Appendix — Fooladi v. United States

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In the -

Supreme Court of the United States

NOVEMBER 28, 1984

MIKE MEHDI FOOLADI,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

‘PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO PETITION

GARY HILL SCOTT E. SEGALL

Attorney for Petitioner, Attorney for Petitioner

MIKE MEHDIFOLADI, MIKEMEHDIFOOLADI,

609 Laurel 4494 Hondo Pass

El Paso, Texas 79903 El Paso, Texas 79924

(915) 544-9459 (915) 751-8807

AT AE A a TE aE NE SI IE TE ES EI TAIN NH FE TIE BE

E] Paso Graphics Group, 2000 Wyoming, El Paso, Tex. (915) 533-2100

TABLE OF CONTENTS

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DR. MIKE FOOLADI,

Defendant-Appellant.

No. 84-1117

Appeal from the United States District Court for the

Western District of Texas

November 2, 1984

Before BROWN, TATE, and HIGGINBOTHAM,

Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Dr. Mike Fooladi appeals from a conviction by a jury

of one count of manufacturing phenyl-2-propanone and

one count of attempting to manufacture amphetamines,

contrary to 21 U.S.C. § 841(a) (1). Fooladi urges that the

evidence was insufficient to support the verdict, and that

the district court did not adequately explain to the jury his

defense that he did not know that what he was doing was

illegal. He also asks us to reconsider an earlier-decided

search question arising from the search of his home

laboratory. We affirm.

Fooladi, a Ph.D. in chemistry, worked for several

chemical companies as a researcher. In 1980. he enrolled

in a two-year M.D. program at a medical school in

Ciudad Juarez, Mexico, near his home in E] Paso.

During 198] and 1982, Fooladi attracted the attention

of the DEA by purchasing laboratory glassware for use at

a residential address, and by ordering from a doctor in

Laredo 25 pounds of sodium acetate, an uncontrolled

chemical, but apparently one that can be used in drug

manufacturing. When DEA agents discovered that

Fooladi had only crossed the Mexican border twice in the

past month, they suspected that he was not really a

medical student.

DEA agents rented a vacant building next to Fooladi’s

residence. When they smelled the odor of pheny! acetic

acid, another uncontrolled chemical known to DEA

agents as a possible ingredient in amphetamines, they

obtained a warrant to search Fooladi’s residence. The

agents executed the warrant and found difterent chemi-

cals, including phenyl-2-propanone, an immediate pre-

cursor of amphetamines and a Schedule II controlled

substance. They also discovered several formulas for

converting P-2-P into amphetamines. Fooladi told the

agents that he was manufacturing P-2-P because he

intended “to convert the P-2-P into amphetamines and

later into a slow release type drug for use in weight

control.” They arrested Fooladi.

Before trial, Fooladi moved to suppress the evidence

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seized from his lab based on the search warrant’s alleged

illegality. The district court granted the motion, but a

panel of this court reversed. United States v. Fooladi, 703

F. 2d 180 (5th Cir. 1983).

Fooladi was convicted of knowingly or intentionally

manufacturing P-2-P and of knowingly or intentionally

attempting to manufacture amphetamines, in violation of

21 U.S.C. § 841 (a) (1). He did not testify at his trial; at his

sentencing hearing, Fooladi for the first time directly told

his story. Judge Hudspeth, stating, “ll give you the

benefit of the doubt about the possibility that you might

have been doing something that in your own mind you

thought was legitimate or non-criminal,” sentenced

Fooladi to concurrent 3-year-suspended sentences on the

two counts, and imposed 5 years of supervised probation

and a $1500 fine.

I]

Over objection, the trial court refused to give three of

Fooladi’s requested jury instructions. Two of these spelled

out his theory that if acting under a good-faith belief that

his behavior was legal, or if ignorant of the law, he could

not have had the specific intent to Commit a Crime

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required for a conviction under § 841(a) (1).'/ Instead,

the court gave a pattern instruction, ?/ which includes the

following passage:

The word “willfully,” as that term has been used from time to

time in these instructions, means that the act was committed

voluntarily and purposely, with the specific intent to do

something the law forbids; that is to say, with bad purpose

either to disobey or disregard the law.

Looking at the charge without the contest of trial,

Fooladi argues forcefully that the jury should have been

given a more complete explanation regarding his con-

tention that he did not know his conduct to be unlawful.

The four corners of the charge are not the end of the

inquiry, though. To determine whether the trial court's

failure to give a requested jury instruction violates a

defendant’s right to the fair trial guaranteed him by the

due Process Clauses of the Fifth and Fourteenth Amend-

ments, the charge must be examined in the full context of

trial including the final arguments of counsel. See United

States v. Bush, 599 F.2d 72, 78 (5th Cir. 1979). Indeed, we

have granted habeas relief to a state prisoner when a jury

charge laid alongside a prosecutor's final argument

communicated an erroneous theory of law, although the

charge did not do so when read in the abstract. Plunkett v.

Estelle, 709 F.2d 1004 (5th Cir. 1983), cert. denied, 104

'/Section §41(a) (1) makes it unlawful to “knowingly or

intentionally ... manufacture ... a controlled substance.”

The government does not dispute that specific intent is

required for a § 841(a) (1) conviction.

*/Instruction #9A of the Fifth Circuit Pattern Jury

Instructions.

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S.Ct. 1000 (1984). In declining to review asserted error in

the charge in isoation from its tactical scene, we were

applying the Supreme Court’s caveat that “the process of

instruction itself is but one of several components of the

trial{.]” Cupp v. Naughten, 414 U.S. 141, 147 (1973).

A «entral purpose of the charge is to provide the

framework for the argument by the counsel. Our review

of the closing arguments by counsel lead us to the

conclusion that Fooladi’s contention that he was inno-

cently engaged in research and unaware that producing

P-2-P was illegal was fully and completely developed for

the jury. As noted, the judge told the jury that the word

“willfully” meant that the defendant knowingly did an act

which the iaw forbade, purposely intending to violate the

law. Of course, Fooladi could not purposely intend to

violate the law if he thought his work was legal. This

instruction allowed Fooladi’s lawyer to argue his chosen

defense, and he did so.

Fooladi’s counsel, without objection, explained to the

jury in his summation that “they [the prosecution] have to

prove by evidence beyond a reasonable doubt that he did

it purposefully and intending to violate the law. That's

where they don't have any evidence. | mean it doesn't

even come Close there, purposely intended to violate the

law.” The closing aruments make plain that issue was

joined not over the question of entitlement to the defense

but over whether the facts in the case warranted the jury's

belief beyond a reasonable doubt that Fooladi knew that

what he was doing was unlawful. Reading the record as a

whole, we are convinced that Fooladi, as was his

constitutional had his defenses fully presented to the jury.

This case is therefore distinguishable from cases in

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which the court failed to charge the jury at all ona central

element of the defense, or gave an instruction that

thwarted a proper defense theory. In United States v.

Schilleci, 545 F.2d 519, 523-24 (5th Cir. 1977) for example,

the court not only refused to instruct the jury that

ignorance of the law negated specific intent, but also

charged that “the presumption is that every person knows

what the law forbids[.]” See also United States v. Davis,

583 F.2d 190, 193-94 (5th Cir. 1978). In such cases, defense

counsel would have no skeleton on which to structure

their argument to the jury. Compared United States v.

Bush, 599 F.2d 72, 76-78 (5th Cir. 1979) and United States

vu. Wellendorf, 574 F.2d 1289, 1290-91 (5th Cir. 1978) (jury

charge was adequate to allow jury to find lack of specific

intent, despite absence of specific charge on ignorance of

law).

We have reversed convictions for failure to charge a

jury on good faith with a reference to the general

principle that “a defendant is entitled to a charge which

precisely and specifically, rather than merely generally or

abstractly, points to the theory of his defense.” United

States vu. Lewis, 592 F.2d 1982, 1286 (5th Cir. 1979),

quoting United States v. Wolfson, 573 F.2d 216, 221 (5th

Cir. 1978); see Coleman v. United States, 167 F.2d 827

(5th Cir. 1948). In United States uv. Goss, 650 F.2d 1336,

1345 (5th Cir. 1981), we held that the giving of a general

instruction on specific intent did not “direct the jury's

attention to the defense of good faith with sufficient

specificity to avoid reversible error.”

We do not view our decision today as contradictory of

this principle: the deeper question is how precise the

instruction must be. As Judge Brown has stated,

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... the instructions must be sufficiently precise and specific to

enable the jury to recognize and understand the defense

theory, test it against the evidence presented at trial, and then

make a definitive decision whether, based on that evidence

and in light of the defense theory, the defendant is guilty or

not guilty.

United States v. Barham, 595 F.2d 231, 244 (5th Cir. 1979).

As in Bush and Wellendorf, the court’s instruction on

specific intent allowed the jury to weigh Fooladi’s claim

of good faith against the evidence it heard.

Gross and Lewis did not evaluate the jury charge or

otherwise explain their rationale in the terms of Barham.

but arguably instead laid down a per se rule that the

failure to give an explicit instruction directly discussing

good faith or ignorance of the law is always reversible

error. To the extent Goss and Lewis embodied such a

rule, they would be inconsistent with Bush and the earlier

decided Wellendorf case. We prefer to read them in the

reconciling light that neither Goss nor Lewis explained

the shortcoming of the charge in the context of trial and

closing argument, as we do today. Our review of the trial

as a whole leads us to conclude that the court’s charge

here does not require reversal. This is the Bush and

Wellendorf method. While we do not pretend that our

decisional line has been straight, the seeming variation in

principle is the anticipatable result of examining rayriad

fact patterns with a measure of whether an instruction

was “sufficiently” precise. It isa construct fundamentally

at odds with per se categorizations. Compare Coleman.

United States, 167 F.2d $27 (Sth Cir. 1948) and United

States v. Barham, 595 F.2d 231, 244 (Sth Cir. 1979).

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As a matter of superintendence we add a word of

caution. That the pattern instruction given here will not

necessarily be adquate in the face of specific requests in

other cases is inherent in our reasoning. Goss is illustrative.

It follows that the prudent course for the trial judge is to

give such an instruction. Fooladi’s conviction was saved

by the circumstance that his case was fully developed and

argued to the jury — ironically, because he was well

defended.

We do not demean the role of pattern instructions, by

reminding that, as with all such aids, pattern instruction

cannot substitute for case-specific thought and adjust-

ment. An elaborate additional instruction is not necessary.

To the contrary, the addition of a simple sentence that the

government was required to prove beyond a reasonable

doubt that Fooladi knew that what he was doing was

unlawful, would have defused this serious appellate

attack on the conviction. We add this caution because the

trial judge's imprimatur on a defendant's theory is

important. As the source ot the law and the only neutral

figure before the jury, his words are potent. That reality

drives the idea that a defensive theory is best expressed

by the judge.

I]

Fooladi argues that a scientist engaging in legitimate

research cannot be convicted under section 841 (a) (1) and

suggests that his research was analogous to the pro-

fessional work of physicians and pharmacists.

In United States v. Moore, 423 U.S. 122 (1975), the

Supreme Court held that Dr. Moore, whom the facts

showed to be a “pusher,” was not immune from prose-

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cution under § 841 (a) (1) simply because he was a doctor,

but read the legislative history of the Controlled Danger-

ous Substances Act of 1969 to mean that

the penalty to be imposed for a violation was intended to

turn on whether the “transaction” falls within or without

legitimate channels. All persons who engage in legitimate

transactions must be registered and are subject to penalties

under §§ 842 and 843 for “[m]ore or less technical violations.”

H.R. Rep. No. 91-1444, p. 10. But “severe criminal penalties”

were imposed on those ... who sold drugs, not for legitimate

purposes, but “primarily for the profits to be derived

therefrom.” Ibid.

423 U.S. at 135.

In United States v. Goldstein, 695 F.2d 1228 (10th Cir.

1981), cert. denied, 103 S.Ct. 3112 (1983), and United

States v. Seelig, 622 F.2d 207 (6th Cir.), cert. denied, 449

U.S. 869 (1980), Moore was read as exempting from §

841(a) (1) liability physicians and pharmacists who were

selling drugs in violation of the Controlled Substances

Act’s technical requirements but not outside “legimate

distribution channels.” We have, in dicta, agreed that

medical professionals cannot be found guilty under §

841(a) (1) when acting in the “normal course of [their]

professional researcher's conduct.?/

No court has yet applied this reasoning to a non-

medical professional like Fooladi. More significantly, if

Fooladi’s act is not punishable under § 841(a) (1), it is

apparently not punishable under any section of the

Controlled Substances Act. Section 842(a) (1), which the

Court in Moore construed as meant “to reach those who

should have registered but failed to do so,” 423 U.S. at 134

n.11, punishes only unlicensed distribution or dispensing

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ot controlled substances, not their manufacture. The rest

of § § 842 and 843 punishes only ulicensed distribution or

dispensing of controlled substances, not their manufac-

ture. The rest of § § 842 and 843 punishes registrants who

fail to perform various statutory duties. Section 841 (a) (1)

may be the exclusive way to deal with unregistered

manufacturers and Congress presumably meant to halt

their activities whether within or without “normal

distribution channels.” We reject Fooladi’s argument.

II]

The evidence is sufficient to support the verdict.

Fooladi admitted that he was making P-2-P and that he

had been told that P-2-P was controlled. He claimed that

he was planning to make amphetamines. His lab contained

P-2-P, all the equipment necessary to make amphetamines,

and formulas for doing so. Viewed in the light most

favorable to the government, Glasser v. United States,

315 U.S. 60 (1942), this evidence would allow a reasonable

trier of fact to find beyond a reasonable doubt, United

States v. Fowler, 735 F.2d 823, 826 (5th Cir. 1984), that

Fooladi intentionally manufactured a controlled sub-

stance, P-2-P, and had intended to and had taken sub-

stantial steps to manufacture amphetamines. See United

States vu. Mandujano, 499 F.2d 370 (5th Cir. 1974), cert.

denied, 419 U.S. 1114 (1975).

?/Fooladi’s counsel's third proposed jury instruction

expressed this theory.

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Fooladi asks this court to reassess its earlier decision

that the warrant to search his residence was legal. This

panel may only do so if the evidence has changed

substantially, there is an intervening decision by con-

trolling authority, or the panel decision was so erroneous

that it caused manifest injustice. See White v. Murtha, 377

F.2d 428, 431-32 (5th Cir. 1967); Loumar, Inc. v. Smith,

698 F.2d 759 (5th Cir. 1983). While the fullness of time,

including a complete trial, has shown that not all the facts

relied upon to support the probable cause behind the

warrant were accurate, the magistrate’s assessment of

probable cause, viewed objectively at the time, remains

valid.

Fooladi argues that the replacement of the Aguilar/

Spinelli test for determining the validity for a search

warrant with the totality-of-the-circumstances approach

of Illinois v. Gates, 103 S.Ct. 2317 (1983), is a change in

the governing law that requires consideration of the panel

decision. The panel weighed the totality of the cir-

cumstances surrounding the issuance of the warrant. Sez

Fooladi, 703 F.2d at 184.

Finally, we see no reason to conclude that the panel’s

ruling was “manifest injustice.”

V

Fooladi argues that 21 U.S.C. § 811, the Code section

that gave the Attorney General the power to classify P-2-P

as a Schedule II substance, is an improper delegation of

legislative power. We have held to the contrary in United

States v. Gordon, 580 F.2d 827 (5th Cir.), cert. denied, 439

U.S. 1051 (1978).

AFFIRMED

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 84-1117

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIKE MEHDI FOLADI,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

ON PETITON FOR REHEARING

(November 28, 1984)

Before BROWN, TATE and HIGGINBOTHAM,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

trhe above entitled and numbered cause be and the same

is hereby DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge REHG-4