Is possession with intent to distribute and actual distribution of heroin a separate criminal offence?

indictment are not multiplicitous if 'each separately violated statutory provision requires proof of an additional fact which the other does not.'" Id. (quoting United States v. Vargas-Castillo, 329 F.3d 715, 718-19 (9th Cir. 2003)).

This court's decision in United States v. Palafox, 764 F.2d 558 (9th Cir. 1985) (en banc), demonstrates that in some limited circumstances it is incorrect to charge and sentence a defendant on separate counts of possession with intent to distribute and actual distribution. In Palafox, the defendant met with an undercover agent to sell a package of heroin. Id. at 559. The agent asked the defendant for a sample of heroin, took a small quantity, and returned the package to the defendant. Id. The defendant was then arrested and charged with distribution of the .12 gram sample, and possession of the remaining 124.58 grams with intent to distribute. Id. He was convicted of both counts and sentenced to concurrent terms of five years on each count. This court, sitting en banc, held that "where the defendant distributes a sample and retains the remainder for the purpose of making an immediate distribution to the same recipients at the same place and at the same time, verdicts of guilty may be returned on both counts but the defendant may be punished on only one." Id. at 560 (emphasis added). However, this court further noted that the delivery of a sample could be a separate punishable offense in other circumstances, such as when an individual "makes distributions, sample or otherwise, to two different individuals as part of two separate transactions." Id. at 563.