Unpublished Disposition, 930 F.2d 30 (9th Cir. 1987)

No. 90-10183.

United States Court of Appeals, Ninth Circuit.

Before HUG, WILLIAM B. NORRIS and NOONAN, Circuit Judges

MEMORANDUM^** 

A jury convicted appellant William Figueroa on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and one count of distribution of cocaine in violation of 21 U.S.C. § 841(a) (1). He now appeals his conviction on the ground that the indictment was duplicitous.

FACTS

On May 21, 1987, Carmen Fernandez, a confidential informant working for the Federal Bureau of Investigation arranged to purchase one kilogram of cocaine from Wilfredo Baquero. She gave him $23,000 cash for the cocaine. Baquero was accompanied by Figueroa when he handed the cocaine to the informant. Figueroa told the informant that if anything was wrong it would be taken care of.

FBI agents quickly discovered that the informant had been shorted approximately 80 grams of cocaine. The informant telephoned Baquero later that day and informed him that he had not delivered the full kilogram of cocaine. Baquero told her that he would arrange for Figueroa to deliver the balance of the cocaine she had paid for the next day. On May 22, 1987, the informant returned to Figueroa's apartment where she obtained the rest of the cocaine from Figueroa.

A federal grand jury returned an indictment against Figueroa, of which Count 10 charged him with distribution of approximately one kilogram of cocaine in violation of 21 U.S.C. § 841(a) (1). Appellant filed a motion to dismiss count 10 of the indictment on the ground that it was duplicitous in that it comprised two "separate and distinct" deliveries of cocaine occurring on different dates. The motion was denied.

A separate trial was conducted on the charges against Figueroa. During jury deliberations the jury submitted a question asking whether 3 ounces of cocaine was considered sufficient to be one kilogram as defined by the charge in Count 10. The district judge responded, "No." The jury found Figueroa guilty. Figueroa filed a motion for a new trial. That motion was denied.

ANALYSIS

Duplicity is the joining in a single count of two or more distinct and separate offenses. One vice of duplicity is that a jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of a particular offense. United States v. UCO Oil Co., 546 F.2d 833 (9th Cir. 1976). We review the question of whether counts of an indictment are duplicitous de novo. United States v. Aguilar, 756 F.2d 1418, 1421-22 (9th Cir. 1985).

Figueroa contends that Count 10 is duplicitous because it alleges two distributions, one taking place on May 21 and one taking place the next day. The court looks to the indictment itself to determine whether it may be fairly read to charge but one crime in each count. United States v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir. 1983).

Count 10 of the indictment charges that:

On or about May 21 and 22, 1987, in the State and Federal District of Nevada, Wilfredo Baquero and William T. Figueroa defendants herein, willfully and knowingly did distribute to Carmen Fernandez approximately one kilogram of cocaine, a schedule II Narcotic Drug Controlled Substance; all in violation of Title 21, United States Code, Section 841(a) (1).

This count charges one crime. Just because the delivery of the cocaine in this case was made in two successive steps does not make count 10 duplicitous. Only one payment was made and it was for an entire kilogram of cocaine. The recorded telephone conversation between Baquero and Fernandez on May 21, 1987 showed that the delivery of 918.4 grams of cocaine on May 21, 1987 and 79.4 grams on May 22, 1987 were understood by all parties to be part of a single complete sale of one kilogram of cocaine.

Therefore the district court's order denying defendant's motion for a new trial is AFFIRMED.