Petition — Perluss v. United States

hes se

80-684 oct

, Supreme Court, U.S,

L& oO .

25 1980

DAK, JR., CLERK

In the Supreme Court

OF THE

United States

SHELDON PERLUSs,

Petitioner,

VS.

Unirep States oF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

ANNE FLower CuMINGS

Cumincs & JoRDAN

407 Sansome Street,

Suite 300

San Francisco, CA 94111

(415) 392-0250

Attorneys for Petitioner

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. ® S.F., CA 94111 © (415) 981-7882

QUESTION PRESENTED FOR REVIEW

Does a consecutive sentence imposed following conviction

of a conspiracy and a substantive offense constitute con-

stitutionally prohibited double punishment, where the jury

was given, over objection, the Pinkerton instruction, and

where the defendant did not participate in the substantive

offense.’

‘In addition to Mr. Sheldon Perluss, the Petitioner herein, Peter

Wylie and David Bachrach were parties to the proceeding in the

Court whose judgment is sought to be reviewed.

TABLE OF CONTENTS

Question presented for review .................-.-:-scseceeeceseeoeeeees

Silas BORER. Sac e WeEE: oP ANS EIN oF

Jurisdiction

Constitutional provision and instruction involved ........

I I ins casdabiosodatdnnabacicammabaabeuinal

Reasons for granting the Writ ..................-scsssseseceeseeeseeeeeees

Conclusion

Appendix A

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ii

TABLE OF AUTHORITIES CITED

Cases

Page

Blockburger v. United States (1932) 284 U.S. 299 ........ 5

Brown v. Ohio (1977) 482 U.S. 161 200222... 6

Gore v. United States (1958) 357 U.S. 386 0000... 6

Jeffers v. United States (1977) 482 U.S. 137 2.000000... 6

Pinkerton v. United States (1946) 328 U.S. 640 ........ passim

Sanabria v. United States (1978) 4387 U.S. 54 00.00... 6

Simpson v. United States (1978) 435 U.S. 6 -.....2.02222....... 6

United States v. Austin (6th Cir. 1976) 529 F.2d 559... = 7

United States v. Cowart (5th Cir. 1979) 595 F.2d 1023 7

United States v. Kearney (9th Cir. 1977) 560 F.2d 1358 7

United States v. Ohlson (9th Cir. 1977) 552 F.2d 1347 7

United States v. Rodriguez (5th Cir. en bane 1980) 612

BN Fo ch a aaascaceliea shave ciiaked bkiessngnndanatiiinnnc baowiinbaitblamlbiaennis 7

Whalen v. United States (1980) .... U.S. ...., 100 S.Ct.

I ee aaa hes icheslasseie ako psccendicdinerani inp elisinindle 5, 6

Constitution

United States Constitution, Amendment V ................ passim

Statutes

Title 21 U.S.C.:

oat cdlaleceenhanede eRadidonevireecaetiill 3

OT a i siciachaceanciteadeoinntunrssbermisensbaavees Messplibaedease 3

Ris Eas ES CE ee eg ee KC OER 10 aT 3

es 8 EF TGR. y 5 RSE ml acnnen aa apne Neen 2

Other Authorities

2 Devitt & Blackmar, Federal Jury Practice & Instruc-

tions, § 27.17 (West 1977) ...........-. RE, SNCS en 3, 4

No.

In the Supreme Court

OF THE

United States

SHELDON Perwuss,

Petitioner,

VS.

Unrtep States or AMERICA,

Respondent.

os

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

ooo

The Petitioner, Sheldon Perluss, respectfully prays that

a Writ of Certiorari issue to review the judgment and

Opinion of the United States Court of Appeals for the

Ninth Circuit filed July 16, 1980.

OPINION BELOW

The Court of Appeals entered its judgment and Opinion

on July 16, 1980. A true and correct copy of said Opinion

is appended as Appendix A. The decision is entitled United

States v. Wylie, et al., and is reported at ...... Fae Signs

2

JURISDICTION

Judgment was entered by the Court of Appeals on July

16, 1980. A timely Petition for Rehearing and Suggestion

for Appropriateness of Rehearing En Bane was filed; said

Petition for Rehearing was denied by the Court of Appeals

on September 8, 1980, and the Suggestion of Appropriate-

ness of Rehearing En Banc was rejected on that date. No

Order has been sought granting an extension of time within

which to petition for Certiorari. Jurisdiction of this Court

is invoked under Title 28, U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION AND

INSTRUCTION INVOLVED

“.. [nJor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb.. .”

United States Constitution, Amendment V.

“If you find that a particular defendant is guilty of

conspiracy as charged in Count I, you may also find

that defendant guilty of the substantive offense as

charged in any other count of the indictment, provided

that you find that the essential elements of that count

as defined in these. instructions have been established

beyond reasonable doubt, and provided that you also

find beyond reasonable doubt,

First, that the offense defined in the substantive

count was committed pursuant to the conspiracy, and

Second, that the particular defendant was a member

of the conspiracy at the time the substantive offense

_ was committed.

Under the conditions just defined, a defendant may

be found guilty of a substantive count, even though he

did not participate in the acts constituting the offense

3

as defined in the substantive count. The reason for this

is that a co-conspirator committing a substantive of-

fense pursuant to the conspiracy is held to be the agent

of the other conspirators.” 2 Devitt & Blackmar, Fed-

eral Jury Practice and Instructions (West 1977)

§ 27.17.

STATEMENT OF THE CASE

On January 31, 1979, an indictment was filed in the

Northern District of California charging Peter Wylie,

David Bachrach, Donald Goetz and Sheldon Perluss with

violations of Title 21, U.S.C. $§ 846, 841(a)(1) and 843(b).

(Clerk’s Record 1).? Mr. Perluss was charged in two counts

only of the seven count indictment: in Count I, he was

charged with conspiracy to distribute LSD, a violation of

21 U.S.C. § 846; and in Count VI, he was charged with the

substantive offense, distribution of LSD, in violation of 21

U.S.C. § 841(a) (1). The indictment charged the three others

with additional distributions of LSD and charged two with

the unlawful use of a communication facility (21 U.S.C.

§ 843(b)).

The conspiracy count of the indictment, Count I, listed

each distribution of LSD as an overt act. (Each distribution

was independently charged as a substantive offense in

Counts II through VI.) Overt act number five reflected the

distribution charged in Count VI; Mr. Perluss was not

named in overt act number five.

Mr. Perluss did not participate in the distribution of

LSD charged in Count VI.

*Hereinafter, the Clerk’s Record will be designated CR.

4

Over Mr. Perluss’ objection (Reporter’s Transcript

9 :1046-1047, 1085),° the Court gave the Pinkerton instruc-

tion, § 27.17, 2 Devitt & Blackmar, Federal Jury Practice

and Instructions (West 1977), at the request of the govern-

ment (CR 25, RT 9:1063). The Pinkerton instruction per-

mitted the jury to consider its determination of guilt of the

conspiracy in reaching its determination of guilt of the

substantive offense. The Court noted that the giving of the

Pinkerton instruction was applicable only to Mr. Perluss

(RT 9:1046).

The jury returned verdicts of guilty as to Mr. Perluss

on Counts I and VI.

Mr. Perluss was sentenced on each count with the sen-

tences to run consecutively (CR 76); on Count I he was

sentenced to the custody of the Attorney General for a

period of four years, and on Count VI has was sentenced

to the custody of the Attorney General for three years, plus

a special parole term of five years. Mr. Perluss objected to

the sentences running consecutively (RT, May 18, 1979,

6-7).

REASONS FOR GRANTING THE WRIT

. This case squarely presents two problems of major im-

portance to the administration of criminal justice in this

country. The facts that shape these problems are not in

dispute. Whereas a conspiracy and a substantive charge

are generally considered separate, in this case they became

the same offense because of the convergence of two factors

*Hereinafter, the Reporter’s Transcript will be designated RT.

‘This instruction derives its name from Pinkerton v. United States

(1946) 328 U.S. 640.

5

—the giving of the Pinkerton instruction and the total

lack of participation in the substantive offense. The Court

of Appeals stated in its Opinion:

“ijn this case, the distinction between the two offenses

no longer holds true because of the Pinkerton instruc-

tion. The jury was told that in order for Perluss to be

found guilty of the distribution charged, they only

needed to find him guilty of the conspiracy charge and

find that a co-conspirator had undertaken the actual

distribution charged in Count 6. The agreement neces-

sary to prove the conspiracy charge was also necessary

to prove the distribution charge. Because this instruc-

tion was given, the conspiracy charge no longer re-

quired proof of an element that the distribution did not.

Therefore, under Blockburger, Perluss claims that he

should not have received consecutive sentences for this

had the effect of punishing him twice for the same

offense.” (Slip Op. at 14)

Thus, this case brings two problems into sharp focus:

one, does the double jeopardy clause of the United States

Constitution circumscribe the power of Congress to author-

ize cumulative punishments for offenses that are not sep-

arate under the Blockburger® test; and, two, can congres-

sional intent be controlling when two otherwise separate

offenses are rendered identical by a jury instruction which

was neither authored nor considered by Congress?

The issue of whether the double jeopardy clause of the

United States Constitution constitutes a bar to legislation

intended to impose multiple punishments for two identical

offenses is an issue of great moment. Although four Jus-

tices expressed their opinion in Whalen v. United States

’Blockburger v. United States (1932) 284 U.S. 299.

6

(1980) ...... US. ......, 100 §.Ct. 1432 (concurring opinions of

Justice White, Justice Blackmun, and dissenting opinion

of Justice Rehnquist in which Chief Justice Burger joined),

the issue needs to be squarely resolved by a majority of the

Court. This case presents the issue in such a way that there

can be a clear resolution by this Court. To date, opinions of

this Court have contained language tending to opposite res-

olutions of the issue: in Simpson v. United States (1978)

435 U.S. 6, 11-12, Sanabria v. United States (1978) 4387 U.S.

54, 69, and Jeffers v. United States (1977) 432 U.S. 137, 155,

there were indications that the double jeopardy clause

might prohibit multiple punishments where the offenses

were substantially the same; the opposite resolution, that

the double jeopardy clause is no bar to such multiple pun-

ishments, is indicated in Brown v. Ohio (1977) 432 U.S.

161, 165 and Gore v. United States (1958) 357 U.S. 386, 394.

This case provides an excellent opportunity for the defini-

tive resolution of this issue.

In addition, this case presents the important issue of

the effect of a jury instruction which, in essence, obliterates

the separateness of offenses that Congress has established.

Undoubtedly, conspiracy and substantive offenses are gen-

erally distinct.: However, by operation of the Pinkerton

instruction in cases such as this, where a defendant is not

a participant in the substantive offense, the instruction ren-

ders otherwise separate offenses the same offense. Congress

cannot and did not intend for the offenses to be the same

and it cannot be said otherwise. Congress did not write

the instruction nor did it consider the instruction. Conse-

quently, where two originally separate offenses are ren-

7

dered the same by a jury instruction, should the issue of

multiple punishment be resolved by reference to congres-

sional intent, particularly where, as here, congressional

intent has been overridden by the jury instruction? This

case presents that issue in sharp focus for resolution by

this Court.

The above two issues of major federal importance are not

the sole reasons for granting the writ sought herein. There

exists a conflict in the decisions of the Courts of Appeals

regarding the proper test to be applied in resolving a dou-

ble jeopardy claim with respect to multiple punishments:

the United States Court of Appeals for the Sixth Circuit

has held, in circumstances similar to those in the case at

bar, that the test is whether the same evidence was adduced

to prove the charges in the respective counts (United States

v. Austin (6th Cir. 1976) 529 F.2d 559) ; this approach has

been repudiated and a test focusing on the statutory ele-

ments of the different offenses has been adopted by the

Courts of Appeals for the Ninth and Fifth Circuits (United

States v. Kearney (9th Cir. 1977) 560 F.2d 1358; United

States v. Ohlson (9th Cir. 1977) 552 F.2d 1347; United

States v. Rodriguez (5th Cir. en banc 1980) 612 F.2d 906;

United States v. Cowart (5th Cir. 1979) 595 F.2d 1023).

This case provides the opportunity for this Court to declare

the proper test for the determination of claims that mul-

tiple (consecutive) punishments are prohibited by the dou-

ble jeopardy clause.

The instant case raises the critical issue of the effect

of the interface between a double jeopardy claim of multiple

(consecutive) punishments and the Pinkerton instruction.

8

The issue was not raised in Pinkerton v. United States

(1946) 328 U.S. 640. These matters need resolution by this

Court and this case is particularly appropriate for that

resolution.

CONCLUSION

It is respectfully requested that this Court grant the

Writ for the reasons above set forth.

Dated: October 30, 1980

Respectfully submitted,

ANNE FLower CuMINGS

Cuminas & JorDAN

Attorneys for Petitioner

(Appendix A follows)

a Re ae

Appendix A

In the United States Court of Appeals

For the Ninth Circuit

United States of America,

Plaintiff-Appellee, | No. 79-1362

vs. DC No.

: Peter Wylie, CR79-0041 SC

Defendant-Appellant.

United States of America,

Plaintiff-Appellee, No. 79-1363

vs. ( DC No.

Sheldon Perluss, CR79-0041 SC

Defendant-Appellant.

United States of America,

Plaintiff-Appellee,| wo. 79-1431

bi DC No.

Devid Bachrach, CR79-0041 SC

Defendant-Appellant.

[Filed July 16, 1980]

P

OPINION

An Appeal from the United States District Court

for the Northern District of California

The Honorable Samuel Conti, Presiding

Before: Thornberry,* Anderson and Skopil, Circuit

Judges.

*The Honorable Homer Thornberry, Senior United States Circuit

Judge for the Fifth Circuit, sitting by designation.

A-2

J. Blaine Anderson, Circuit Judge:

The defendants (Wylie, Perluss, and Bachrach) bring

this appeal from their convictions on a seven-count indict-

ment charging a large scale LSD manufacturing and

distribution operation. They raise several arguments on ap-

peal which fall into three general categories: (1) the ade-

quacy of the government’s denial of electronic surveillance ;

(2) the outrageousness of the government’s involvement in

the criminal enterprise; and (3) various challenges to the

length of sentences which were imposed. We find no rever-

sible error and affirm their convictions. For the reasons

stated hereinafter, the sentences are vacated and we remand

for resentencing.

I. BACKGROUND

This criminal enterprise had its origin with the defendant

Bachrach’s dreams of great wealth. Bachrach, a sometime

college teacher, talked with his friend Alfred Bloch about

one such scheme for making large amounts of money. The

two men discussed the possibility of obtaining ergotamine

tartrate (ET) which is used for manufacturing LSD, and

the possibility of selling LSD itself. The discussion even-

tually took concrete form when Bachrach paid $2,000 to

send Bloch to Poland in an unsuccessful attempt to obtain

LSD crystals.

For reasons which are less than clear, Bloch approached

the authorities and agreed to work for them in setting up

his friend Bachrach. On instructions from DEA agents,

Bloch told Bachrach that he could obtain ET from a source

in San Francisco.

A-3

On November 24, 1978, Bachrach flew to San Francisco

and met two undercover DEA agents who posed as Bloch’s

“source.” Bachrach told the agents that he wanted to obtain

one-half to one full kilogram of ET each month for a clan-

destine LSD lab in Berkeley. In turn, the agents explained

to Bachrach that they would supply him with ET in ex-

change for LSD. Three days later, Bachrach met with the

DEA agents and gave them 400 units of LSD, as well

as a price list of the different types of LSD which could

be supplied. (The list was in the defendant Wylie’s

handwriting. )

On November 30, Bachrach and Wylie both met with

the DEA agents and Wylie bragged about the size of the

LSD operation. The parties agreed to exchange 30,000 units

of LSD for 100 grams of ET. The next meeting was on

December 1, at which time Bachrach gave 30,000 units of

LSD to the agents for a bottle of ET pursuant to the earlier

agreement.

This was followed by Bachrach’s sale of 2,000 tablets of

LSD to the agents on December 7 in exchange for $900.

A week later, Bachrach gave the agents a shopping list

(handwritten by Wylie) of additional chemicals which were

needed. These chemicals were given to Bachrach on Jan-

uary 2, 1979. Bachrach turned these chemicals over to Don-

ald Goetz’ the next day. Goetz then gave them to Wylie.

In turn, Wylie transferred the chemicals to Perluss on the

following day.

‘Goetz was also tried and convicted of the charges against him

for his role in the conspiracy. Prior to sentencing, he disappeared.

He therefore is not a party to this appeal.

A-4

Meanwhile, on January 3, Bachrach and Wylie exchanged

54,000 units of LSD for 100 grams of ET. The final

exchange took place on January 18 when Bachrach gave

226,400 units of LSD to the agents in exchange for more

ET. The defendants were all arrested on January 18.

The residence of Perluss was searched and a number of

chemicals and formulas use i for manufacturing LSD were

found.

All of the defendants were charged with conspiracy to

manufacture and distribute LSD in violation of 21 U.S.C.

§ 846 (Count 1). Wylie and Bachrach were charged with

four counts for the actual distribution of LSD in violation

of 21 U.S.C. § 841(a)(1) (Counts 2 through 5). These sub-

stantive counts were based on the four different exchanges

which occurred on November 27, December 1, December 7,

and January 3. The sixth count charged Wylie, Bachrach,

and Perluss with distribution (21 U.S.C. § 841(a)(1)) based

on the exchange of the 226,400 units of LSD on January

18. And finuily, the seventh count charged Wylie and Bach-

rach with the use of a telephone to facilitate distribution of

LSD in violation of 21 U.S.C. § 843(b). After a six-day

trial, on April 14, 1979, a jury found the defendants guilty

on all counts.

Bachrach, who was found guilty on all seven counts,

was sentenced to a total of fifteen years.*? Wylie, who was

*Bachrach was sentenced as follows:

Count 1—five years plus special parole term of five years;

Count 2—three years plus special parole term of two years,

concurrent to Count 1;

Count 3—five years plus porn parole term of two years,

consecutive to Count 1;

A-5

also convicted on all seven counts, was sentenced to twenty

years.® And Perluss, who was found guilty on the two

counts charged against him, was sentenced to a total of

seven years.*

After sentencing, the defendants all filed timely notices

of appeal. This court has jurisdiction under 28 U.S.C. § 1291

to consider their claims of error.

Count 4—four years plus special parole term of two years,

concurrent to Count 3;

Count 5—five years plus special parole term of two years,

consecutive to Count 3;

Count 6—five years plus special parole term of two years,

concurrent to Count 5;

Count 7—two years, concurrent to Count 5.

’Wylie was sentenced as follows:

Count 1—five years plus special parole term of five years;

Count 2—three years plus special parole term of three years,

concurrent to Count 1;

Count 3—five years plus special parole term of five years,

consecutive to Count 1;

Count 4—four years plus special parole term of four years,

concurrent to Count 3;

Count 5—five years plus special parole term of five years,

consecutive to Count 3;

Count 6—five years plus special parole term of five years,

consecutive to Count 5;

Count 7—two years, concurrent to Count 6.

‘Perluss was sentenced as follows:

Count 1—four years plus five-year special parole term;

Count 6—three years plus five-year special parole term, con-

secutive to Count 1.

A-6

II. DISCUSSION

1. Electronic Surveillance

Prior to trial, counsel for Perluss filed a claim under

18 U.S.C. § 3504 asserting that she had been the subject

of illegal electronic surveillance in connection with her

representation of Perluss. The government made a general

denial of any such electronic surveillance. Perluss’ counsel

then filed a supplemental affidavit in support of the § 3504

claim. The government responded by filing a more detailed

denial of electronic surveillance. On appeal, Perluss argues

that the government’s denial was inadequate and asks this

court to remand to the district court for an evidentiary

hearing on the electronic surveillance claim.

When a defendant makes a prima facie showing that

he or his attorney was subjected to electronic surveillance,

the burden then shifts to the government to “unequivocally

affirm or deny the use of such surveillance.” United States

v. Gardner, 611 F.2d 770, 774 (9th Cir. 1980) ; United States

v. See, 505 F.2d 845, 855-856 (9th Cir. 1974), cert. denied,

420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673. United States

v. Alter, 482 F.2d 1016, 1026-1027 (9th Cir. 1973). Because

this could place an awesome burden on the government to

respond to frivolous claims, we have established specific

requirements for the defendant to satisfy in order to make

out a colorable claim. See, supra, 505 F.2d at 856.° In addi-

‘In Alter, supra, this court said that in order to make out a prima

facie issue of electronic surveillance, the affidavits or other evidence

must reveal:

(1) the specific facts which reasonably lead the affiant to

believe that named counsel for the defendant has been sub-

jected to electronic surveillance;

A-7

\

tion, the “specificity of the prosecution’s denial and the com-

prehensiveness of the search on which the denial is predi-

cated must be measured against the specificity of the alle-

gations of unlawful electronic surveillance and the strength

of the support for those allegations.” Gardner, supra, 611

F.2d at 774. And finally, the task of striking a balance

between “the conflicting and sensitive interests at stake”

when this type of question arises, “properly lies with the

district court.” Alter, supra, 482 F.2d at 1026.

In the supplemental affidavit submitted by Perluss’ coun-

sel, she stated that on March 19, 1979, she held a conference

with Perluss between eleven and noon. Before, during and

after the conference, her cousin was in her house and used

her phone. Her cousin informed her that the use of the

phone was normal before and after the conference with

Perluss. However, the use of the phone during the time of

the conference “consistently had a conversation in the back-

ground between two persons.” Based on the events related

to her by her cousin, Perluss’ attorney stated that she

believed “there was an unauthorized, governmental inter-

ception of wire and/or oral communications during the at-

torney-client conference at her home on March 19, 1979,

between the hours of eleven and noon.”

(2) the dates of such suspected surveillance;

(3) the outside dates of representation of the defendant by

the lawyer during the period of surveillance; :

(4) the identity of the person(s) with whom the lawyer was

communicating at the time the claimed surveillance took place;

and

(5) facts showing some connection between possible elec-

tronic surveillance and the defendant who asserts the claim or

the trial in which the defendant is involved.

See Alter, supra, 482 F.2d at 1026.

A-8

The district court found that this affidavit raised a ques-

tion of electronic surveillance and ordered the government

to make a check of the relevaut agencies to determine if

there had been any illegal electronic surveillance. The gov-

ernment attorney who was in charge of the prosecution of

this case responded with a declaration which denied any

such electronic surveillance of Perluss or his attorney. The

government attorney stated that he was unaware of any

electronic surveillance except for that which had already

been disclosed to the defendants (and was not at issue).

Incorporated into the declaration was the summary of the

Justice Department’s search of the records from the dif-

ferent government agencies.’ The search disclosed no evi-

dence that on March 19, 1979, either Perluss or his attor-

ney was subjected to surveillance by electronic, mechan-

ical, or other reception device. And lastly, the government

offered the statement by the agent who was in charge of

the investigation into this case. The agent stated unequivo-

cally that at no time was any type of wiretap or area bug

ever used during the investigation of the case. The only

electronic surveillance which had been utilized involved

the use of body recorders worn by the undercover agents

during their meetings with the defendants, and the under-

cover agents’ recording of their telephone conversations

°The records of the following agencies were searched, and no

evidence was found to support Perluss’ claim of electronic surveil-

lance: Federal Bureau of Investigation; Bureau of Alcohol, Tobacco

& Firearms; United States Customs Service; Drug Enforcement Ad-

ministration; United States Postal Service; United States Secret

Service; Internal Revenue Service; Central Intelligence Agency; and

the National Security Agency.

A-9

with the defendants (as mentioned earlier, these had been

disclosed and were not at issue).

We believe that the district court struck the proper bal-

ance between the conflicting and sensitive interests which

were raised by the electronic surveillance question. Per-

luss’ claim raised a colorable question. Although it may not

have satisfied the detailed requirements of Alter, supra,

the district court ordered the government to respond.

After conducting searches of the different agency records,

the government denied the claim. In addition, the two

principal government officers who were involved in the

case unequivocally denied any electronic surveillance as

alleged by Perluss. While the government could have filed

a more detailed denial, we believe that the one which was -

filed, when measured against Perluss’ claim, provided a

sufficient basis to support=the district court’s finding that

there had been no electronic surveillance. It should be

remembered that, as a practical matter, it is oftentimes

difficult to prove a negative. See Weimerskirch v. C.1.R.,

596 F.2d 358, 361 (9th Cir. 1979). We hold that the govern-

ment’s denial of electronic surveillance was adequate and

no further proceedings are necessary on this question.

2. Outragédus Involvement

The defendants argue that the involvement of the DEA

agents in the criminal enterprise was so improper that it

amounted to a violation of due process, This argument is

based on the following sequence of events. Bloch initially

“set up” Bachrach by having him meet undercover DEA

agents. According to Bachrach, he only intended to pur-

chase ET (a necessary ingredient for making LSD), and

A-16

is was the DEA agents who suggested that they receive

payment in LSD. Thereafter, Bachrach brought in Wylie

and Perluss, who attempt to ride vicariously on the coat-

tails of Bachrach’s argument. The defendants claim that

the agents were able to set up the different exchanges in

order to add additional charges.

-We have no trouble at all in rejecting all of the

defendants’ different phrasings of their due process ar-

guments,

Initially, it should be noted the defendants cannot claim

entrapment. An entrapment instruction was given to the

jury. By convicting the defendants, the jury obviously

rejected the entrapment defense and thereby found that

the defendants had been predisposed to commit the crimes.

On appeal, the defendants rely on the close relative of

the entrapment defense which may be referred to as the

outrageous involvement defense.’ The Supreme Court has

observed that due process may bar a conviction where the

government’s involvement in a criminal enterprise has

become sufficiently outrageous and shocking to the uni-

versal sense of justice. See United States v. Russell, 411

U.S. 423, 431-432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) ;

Hampton v. United States, 425 U.S. 484, 495, 96 S.Ct. 1646,

48 L.Ed.2d 113 (1976) (Powell, J., concurring). This court

”

_ "The defendants refer to this as “governmental creative activity,

which is a mischaracterization of the defense upon which they seek

to rely. The decisions which established this defense focus on the

outrageousness of the governmental agents’ involvement in the

criminal activity. Any consideration of the creativity exercised by

the government agents is secondary to the consideration of the out-

rageousness of their involvement.

A-11

has recognized that a criminal defendant may have a due

process defense when the government’s involvement has

been sufficiently outrageous. United States v. McQuin, 612

F.2d 1193, 1196 (9th Cir 1980), cert. denied, US. ,

100 S.Ct. 1607, 63 L.Ed.2d 791; United States v. Prairie,

572 F.2d 1316, 1319 (9th Cir. 1978); United States v.

Gonzalez, 5389 F.2d 1238, 1239 (9th Cir. 1976); United

States v. Gonzales-Bemitez, 587 F.2d 1051, 1055 (9th Cir.

1976), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d

291. Not only do we have no problem whatsoever in con-

cluding that the government’s involvement in this case was

not outrageous enough to trigger the protection of the due

process clause, but we do not see how the action of the

undercover agents may be characterized as anything but

good, solid undercover investigative work.®

®As the Supreme Court said in Russell, supra:

“The illicit manufacture of drugs is not a sporadic, isolated

criminal incident, but a continuing, though illegal, business

enterprise. In order to obtain convictions for illegally manufac-

turing drugs, the gathering of evidence of past unlawful con-

duct frequently proves to be an all but impossible task. Thus in

drug-related offenses law enforcement personnel have turned to

one of the only practicable means of detection: the infiltration

of drug rings and a limited participation in their unlawful

present practices. Such infiltration is a recognized and permis-

sible means of investigation; if that be so, then the supply of

some item of value that the drug ring requires must, as a

general rule, also be permissible. For an agent will not be taken

into the confidence of the illegal entrepreneurs unless he has

something or value to offer them. Law enforcement tactics such

as this can hardly be said to violate “fundamental fairness” or

“shocking to the universal sense of justice. . . .” (citations

omitted )

411 USS. at 432,

A-12

First of all, it is well established that “the government

may employ undercover tactics to infiltrate criminal ranks

and may rely on paid informants in order to locate and

arrest criminals.” McQuin, supra, 612 F.2d at 1196;

Prairie, swpra, 572 F.2d at 1319. The mere fact that Bloch

was a paid informant, and the two agents were operating

undercover does not provide any support to the defend-

ants’ argument.

Bachrach’s contention that the agents initiated the idea

that LSD would be exchanged for ET also does not afford

any support to the outrageousness claim. After all,

Bachrach’s predisposition toward the sale of LSD was

abundantly clear in the record. And there is no indication

that Bachrach even as much as hesitated at using LSD

as the medium of exchange for the ET.

Bachrach and Wylie make much of the series of trans-

actions which were separately charged in the indictment.

This does not create any problem in the present case.

The agents were investigating a continuing large-scale

LSD manufacturing and distribution ring. In order to

find as many of the participants as possible, it was entirely

proper for the agents, given the posture of this case, to

carry out a series of exchanges. Likewise, we can per-

ceive nothing sinister in the United States Attorney’s

decision to charge the separate offenses. See United States

v. Batchelder, 442 U.S. 114, 123-124, 99 S.Ct. 2198, 60

L.Ed.2d 755 (1979) ; Bordenkircher v. Hayes, 434 U.S. 357,

364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).°

*Justice Stewart made the following observation about the discre-

tion of prosecutors in deciding what charges to file and proceed

upon:

A-13

And finally, the defendants argue that an instruction

on outrageous involvement should have been submitted

to the jury. It was entirely proper for the district court

to deny this request. The question of the outrageous

involvement of government agents is a question of law

for the court. McQuin, supra, 612 F.2d at 1196-1197;

Prairie, supra, 572 F.2d at 1319; Gonzalez, supra, 539 F.2d

at 1240 n. 1.”

“In our system, so long as the prosecutor has probable cause

to believe that the accused committed an offense defined by

statute, the decision whether or not to prosecute, and what

charge to file or bring before a grand jury, generally rests

entirely in his discretion. Within the limits set by the legisla-

ture’s constitutionally valid definition of chargeable offenses,

‘the conscious exercise of some selectivity in enforcement is not

itself a federal constitutional violation’ so long as ‘the selection

was [not] deliberately based upon an unjustifiable standard

such as race, religion, or other arbitrary classification,’” (cita-

tions and footnotes omitted )

Bordenkircher, supra, 434 U.S. at 364,

Perluss recognizes that Prairie, supra, and Gonzalez, supra,

represent the law of this circuit and as such are binding on this

panel. Because of this, Perluss suggests that the question of whether

such an instruction ought to be submitted to the jury should be

heard by this court sitting en banc. Fed. R. App. P. 35(a) explains

that en banc hearings are disfavored and generally are only ordered

when there is (1) an intracircuit conflict, or (2) a question of

exceptional importance. There is no conflict within this circuit, nor

is this a question of exceptional importance. We therefore decline

to recommend that the full court consider the appropriateness of an

en banc hearing on this question.

A l4

We conclude that the trial court was correct in refusing

to find, as a matter of law, outrageous involvement by

the government agents.” And, the defendants were not

entitled to have a jury instruction on this question.

3. Sentences

The defendants make several broad sweeping arguments

against the sentences which they received. As pointed out

earlier, Bachrach was sentenced to fifteen years based

on the three separate consecutive sentences; Wylie was

sentenced to twenty years based on four separate con-

secutive sentences; and Perluss was sentenced to seven

year, based on two separate consecutive sentences. We

find no merit to any of the defendants’ contentions about

the impropriety of their sentences.

Prior to our consideration of the defendants’ arguments,

it should be noted that a district judge has wide discre-

tion in determining what sentence to impose. United States

v. Tucker, 404 U.S. 448, 446-447, 92 S.Ct. 589, 30 L.Ed.2d

592 (1972). As long as the sentence is within statutory

limits, it is generally not subject to review on appeal. 7d.

"The defendants place great reliance upon this court’s opinion

in Greene v. United States, 454 F.2d 783 (9th Cir. 1971), and the

Third Circuit’s opinion in United States v. Twigg, 588 F.2d 373

(3d Cir. 1978). The government’s minimal involvement in the pres-

ent case falls far short of the intolerable overreaching which was

condemned in those two decisions. Moreover, under the unique

circumstances of Greene, supra, “it was established that the Gov-

ernment, through its agent, directly and continuously involved itself

in the creation and maintenance of the criminal operations.” United

States v. Granger, 475 F.2d 1022, 1024 (9th Cir. 1973), cert. denied,

412 U.S. 929, 93 S.Ct. 2757, 37 L.Ed.2d 157. There was no such

involvement here.

A-15

Bachrach says that common sense should tell the court

that he, the “least culpable” member of the conspiracy,

should not have been sentenced to eight more years than

Perluss, the “most culpable” member of the conspiracy.

Not only is there no legal support for this argument, but

it is also refuted by the facts that Bachrach was charged

and convicted on seven counts, whereas Perluss was only

charged and convicted on two.

Both Bachrach and Wylie claim that they should not

have received consecutive sentences. We find nothing wrong

with the use of consecutive sentences to punish Bachrach

and Wylie. After all, consecutive sentences can be imposed

after convictions for conspiracy and the underlying sub-

stantive offense. Jannelli v. United States, 420 U.S. 770,

777-778, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); United

States v. Kearney, 560 F.2d 1358, 1365-1367 (9th Cir. 1977),

cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460.

In addition, consecutive sentences can be imposed for the

separate commission of the same crime. See United States

v. Long, 524 F.2d 660, 661-662 (9th Cir. 1975); United

States v. Taxe, 572 F.2d 216, 217 (9th Cir. 1978), cert.

denied, 436 U.S. 918, 98 S.Ct. 2265, 56 L.Ed.2d 759. As

with most areas of sentencing, the use of consecutive sen-

tences lies within the discretion of the district court. United

States v. Dubrofsky, 581 F.2d 208, 214 (9th Cir. 1978).

Neither Bachrach not Wylie is able to show any reason

why these rules should be departed from in their cases.

Wylie correctly states that the maximum sentence for

first offenders (like himself) under 21 U.S.C. § 841(b)(1)

(B) is five years. Based on this, Wylie argues that he

A-16

should have only been sentenced to a total of five, rather

than twenty years. We disagree. Wylie was charged and

convicted with six separate sentences punishable under 21

U.S.C. §841(b)(1)(B). There is nothing in either the

language of the statute or the legislative history which

can be read in support of Wylie’s argument that the

maximum sentence for one violation of the statute also

serves as the maximum sentence when there are five other

separate violations of the same statute. See, e.g., United

States v. Valot, 481 F.2d 22, 25-26 (2d Cir. 1973) ; Dubrof-

sky, supra, 581 F.2d at 213. Therefore, the maximum

sentence which Wylie could have received for his six

separate convictions under 21 U.S.C. § 841(b)(1)(B) was

six consecutive five-year terms, or a total of thirty years.

In addition, Wylie claims that his sentence to twenty

years amounts to cruel and unusual punishment in viola-

tion of the Eighth Amendment. Since Wylie’s sentence

was within the statutory maximum, it was not cruel and

unusual. United States v. Washington, 578 F.2d 256, 258

(9th Cir. 1978) ; see, e.g., Rummel v. Estelle, USS. ,

100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

Unlike Bachrach and Wylie, Perluss was only charged

with the one conspiracy count (Count 1) and the one

distribution count (Count 6). He concedes that these

offenses involve separate crimes. Nevertheless, he argues

that his consecutive sentences of four years on the

conspiracy count and three years on the distribution count

were constitutionally improper because of an instruction

which was given to the jury. We recognize that there is

A-17

a certain amount of logical appeal to Perluss’ argument,

but nevertheless reject it.’*

There were no evidence linking Perluss to the distribu-

tion charge in Count 6. Because of this, the court gave

the Pinkerton instruction at the government’s request.”

This instruction told the jury that as long as they found

Perluss guilty of the conspiracy charged in Count 1, then

he could also be convicted of the substantive distribution

‘2Perluss also suggested in his opening brief that this issue should

be considered by the court sitting en banc. We decline to follow

his suggestion. See n.10, supra.

This instruction derived its name from Pinkerton v. United

States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), where

its use was approved by the Supreme Court. The court below

instructed the jury as follows:

“Now, if you find that a particular defendant is guilty of

conspiracy as charged in Count One, you may also find that

defendant guilty of a substantive offense as charged in any

other count of the indictment, provided that you find that the

essential elements of that count as detined in these instructions

have been established beyond reasonable doubt, and provided

that you also find beyond reasonable doubt.

“First, that the offense defined in the substantive count was

committed pursuant to the conspiracy, and

“Second, that the particular defendant was a member of the

conspiracy at the time the substantive offense was committed.

“Under the conditions just defined, a defendant may be

guilty of a substantive count even though he did not partici-

pate in the acts constituting the offense as defined in the sub-

stantive count.

“The reason for this is that a co-conspirator committing a

substantive offense pursuant to a conspiracy is held to be the

agent of the other conspirators.”

This followed the pattern instruction. 2 Devitt & Blackmar, Federal

Jury Practice and Instructions (West 1977) § 27.17.

A-18

charge in Count 6 if one of Perluss’ fellow conspirators

had committed that offense. For the prosecution to prove

its case against Perluss on the distribution charge, it only

had to show the statutory elements of the conspiracy

charge plus one additional element, that is, that one of

the other co-conspirators had actually distributed the LSD

as charged in Count 6,

The Double Jeopardy Clause protects against multiple

punishments for the same offense. Simpson v. United

States, 435 U.S. 6, 11 n.5, 98 S.Ct. 909, 55 L.Ed.2d 70

(1978); North Carolina v. Pearce, 395 U.S. 711, 717, 89

S.Ct. 2072, 23 L.Ed.2d 656 (1969). Since Perluss received

consecutive sentences for the conspiracy conviction and

the distribution conviction, he claims that he is receiving

double punishment for the same offense.

The basic premise to Perluss’ argument is that the

conspiracy charge merged or became the same offense with

the distribution charge after the Pinkerton instruction

was given. In support of this premise, he relies upon the

Blockburger test. Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Where the same

act or transaction constitutes a violation of two distinct

statutory provisions, the test which is applied for deter-

mining whether there are two offenses or only one turns

on “whether each provision requires proof of a fact which

the other does not.” 7d. at 304. The “proof of a fact”

referred to under this does not simply relate to whether

A

°.

A-19

the same evidence is used at trial to prove the two

charges."* Instead, the test focuses on the statutory ele-

ments of the different offenses. United States v. Ohlson,

552 F.2d 1347, 1349-1350 (9th Cir. 1977).

As a general rule, a substantive charge, and conspiracy

charge based on the substantive charge, pass muster under

the Blockburger test and retain their separateness.

Iannelli, supra, 420 U.S. at 785 n.17; Kearney, supra, 560

F.2d 1365-1367. The reason for this is because a require-

ment for a conspiracy conviction is proof of an agreement

which is not necessary to prove an underlying substantive

count. Kearney, supra, 560 F.2d at 1367. And, conviction

on the substantive count will require the consummation

of the crime, which, of course, is not essential for com-

pleting the crime of conspiracy. Jd.

However, in this case, this distinction between the two

offenses no longer holds true because of the Pinkerton in-

struction. The jury was told that in order for Perluss to

be found guilty of the distribution charge, they only needed

to find him guilty of the conspiracy charge and find that a

co-conspirator had undertaken the actual distribution

charged in Count 6. The agreement necessary to prove the

conspiracy charge was also necessary to prove the distribu-

tion charge. Because this instruction was given, the con-

spiracy charge no longer required proof of an element that

the distribution charge did not. Therefore, under Block-

burger, Perluss claims that he should not have received

14Perluss asked us to follow the same evidence test of United

States v. Austin, 529 F.2d 559 (6th Cir. 1976). This court has repudi-

ated this approach on a previous occasion. Kearney, supra, 560 F.2d

at 1365-1367.

A-20

consecutive sentences for this had the effect of punishing

him twice for the same offense.

Although we acknowledge the logic to Perluss’ reason-

ing, nevertheless, the preceding discussion does not serve

as a basis for granting any relief to him because it is based

on the erroneous assumption that the Blockburger test,

when applied to consecutive sentences, states a rule of con-

stitutional dimensions, which it in fact does not. The test

articulated in Blockburger is merely a method for ascertain-

ing the congressional intent to impose separate punishment

for multiple offenses which arise during the course of a

single act or transaction. Jannelli, supra, 420 U.S. at 785

n.17. -

The question of whether a court may constitutionally

impose multiple punishments is resolved by determining

what punishment the legislative branch has authorized.

Whalen v. United States, U.S. , 100 S.Ct. 1432, 63

L.Ed.2d 715, 721 (1980). The role of the Double Jeopardy

Clause, where consecutive sentences are imposed at a single

criminal trial, “is limited to assuring that the court does

not exceed its legislative authorization by imposing multiple

punishments for the same offense.” Brown v. Ohio, 432 U.S.

161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). And so,

the dispositive question in resolving Perluss’ challenge is

whether Congress authorized cumulative punishments for

the conspiracy and distribution offenses. See Whalen,

supra, US. at , 63 L.Ed.2d at 722.

Both of the statutes under which Perluss was convicted

(21 U.S.C. § 846, and 21 U.S.C. § 841(a)(1)) were part of

A-21

the Comprehensive Drug Abuse Prevention and Control

Act of 1970. 21 U.S.C. §§ 801, e¢ seq. We find nothing in

either the Act or the legislative history which would indi-

cate that Congress intended to depart from the general

rule that courts can impose separate sentences for the con-

spiracy to commit an offense and the accomplishment of the

substantive offense itself. See H.R. Rep. No. 91-1444, 91st

Cong., 2d Sess., reprinted in 3 [1970] U.S. Code Cong. &

Ad. News 4566. In fact, we agree with the Second Circuit

when it made the following observation:

“The structure and legislative history of the drug

abuse act provide persuasive evidence that, because

of the special dangers which conspiracies to distribute

controlled drugs pose to society, Congress did intend

that a conspiracy to violate the Act should constitute

a separate crime in addition to the substantive offense.”

United States v. Bommarito, 524 F.2d 140, 143-144 (2d Cir.

1975; accord Curtis v. United States, 546 F.2d 1188, 1190

(5th Cir. 1977), cert. denied, 431 U.S. 908, 97 S.Ct. 1705,

52 L.Ed.2d 393. In addition, this court has found that Con-

gress intended to impose dual punishments for conspiracies

which violate two different sections of this same Act.

United States v. Marotta, 518 F.2d 681, 685 (9th Cir.

1975) (defendant was convicted for conspiring to distribute

marijuana under 21 U.S.C. § 846 and conspiring to import

the same marijuana under 21 U.S.C. § 963).

Based on the preceding, we conclude that Congress did

intend to allow the courts to impose consecutive sentences

for conspiracy (21 U.S.C. § 846), and for substantive of-

fenses (21 U.S.C. § 841(a)(1)), even when the proof neces-

A-22

sary to obtain a conviction for the former was necessary

to obtain a conviction for the later offense.** Because we

18Had we applied the Blockburger test, it is likely that we would

have upheld Perluss’ consecutive sentences anyaway.

Perluss asserted that the issue he raised was one of first impres-

sion. Since the government chose to gloss over the question in its

brief, we presume that it did not find any cases which involved the

interface between the Blockburger test and the Pinkerton instruc-

tion when consecutive punishment is imposed. This panel is aware

of two decisions which have inferentially involved this question.

In United States v. Larkin, 605 F.2d 1360, 1363-1369 (5th Cir.

1979), the Fifth Circuit made note of the potential problem which

arose when the Pinkerton instruction was given, but then did not

find it necessary to address the question.

And the decision which is most on point, had we addressed

the problem presented by the interface between the Pinkerton in-

struction and the Blockburger test, is the Pinkerton decision itself.

328 U.S. at 640. In Pinkerton, Daniel was found to have been a

member of the conspiracy and therefore the jury found him guilty

on the conspiracy count. However, since he had been incarcerated

during the time of the acts which formed the basis for the substan-

tive charges, the only way that the jury could have found him guilty

was based on the aforementioned instruction. See n.13, supra.

Daniel had been sentenced on the substantive counts to imprison-

ment for thirty months and a fine of $1,000. On the conspiracy

count, Daniel had received a two year sentence (running concur-

rently with the thirty month sentence) plus a $500 fine. It might be

said that since Daniel received concurrent sentences, the Pinkerton

decision did not involve the same problem with which we are faced

here where Perluss received consecutive sentences. However, fines

“are treated in the same way as prison sentences for purposes of

double jeopardy and multiple punishment analysis.” Jeffers v.

United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 53 L.Ed.2d 168

(1977). Since Daniel received separate fines in Pinkerton, the

Supreme Court was implicitly faced with the same question as

Perluss raises in the present case. By affirming Daniel's convictions

and his punishment, the Court impliedly approved the use of con-

secutive punishment in those cases where the Pinkerton instruction

is given.

A-23

make this finding, we do not apply the Blockburger test for

ascertaining the legislative intent. The consecutive sen-

tences imposed upon Perluss were therefore proper.

III. THE BIFULCO PROBLEM

After argument and submission of these appeals, the

Supreme Court decided Bifulco v. United States, U.S.

, 48 U.S.L.W. 4734 (No. 79-5010, June 16, 1980). The

sentences imposed upon Bachrach, Wylie and Perluss on

Count I, the conspiracy count, carried a special parole term

of five years. Under Bifulco, the district court was without

power to impose the special parole term on Count 1. This

issue was not raised by any defendant in this case. Never-

theless, we recognize the sentencing defect and vacate the

special parole term imposed on each defendant under

Count 1.

IV. CONCLUSION

The defendants were participants in a large business

enterprise which manufactured and distributed LSD. In

order to prevent such business operations from flourish-

ing, a limited amount of government infiltration through

undercover agents must be tolerated. While the penalties

which were imposed on the defendants may have been

severe, they were amply justified by the large scale nature

of the illegal enterprise and the roles performed by the

respective defendants.

The convictions of the defendants are AFFIRMED. The

special parole term imposed on each defendant under Count

I is VACATED.