Case o' The Week: Novocaine OK, Cocaine Not So Much - Mancuso, Continuing Offenses, and Drug Distribution
“Mancuso was a dentist who distributed
a lot more than free
Great first line in a good new case on federal
drug distribution. United States v.
Mancuso, 2010 WL 1811276 (9th Cir. May 1, 2013), decision available here.
Players: Decision by Judge Bea, joined by Judge Clifton and DJ
Mahan.
Facts: Mancuso was a dentist in Billings,
Montana. Id. at *1. He was charged in
one count (Count II) with distributing over 500 grams of cocaine, beginning in
2002 through 2009. Id. He was also
charged with using his home and office as places maintained to distribute
cocaine. Id. “Friends” and suppliers
testified at trial about Mancuso buying and sharing cocaine over the seven years,
in his home, office, and at bars and ski resorts Id. at *2. “I’ll buy and you fly,” was Mancuso’s motto: he would
bankroll the cocaine and share it with those who purchased it for him. Id. at *2. Mancuso was convicted after
trial, after having made an unsuccessful duplicity challenge to the
distribution charges in Count II.
Issue(s): “Mancuso’s duplicity claim with
respect to Count II, which charged him with a single continuing offense of
distributing cocaine between . . . 2002
and . . . 2009 is much stronger. Unlike
possession of controlled substances with intent to distribute, it is unclear
whether actual distribution may be charged as a continuing offense. This
circuit has never addressed directly whether distribution is a continuing
offense, although other circuits have held that it is not.” Id. at *7.
Held: “We agree with the reasoning of the Second
Circuit: separate acts of distribution of controlled substances are distinct
offenses under 21 U.S.C. §b841(a), as opposed to a continuing crime, and must
therefore be charged in separate counts. The government argues that charging
all of the acts of distribution in a single count was permissible because these
acts ‘could be characterized as part of a single continuing scheme.’ We
disagree. Mancuso’s various acts of distribution to random friends and
acquaintances, unassociated with each other in any venture or pursuit, over the
course of several years and in various locations are not sufficiently related
to justify charging him with one count alleging a continuing distribution
offense, as opposed with distinct counts for each act of distribution. For
these reasons, we vacate Mancuso’s conviction on Count II on the grounds that
it was duplicitous.” Id. at *8.
Of Note: There’s a surprising number of
issues in this sole-defendant case (and not all are as nicely resolved
as this “continuing offense” claim). One good result is Judge Bea’s
reversal for plain error when the jury wasn’t instructed that they must find a primary purpose of Mancuso’s residence
and dentist office was to distribute drugs. Id.
at *8-*9. It is an honest and robust reading of the requirements for a “maintaining
a place to distribute cocaine” charge (21 U.S.C. § 856(a)(1)). Worth a close
read in § 856(a) cases.
How to
Use: Judge Bea’s new rule is welcome. Most
obviously, it prevents the government from insulating old distribution charges
from a statute of limitation challenge by lumping the offenses together as a single-count
“continuing offense.” In some cases, it may also permit the defense to “throw”
a hopeless distribution count at trial, focus the fight on another distribution
charge, hope for a compromise verdict, and try to get under a mandatory-minimum
triggering amount. Of course, the new rule doesn’t apply to conspiracy charges,
or RICO, or “possession with intent to distribute,” id. at *7, but any win in the drug context is a victory worth
trumpeting.
Steven Nolder, FPD SD Ohio |
Meanwhile, no federal prosecutor in the country will be furloughed. See article here. And Justice is spending $165 million to purchase a new federal prison (so more
federal inmates can be incarcerated). Id.
Image of cocaine toothache drops from http://www.npbdentist.com/blog/post/and-you-think-you-hate-going-to-the-dentist-now.html
Image of Steve Nolder from http://www.youtube.com/watch?v=dMQQgLtnWOQ
Steven Kalar, Federal Public Defender
N.D. Cal. FPD. Website at www.ndcalfpd.org
.
Labels: 21 USC 841, 21 USC 856(a)(1), Bea, Clifton, Continuing Offense, Minor Role, Specific Unanimity, Statute of Limitations
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