United States v. Donald Lake Simpson, United States of America v. Rodolfo Molina, Jr.

Donald Lake Simpson (Simpson) and Rodolfo Molina, Jr. (Molina) appeal their convictions and sentences for conspiracy to distribute and to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846 . Simpson also appeals his conviction and sentence for possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861 (d) and 5871.

I. Conspiracy: Failure to Instruct on Overt Act

With regard to the conspiracy charge against both defendants, the issue presented is whether 21 U.S.C. § 846 requires an allegation in the indictment of an overt act and whether the jury must be instructed that proof of an overt act is required. While the indictment need not contain an allegation of an overt act, proof of such an act is required. United States v. Shabani, 993 F.2d 1419 (9th Cir.1993); see also United States v. McCown, 711 F.2d 1441 (9th Cir.1983); United States v. Tavelman, 650 F.2d 1133 (9th Cir.1981), cert. denied, 455 U.S. 939 , 102 S.Ct. 1429 , 71 L.Ed.2d 649 (1982).

In Molina’s case, the government contends that the failure to instruct was harmless in view of Jury Instruction Nos. 10-15 and Molina’s defense that his overt acts were done for…