows:

COUNT ONE

That between on or about January 1, 2002, and continuing thereafter until on or about the end of July 2009, at Billings, in the State and District of Montana, the defendant, JEROME DANIEL MANCUSO, did knowingly and unlawfully possess with intent to distribute over 500 grams of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

COUNT TWO

That between on or about January 1, 2002, and continuing thereafter until on or about the end of July 2009, at Billings, in the State and District of Montana, the defendant, JEROME DANIEL MANCUSO, did knowingly and unlawfully distribute over 500 grams of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Count Three of the indictment charged Mancuso with knowingly using or maintaining a place (his home) for the purpose of unlawfully distributing and using cocaine in violation of 21 U.S.C. § 856(a)(1), and Count Four charged him with the same offense with respect of his dental office. Mancuso was also charged with using a communication facility to facilitate his drug crimes in violation of 21 U.S.C. § 843(b), but he was acquitted of that count and it is not at issue in this appeal. Finally, the indictment contained a forfeiture count, seeking the equity from the sale of Mancuso's home in the amount of $160,524.33.

Before trial, Mancuso moved to dismiss various counts in the indictment. He moved to dismiss Counts I–III because they were barred by the statute of limitations,¹ Counts I–V because they were duplicitous, ² Counts I–II for failure to provide constitutionally required notice, and Counts I–II because they were multiplicitous.³

The district court denied the motion to dismiss based on the statute of limitations, concluding that even though the indictment alleged violations over a period of seven and a half years, acts outside of the statute of limitations could be introduced as either evidence of prior similar bad acts or as part of a common scheme or design. It denied the motion regarding duplicity, noting that “a defendant indicted pursuant to a duplicitous indictment may be properly prosecuted and convicted if either (1) the government elects between the charges in the offending count, or (2) the court provides an instruction requiring all members of the jury to agree as to which of the distinct charges the defendant actually committed.” The district court denied the motion regarding notice, finding that the indictment was sufficient in that the defendant could read and understand the offenses charged in Counts I and II, and that there was no requirement for an indictment to include theories of prosecution or anticipated evidence. Finally, the district court denied the motion regarding multiplicity, noting that in the event the court found that the indictment was multiplicitous, it would remedy the defect at the appropriate time.

Mancuso then moved for a bill of particulars, seeking specific information concerning the dates and places that he was alleged to have possessed cocaine with intent to distribute, and occasions when he was alleged to have distributed cocaine, including identification of any witnesses to such transactions. The district court denied the motion, stating that the prosecution's theory of the case was clear from the indictment and that full discovery ⁴ would obviate the need for a bill of particulars.

At trial, nine different witnesses testified about occasions where they supplied cocaine to Mancuso, received cocaine from Mancuso, or consumed cocaine with Mancuso. For example, Timothy Loudan testified that he began supplying Mancuso with cocaine in 2006 or 2007, and that Mancuso would usually buy an eighth of an ounce to two eighths of an ounce at a time. Loudan testified Mancuso shared cocaine with him anywhere from 10–25 times ⁵ at Mancuso's office, and Mancuso shared cocaine with Loudan at Mancuso's home and other locations on other occasions (i.e., bars, restaurants, golf courses, and ski resorts). Loudan also testified about an incident in which he allegedly observed Mancuso pick up a 32–ounce Big Gulp cup containing cocaine by the side of the road. Loudan and other witnesses testified that Mancuso's catchphrase was “I'll buy and you fly,” apparently referring to Mancuso's practice of purchasing cocaine and sharing it with his friends, dealers, and acquaintances.

On October 7, 2011, the jury found Mancuso guilty of Counts I–IV, and acquitted Mancuso on Count V (using communication facilities to facilitate drug crimes). The jury further found the amounts distributed and possessed with intent to distribute to be less than 500 grams. Also on that date, after the jury verdict was read, the following exchange took place during a sidebar:

[Government counsel]: I apologize for interrupting. There has not been a demand for jury trial; therefore, the forfeiture portion of the trial, the jury is waived. I just want to point that out. So then the forfeiture will be your decision. I wanted to make sure procedurally—

The Court: I know that's the case.

[Defense counsel]: Understood.

[Government counsel]: Thank you.

On May 4, 2012, the district court held a forfeiture hearing. The district court judge noted that he had been unaware of a recent addition to Federal Rule of Criminal Procedure 32.2. The amended rule provides, “In any case tried before a jury, if the indictment or information states that the government is seeking forfeiture, the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.” Fed.R.Crim.P. 32.2(b)(5)(A). The district court noted that in this case he had failed to determine whether either party requested a jury verdict as required by the amended rule on the forfeitability of the equity realized when Mancuso sold his house. The district court therefore declined to grant forfeiture.

Also on May 4, 2012, the district court held a sentencing hearing. The pre-sentence investigation report (“PSR”) provided a guideline range of 41–51 months for Mancuso, based on a drug amount of 376.41 grams and a criminal history categoryI. The PSR author calculated the drug amount by attributing 752.66 grams of cocaine to Mancuso (an amount derived from adding together the amounts described by all of the witnesses) and then dividing that amount by half to account for the amount of cocaine that Mancuso likely consumed personally. Mancuso raised two objections to the PSR that are relevant to the present appeal: he objected to not receiving a reduction for being a minor participant, and he objected to the drug quantity. The district court overruled the first objection, noting that Mancuso had to be “substantially less culpable than the average participant in order to qualify for the reduction.” It concluded that Mancuso's conduct did not meet that standard.

The district court held a hearing on the drug amount, during which the government and Mancuso each presented expert witnesses. Mancuso's expert, a former Drug Enforcement Administration (“DEA”) agent, stated that after reviewing the trial testimony, his opinion was that “Dr. Mancuso could not have shared more than 10 to 12 grams of cocaine back to those who distributed to him.” The expert further stated that the pattern of Mancuso's drug use “seems to be consistent with what the drug trade does in drug transactions. If a dealer brings you an 8–ball of cocaine, and you are gratuitous in tipping him or sharing with him a line or two, that would be consistent....”

The government's expert, a current DEA agent, testified that he did not find any fault with the drug amount calculations made by the PSR author. The government expert explained that the DEA's policy was to charge the full drug amount, but that in this case, the government was “trying to take a nicer role towards Dr. Mancuso and say, well, if he was using quite a bit of it....” He later reiterated, “DEA's policy is we charge 100 percent. The person that's doing the report...