Sunday, May 05, 2013

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
toothbrushes to his friends and acquaintances in Billings, Montana.”

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
For Further Reading: Former SD Ohio Fed. Public Defender Steve Nolder recently fired himself to save staff from furloughs or lay-offs. Steve was recently featured on the Daily Show, as an example of the impact of sequestration. See video here.  Last week, another Federal Defender joined the ranks of the departed. Respected Missouri Defender Ray Conrad retired years early, to lessen the financial impact of sequestration on his staff. See article here. 
   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 Steve Nolder from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at


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