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. Andreen, 628 F.2d 1236, 1245 (9th Cir. 1980); United States v. Tarr, 589 F.2d 55, 59 (1st Cir. 1978); United States v. Barnett, 507 F.Supp. 670, 673-74 (E.D.Cal.1981),

Affirmance of both these convictions, therefore, requires a showing of intent with respect to each of the deliveries of which Mehrmanesh was convicted. If, as the majority holds, the delivery of the sample constitutes a separate offense, there must have been a showing of intent to assist in its commission. There was none.

The record shows only that Mehrmanesh was present when others discussed a sample. The record is devoid of evidence suggesting that Mehrmanesh was anything more than indifferent as to whether any sample was ever delivered. I disagree with the statement in the majority opinion that Mehrmanesh was informed that a sample would have to be delivered to the ultimate buyer in order to consummate the deal. Mere awareness of the likelihood of such a distribution falls short of the required showing that Mehrmanesh intended to aid and abet it. The majority also suggests that it was appropriate for the jury to conclude that he would have approved the Picacho delivery had he known of it. This is sheer speculation without support in the evidence or in any theory articulated to the jury.

I would affirm the conviction on count II and vacate the conviction and sentence on count I.