FRANK BARBARO, PETITIONER V. UNITED STATES OF AMERICA No. 89-7108 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The order of the court of appeals (Pet. App. 2a-3a) is unreported, but the judgment is noted at 897 F.2d 525 (table). JURISDICTION The judgment of the court of appeals was entered on January 31, 1990. The petition for a writ of certiorari was filed on April 2, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly declined to give a lesser-included offense instruction. STATEMENT After a jury trial in the United States District Court for the Western District of Pennsylvania, petitioner was convicted of possessing cocaine with intent to distribute it (21 U.S.C. 841(a)(1)), and conspiring to possess and distribute cocaine (21 U.S.C. 846). /1/ He was sentenced to nine years' imprisonment. The court of appeals affirmed. Pet. App. 2a-3a. 1. The evidence at trial showed that, from November 1985 through the Fall of 1986, petitioner conspired with co-defendants Silvio Satelli and Joseph Barbaro, petitioner's brother, to distribute cocaine in the Erie, Pennsylvania, area. Satelli obtained the cocaine from a source in Florida and then distributed it through various persons, including petitioner and his brother. Gov't C.A. Br. 7. In January 1986, petitioner arranged a meeting between Satelli and Ronald Thomas, who was looking for a new cocaine source. Petitioner told Thomas that Satelli had about 18 ounces of cocaine available for sale. Petitioner was present at the meeting where Thomas gave Satelli $5,000 in return for 10 ounces of cocaine. C.A. App. 124-128. In May 1986, petitioner sold a kilogram of cocaine for $56,000 to Joseph Luciano. Luciano had been buying cocaine from Thomas for $2,500 an ounce, but petitioner said he could get cocaine for Luciano at a cheaper price if Luciano would buy larger quantities. Petitioner revealed that Satelli was his source for the cocaine. C.A. App. 225-228. Luciano and petitioner used some of the kilogram, and Luciano gave a portion to a friend to resell. Luciano never paid petitioner the full amount he owed on the cocaine; he was about $15,000 to $20,000 short on his payment at the time of petitioner's arrest. Id. at 229. On cross examination, Luciano said that petitioner was not a "drug dealer" because Luciano did not think that petitioner expected to profit from Luciano's purchase of the cocaine. C.A. App. 242. Luciano also said that he offered to pay petitioner $500 or $600 on the day that he delivered the cocaine, but petitioner had declined the money, saying that he preferred to be able to visit Luciano's home and use some of the cocaine. Id. at 253. Luciano understood, however, that he was obligated to pay for the kilogram of cocaine he obtained from petitioner. Id. at 254. 2. At trial, petitioner requested the district court to charge the jury on the lesser-included offense of simple possession of cocaine. The government opposed such an instruction on the ground that the evidence showed either distribution or no crime, but that there was no evidence that would support a finding of possession without the intent to distribute. The district court declined to give petitioner's requested instruction. On appeal, petitioner renewed his argument concerning the lesser-included offense instruction, but the court of appeals affirmed in a judgment order. Pet. App. 3a. ARGUMENT Petitioner contends (Pet. 12-15) that he was entitled to a lesser-included offense instruction on the charge of possession of cocaine. The fact-bound decision of the court of appeals, however, is correct and does not conflict with the decision of any other court of appeals. Thus, no further review is warranted. It is well-settled that a defendant is entitled to an instruction on a lesser-included offense only "if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Keeble v. United States, 412 U.S. 205, 208 (1973). See Government of the Virgin Islands v. Rosado, 699 F.2d 121, 127 (3d Cir.), cert. denied, 464 U.S. 832 (1983); United States v. Coppola, 526 F.2d 764, 774 (10th Cir. 1975); Government of the Virgin Islands v. Carmona, 422 F.2d 95, 100 (3d Cir. 1970); United States v. Fuller, 407 F.2d 1199, 1229 (D.C. Cir. 1968) (en banc), cert. denied, 393 U.S. 1120 (1969). As the Court noted in Schmuck v. United States, 109 S. Ct. 1443 (1989), a lesser-included offense instruction is appropriate only when "one of the elements of the charged offense remains in doubt." Id. at 1451 n.9. Here, the evidence did not leave any elements of a distribution charge in doubt. On the contrary, the evidence made clear that petitioner distributed cocaine to Luciano. Indeed, Luciano bought a kilogram of cocaine from petitioner. Although Luciano may have shared some of the cocaine with petitioner, Luciano admitted that he was still obligated to pay the purchase price; in fact, Luciano paid more than $30,000 of the price. Under those circumstances, there can be no doubt that petitioner distributed the cocaine to Luciano. It is wholly irrelevant that petitioner may not have personally profited from the transaction. The drug-distribution statute (21 U.S.C. 841(a)(1)) does not make it a crime to distribute drugs only if the defendant makes a financial profit. Hence, it would have been irrational for the jury to find that petitioner did not distribute cocaine. Consequently, both courts below were correct in rejecting petitioner's lesser-included offense claim. See Government of the Virgin Islands v. Rosado, 699 F.2d at 127; United States v. Coppola, 526 F.2d at 774; Government of the Virgin Islands v. Carmona, 422 F.2d at 100. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General LOUIS M. FISCHER Attorney MAY 1990 /1/ The jury could not agree on a second substantive charge against petitioner, and the government dismissed that count at sentencing. See Pet. App. 1a. Co-defendants Silvio D. Satelli and Joseph Barbaro stood trial with petitioner. They were convicted on the conspiracy charge, and Joseph Barbaro was convicted on three substantive counts. He did not appeal; Satelli's conviction was affirmed by the court of appeals in the same judgment order that disposed of petitioner's claims.