United States v. Mohammed Reza Mehrmanesh

682 F.2d 1303 10 Fed. R. Evid. Serv. 1065 UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Reza MEHRMANESH, Defendant-Appellant. No. 81-1305X. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 14, 1981. Decided June 11, 1982. Rehearing Denied Aug. 5, 1982. William F. McDonald, Jr., Tucson, Ariz., for defendant-appellant. Negatu Molla, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before WALLACE and SCHROEDER, Circuit Judges, and HENDERSON, * District Judge. WALLACE, Circuit Judge: 1 Mehrmanesh was convicted of two counts of distribution of heroin in violation of 21 U.S.C. § 841 (a)(1) and was sentenced to consecutive prison terms of 15 years on each count. Two principal issues are presented on appeal: (1) whether the offenses alleged in counts 1 and 2 of the indictment were in fact one offense for which only one sentence should have been imposed, and (2) whether the district court erred in denying Mehrmanesh's motion to prevent the government from using a prior conviction for purposes of impeachment and from inquiring into other "bad acts" upon…

Mehrmanesh was convicted of two counts of distribution of heroin in violation of 21 U.S.C. § 841 (a)(1) and was sentenced to consecutive prison terms of 15 years on each count. Two principal issues are presented on appeal: (1) whether the offenses alleged in counts 1 and 2 of the indictment were in fact one offense for which only one sentence should have been imposed, and (2) whether the district court erred in denying Mehrmanesh’s motion to prevent the government from using a prior conviction for purposes of impeachment and from inquiring into other “bad acts” upon cross-examination. We affirm.

I

On December 10,1980, Sergeant Wolff of the Tucson, Arizona, Metropolitan Narcotics Squad discussed a possible heroin transaction with Melchi, a government informant. Melchi was to act as a liaison between the purported buyers, represented by Wolff, and the supplier, Mehrmanesh, through Mehrmanesh’s associates Napier and Reedy.

Shortly after midnight on December 13, Melchi met with Mehrmanesh, Napier, and Reedy to discuss the sale of approximately 500 grams of heroin to Melchi’s buyers. When Melchi asked for a sample to show to the buyers, Mehrmanesh stated that the heroin was buried…

dissenting in part:

I concur in part III of the majority opinion upholding the district court’s rulings on the motions in limine. I dissent from part II of the opinion which holds that the appellant, on this record, was properly convicted of two counts and sentenced to two consecutive 15-year terms. While I agree that deliveries of a sample and of the larger quantity could, in some circumstances, constitute two separate offenses under 21 U.S.C. § 841 (a)(1), I cannot agree that Mehrmanesh, who did not participate in the distribution of the sample charged in the indictment, who did not plan it, and who was not even aware that it was taking place, could properly have been convicted of aiding and abetting its commission.

With respect to the essential element of intent, the government’s burden is quite clear: an aider and abettor must have the intent to do the act of which he is convicted. “A defendant to be an aider and abettor must know that the activity condemned by the law is actually occurring and must intend to help the perpetrator.” United States v. McDaniel, 545 F.2d 642, 644 (9th Cir. 1976), citing R. Perkins, Criminal Law 645 (2d ed. 1969). Accord, United States v.…