CELEBREZZE, Circuit Judge.
Appellant stands convicted by a jury on two counts of possessing a controlled substance, heroin and methadone, with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1970).
On August 19, 1976, Special Agents William P. Johnson and Frank J. Magoch, Jr., of the DEA were assigned to the Cleveland airport to monitor incoming and outgoing flights to cities known to be drug distribution centers. Agent Johnson observed Appellant among passengers disembarking from a Los Angeles flight. One month earlier, on July 21, Appellant and a companion had aroused Agent Johnson's suspicions as they boarded a flight to Los Angeles. On that occasion, Agent Johnson observed the two men purchase one-way tickets to
After Agent Johnson noticed Appellant disembark on August 19, he and Agent Magoch followed Appellant down the airport concourse. The evidence shows that the Appellant appeared nervous and looked about several times, glancing at either Agent Johnson or Agent Magoch who were following him. The agents separated, with Agent Magoch continuing to keep Appellant under surveillance while Agent Johnson preceded them outside the terminal and on to the street. Agent Johnson identified himself to a uniformed police officer who was on duty outside the terminal and requested assistance. After Appellant left the terminal, Agent Johnson approached him and displayed his credentials. Immediately, Appellant bolted past the agent and policeman and ran into a nearby construction site. Agent Johnson gave chase shouting after Appellant that he was a federal agent. As Agent Johnson drew closer, Appellant either swung or threw his briefcase at the pursuing agent who then drew his service revolver. Appellant ran toward a storm sewer and, within view of both agents, withdrew a white bag from his coat, dropped down to the sewer grating, and stuffed the bag into the sewer. He was taken into custody and Agent Magoch retrieved a white airsickness bag from the sewer. Inside the airsickness bag were two plastic bags filled with a brown substance which proved to be heroin. Appellant was placed under arrest. The agents opened the briefcase and found that it contained a soft drink bottle filled with a pink liquid which proved to be methadone, a mortar and pestle, an electric blender and a jar of lactose. Appellant had $528 in cash in his pants pockets. Two one-way airline ticket stubs, Los Angeles to Cleveland, in the names of M. Johnson and J. Johnson, bearing a travel date of August 19, 1976, were in Appellant's coat pocket. In the briefcase, Agent Johnson found two additional ticket stubs, Los Angeles to Cleveland, in the names of A. Jones and E. Jones dated July 24, 1976.
Defense counsel moved to suppress the seized evidence and the motion was overruled. At trial, DEA chemist John Meyers testified that he had analyzed the evidence and found that the brown substance was 330.24 grams of heroin at 23% purity with manitol as dilutant; the surfaces of the mortar and pestle were coated with heroin and manitol; powder in the blender proved positive for heroin; and the pink substance in the bottle was 475 mililiters of liquid containing methadone.
Recently, this Court has reviewed a number of cases involving warrantless searches of airline passengers by DEA agents. See, e. g., United States v. Lewis, 556 F.2d 385 (6th Cir. 1977); United States v. Gill, 555 F.2d 597 (6th Cir. 1977); United States v. Craemer, 555 F.2d 594 (6th Cir. 1977). A majority of these cases have concerned the DEA's use of a "drug courier profile", which is a loosely formulated list of characteristics believed to be common to persons using airports for narcotics traffic. Compare, United States v. McCaleb, 552 F.2d 717, 719-20 (6th Cir. 1977), and United States v. Craemer, supra at 595.
As we stated in United States v. McCaleb, 552 F.2d at 720, satisfaction of a drug courier profile, in itself, does not establish probable cause. See also United States v. Craemer, supra at 596. The agents must be able to point to additional articulable facts which indicate that the suspect is engaged in criminal activity. United States v. Hunter, 550 F.2d 1066, 1069-70 (6th Cir. 1977). Although meeting the profile does not establish probable cause, facts known to the agents which correspond to characteristics in the profile may be considered along with information obtained from other sources in determining that the agents did have probable cause to believe that an offense is being or has been committed. United States v. Gill, supra at 599. Compare, United States v. Prince, 548 F.2d 164 (6th Cir. 1977), and United States v. Craemer, supra at 597.
Even if the facts known to the agents do not amount to probable cause, the agents may be permitted to make a limited investigative stop of suspicious individuals under the "stop and frisk" doctrine announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry the Supreme Court held that a law enforcement officer is entitled to stop an individual on the street to investigate suspicious behavior if the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." 392 U.S. at 21, 88 S.Ct. at 1880. The officer may not rely on "mere suspicion" or a "hunch" to justify the stop, but due consideration is afforded specific reasonable inferences the officer is entitled to draw in light of his law enforcement experience. Id. at 27, 88 S.Ct. 1868. Later cases have dubbed the lesser standard of knowledge required for a Terry stop "reasonable suspicion" and have gauged the reasonableness of particular investigative stops by striking "a balance between the public interest [behind the investigation] and the individual's right to personal security free from arbitrary interference from law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975). Where the public interest served by the officer's investigation is great and the intrusion on individual privacy is small, investigative stops of limited duration and "reasonably related in scope to the justification for their initiation" have been upheld. United States v. Brignoni-Ponce, 422 U.S. at 881, 95 S.Ct. at 2580, citing Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. 1868.
Here, Agent Johnson was obviously intending to make a Terry stop when he approached Appellant to "talk" with him. This intention was thwarted, however, by Appellant's flight at the moment the agent displayed his credentials. If the agent had actually succeeded in effecting an investigative stop by detaining Appellant for questioning at the time of the initial intrusion, the stop would have been invalid because the facts then known to the agent did not amount to "reasonable suspicion" that Appellant was involved in criminal activity. See United States v. Cupps, 503 F.2d 277, 281-82 (6th Cir. 1974). All that Agent Johnson knew of Appellant's activities on August 19 was that Appellant had disembarked from a Los Angeles flight and had proceeded down the airport concourse looking back nervously at the two plainclothes agents following him. This conduct was entirely consistent with innocent behavior. Agent Johnson also knew that on July 21 Appellant and his companion had purchased one-way tickets to Los Angeles using cash taken from a large roll of bills.
We conclude that Appellant's flight in the face of a clear showing of lawful authority supplied the agent with grounds to reasonably suspect that Appellant was engaged in criminal activity. Flight invites pursuit and colors conduct which hitherto has appeared innocent. Under the circumstances, the agent acted reasonably in pursuing Appellant.
Appellant contends that the trial court should have consolidated the separate heroin and methadone counts into a single charge. He was convicted under 21 U.S.C. § 841(a)(1) which makes it a crime "for any person knowingly or intentionally to . . . possess with intent to . . distribute . . . a controlled substance." Both heroin and methadone are listed as controlled substances in 21 U.S.C. § 812 — heroin is a Schedule I controlled substance and methadone is a Schedule II controlled substance. We conclude that the possession of heroin and methadone represent separate offenses under the provisions of the Comprehensive Drug Abuse and Control Act of 1970, 21 U.S.C. §§ 801 et seq., and that the district court did not err in refusing to consolidate the two counts of the indictment into a single charge or in sentencing Appellant separately on each conviction. Cf. United States v. Valot, 481 F.2d 22 (2d Cir. 1973).
A more serious problem is raised by Appellant's contention that the district
A review of this portion of the instruction reveals that the district court did not include "intent to distribute" among the "three essential elements" that the Court said were required to prove a § 841(a)(1) violation. This was error. The "intent to distribute" is an essential element of § 841(a)(1). See United States v. Clark, 475 F.2d 240, 248-49 (2d Cir. 1973). The court's failure to instruct on "intent to distribute" was not cured by language in the instruction which stated that possession of a controlled substance must be with knowledge or intent. The "knowingly" and "intentionally" language in § 841(a) refers to the possessor's awareness that he is in possession of a controlled substance and not to his intention to distribute the substance sometime in the future. 21 U.S.C. § 841(a)(1) requires both general criminal intent and the specific "intent to distribute" before a violation is proven. See United States v. Clark, 475 F.2d at 248. As the Ninth Circuit correctly stated in United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 1976), 21 U.S.C. § 841(a)(1) "is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent `to manufacture, distribute, or dispense.'"
In determining the propriety of a jury instruction, the instruction must be viewed in its entirety, and a misstatement in one part of the charge does not require reversal if elsewhere in the instruction the correct information is conveyed to the jury in a clear and concise manner so that it is unlikely that an erroneous impression would remain in the minds of the jurors. See generally United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). After reviewing the instructions in their totality, we are compelled to find that the instructions failed to adequately inform the jury that "intent to distribute" is an essential element of § 841(a). Although the instructions define "intent" in general terms along with other statutory definitions, nowhere in the instructions is either "distribution", see 21 U.S.C. § 802(11) (1970), or "intent to distribute" defined for the jury. At one point, the district court correctly instructed the jury that the intent or purpose to distribute could be inferred from certain evidence in the record. But this discussion was immediately followed by the court's reaffirmation that all that the
Reversed and remanded.
21 U.S.C. § 841(a)(1), (2) (1970).
The Cleveland DEA agents followed a similar profile in United States v. Craemer, supra at 595: