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United States v. Gomez

UNITED STATES COURT OF APPEALS, THIRD CIRCUIT


February 2, 1979

UNITED STATES OF AMERICA
v.
PEDRO GOMEZ, A/K/A JOSE RIVERA LOPEZ APPELLANT (CRIMINAL NO. 75-513)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Before Adams,*fn* Gibbons, and Garth, Circuit Judges. Before Seitz, Chief Judge, and Aldisert, Gibbons, Rosenn, Hunter, Weis, Garth and Higginbotham, Circuit Judges.

Author: Garth

Reargued Nov. 6, 1978 In Banc.

Opinion OF THE COURT

Three issues have been raised before us on this appeal by Pedro Gomez from his criminal conviction under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 Et seq. (1977). First, we are asked to consider whether the defendant Gomez can properly be sentenced on two convictions; one based on possession of a controlled substance with intent to distribute (Count II) and the other based on actual distribution (Count III) when both convictions arise out of the same criminal undertaking. Second, if both sentences cannot be sustained, we are then called upon to decide the appropriate relief to be accorded. Finally, we are asked to review the propriety of the district court's charge concerning specific intent.

We hold that Gomez may not be sentenced for both possession with intent to distribute and actual distribution on the facts of this case. Because the district court imposed separate sentences for each offense, we are therefore required to vacate these sentences and remand for imposition of a single general sentence. We also hold that the district court did not err in its charge to the jury.

I

A three count indictment was returned against Gomez on November 24, 1975. In the first count (Count I), which is not in issue on this appeal, Gomez was charged with conspiring to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 846.*fn1 He was charged in Count II with possession with intent to distribute cocaine on or about April 2, 1975 at Paterson, New Jersey in violation of 21 U.S.C. § 841(a)(1).*fn2 Count III charged Gomez with violating 21 U.S.C. § 841(a)(1) by the actual distribution of cocaine on or about April 2, 1975 at Paterson, New Jersey.*fn3

Substantial evidence was presented at trial which would support Gomez's convictions for conspiracy and for the possession with intent to distribute cocaine, and the actual distribution of one half kilogram of cocaine to John Daniocet, an agent of the Drug Enforcement Administration, on April 2, 1975, at Paterson, New Jersey. No challenge has been made as to the sufficiency of the evidence. The jury returned a verdict of guilty on each count of the indictment. The district court thereupon imposed the following sentence: (1) a fifteen year term of imprisonment on Count I; (2) a ten year term of imprisonment on Count II, to run consecutively to the sentence on Count I; and (3) a fifteen year term of imprisonment on Count III, to run concurrently with the sentence on Count I. The end result was a total term of imprisonment of twenty-five years. In addition, a special three year parole term was imposed on each count. Gomez's appeal was initially heard by a panel of this court. Prior to the filing of the panel opinion, the court reheard argument En banc.

II

Gomez argues on appeal that 21 U.S.C. § 841(a)(1) should not be construed so as to permit either separate convictions or separate sentences for possessing a controlled substance with intent to distribute and for the actual distribution of that controlled substance, at least when these separate convictions relate to the same drug distribution. In response, the government contends that separate convictions and sentences are appropriate when different evidence has been presented to support each theory of criminal liability, claiming that this is such a case. The legislative history of the Comprehensive Drug Abuse Prevention and Control Act gives us no help in resolving this issue. However, based upon an analysis of the structure of the penalty provisions of the Act and applying relevant canons of statutory construction, we are satisfied that while Gomez could be convicted, he could not be separately sentenced on his convictions under Counts II and III.

The Comprehensive Drug Abuse Prevention and Control Act follows the structure of most modern criminal statutes by separating into discrete components the various acts which are made the subject of criminal liability.*fn4 A reading of the Drug Abuse Act makes it apparent that Congress, in legislating against drug use, intended to encompass every act and activity which could lead to proliferation of drug traffic. Nothing in the statute indicates any congressional intent to limit the reach of this legislation, which is described in its very title as "Comprehensive." If indeed, as we believe, it was the intent of Congress to proscribe all drug activity, then it follows that separate charges and convictions for each component of the offenses described must necessarily be permitted so as to prevent a drug violator from escaping criminal responsibility. Failure to permit the government to bring separate charges and obtain separate convictions on those charges, might enable a criminal defendant to avoid responsibility for his crimes if, on review, an appellate court reversed a single conviction representing only the most factually inclusive offense in a situation where a conviction on a less factually inclusive offense would have been upheld. See United States v. Corson, 449 F.2d 544, 550-51 (3 Cir. 1971) (en banc); Note 17 Infra. In this case, we are satisfied that when Gomez violated 21 U.S.C. § 841(c)(1) by engaging in the act of distributing cocaine and by possessing that cocaine with an intent to distribute it, he was properly charged with two separate violations.*fn5

Our conclusion, however, that separate and discrete Offenses may be charged does not necessarily require that separate and discrete Sentences be imposed when a defendant is convicted on each charge, for we are not convinced that Congress intended to pyramid the sentences that may be imposed when two violations of the statute are proved by but one drug distribution. The penalty provisions of the Act have been orchestrated in meticulous detail. Maximum permissible sentences are made to depend, in part, on the type of substance that is manufactured, possessed, or distributed. Cocaine is a Schedule II narcotic drug, 21 U.S.C. §§ 802(16), 812(c), which places it in the maximum penalty category. Sentence severity also depends on the existence of the defendant's prior convictions and the exact nature of the offense charged. Under the statute, maximum penalties are generally doubled if the defendant has been previously convicted of a drug offense, 21 U.S.C. § 841, or if the crime involved distribution to persons under the age of twenty-one, 21 U.S.C. § 845. In contrast, penalties are reduced when the only crime involved is personal possession. 21 U.S.C. § 844. Conspiracies are subject to punishment separate and apart from the punishment imposed for substantive offenses. 21 U.S.C. § 846. Severe separate penalties are mandated for persons convicted of engaging in a continuing criminal enterprise. 21 U.S.C. § 848.

In giving effect to these penalty provisions, we are guided by "the established rule of construction that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.' " Simpson v. United States, 435 U.S. 6, 14, 98 S. Ct. 909, 914, 55 L. Ed. 2d 70 (1978). Such a rule is informed by the understanding that a court "will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." Ladner v. United States, 358 U.S. 169, 178, 79 S. Ct. 209, 214, 3 L. Ed. 2d 199 (1958).*fn6 Moreover, an interpretation of the statute prohibiting separate sentences when convictions for possession with intent to distribute and for actual distribution are based on the same drug transaction is in accord with that of the majority of Circuits that have considered the issue. United States v. Stevens, 521 F.2d 334 (6th Cir. 1975); United States v. Atkinson, 512 F.2d 1235 (4th Cir. 1975); Cert. denied, 424 U.S. 973, 96 S. Ct. 1477, 47 L. Ed. 2d 743 (1976). United States v. Olivas, 558 F.2d 1366 (10th Cir.), Cert. denied, 434 U.S. 866, 98 S. Ct. 203, 54 L. Ed. 2d 142 (1977); United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977), Cert. denied, 434 U.S. 1080, 98 S. Ct. 1276, 55 L. Ed. 2d 788 (1978).

Here, Gomez, a first offender convicted under Count II of distributing a Schedule II narcotic drug, was subject to a maximum sentence of fifteen years. We do not think Congress intended that he should also be subject to an additional sentence of fifteen years because the jury found that Gomez possessed with intent to distribute At the same time and place the same cocaine that he was found to have in fact distributed. To permit the imposition of such an additional sentence would be to undermine and distort the detailed penalty scheme which Congress so carefully constructed. It would subject Gomez to a maximum thirty year sentence for the commission of crimes which we believe that Congress intended to punish by no more than a maximum fifteen year sentence.

The government, nonetheless, argues that the imposition of separate sentences on Counts II and III in this case is permissible because different evidence is required to prove the crime of possession with intent to distribute and the crime of actual distribution. In support of this proposition it cites United States v. Horsley, 519 F.2d 1264 (5th Cir. 1973), and United States v. Daniels, 572 F.2d 535 (5th Cir. 1970), two cases in which the Fifth Circuit, without substantial analysis, relied on the "different evidence" test*fn7 to sustain separate convictions and sentences under 21 U.S.C. § 841(a)(1), arising out of the same drug transaction. In both cases, the government had charged possession with intent to distribute and actual distribution. It cannot be ascertained from the factual recitals in these cases whether the possession with intent to distribute and the actual distribution occurred at the same time. To the extent, however, that these cases would authorize the imposition of separate sentences when all that is alleged and proved is the possession with intent to distribute and actual distribution of a single quantity of a drug in a single drug sale, they run counter to our understanding of congressional intent as expressed in the penalty structure of the Comprehensive Drug Abuse Prevention and Control Act. Moreover, to the extent that the Fifth Circuit decisions in Horsley and Daniels are predicated upon a factual setting in which the violations occurred during the same transaction, we cannot agree with the results there reached and we find their rationale unpersuasive. As we have interpreted congressional intent, it is permissible to impose separate sentences only when the violations charged and proved arise out of two discrete transactions.*fn8 The possession and distribution counts with which Gomez was charged in the indictment both plainly related to the single April 2, 1975 transaction in Paterson, New Jersey, and it was the same evidence which was adduced at trial to support the convictions on both of these counts.*fn9 Thus measured against the "different transaction" analysis it is evident that separate sentences cannot be sustained for what was no more than one transaction. Because the same transaction formed the basis for Gomez's conviction on both Counts II and III of the indictment, we hold that he may not be sentenced separately on each of these counts.

III

Having determined that Gomez may not be separately sentenced for his convictions on both the second and third counts of the indictment, we must now consider the appropriate remedial measures to be taken. Gomez urges that we vacate his Conviction as well as his sentence on Count II of the indictment, thereby leaving him with a fifteen year sentence on Count III which would run concurrently with the identical sentence on the Count I.*fn10 The government suggests that we either remand for resentencing in accordance with the principles set forth in United States v. Corson, 449 F.2d 544 (3d Cir. 1971) (en banc), or remand with instructions that the district court vacate one of the two challenged sentences.*fn11 We are of the opinion that Corson should be extended to this case.

A

In Corson, we were faced with the problem of reviewing sentences imposed under the federal bank robbery statute, 18 U.S.C. §§ 2113(a), (b), and (d). This statute makes each aspect of a bank robbery a separate offense: entering a federally insured bank with intent to commit a felony*fn12 (§ 2113(a)), robbery*fn13 (§ 2113(a)), larceny*fn14 (§ 2113(b)), and aggravated robbery*fn15 (i.e., assault with a dangerous weapon in the course of a robbery) (§ 2113(d)). The defendant in Corson had been convicted of entering with intent to commit a felony (Count I), robbery (Count II), and aggravated robbery (Count III). He had been sentenced to ten years on Count I, five years on Count II to run consecutively to the sentence on Count I, and five years probation on Count III to be served at the expiration of the sentences on the two counts.

The Supreme Court in Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957), had previously held that Congress did not intend, in creating greater and lesser offenses under the bank robbery statute, to pyramid penalties, and that a defendant could not be given multiple sentences (i. e., a sentence for each separate offense) as punishment for a single bank robbery. Our review of the district court's sentence in Corson required no more than that we implement the Supreme Court's holding in Prince. United States v. Corson, 449 F.2d at 546.

In grappling with the problem of pyramided sentences, we explicitly rejected a "merger" theory, under which a sentence could only be imposed on the most aggravated offense since, in theory, lesser offenses merged into the greater offense. We noted that:

Since the evil at which Prince was directed was the pyramiding of sentences, we see no reason to ascribe to the above "merger" language the wholly gratuitous effect of limiting a sentence to the most inclusive count. Such an effect is neither necessary to effectuate, nor required by, the holding in the case.

449 F.2d at 549. *fn16 The "mechanical" application of the merger rule in Corson would have required the reduction of a fifteen year prison term to a five year probationary term.*fn17 This highlights the most glaring problem with the merger theory the anomalous results which obtain when the most severe sentence is not imposed on the most inclusive offense. 449 F.2d at 548.

In Corson, after rejecting the merger doctrine, we went on to hold that the "only practicable way of implementing Prince (was) to impose a general sentence on all counts for a term not exceeding the maximum permissible sentence on that count which carries the greatest maximum sentence. " 449 F.2d 551.*fn18 Accordingly, since it was the "Cumulation of sentences" which was illegal, 449 F.2d at 551 (emphasis in original), we vacated the sentences on all three counts and remanded for resentencing, with the direction that the district court impose a general sentence on all three counts. Because the merger theory had been rejected, and because the sentencing defect could be corrected by remand for imposition of a general sentence, we were not required to vacate the convictions on any of the counts.*fn19

B

Here, we are faced with a federal statute 21 U.S.C. § 841(a)(1) which creates separate offenses for each of two aspects of a drug transaction: possession with intent to distribute, and distribution. We have held above that, since Congress intended to impose a particular sentence for a single drug transaction, sentences cannot be pyramided with respect to a single instance of distribution I. e., sentences cannot be imposed for both the offense of distribution and the offense of possession with intent to distribute when both are charged and proved to have taken place at the same time. That principle, and the policy upon which it is predicated, is no different from the principle and the underlying policy in Corson.

Corson cannot realistically be distinguished from this case on the basis of the different statutes involved. It is true that Gomez was sentenced for violating 21 U.S.C. § 841(a)(1), and not 18 U.S.C. §§ 2113(a), (b) and (d). Yet there is nothing in Corson which indicates that we there intended to limit the sentencing principles involved just to the bank robbery statutes. The result we reached in Corson was designed to effectuate the congressional intent to prevent sentence pyramiding, and to avoid the anomalies of a technical application of the merger theory. The exact same considerations apply here. The reasons behind our rejections of the merger doctrine in Corson are equally applicable here. Moreover, here too we are effectuating Congress' intent in holding that pyramiding of sentences under 21 U.S.C. § 841(a)(1) is impermissible.

C

We do not believe that our decision in Corson has been undermined in any way by the Supreme Court's subsequent decision in United States v. Gaddis, 424 U.S. 544, 96 S. Ct. 1023, 47 L. Ed. 2d 222 (1976). In Gaddis the defendants had been convicted and sentenced for entering a bank with intent to rob under 18 U.S.C. § 2113(a), bank robbery under 18 U.S.C. § 2113(a), four counts of assault in the course thereof in violation of 18 U.S.C. § 2113(d), and possession of the stolen funds in violation of 18 U.S.C. § 2113(c). They were sentenced to 20 years on the entering count, 20 years on the robbery count, 25 years on each assault count, and 10 years on the possession count, all sentences to run concurrently. Certiorari was granted to enable the Court to clarify the proper application of its previous decisions in Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959),*fn20 and Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961).*fn21

The conviction under § 2113(c) in Gaddis was clearly improper in light of the Court's previous holding in Heflin. Unlike Milanovich, however, a new trial was not required to remedy this error because there was insufficient evidence in the record to sustain the conviction under § 2113(c). The convictions and sentences on the § 2113(c) count of the indictment were therefore vacated. United States v. Gaddis, 424 U.S. at 549, 96 S. Ct. 1023, 47 L. Ed. 2d 222 . In passing, the Court stated,*fn22 citing Prince, that the concurrent Sentences for entering with intent and robbery the § 2113(a) sentences should be vacated. It should be emphasized that it was only the Sentences on the § 2113(a) counts which were vacated the Convictions on those counts were permitted to stand. 424 U.S. at 544 & n.12, 96 S. Ct. 1023, 47 L. Ed. 2d 222 . This refusal to vacate the § 2113(a) Convictions in Gaddis, contrary to the dissent's interpretation of that case, is fully consistent with our disposition here. The Supreme Court's disposition in Gaddis thus left the defendants with Convictions under both the § 2113(a) counts and the § 2113(d) counts, but with Sentences only under the § 2113(d) counts.

We do not think that these statements can be understood as rejecting Corson or as indicating the Supreme Court's adoption of the merger theory. Indeed it is just as plausible to argue that footnote 12 in Gaddis is an adoption of the "intent of the sentencing court" theory*fn23 since in Gaddis the district court judge had stated that it was his intention that the defendants receive the maximum sentence of 25 years. 424 U.S. at 546, 96 S. Ct. 1023, 47 L. Ed. 2d 222. Cf. Green v. United States, 365 U.S. 301, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961) (retaining sentence that would effectuate district court's intention). But we do not think that Gaddis can or should be read in this way either. In Corson this court considered and rejected both theories. In reviewing the cases which employed each approach, we noted that "regardless of the approach used, the result has almost invariably been to uphold the heaviest sentence and vacate the lighter sentence." 449 F.2d at 547-48 (emphasis omitted). We do not view the Supreme Court's action in Gaddis as any more than that. Nor do we believe that the Supreme Court would have necessarily adopted the same approach had it been faced as we are here with a situation in which the heaviest sentence had not been imposed for the most inclusive offense. See Corson, 449 F.2d at 548-49.*fn24

Because we think that this case is analytically identical to Corson, and because we think that Corson remains unimpaired by Gaddis, we will vacate the separate sentences imposed on Counts II and III and remand for imposition of a general sentence on both counts.*fn25 In order not to offend any requirement of the double jeopardy clause of the fifth amendment, the general sentence to be imposed by the district court may not exceed a ten year sentence consecutive to the fifteen year sentence imposed on the first count. See Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L. Ed. 872 (1874); United States v. Benz, 282 U.S. 304, 51 S. Ct. 113, 75 L. Ed. 354 (1931).

IV

Gomez argues before this court that the district court erred in its charge concerning the specific intent required to sustain a conviction under the second count of the indictment.*fn26 He argues that the instruction permitting the jury to infer that Gomez "intend(ed) the nature and probable consequences of acts knowingly done or knowingly omitted" impermissibly shifted from the government the burden of proving specific intent beyond a reasonable doubt.

This objection to the charge was not raised before the district court as required by Fed.R.Crim.P. 52(b), and any defect in the charge does not amount to plain error. In any event, even had an objection been lodged by Gomez, we find no error in the district court's charge. Although it is not proper to charge that the law Presumes or that a jury Must infer intent from actions, a charge which instructs that it is Permissible for a jury to draw such an inference is fully consistent with this court's opinion in United States v. Garrett, 574 F.2d 778 (3d Cir. 1978), and with the jury instructions outlined in 1 Devitt & Blackmar, Federal Jury Practice & Instructions § 14.13 (3d ed. 1977), which were specifically approved in our Garrett decision.

V

We will therefore affirm so much of the judgment as sentences Gomez to fifteen years under Count I of the indictment. Insofar as we have found the sentences imposed under Counts II and III to be improper, we will vacate those sentences and remand to the district court for resentencing in accordance with United States v. Corson, 449 F.2d 544 (3d Cir. 1971) (en banc). In resentencing in order to impose a general sentence on both Counts, we direct that the general sentence so imposed not exceed a term of ten years consecutive to the sentence imposed under Count I, which we affirm today.

GIBBONS, Circuit Judge, with whom ALDISERT, Circuit Judge, joins, dissenting.

In November, 1975, a three-count indictment was returned against the appellant, Pedro Gomez. That indictment charged him with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (Count I), possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count II), and actual distribution of one-half kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count III). A jury returned a verdict of guilty on each count. Gomez, a first offender, was sentenced on Count I to a 15-year term of imprisonment, the maximum provided by §§ 846 and 841(b)(1)(A). He also received a 10-year term on Count II, to be served consecutive to the sentence on Count I, and a 15-year sentence on Count III, to be served concurrent with the Count I sentence. As provided in § 841(b)(1)(A), a special parole term was also imposed on each count.

On this appeal Gomez does not challenge either the merits of his conviction on the conspiracy count or the sentence imposed thereunder. He urges, however, that since the only possession shown in support of the second count was the identical possession involved in the distribution charge (Count III), the separate conviction on Count II was impermissible. We disagree with the majority that a separate judgment of sentence could have been imposed on Count II. Consequently, we would reverse that conviction and vacate the sentence imposed under it.

The statute which details the substantive offense, 21 U.S.C. § 841(a), provides that:

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .

That statutory subsection creates four disjunctive crimes: (1) knowing or intentional manufacture of a controlled substance; (2) knowing or intentional distribution; (3) knowing or intentional dispensing; and (4) knowing or intentional possession with intent to manufacture, distribute or possess. Count II of the indictment charged the fourth crime, which plainly requires both a knowledgeable possession And a specific criminal intention. For example, the possession of a controlled substance for personal-consumption purposes is not made a crime by § 841(a)(1). Under § 404(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 21 U.S.C. § 844, possession of controlled substances for purposes other than the three specific purposes listed in § 841(a)(1) is only a misdemeanor, carrying a maximum jail sentence of one year.

Gomez's objection to the judgment of sentence under Count II is fundamental. He urges that when Congress enacted § 841(a)(1) it did not intend to permit conviction both of possession with a specific criminal object and of the accomplishment of that object at the same time and place, when possession was an essential element of such accomplishment. One cannot manufacture, distribute, or dispense a controlled substance without also having possession of it.*fn1a One can possess a controlled substance with the intention of manufacturing, distributing, or dispensing it and yet fall short of the accomplishment of any of those purposes. Gomez argues that Congress never intended, however, that when the government proved the accomplishment of one of the three criminal purposes, it could also, because that accomplishment required possession, convict the defendant of the separate crime of possession.

The structure of the penalty provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and its rather sparse legislative history lend support to Gomez's contention. In the penalty provisions, Congress carefully differentiated between types of substances and types of offenses. The statute reduces penalties for personal possession,*fn2a doubles the maximum penalty for distribution to persons under the age of 21,*fn3a punishes conspiracies separately in the same manner as the substantive object of the conspiracy would be punished,*fn4a and deals specially with continuing criminal enterprises.*fn5a Congress rather meticulously integrated the penalty scheme, reserving the most severe penalty, a 15-year term of imprisonment, for those persons who illegally manufacture, sell, or distribute Schedule I or II controlled substances. If, as the government contends, there can be a separate conviction for the possession element of a manufacture, distribution, or dispensation, then the carefully crafted statutory scheme will be thrown entirely out of kilter. Instead of a 15-year term of imprisonment, the maximum sentence for a single distribution could be 30 years 15 years for the distribution and another 15 years for possession with intent to distribute. That maximum would increase to 45 years if the controlled substance were to be distributed to a person under 21 years of age.*fn6a A 15-year prison term is an extremely severe sentence. We do not believe that Congress intended the possession element of a specific distribution to be sanctioned separately, so as to increase the maximum sentence for a single transaction from 15 years to 30 or possibly 45 years. Rather, we conclude that the possession offense in § 841(a)(1) was intended to apply only where the government cannot prove, with respect to a specific instance of possession, that a manufacture, distribution, or dispensation actually took place.

The majority's only answer to Gomez's proposed statutory construction is this classic non sequitur:

Nothing in the statute indicates any congressional intent to limit the reach of this legislation, which is described in its very title as "Comprehensive." If indeed, as we believe, it was the intent of Congress to proscribe all drug activity, then it follows that separate charges and convictions for each component of the offenses described must necessarily be permitted so as to prevent a drug violator from escaping criminal responsibility.

How a drug violator would escape criminal liability by the reasonable construction of the statute for which Gomez argues is left unexplained, because it is unexplainable. If the government proved possession and intent, without proving distribution, § 841(a)(1) still would apply. Even possession solely for personal use is proscribed in another section of the same law.

In this case the grand jury charged Gomez separately with a possession and a distribution at the same time and place. The government proved a possession for the purpose of distribution and an actual distribution at the time and place. Under the district court's instructions and verdict form, the jury was permitted to return separate verdicts on the separate counts. It should have been instructed that if the evidence established a distribution at the specified time and place, a guilty verdict should be returned on the more inclusive distribution charge alone. Alternatively, when the verdicts were returned on both counts, the district court could well have molded them to provide for a conviction only on the more factually inclusive distribution charge. Those courts which have considered the problem of multiple convictions for the same possession have, by varying rationales, reached essentially the same result which we believe is statutorily required. See United States v. King, 521 F.2d 356, 359 (6th Cir. 1975); United States v. Stevens, 521 F.3d 334 (6th Cir. 1975); United States v. Curry, 512 F.2d 1299, 1305-06 (4th Cir.), Cert. denied, 423 U.S. 832, 96 S. Ct. 55, 46 L. Ed. 2d 50 (1975); United States v. Atkinson, 512 F.2d 1235, 1240 (4th Cir. 1975), Cert. denied, 424 U.S. 973, 96 S. Ct. 1477, 47 L. Ed. 2d 743 (1976).

The government urges that the conviction on the second count should stand because there is evidence in the record from which the jury could have found possessions by Gomez at times and places other than on April 2, 1975, at Paterson, New Jersey. Concededly, there was some evidence, admitted in support of the conspiracy count, from which such an inference might have been drawn. But the grand jury did not indict the appellant for possession at any other time or place. Moreover, the jury was not instructed respecting Gomez's possession of a controlled substance at any other time or place. It would be the grossest speculation to attribute to the verdict on Count II a finding of possession other than at the specific time and place charged. Properly the majority does not rely on this specious argument.

The government also urges that, even if Gomez has correctly interpreted § 841(a)(1), the appropriate remedy for the error which occurred is to let both convictions stand and to remand the case to the district court for resentencing. In support of the argument, the government cites United States v. Corson, 449 F.2d 544 (3d Cir. 1971). We think that the government's reliance on Corson is misplaced. First, although we need not decide the issue in this case, we are convinced that even with respect to the federal bank robbery statute, Corson does not survive the Supreme Court's decision in United States v. Gaddis, 424 U.S. 544, 96 S. Ct. 1023, 47 L. Ed. 2d 222 (1976). In Corson, in order to preserve the most serious sentence, this court declined to hold that the less inclusive charges merged into the more inclusive ones charged. Thus, we remanded for the imposition of a general sentence. In Gaddis, however, the Supreme Court recognized that convictions under 18 U.S.C. §§ 2113(a) and (d) merged into the more inclusive § 2113(d) charge. In reaching that decision, the Court stated:

In light of Prince v. United States, 352 U.S. 322 (77 S. Ct. 403, 1 L. Ed. 2d 370), the concurrent sentences under Counts 1 and 2 should also be vacated, leaving the respondents under single 25-year prison sentences for violating 18 U.S.C. § 2113(d).

424 U.S. at 549 n.12, 96 S. Ct. at 1027. The majority's effort to read the quoted language as an approval of the Corson rule that the remedy will "invariably . . . uphold the heaviest sentence", 424 U.S. at 547-48 (majority opinion p. 218), while perhaps consistent with the spirit which in criminal cases animates this court as one of the most pro-government appellate tribunals in the federal system,*fn7a is unpersuasive. It ignores what the Supreme Court has repeatedly reaffirmed, namely,

(that) "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812 (91 S. Ct. 1056, 1059, 28 L. Ed. 2d 493) (1971). . . . In various ways over the years, we have stated that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222 (73 S. Ct. 227, 229, 97 L. Ed. 260) (1952). This principle is founded on two policies that have long been part of our tradition. First, "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." McBoyle v. United States, 283 U.S. 25, 27 (51 S. Ct. 340, 341, 75 L. Ed. 816) (1931) (Holmes, J.). . . . Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies "the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should." H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967). Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. (Footnote and citations omitted.)

United States v. Bass, 404 U.S. 336, 347-48, 92 S. Ct. 515, 522-523, 30 L. Ed. 2d 488 (1971). See Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978). The majority suggests that the Court in Gaddis embraced just the opposite practice, as it has done, of resolving any possible ambiguity in favor of harshness rather than lenity. But the Gaddis Court vacated the offending judgments, leaving standing convictions on only the most inclusive charge. It did not endorse the maximizing spirit of Corson.

Moreover, without even referring to them, the majority leaves Gomez subject to the collateral consequences which will in the future flow from three rather than two convictions. This court is well aware that in determining eligibility for parole the United States parole board applies mechanical rules with respect to convictions. See 28 C.F.R. § 2.20. Its construction has not only upheld the heaviest sentence, but also probably postponed parole eligibility. We do not believe the Gaddis Court would tolerate that result.

More importantly, even assuming that Corson does survive Gaddis, it does not apply to § 841(a)(1). Corson was at most an interpretation of the presumed intention of Congress in drafting the bank robbery statute. We certainly did not intend in Corson to announce a rule of appellate remedies dependent upon some other statute, such as 28 U.S.C. § 2106. We concluded only that, with respect to the federal bank robbery statute, Congress intended that multiple convictions would stand but that a general sentence would be imposed. There is no such legislative intention evident in § 841(a)(1) in a case where the possession charged separately is the identical possession required for the distribution. In cases where the grand jury charges a separate possession from that required for the distribution, it seems clear that separate convictions and separate sentences are proper. But where, as here, the possession element is common to both charges, we think that Congress intended a conviction to lie on only the most inclusive substantive offense. See Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978). Since we arrive at that conclusion as a matter of statutory interpretation, we have no occasion to discuss whether that result is required by the double jeopardy clause of the fifth amendment. But since the majority construes § 841(a)(1) otherwise, it seems to us that the double jeopardy question demands a less cursory treatment than it has in the majority opinion received.

We would affirm the judgment appealed from with respect to Counts I and III, but vacate the judgment of sentence on Count II.


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