U.S. v. Rivera-Sola

• Decision Date: 27 July 1983
• Docket Number: RIVERA-SOLA,No. 82-1100,82-1100
• Citation: 713 F.2d 866
• Parties: 13 Fed. R. Evid. Serv. 1897 UNITED STATES of America, Appellee, v. Sigfredo, a/k/a Freddy, Plaintiff, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 866

713 F.2d 866

13 Fed. R. Evid. Serv. 1897

UNITED STATES of America, Appellee, v. Sigfredo RIVERA-SOLA, a/k/a Freddy, Plaintiff, Appellant.

No. 82-1100.

United States Court of Appeals First Circuit.

Argued May 3, 1983.

Decided July 27, 1983.

Owen S. Walker, Boston, Mass., for plaintiff, appellant.

Everett M. de Jesus, Asst. U.S. Atty., Hato Rey, P.R., with whom Daniel Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before COFFIN and BOWNES, Circuit Judges, and BONSAL, ^* Senior District Judge.

BOWNES, Circuit Judge.

Defendant-appellant Sigfredo Rivera-Sola (Rivera) appeals his conviction of two drug-related offenses: (1) attempting to possess approximately 100,000 dosage units of methaqualone (quaaludes), a controlled substance, with intent to distribute them in violation of 21 U.S.C. § 841(a)(1) and § 846; and (2) possessing ten dosage units of quaaludes with intent to distribute them in violation of 21 U.S.C. § 841(a)(1). Rivera claims that there was insufficient evidence to convict him on the first count. Additionally, he argues that errors which occurred during his trial require reversal of both counts one and two. The challenged actions are: (1) the district court's evidentiary ruling allowing evidence of Rivera's other drug offenses to be admitted; (2) the use of a United States Magistrate to preside over the jury selection and to give preliminary instructions to the jury; and (3) the district court's refusal to order a new trial when it was revealed that Rivera's sole witness had acted as an attorney for the ex-wife of one of the jurors. Because we find no merit in any of Rivera's contentions, we affirm his conviction.

I. The Facts

Since we are reviewing the sufficiency of the evidence, we state the facts in detail. At trial, the government presented four witnesses as well as tapes of meetings and telephone conversations of Rivera, government agents and informants. The testimony and evidence are summarized below.

Beginning in early June 1981, federal agents of the Drug Enforcement Administration (DEA) mounted a "reverse undercover operation" against Rivera, a suspected drug trafficker. In such an operation, a government agent poses as a supplier of drugs; after a sale is made to the targeted buyer he/she is immediately arrested, charged with possession of the drugs, and the purchase money is seized. Here, two government informants, Ramon Tirado and Eduardo Irizarry, arranged an initial meeting between Rivera and undercover DEA agents James Miller and Victor Aponte.

On June 8, Miller and Aponte were introduced to Rivera by Tirado. In the course of conversation, Miller asked Tirado if he had found any customers for his product. Rivera interjected that he was in the business. Miller then stated that he was selling quaaludes. Rivera said that he knew a doctor, a lawyer, and a third person who might be interested in buying quaaludes. When Rivera asked for a sample of ten quaalude tablets, Miller responded that he had 1,000,000 pills available in Miami, but did not have any samples in Puerto Rico. Miller said that he would arrange for a sample, which Rivera indicated would be given to prospective buyers who would analyze the pills and then place orders. Rivera stated that he estimated that he would make $200,000 on the proposed transaction.

During this meeting, Rivera bragged of his involvement in other large-scale drug transactions, and clearly implied that he had been smuggling narcotics for a number of years. He said that he had previously smuggled ten kilograms of cocaine, some marijuana, and 25,000 quaalude tablets. ¹

After Miller and Aponte left the meeting, Rivera confided to Irizarry his belief that Miller, "the North American man," was a federal agent and that Miller's and Aponte's identities would have to be verified.

The next day Irizarry went to Rivera's office. Rivera said that the transaction proposed by Miller was impossible since he could handle, at the most, 100,000 to 200,000 quaaludes. Two days later, Irizarry and Rivera again met, and Rivera said that he could not act on Miller's offer until he had samples. In two further meetings between Rivera and the government informants, Rivera stressed the need for samples.

Rivera revealed his familiarity with quaaludes by stating at one of the meetings that one quaalude tablet had the effect of five marijuana cigarettes. He also let it be known to the informants that he was considering selling certain farm property to raise the money to buy the 100,000 quaaludes from Miller.

On June 25, agents Miller and Aponte met with Rivera and gave him a sample of ten quaalude pills. Irizarry met Rivera immediately after this meeting and noted that he acted both "nervous" and "desperate." Rivera showed the ten pills to Irizarry and told him that he would have the pills tested to see if they were genuine. Later that same day, Rivera told Irizarry that one of the sample pills had been tried, and that it was good.

The following day Miller contacted Rivera about placing an actual order for the quaaludes. Rivera had not yet received orders from his customers, but told Miller that everything looked "very, very good." Four days later Miller again telephoned Rivera. Rivera indicated that he had not yet heard from the attorney and another prospective customer, but that he expected more definite information later in the day. He expressed optimism that the drug transaction would go through, and promised to call Miller as soon as he heard from the lawyer. Miller called back later that same day and received no answer.

That same week, Irizarry met with Rivera. At this meeting Rivera indicated that he was dealing with the problem of selling his farm property. He also said that on the following day he and Irizarry might go to Humacao, Puerto Rico, to offer the quaaludes to a friend of Rivera, a doctor.

In early July, 1981, Miller received information that Rivera was suspicious of both him and Aponte. He, therefore, decided not to contact Rivera for a while. On July 20 Miller sent Tirado to speak with Rivera. When Tirado asked Rivera why he was refusing to deal with Miller and Aponte, Rivera responded that "he didn't want to do nothing about anything" and threw Tirado out of his office. This was the final contact between Rivera and the DEA agents and their informants.

II. The Sufficiency of the Evidence

Rivera argues that the evidence was insufficient to support his conviction for attempted possession of narcotics in violation of 21 U.S.C. § 846. Our standard of review is clear. [W]e regard the evidence, including all inferences that may reasonably be drawn therefrom, in the light most favorable to the government. United States v. Fortes, 619 F.2d 108, 122 (1st Cir.1980). We must determine whether a reasonable jury, so viewing the evidence, could find guilt beyond a reasonable doubt. Id. The evidence need not exclude every reasonable hypothesis of innocence, United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982), cert. denied [--- U.S. ----], 103 S.Ct. 738 (1983), and if it can support varying reasonable interpretations, the jury is entitled to choose among them, United States v. Klein, 522 F.2d 296, 302 (1st Cir.1975).

United States v. Quejada-Zurique, 708 F.2d 857 at 859 (1st Cir.1983).

There is no general federal statute which proscribes the attempt to commit a criminal offense. Thus, attempt is actionable only where a specific criminal statute outlaws both its actual as well as its attempted violation. United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). Here, 21 U.S.C. § 846 makes criminal the attempt to possess narcotics in violation of 21 U.S.C. § 841(a).

"Attempt," as used in 21 U.S.C. § 846, is not defined. In fact, nowhere in federal law is there a comprehensive statutory definition of attempt. United States v. Jackson, 560 F.2d 112, 116 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977). When considering an attempt case, the federal courts have rather uniformly adopted the standard found in Section 5.01 of the American Law Institute's Model Penal Code (Proposed Official Draft 1962). This standard provides that the requisite elements of attempt are (1) an intent to engage in criminal conduct; and (2) conduct constituting a "substantial step" towards the commission of the substantive offense which strongly corroborates the defendant's criminal intent. United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982); United States v. Manley, 632 F.2d at 987; United States v. Snell, 627 F.2d 186, 187 (9th Cir.1980) (per curiam), cert. denied, 450 U.S. 957, 101 S.Ct. 1416, 67 L.Ed.2d 382 (1981); United States v. Monholland, 607 F.2d 1311, 1318-20 (10th Cir.1979); United States v. Mandujano, 499 F.2d 370, 376-77 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). We also adopt this standard.

Mere intention to commit a crime can never amount to an attempt. It is absolutely essential that the defendant, with the intent of committing a particular crime, perform some overt act in furtherance of the criminal scheme. United States v. Monholland, 607 F.2d at 1318. Developing a general formulation which adequately describes what constitutes a "substantial step," and at the same time distinguishes such a step from "mere preparation" for a criminal act, has proven to be a "perplexing problem." United States v. Stallworth, 543 F.2d 1038, 1039 (2d Cir.1976). The difficulty in pinpointing the "elusive line" which separates "mere preparation" from a "substantial step" is traceable to the supreme importance of the facts in any attempt case. United States v. Jackson, 560 F.2d at 113-14. While the "semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule," United States v. Noreikis, 481 F.2d 1177, 1181 (7th Cir.1973), vacated on other grounds, 415 U.S. 904, ...