Thursday, May 09, 2013

US v. Mancuso, No. 12-30174 (5-1-13)(Bea with Clifton and Mahan).

As the opinion describes it: "Mancuso was a dentist who distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana." Indeed, his charges included cocaine, which lead to various federal charges of possession with intent to distribute, distribution, and maintaining a drug house. The jury convicted on most counts, but found the amount to be distributed as less than 500 grams. On appeal, the 9th affirmed the conviction for possession with distribution (count 1), but vacated the distribution count as being duplicitous; that is, joining two offenses into a single count. The 9th also vacated the count for running a drug house, because the court committed plain error in instructing the jury that there had to be a "significant purpose" in using the premises rather than the correct "primary or principal use" for a house. The instruction applies to a professional office (dentist) as well as a residence. On various other issues, such as statutes of limitations and sentencing, the 9th rejected the arguments. As for the forfeiture count, the court's failure to inquire whether either party wanted the jury to find a nexus between the property and the offense was harmless.


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