United States v. Jerome Mancuso

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-30174
Plaintiff - Appellee,
D.C. No.
v. 1:10-cr-00100-
RFC-1
JEROME DANIEL MANCUSO ,
Defendant - Appellant.
UNITED STATES OF AMERICA , No. 12-30201
Plaintiff - Appellant,
D.C. No.
v. 1:10-cr-00100-
RFC-1
JEROME DANIEL MANCUSO ,
Defendant - Appellee.
OPINION
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Argued and Submitted
March 6, 2013—Portland, Oregon
Filed May 1, 2013
2 UNITED STATES V . MANCUSO
Before: Richard R. Clifton and Carlos T. Bea, Circuit
Judges, and James C. Mahan, District Judge.*
Opinion by Judge Bea
SUMMARY**
Criminal Law
The panel affirmed in part and reversed in part the district
court’s judgment, reversed the district court’s denial of the
government’s forfeiture request, and remanded for further
proceedings in a case in which the defendant, a dentist, was
convicted on one count of possession of cocaine with intent
to distribute (21 U.S.C. § 841(a)(1)), one count of distribution
of cocaine (§ 841(a)(1)), and two counts of maintaining a
drug-involved premises (21 U.S.C. § 856(a)(1)).
The panel rejected the defendant’s contentions that three
counts alleged acts outside of the statute of limitations period,
that two counts were multiplicitous, and that the indictment
failed to provide constitutionally-required notice. The panel
also rejected the defendant’s claims of constructive
amendment and duplicity as applied to three counts which
properly charged the defendant with the continuing offenses
of possessing cocaine with intent to distribute or maintaining
*
The Honorable James C. Mahan, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . MANCUSO 3
a drug-involved premises. The panel vacated the distribution
count because it was duplicitous in that it joined two or more
distinct and separate offenses into a single count.
The panel vacated the convictions for maintaining drug-
involved premises because the district court committed plain
error by utilizing a “significant purpose” instruction rather
than a “primary or principal use” instruction. The panel held
that the reasoning underlying the “primary or principal use”
requirement in the residential context, set forth in United
States v. Shetler, 665 F.3d 1150 (9th Cir. 2011), applies with
equal force to a dental office.
The panel rejected the defendant’s challenge to the district
court’s drug quantity calculation at sentencing and its
determination that the defendant did not qualify for a minor
role reduction pursuant to U.S.S.G. § 3B1.2.
On the government’s cross-appeal, the panel reversed the
denial of the government’s forfeiture motion. The panel held
that the district court’s failure to inquire before the jury began
deliberating whether either party requested a jury
determination on the nexus between the property sought and
the crime, as required by Fed. R. Crim. P. 32.2(b)(5)(A), was
harmless.
COUNSEL
Michael W. Meyrick (argued), Law Offices of Michael
Meyrick, P.C., Canon City, Colorado, for Defendant-
Appellant/Appellee.
4 UNITED STATES V . MANCUSO
J. Bishop Grewell (argued) and Michael W. Cotter, United
States Attorney’s Office, Billings, Montana, for Plaintiff-
Appellee/Appellant.
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 18 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
UNITED STATES V . MANCUSO 5
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
6 UNITED STATES V . MANCUSO
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
1
18 U.S.C. § 3282 provides that the applicable statute of limitations to
these offenses is five years.
2
An indictment is duplicitous when it joins two or more distinct and
separate offenses into a single count. See United States v. UCO Oil Co.,
546 F.2d 833, 835 (9th Cir. 1976).
3
“An indictment is multiplicitous when it charges multiple counts for a
single offense, producing two penalties for one crime and thus raising
double jeopardy questions.” United States v. Stewart, 420 F.3d 1007, 1012
(9th Cir. 2005).
UNITED STATES V . MANCUSO 7
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 discovery4 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 times5 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
4
Mancuso does not claim that he was denied full discovery.
5
Loudan initially estimated that Mancuso had given him cocaine 10–15
times in his office, but upon further questioning estimated that it was
20–25 times.
8 UNITED STATES V . MANCUSO
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
UNITED STATES V . MANCUSO 9
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 category I. 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
10 UNITED STATES V . MANCUSO
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 took half of it. That was just being nice.”
The district court found that the PSR writer’s drug
calculation was accurate except for the 4 ounces (113.4
grams) attributable to the 32-ounce Big Gulp cup that Tim
Loudan had testified about during trial. Specifically, the
district court stated that it did not “give much credence” to
Tim Loudan’s trial testimony about the Big Gulp cup
incident, and therefore subtracted the amount attributable to
the Big Gulp cup from the total drug amount. The district
court further found that the PSR had given Mancuso “a
significant benefit of the doubt.” After subtracting 113.4
grams from the PSR’s drug quantity of 376.41 grams to
account for the amount attributable to the Big Gulp cup, the
district court calculated that Mancuso was responsible for
distributing 263.01 grams of cocaine, resulting in a base
offense level of 20. It noted that it was “at a loss to explain
the findings by [the defense] expert of 10 to 12 grams.” With
a base offense level of 20 and a criminal history category I,
the guideline range for Mancuso was 33–41 months. The
UNITED STATES V . MANCUSO 11
district court ultimately applied a downward variance in light
of Mancuso’s “outstanding record of service to the country”
and his potential to continue to be an “outstanding doctor,”
and sentenced Mancuso to 16 months imprisonment. These
appeals followed.
Analysis
I. Challenges to the Indictment
Mancuso raises a number of challenges to the indictment
on appeal. He claims that the indictment was constructively
amended, that the indictment was defective because Counts
I–III alleged acts outside of the statute of limitations period,
that it was duplicitous as to all counts, that Counts I and II
were multiplicitous, and that it failed to provide the
constitutionally required notice. We reject all of these
challenges except for Mancuso’s claim that Count II, which
charged him with a single continuing offense of actual
distribution, was duplicitous. As to that count, we hold that
Count II was duplicitous because it joined two or more
distinct and separate offenses into a single count, and we
therefore vacate Mancuso’s conviction on Count II.
A. Standard of Review
In general, the adequacy of an indictment is reviewed de
novo. United States v. Renteria, 557 F.3d 1003, 1006 (9th
Cir. 2009). This court reviews de novo allegations that the
indictment was constructively amended. United States v.
Pang, 362 F.3d 1187, 1193 (9th Cir. 2004). Whether an
indictment is duplicitous is also reviewed de novo. United
States v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir.
2001), overruled on other ground by United States v. Lopez,
12 UNITED STATES V . MANCUSO
484 F.3d 1186 (9th Cir. 2007). The claim that an indictment
has resulted in multiplicitous convictions is reviewed de
novo. United States v. Stewart, 420 F.3d 1007, 1012 (9th Cir.
2005).
B. Notice, Statute of Limitations, and Multiplicity
We address briefly Mancuso’s notice, statute of
limitations, and multiplicity claims to explain why these
claims are unavailing.
1. Mancuso argues that the indictment provided
insufficient notice of the offenses charged in Counts I and II
because the language of the indictment merely recited the
language of the statute, but failed to allege how the violation
was committed or with whom. “An indictment must provide
the essential facts necessary to apprise a defendant of the
crime charged; it need not specify the theories or evidence
upon which the government will rely to prove those facts.”
United States v. Cochrane, 985 F.2d 1027, 1031 (9th Cir.
1993). The Supreme Court has stated, “It is generally
sufficient that an indictment set forth the offense in the words
of the statute itself, as long as ‘those words of themselves
fully, directly, and expressly, without any uncertainty or
ambiguity, set forth all the elements necessary to constitute
the offence intended to be punished.’” Hamling v. United
States, 418 U.S. 87, 117 (1974) (quoting United States v.
Carll, 105 U.S. 611, 612 (1882)). We find that the indictment
in Mancuso’s case was sufficient to notify him that he was
charged with possessing cocaine with intent to distribute and
with actual distribution; he was not entitled at the time of his
indictment to know all of the evidence the government would
use to prove the charges against him. We therefore reject his
“insufficient notice” claim.
UNITED STATES V . MANCUSO 13
2. Mancuso argues that the indictment improperly
included charges beyond the applicable five-year statute of
limitations because Counts I, II, and III alleged violations
spanning a period of seven and a half years. We have held
that the statute of limitations does not bar the introduction of
evidence of acts that occurred outside of the limitations
period. United States v. Baker, 10 F.3d 1374, 1410 (9th Cir.
1993), overruled on other grounds by United States v.
Nordby, 225 F.3d 1053 (9th Cir. 2000). In this case, the
district court instructed the jury as follows:
The statute of limitations on these charges is
five years. Therefore, any quantity of drugs
possessed and/or distributed by Defendant
prior to August 23, 2005 cannot be considered
by you as evidence of guilt of the crimes
charges in Counts I–V for which Defendant is
not on trial.
In the present case, the instruction to the jury mitigates any
concerns that Mancuso was found guilty for events occurring
outside of the statute of limitations. We therefore reject
Mancuso’s statute of limitations claim.
3. Mancuso argues that Count I (possession with intent
to distribute) and Count II (actual distribution) are
multiplicitous because they cite the same statute and
subsection, 21 U.S.C. § 841(a)(1), in support of the violation
claimed in each, and the government relied on the same
witnesses, events, and conduct to prove guilt on each count.
An indictment is multiplicitous when it charges multiple
counts for a single offense, thereby resulting in two penalties
for one crime and raising double jeopardy concerns. See
Stewart, 420 F.3d at 1012. However, “two counts within an
14 UNITED STATES V . MANCUSO
indictment are not multiplicitous if ‘each separately violated
statutory provision requires proof of an additional fact which
the other does not.’” Id. (quoting United States v. Vargas-
Castillo, 329 F.3d 715, 718–19 (9th Cir. 2003)).
This court’s decision in United States v. Palafox, 764 F.2d
558 (9th Cir. 1985) (en banc), demonstrates that in some
limited circumstances it is incorrect to charge and sentence a
defendant on separate counts of possession with intent to
distribute and actual distribution. In Palafox, the defendant
met with an undercover agent to sell a package of heroin. Id.
at 559. The agent asked the defendant for a sample of heroin,
took a small quantity, and returned the package to the
defendant. Id. The defendant was then arrested and charged
with distribution of the .12 gram sample, and possession of
the remaining 124.58 grams with intent to distribute. Id. He
was convicted of both counts and sentenced to concurrent
terms of five years on each count. This court, sitting en banc,
held that “where the defendant distributes a sample and
retains the remainder for the purpose of making an immediate
distribution to the same recipients at the same place and at
the same time, verdicts of guilty may be returned on both
counts but the defendant may be punished on only one.” Id.
at 560 (emphasis added). However, this court further noted
that the delivery of a sample could be a separate punishable
offense in other circumstances, such as when an individual
“makes distributions, sample or otherwise, to two different
individuals as part of two separate transactions.” Id. at 563.
The record in this case does not support a finding that, as
in Palafox, Mancuso distributed samples and retained the
remainder for immediate distribution to the same recipients
at the same place at the same time. Instead, his convictions
for possession with intent to distribute and actual distribution
UNITED STATES V . MANCUSO 15
“require[d] proof of an additional fact which the other [did]
not.”6 Stewart, 420 F.3d at 1012. We therefore reject his
multiplicity challenge to Counts I and II.
C. Constructive Amendment and Duplicity
Mancuso’s constructive amendment and duplicity claims
require more analysis.7 We have held that “constructive
amendment occurs when the defendant is charged with one
crime but, in effect, is tried for another crime.” Pang,
362 F.3d at 1194. This court has found constructive
amendment of an indictment where “(1) there is a complex of
facts presented at trial distinctly different from those set forth
in the charging instrument, or (2) the crime charged in the
indictment was substantially altered at trial, so that it was
impossible to know whether the grand jury would have
6
In this case, the required elements for Count I, possession with intent
to distribute, are: “(1) the defendant knowingly possessed the controlled
substance; and (2) the defendant possessed the controlled substance with
the intent to deliver it to another person.” United States v. Vargas-
Castillo, 329 F.3d 715, 719 (9th Cir. 2003). Therefore, the additional fact
that the government had to prove in order to convict on Count I was that
Mancuso had the requisite intent to deliver cocaine. In order to convict on
Count II, the additional fact that the government had to prove was that
Mancuso actually distributed cocaine.
7
Mancuso’s “constructive amendment” and duplicity claims overlap
significantly, so we address them jointly. For instance, his “constructive
amendment” claim amounts to an argument that even though the
indictment charged a single and “continuing” crime in each count, the jury
was presented with evidence from nine different witnesses who testified
about multiple and unrelated occasions where Mancuso shared cocaine
with them, while he claims in support of his duplicity claim that “despite
the fact that the indictment alleged a single and continuing substantive
offense in each count, it used multiple witnesses to testify about unrelated
occasions when Mancuso shared cocaine with them.”
16 UNITED STATES V . MANCUSO
indicted for the crime actually proved.” United States v.
Adamson, 291 F.3d 606, 615 (9th Cir. 2002) (internal
quotations omitted).
An indictment is duplicitous when it joins two or more
distinct and separate offenses into a single count. UCO Oil
Co., 546 F.2d at 835. “In reviewing an indictment for
duplicity, our task is not to review the evidence presented at
trial to determine whether it would support charging several
crimes rather than one, but rather solely to assess whether the
indictment itself can be read to charge only one violation in
each count.” United States v. Martin, 4 F.3d 757, 759 (9th
Cir. 1993) (internal quotations omitted).
1. We reject Mancuso’s claims of constructive
amendment and duplicity as applied to Counts I, III, and IV
of the indictment, which properly charged Mancuso with the
continuing offenses of possessing cocaine with intent to
distribute or maintaining a drug-involved premises. Under
the caselaw from the Ninth Circuit and other circuits,
“possession with intent to distribute [controlled substances]
is a continuing offense.” United States v. Pariseau, 685 F.3d
1129, 1131 (9th Cir. 2012); see also United States v. Zidell,
323 F.3d 412, 422 (6th Cir. 2003) (collecting cases
establishing that possession with intent to distribute
controlled substances is a continuing offense.); United States
v. Muhammad, 502 F.3d 646, 653 (7th Cir. 2007) (same). “A
continuing offense is a continuous, unlawful act or series of
acts set on foot by a single impulse.” United States v.
Midstate Horticulture Co., 306 U.S. 161, 166 (1939).
Similarly, the offense of “maintaining” a place for the use or
distribution of drugs in violation of 21 U.S.C. § 856(a)(1) is
a continuing one, as the crime begins when a person begins
maintaining a place for such purposes and continues until the
UNITED STATES V . MANCUSO 17
person ceases to maintain the place for those reasons. “The
continuous nature of [an offense] prevents the indictment
from being duplicitous.” United States v. Anderson, 605 F.3d
404, 415 (6th Cir. 2010).
Mancuso argues that the form of the indictment, as well
as the trial court’s failure to give a specific unanimity jury
instruction, deprived him of a unanimous verdict because this
court cannot discern whether the jury unanimously agreed
that he possessed cocaine with intent to distribute to all nine
witnesses, or whether some jurors credited some witnesses
but not others. Ordinarily, the “general unanimity instruction
suffices to instruct the jury that they must be unanimous on
whatever specifications form the basis of the guilty verdict.”
United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir. 2007)
(quoting United States v. Kim, 196 F.3d 1079, 1082 (9th Cir.
1999)). However, a specific unanimity instruction8 is
required if there is a “genuine possibility of jury confusion or
that a conviction may occur as the result of different jurors
concluding that the defendant committed different acts.”
Lyons, 472 F.3d at 1068 (internal quotations omitted). In this
case, the “acts” in question were the continuing offenses of
possessing with intent to distribute and maintaining a home
or business for the purposes of drug activities. It does not
matter that different jurors may have found different pieces
of testimony credible, as long as the jury is unanimous on the
bottom line conclusion that Mancuso was guilty of the acts
charged. See Schad v. Arizona, 501 U.S. 624, 631–32 (1991)
(“We have never suggested that in returning general verdicts
8
A specific unanimity instruction could be given by the district court
including the phrase “with all of you agreeing [as to the particular matter
requiring unanimity]” in the substantive jury instructions. See Ninth
Circuit Model Criminal Jury Instructions 7.9, Specific Issue Unanimity.
18 UNITED STATES V . MANCUSO
in such cases the jurors should be required to agree upon a
single means of commission . . . In these cases, as in litigation
generally, different jurors may be persuaded by different
pieces of evidence, even when they agree upon the bottom
line. Plainly there is no general requirement that the jury
reach agreement on the preliminary factual issues which
underlie the verdict.”) (internal quotations omitted). For
these reasons, we reject Mancuso’s constructive amendment
and duplicity claims as applied to Counts I, III, and IV of the
indictment.
2. Mancuso’s duplicity claim with respect to Count II,
which charged him with a single continuing offense of
distributing cocaine between January 1, 2002, and July 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 courts have held that it is
not. For example, the Second Circuit has stated:
Under [21 U.S.C. § 841], the term “distribute”
means “to deliver,” and the term “deliver”
means “the actual, constructive, or attempted
transfer of a controlled substance.” 21 U.S.C.
§ 802(8), (11). The plain language of the
statute indicates, therefore, that illegal
distribution under § 841 is not a continuing
crime. The law instead makes each unlawful
transfer a distinct offense. Courts resolving
this issue have uniformly held that separate
unlawful transfers of controlled substances are
separate crimes under § 841, even when these
UNITED STATES V . MANCUSO 19
transfers are part of a continuous course of
conduct.
United States v. Lartey, 716 F.2d 955, 967 (2d Cir. 1983).
We agree with the reasoning of the Second Circuit: separate
acts of distribution of controlled substances are distinct
offenses under 21 U.S.C. § 841(a), as opposed to a continuing
crime, and therefore must 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 to 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.
II. Jury Instructions
Mancuso was convicted of two counts of knowingly using
or maintaining a place for the purpose of unlawfully
distributing and using cocaine in violation of 21 U.S.C.
§ 856(a)(1). Count III applied to his home, and Count IV
applied to his dental office. 21 U.S.C. § 856(a)(1) provides
that it shall be unlawful to “knowingly open, lease, rent, use,
or maintain any place, whether permanently or temporarily,
for the purpose of manufacturing, distributing, or using any
controlled substance.”
20 UNITED STATES V . MANCUSO
The district court instructed the jury that to convict
Mancuso on these counts, it must find that “distribution or
use of a controlled substance was a significant purpose for
which the location was maintained or used.” At the time of
Mancuso’s trial, there were competing formulations of the
required level of “purpose” under this statute among the
circuits. This circuit had not yet addressed the issue. The
Tenth Circuit requires that in the residential context, “the
manufacture (or distribution or use) of drugs must be at least
one of the primary or principal uses to which the house is
put.” United States v. Verners, 53 F.3d 291, 296 (10th Cir.
1995). In contrast, the Fifth Circuit does not require that drug
distribution be one of the primary purposes; it must be “a
significant purpose” only. United States v. Soto-Silva,
129 F.3d 340, 346 n.4 (5th Cir. 1997) (emphasis added). The
jury instruction in Mancuso’s trial utilized the Fifth Circuit’s
formulation.
After Mancuso was convicted (but before he was
sentenced), we published a decision that adopted the Tenth
Circuit’s interpretation of Section 856(a)(1) in the residential
context. See United States v. Shetler, 665 F.3d 1150, 1162
(9th Cir. 2011). In Shetler, the defendant was convicted of
maintaining his residence for the purpose of manufacturing,
distributing, or using methamphetamine in violation of
Section 856(a)(1). Id. at 1153. On appeal, Shetler claimed
that the statute was void for vagueness as applied to him. Id.In addressing that claim, this court analyzed the scope of
Section 856(a)(1), including “the type and degree of purpose
connecting a defendant’s use of property and his drug
activities under § 856(a)(1).” Id. at 1161. It compared the
formulations used by the Fifth and Tenth Circuits, and stated:
UNITED STATES V . MANCUSO 21
To the extent that there is a meaningful
difference between these various
formulations, we agree with the Tenth Circuit
that in the residential context, the manufacture
(or distribution or use) of drugs must be at
least one of the primary or principal uses to
which the house is put. . . . Restricting the
application of § 856(a)(1) to those individuals
whose manufacture, distribution, or use of
drugs in their residence constitutes one of the
primary or principal purposes of their
occupancy of that residence ensures that the
statute does not extend beyond its intended
coverage so as to encompass incidental drug
use.
Id. at 1162 (internal quotations omitted). The relevant
question is whether the use of the “significant purpose” jury
instruction during Mancuso’s trial warrants reversal of his
convictions on Counts III and IV in light of this court’s
intervening decision in Shetler.
In the present case, because Mancuso did not object to the
relevant jury instructions, plain error review applies. To
notice error under Federal Rule of Criminal Procedure 52(b),
this court must find that (1) there was “error,” (2) it was
“plain,” and (3) the error affected “substantial rights.” United
States v. Olano, 507 U.S. 725, 732–35 (1993). If these
conditions are met, then the court may notice the forfeited
error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
736.
22 UNITED STATES V . MANCUSO
We begin with Mancuso’s challenge as applied to Count
III, which charged Mancuso with maintaining his home for
drug-involved purposes. Shetler is directly on point, as we
held in that case that “in the residential context, the
manufacture (or distribution or use) of drugs must be at least
one of the primary or principal uses to which the house is
put” for a defendant to be convicted of violating Section
856(a). Shetler, 665 F.3d at 1162. It is therefore clear that
the jury instructions were error, and that the error is plain at
the time of appellate review. See Henderson v. United States,
133 S. Ct. 1121, 1130–31 (2013) (holding that “whether a
legal question was settled or unsettled at the time of trial, it is
enough that an error be plain at the time of appellate
consideration for the second part of the four-part Olano test
to be satisfied”). We also find that the error “was
‘prejudicial’ in the sense that it ‘affected the outcome of the
district court proceedings’ in a manner that violated the
substantive rights of the defendant,” therefore fulfilling the
third prong of the Olano test. United States v. Recio,
371 F.3d 1093, 1100 (9th Cir. 2004) (quoting United States
v. Jimenez-Dominguez, 296 F.3d 863, 867 (9th Cir. 2002)).
Unlike in other cases, where the Supreme Court and this court
have upheld convictions on plain error review because of the
strength of the evidence against the defendant,9 we do not
9
See, e.g., Johnson v. United States, 520 U.S. 461, 469 (1997) (holding
that because of the overwhelming evidence in the record, there was no
basis for concluding that the instructional error in that case “seriously
affect[ed] the fairness, integrity or public reputation of judicial
proceedings”) (internal quotations omitted); United States v. Perez,
116 F.3d 840, 847–48 (9th Cir. 1997) (en banc) (noting that in evaluating
the final Olano prong, “we consider all circumstances at trial including the
strength of the evidence against the defendant,” and refusing to notice the
jury instruction error in that case because on the record presented on
appeal, “it [was] therefore extremely unlikely that, if properly instructed,
UNITED STATES V . MANCUSO 23
find that the evidence in Mancuso’s case leads to the
conclusion that he would have been convicted even if the jury
had been instructed properly. Examining the record, we note
that various witnesses testified about instances in which they
consumed cocaine at Mancuso’s home. Tim Loudan testified
that Mancuso gave him cocaine at his home during a child’s
birthday party and while playing pool. Gary Kisthard
testified that Mancuso gave him cocaine at his house two or
three times. Jennifer Konen testified that Mancuso gave her
cocaine at his home on one occasion. John Bonner testified
that Mancuso gave him cocaine at his home once. Finally,
both Blair Elliot and Laurent Zirotti testified that Mancuso
gave them cocaine at his home on several occasions each. It
is not at all clear that the evidence of these instances of
distribution would be sufficient to pass the “principal use”
formulation, and for that reason we vacate Mancuso’s
conviction on Count III and remand for a new trial on that
count.
We now turn to Count IV. The government correctly
notes that the Shetler holding was limited to the residential
context. Count IV charged Mancuso of knowingly using or
maintaining his dental office for the purpose of unlawfully
distributing and using cocaine. We conclude that Shetler’s
reasoning applies with equal force to Count IV of the
indictment in this case, and the jury instructions as related to
Count IV were plain error that affected Mancuso’s substantial
rights. The Shetler court noted that “Congress’s primary
the jury would not have convicted [the defendants]”); but see United
States v. Alferahin, 433 F.3d 1148, 1151 (9th Cir. 2006) (concluding that
it was appropriate for the court to exercise its discretion to notice the plain
error in the jury instructions, which omitted a required materiality element,
because the evidence in the record “fell far short of proving materiality”).
24 UNITED STATES V . MANCUSO
purpose in enacting § 856(a)(1) was to target those who use
their property to profit from drug sale,” Shetler, 665 F.3d at
1162, and that in a defendant’s own home – which “is
devoted principally to the ordinary activities of residential
living” – the government must present “evidence beyond drug
manufacture for personal use” in order to sustain a conviction
under Section 856(a)(1). Id. at 1163. In the present case,
Mancuso’s office was “devoted principally to the ordinary
activities” of running a dental practice. Id. The logic of
requiring the government to prove that drug use, manufacture,
or distribution was a “primary or principal purpose” of a
place is therefore equally compelling when the place is a
dental office. Extending the Shetler court’s holding to
Mancuso’s dental office also comports with the language of
the statute, which provides that it shall be unlawful
knowingly to maintain “any place” for “the purpose of
manufacturing, distributing, or using any controlled
substance.” 21 U.S.C. § 856(a)(1) (emphasis added); see also
Shetler, 665 F.3d at 1162 (finding that the “primary or
principal purpose” formulation “better comports with the
statutory language, which proscribes only those drug
activities that are ‘the purpose’ to which the property is put”)
(internal citations omitted). Furthermore, although several
witnesses testified that they consumed cocaine in Mancuso’s
office after hours, it is again not clear that the evidence in the
record proved that cocaine use and/or distribution was a
“primary or principal” purpose of Mancuso’s dental office.
For that reason, we exercise our discretion to notice the
instructional error and vacate Mancuso’s conviction on Count
IV. We remand for a new trial on Count IV as well as Count
III.
UNITED STATES V . MANCUSO 25
III. Sentencing Issues
Although we remand this case for further proceedings,
which may require resentencing, we briefly discuss
Mancuso’s challenges to his sentence in case the same issues
arise on remand. Mancuso raises two separate issues on
appeal: first, he challenges the drug quantity calculation; and
second, he claims that the district court erred in refusing to
grant a minor role adjustment. We reject both of these
arguments.
A. Drug Quantity
The district court determined that 263.01 grams was an
accurate representation of the amount of cocaine distributed
by Mancuso over a seven-year period. Mancuso challenges
the PSR author’s decision to cut the total drug amount in half
to account to cocaine consumed by Mancuso himself as
“arbitrary,” and further argues that amounts of cocaine that
are purchased jointly and possessed by more than one person,
with the intent to share it between the joint purchasers and
possessors, should not be counted within the calculation of
the amount distributed. The determination of drug quantity
involved in an offense under the Sentencing Guidelines is a
factual finding reviewed for clear error. United States v.
Asagba, 77 F.3d 324, 325 (9th Cir. 1996). However,
“[w]hether the method adopted by the district court to
approximate the relevant quantity of drugs is proper under the
guidelines is . . . reviewed de novo.” United States v. August,
86 F.3d 151, 153 (9th Cir. 1996).
The applicable sentence range for drug offenses is pegged
to the amount of drugs involved. “Where the amount of
drugs seized does not reflect the scale of the offense, the
26 UNITED STATES V . MANCUSO
district court may approximate the quantity of drugs.” United
States v. Culps, 300 F.3d 1069, 1076 (9th Cir. 2002); see also
United States Sentencing Guidelines § 2D1.1, Application
Note 5. This court has “approved various methods of
approximation used by district courts to determine drug
quantities even though the sentencing judge will not be able
to arrive at the exact amount involved.” United States v.
Scheele, 231 F.3d 492, 498 (9th Cir. 2000). In Culps, this
court outlined the following three criteria that approximations
of drug quantities must meet:
(1) “[T]he government is required to prove the
approximate quantity by a preponderance of
the evidence.” Culps, 300 F.3d at 1076(internal quotations omitted).
(2) “[T]he information which supports an
approximation must possess sufficient indicia
of reliability to support its probable
accuracy.” Id. (internal quotations omitted).
In other words, a drug approximation must
have a “reliable evidentiary basis.” Id. at
1077.
(3) “[T]he district court must err on the side of
caution in calculating approximated drug
quantity.” Id. at 1076 (internal quotations
omitted).
Mancuso has not demonstrated that the drug amount
calculation in his case failed any of the Culps criteria. The
PSR author and the district court carefully combed through
the testimony of the various witnesses in this case to
approximate the amount of cocaine involved in Mancuso’s
UNITED STATES V . MANCUSO 27
offenses. The district court omitted from consideration drug
amounts attributable to the 32-oz “Big Gulp” testified to by
Tim Loudan because the court did not believe that amount
had a reliable evidentiary basis. Finally, the PSR and district
court applied a 50% multiplier to give Mancuso the benefit of
the doubt, notwithstanding the DEA’s policy to charge 100%
of the drug amount at issue, thereby satisfying the district
court’s duty to “err on the side of caution in calculating
approximated drug quantity.” Culps, 300 F.3d at 1076.
Mancuso also relies on the Second Circuit case United
States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), to argue that
any drugs that were jointly purchased and then shared among
the joint purchasers should not be counted within the total
drug quantity. In Swiderski, Walter Swiderski and his fiancee
Maritza De Los Santos each were convicted of one count of
possession with intent to distribute cocaine in violation of
21 U.S.C. § 841(a)(1). Id. at 447. The record demonstrated
that Swiderski and De Los Santos purchased cocaine from a
supplier together. Id. at 448. The prosecutor argued during
closing arguments that even if the two defendants purchased
the cocaine with an intent to share it between themselves, that
sufficed to establish possession “with intent to distribute.” Id.The judge instructed the jury that “distribution could be
satisfied solely by a transfer between Swiderski and De Los
Santos.” Id. Swiderski and De Los Santos appealed, arguing
that the district court erred in instructing the jury that the
passing of the drug between the two defendants could
constitution “distribution.” Id. The Second Circuit agreed
with Swiderski and De Los Santos, holding that “where two
individuals simultaneously and jointly acquire possession of
a drug for their own use, intending only to share it together,
their only crime is personal drug abuse – simple joint
possession, without any intent to distribute the drug further.”
28 UNITED STATES V . MANCUSO
Id. at 450. Even assuming the Swiderski rule was binding in
the Ninth Circuit,10 it would not apply to Mancuso’s case,
because the record does not support finding that any of the
witnesses pooled money with Mancuso and traveled with him
to acquire the cocaine jointly, intending only to share it
together. We therefore reject Mancuso’s Swiderski argument.
B. Minor Role Adjustment
Mancuso claims that the district court erred in failing to
reduce Mancuso’s base offense level by 2, 3, or 4 levels
pursuant to Sentencing Guidelines § 3B1.2 based on the
minor role he played in the overall scheme. “A district
court’s finding that a defendant is not a minor participant in
criminal activity is a factual determination reviewed for clear
error.” United States v. Rodriguez-Castro, 641 F.3d 1189,
1192 (9th Cir. 2011). This court has held that “a minor
participant is one who plays a part in committing the offense
that makes him substantially less culpable than the average
participant.” Id. at 1193 (emphasis in original) (internal
citations omitted).
Mancuso’s argument in favor of the minor role reduction
boils down to his claim that he was merely “an ultimate user
who purchased cocaine for his personal use and occasionally
shared some of that with friends and acquaintances.” This
characterization of his role does not comport with the
10
This court has never explicitly adopted the rule. See, e.g., United
States v. Wright, 593 F.2d 105, 108 (9th Cir. 1979) (expressing no opinion
as to whether the Swiderski rule was correct, but declining to apply it
beyond cases “in which two individuals proceeded together to a place
where they simultaneously purchased a controlled substance for their
personal use”).
UNITED STATES V . MANCUSO 29
evidence presented at trial that demonstrated his habit of
bankrolling cocaine purchases if someone else would pick
them up, and “sharing” cocaine generously at his home, his
office, bars, ski resorts, etc. To the extent that Mancuso’s
claim depends on an argument that he merely “shared”
cocaine with friends, that argument is meritless. It is well-
established that “sharing” drugs “constitutes ‘distribution’ for
purposes of 21 U.S.C. § 841(a)(1),” even if there is no
commercial scheme involved. United States v. Ramirez,
608 F.2d 1261, 1264 (9th Cir. 1979). We therefore affirm the
district court’s determination that Mancuso did not qualify for
a minor role adjustment.
IV. Forfeiture
The government cross-appeals the district court’s denial
of forfeiture. This court reviews de novo the district court’s
interpretation of federal forfeiture law. See United States v.
Kim, 94 F.3d 1247, 1249 (9th Cir. 1996). We also review de
novo the district court’s interpretation and application of the
Federal Rules of Criminal Procedure. See United States v.
Alvarez-Moreno, 657 F.3d 896, 900 n.2 (9th Cir. 2011).
The government included a forfeiture count in the
indictment, seeking forfeiture of $160,524.33, which
represents the equity from the sale of Mancuso’s home. The
government sought forfeiture of these proceeds pursuant to
21 U.S.C. § 853(a)(2), which provides in relevant part that
“[a]ny person convicted of a violation of this subchapter or
subchapter II of this chapter punishable by imprisonment for
more than one year shall forfeit to the United States . . . any
of the person’s property used, or intended to be used, in any
manner or part, to commit, or to facilitate the commission of,
such violation.” (emphasis added). This court stated in
30 UNITED STATES V . MANCUSO
United States v. Liquidators of European Federal Credit
Bank, “[T]o achieve criminal forfeiture, the government first
must prove, beyond a reasonable doubt, that the defendant is
guilty of the crime. The government then must prove, by a
preponderance of the evidence, a nexus between the property
and the crime.” 630 F.3d 1139, 1149 (9th Cir. 2011) (internal
citation omitted).
Criminal forfeiture proceedings are governed by Federal
Rule of Criminal Procedure 32.2. Before 2009, the relevant
portion of Rule 32.2 provided,
Upon a party’s request in a case in which a
jury returns a verdict of guilty, the jury must
determine whether the government has
established the requisite nexus between the
property and the offense committed by the
defendant.
Fed. R. Crim. P. 32.2(b)(4) (2008) (emphasis added). In
2009, the Rule was amended, and the relevant provision now
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) (2012) (emphasis added). The
Advisory Committee Notes on the 2009 Amendments make
UNITED STATES V . MANCUSO 31
clear that the amended rule places an affirmative duty on the
court to determine whether “either party requests a jury
determination of forfeiture in cases where the government has
given notice that it is seeking forfeiture and a jury has been
empaneled to determine guilty or innocence,” and “[t]he rule
requires the court to make this determination before the jury
retires.”
In the present case, the government properly concedes
that the district court failed to follow the procedure outlined
in Rule 32.2(b)(5)(A), but argues that any error was harmless.
We agree. The purpose of the 2009 amendment was “to
avoid an inadvertent waiver of the right to a jury
determination, while also providing notice to the court and to
the jurors themselves if they will be asked to make the
forfeiture determination.” Fed. R. Crim. P. 32.2 Advisory
Committee Notes to the 2009 Amendments. Under the facts
of this case, where Mancuso’s attorney stated that she
“understood” that the district court would make the forfeiture
decision,11 Mancuso did not “inadvertently” waive his right
11
After the jury entered its verdict of guilty, the following exchange
took place:
[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.
32 UNITED STATES V . MANCUSO
to a jury determination of forfeiture. The failure of the
district court to inquire before the jury began deliberating
whether either party requested a jury determination on the
nexus between the property sought and the crime was
therefore harmless.
Conclusion
For the foregoing reasons, we AFFIRM Mancuso’s
conviction on Count I, AFFIRM the district court’s
determination of the drug amount and refusal to grant a minor
role adjustment, VACATE Mancuso’s convictions on Counts
II, III, and IV, and REVERSE the district court’s denial of
the government’s forfeiture motion. This case is
REMANDED to the district court for further proceedings
consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.