United States v. Reshat Shabani, A/K/A Lee Shabani

993 F.2d 1419 UNITED STATES of America, Plaintiff-Appellee, v. Reshat SHABANI, a/k/a Lee Shabani, Defendant-Appellant. No. 91-30224. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 8, 1992. Decided May 17, 1993. Alan M. Caplan, Bushnell, Caplan & Fielding, San Francisco, CA, for defendant-appellant. Karen L. Loeffler, Asst. U.S. Atty., Anchorage, AK, for plaintiff-appellee. Appeal from the United States District Court for the District of Alaska. Before: WALLACE, Chief Judge, WRIGHT and LEAVY, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 Shabani appeals his conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 . He argues that the government failed to plead or prove an essential element of the crime. The indictment did not allege that an overt act was committed to further the conspiracy. In defining the offense, the jury instructions also omitted mention of an overt act. We conclude that the indictment was legally sufficient but hold that the district court erred in not instructing the jury on the requirement of an overt act. The jury was precluded from finding all the elements necessary to convict. We must reverse. 2…

Shabani appeals his conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 . He argues that the government failed to plead or prove an essential element of the crime. The indictment did not allege that an overt act was committed to further the conspiracy. In defining the offense, the jury instructions also omitted mention of an overt act. We conclude that the indictment was legally sufficient but hold that the district court erred in not instructing the jury on the requirement of an overt act. The jury was precluded from finding all the elements necessary to convict. We must reverse.

I

The government alleged that Shabani moved to Alaska and entered into a drug distribution scheme with his girlfriend, her family and their associates. According to the prosecution, Shabani was the supplier, arranging to have the cocaine brought to Anchorage from California. The girlfriend, Mayfield, and another friend, Pinjoli, handled the distribution, making many of the sales to Mayfield’s relatives. FBI agents purchased drugs from the coconspirators during an undercover investigation. Mayfield pleaded guilty and agreed to cooperate with the prosecution.

Shabani stood…

concurring:

In light of our holding that the indictment in this case was sufficient despite failing to allege an overt act, our conclusion that the district court erred in failing to instruct the jury that the government was required to prove the commission of an overt act may seem rather odd. Indeed, I am aware of no other circumstance in which the government may refrain from alleging in the indictment an element it must yet prove at trial. Surely, logic as well as jurisprudential consistency would dictate that the indictment must contain all the requisite elements of the offense upon which the district court is required to instruct the jury.

This inconsistency comes about only because our circuit, contrary to every other circuit, clings to a problematic gloss on 21 U.S.C. § 846 , insisting, despite a complete lack of textual support in the statute, that in order to convict under this section the government must prove the commission of an overt act in furtherance of the conspiracy. As a three-judge panel, we are bound by our previous holdings which unfortunately lead us to the present strange situation.

While I concur in the majority opinion, I write separately to stress that…