United States v. Javaherpour

78 F. App'x 452
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 9, 2003
DocketNo. 02-5011
StatusPublished
Cited by6 cases

This text of 78 F. App'x 452 (United States v. Javaherpour) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Javaherpour, 78 F. App'x 452 (6th Cir. 2003).

Opinion

OPINION

GIBBONS, Circuit Judge.

A federal jury convicted defendant-appellant Harry Javaherpour of one count of conspiracy to manufacture less than fifty grams of methamphetamine and two counts of distribution of a list I chemical (pseudoephedrine) for use in manufacturing methamphetamine. Javaherpour was sentenced to 151 months in prison and was ordered to forfeit the proceeds from the sale of his Par 4 Market, the location from which Javaherpour distributed pseudoephedrine.

Javaherpour appeals his conviction on the ground that the district court did not properly instruct the jury that Javaherpour’s actual belief that his conduct was lawful constituted a defense. Javaherpour appeals his sentence on the ground that the district court made an improper finding as to the amount of methamphetamine that was attributable to him. Javaherpour also claims that the district court erred in forfeiting funds in his bank account as substitute assets. For the reasons set forth below, we affirm Javaherpour’s conviction and sentence.

I.

Harry Javaherpour owned and operated the Par 4 Market in Summitville, Tennessee from late 1999 to May 2001. During this period, Javaherpour repeatedly sold large quantities of pseudoephedrine pills and other items used in the methamphetamine production process at the Par 4 Market.

Many of Javaherpour’s former customers testified at trial as to the procedure Javaherpour used to sell pseudoephedrine pills. Customers were able to purchase “flats” of pseudoephedrine—each flat containing 720 pills—from the Par 4 Market. While Javaherpour sold customers two bottles of pseudoephedrine pills at a time at the front counter of the Par 4 Market, he also directed customers to pick up additional bottles at the back of the market. For one customer, Javaherpour “fronted” pseudoephedrine, such that the customer received the pills from Javaherpour and paid for them later. Customers often acquired the other components needed to produce methamphetamine—alcohol, coffee filters, aluminum foil, paper towels and matches—with their purchase of pseudoephedrine pills at the Par 4 Market.

[454]*454In addition to the testimony of Javaherpour’s customers, his former employees testified that Javaherpour would set aside large quantities of pseudoephedrine for purchase for expected customers. Javaherpour only accepted cash for the purchase of pseudoephedrine, matches, and other methamphetamine producing items. He frequently rang up the sale of pseudoephedrine pills as phone cards or newspapers. During the period that Javaherpour sold pseudoephedrine at the Par 4 Market, the price of the pills increased from $6 to $15 per bottle.

Javaherpour sold the Par 4 Market in May 2001 to a bona fide purchaser for $415,000. After Javaherpour paid off a $189,000 mortgage on the market, his proceeds from the sale were $226,000, which he placed into his local bank account.

On June 26, 2001, Javaherpour was indicted in the United States District Court for the Eastern District of Tennessee. On December 3, 2001, a jury found Javaherpour guilty of one count of conspiracy to violate 21 U.S.C. § 841(b)(1)(B), that is, to manufacture less than fifty grams of methamphetamine, in violation of 21 U.S.C. § 846. The jury also found Javaherpour guilty of two counts of distribution of a list I chemical (pseudoephedrine) for use in manufacturing, in violation of 21 U.S.C. § 841(c)(2). Javaherpour was sentenced to 151 months in prison and was ordered to forfeit up to $226,000. Javaherpour filed a timely notice of appeal on December 19, 2001.

II.

In charging the jury, the district court gave a deliberate ignorance instruction, which was derived from Sixth Circuit Pattern Jury Instruction 2.09. This instruction stated that if the jury is convinced that

the defendant deliberately ignored a high probability that the purchasers of pseudoephedrine would use it to manufacture methamphetamine, then you may find that he knew the pseudoephedrine would be used to manufacture a controlled substance. But to find this, you must be convinced beyond a reasonable doubt that the defendant was aware of a high probability that the purchasers of pseudoephedrine would use it to manufacture methamphetamine, and the defendant deliberately closed his eyes to what was obvious. Carelessness, or negligence, or foolishness on his part is not the same as knowledge, and is not enough to convict.

In addition, the district court instructed the jury that to find Javaherpour guilty beyond a reasonable doubt, the jury must find that Javaherpour knew, or had reasonable cause to believe, that pseudoephedrine would be used to manufacture methamphetamine. The court defined “reasonable cause to believe” as having “knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the same facts to conclude that the pseudoephedrine would be used to manufacture methamphetamine.”

Javaherpour argues that because the district court gave the deliberate ignorance instruction, the court also should have included the following instruction in its charge to the jury:

You are instructed that as to the conspiracy and distribution charges, the defendant’s actual belief that what he was doing was lawful is a defense in this case. Where knowledge or reasonable belief on the part of the defendant is an element of the offense, as it is in this case, such knowledge or reasonable belief is established if a person is aware of a high probability of its existence, unless he actually believed that what he was doing was lawful.

[455]*455Relying on Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), Javaherpour contends that the requested instruction is appropriate in light of the intricacies of federal drug laws.1

“A district court’s refusal to give a specifically requested jury instruction is reviewed for abuse of discretion.” United States v. Alvarez, 266 F.3d 587, 591 (6th Cir.2001). This court will reverse the judgment of a district court on the basis of a jury instruction when the instruction fails to state the law accurately. United States v. Moore, 129 F.3d 873, 876-77 (6th Cir.1999) (citing United States v. Busacca, 863 F.2d 433, 435 (6th Cir.1988)). More specifically, a court’s refusal to give a requested jury instruction is reversible error “only if that instruction is (1) a correct statement of the law, (2) not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant’s defense.” United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.1991) (citing United States v. Parrish,

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Bluebook (online)
78 F. App'x 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-javaherpour-ca6-2003.