U.S. v. Dworken
| Decision Date | 07 June 1988 |
| Docket Number | 87-1769 and 87-1770,Nos. 87-1354,s. 87-1354 |
| Citation | 855 F.2d 12 |
| Parties | UNITED STATES of America, Appellee, v. Jay Lewis DWORKEN, a/k/a Jason Lewis, Jay Lewis, Defendant, Appellant. UNITED STATES of America, Appellee, v. William S. GAY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Steve ROGOVE, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Robert I. Kalina with whom Kalina & Guido, New York City, was on brief for appellant Jay Lewis Dworken.
Appellant William S. Gay submitted on the brief of appellant Steve Rogove, and on Parts III and IV of appellant Jay Lewis Dworken's brief.
Alan M. Dershowitz, Cambridge, Mass., with whom Nathan Z. Dershowitz, Dershowitz & Eiger, P.C., New York City, and Ellen Schneider, Washington, D.C., were on brief for appellant Steve Rogove.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., William H. Browder, Jr., and Paula D. Silsby, Asst. U.S. Attys., Portland, Me., were on brief for appellee.
Before COFFIN and BREYER, Circuit Judges, and ACOSTA, * District Judge.
Jay Dworken, Steven Rogove and William Gay appeal their convictions for attempting to possess marijuana with the intent to distribute it. We affirm the judgments.
We first outline the criminal scheme revealed by the evidence, adding more detail in our subsequent discussion of specific issues.
This case arises out of a classic undercover reverse drug sting conducted by the Drug Enforcement Administration (DEA). Appellant Jay Dworken was contacted by undercover DEA Agent Michael Cunniff in regard to assistance Dworken was seeking for the importation of some narcotics. Dworken and Cunniff discussed possible offload sites for Dworken's load during several conversations in late 1985 and early 1986. Cunniff, with the assistance of undercover Maine State Police Trooper Steven Spaulding, proposed an offload site in Maine for Dworken.
When Dworken's own venture did not progress as planned, Cunniff directed discussions to a fictitious 20-ton load of marijuana that he offered to sell to Dworken. Dworken agreed to help broker the drugs between Cunniff (and Cunniff's fictitious "boss") and various "buyers." During February 1986, Dworken and Cunniff had several preliminary negotiations regarding this proposed scheme. Cunniff eventually offered 53,000 pounds of marijuana. Dworken agreed to provide the buyers, and offered a warehouse in Connecticut that could accommodate the narcotics. This plan became the focus of the charges in the instant case.
On February 28, 1986, Dworken met with Cunniff and Spaulding at a hotel in Portland. This meeting and subsequent sessions in the hotel were videotaped surreptitiously. Dworken said that customers in Boston, New Haven, New York, Florida and Philadelphia were prepared to divide up the entire shipment, and suggested a price of $300 per pound. Dworken showed Cunniff his list of customers, each of whom allegedly could handle thousands of pounds of marijuana. Dworken later suggested a price of $350 per pound, with Dworken and Cunniff to share a profit off the top. Dworken offered to have several customers come to Maine to view the drugs.
Following further telephone negotiations, Dworken met again in Portland with Cunniff on March 4th. Dworken had enticed several potential buyers to come to Portland to view the marijuana and negotiate for its purchase. He described them in detail to Cunniff, explaining that each was experienced in these matters. Dworken insisted that they could, collectively, purchase the whole load, but that they refused to make payment in Maine. This detail became a continuing obstacle to final agreement among the players.
Dworken then proceeded to introduce each of the buyers to Cunniff. The first two to enter the scene were appellant Rogove and one "Neal" (Jay Brovender), who had traveled up from New York. They negotiated at length with Cunniff, viewed a sample of the marijuana, 1 and made particular offers for the narcotics. No precise agreement was reached.
Various other potential buyers proceeded over the next day and a half to come to the hotel to meet with Cunniff and/or Spaulding. These included Charles "Chuck" Zwalley, Mitchell Goldberg, William Greer, Robert Messina, Ed Schultz-Herda, and Frank Toscano. Dworken mediated the negotiations as "middleman." The negotiations were marked by varying degrees of seriousness, detail, ambiguity and equivocation.
The final "customer" was appellant Gay, who met with Cunniff on March 5th. Gay inspected the drugs, bargained with Cunniff and Dworken, and bragged of being able to sell "a lot of pot." Gay tentatively agreed to certain details of a purchase, contingent on certain arrangements and the assent of his "partner."
The next day Dworken called Cunniff to confirm commitments that he allegedly had received from all of the buyers who had visited. Dworken and Cunniff agreed to meet in Maine the next day, March 7th. On that day, however, evidently some or all of the players had developed cold feet, fearing that Cunniff was a law enforcement official. In particular, they were wary because of Cunniff's insistence that the money be delivered in Maine. After a heated telephone call between Cunniff and Dworken that afternoon, the deal seemed to be dead. That night, however, Rogove and Dworken called Cunniff again to try to reach a compromise. Over the next twenty-four hours, Rogove, Dworken and Cunniff tried to hammer out an acceptable deal over the phone. These conversations were recorded. When the agent continued to refuse to consummate the transaction in New York, the deal finally fell through.
Dworken and all of the prospective customers were indicted together for conspiring to possess narcotics with the intent to distribute them. The government's theory was that there was one large, overall conspiracy amongst them to purchase the entire load. They were also accused individually of attempting to possess those narcotics with the intent to distribute, and Dworken was charged with actual possession. Rogove and Dworken were, in addition, accused of using a communication facility to commit violations of the narcotics laws. Goldberg pleaded guilty to attempt prior to trial, and became a cooperating government witness. Brovender and Zwalley have yet to be apprehended. The seven remaining defendants went to trial on January 8, 1987.
Following trial, the court directed verdicts of acquittal on the attempt charges against Messina, Greer, and Schultz-Herda. The jury found all seven defendants not guilty of the conspiracy count. The three appellants here were each found guilty of attempting to possess over 50 kilograms of marijuana with the intent to distribute. 21 U.S.C. Secs. 841(a), 846. Rogove and Dworken were also convicted on two counts each of using a communication facility in the attempted possession. 21 U.S.C. Sec. 843(b). Dworken was found guilty of simple possession as well. 21 U.S.C. Sec. 844(a). The jury deadlocked on Toscano's attempt count, and a mistrial was declared on that charge.
Appellants raise several issues on appeal. First, they each claim that the evidence against them was insufficient to allow a guilty verdict on attempted possession. They argue in essence that their behavior constituted "mere" preparation, rather than attempt. Second, they contend that their various statements should not have been admitted as evidence against one another, arguing that there was insufficient evidence of conspiracy to characterize the utterances as co-conspirator statements. Third, they argue that evidence of Dworken's behavior in relation to his original importation scheme with Cunniff (made the subject of a separate indictment and trial) should not have been admitted because of undue prejudice. Fourth, appellants assert that the prosecution improperly focused attention on codefendant Goldberg's guilty plea in order to taint them with guilt by association. Finally, Dworken claims that he was improperly prohibited from presenting a defense case when the court denied him the right to play for the jury an audiotape of one of his telephone calls with Cunniff.
We address each of these contentions in turn.
Appellants' first complaint is that there was insufficient evidence to support their convictions on the attempted possession charges. Appellants were convicted under 21 U.S.C. Sec. 846 of attempting to possess, with the intent to distribute, more than 50 kilograms of marijuana. The statute merely provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." There is no statutory definition of attempt anywhere in the federal law. United States v. Rivera-Sola, 713 F.2d 866, 869 (1st Cir.1983).
The invariably elusive nature of what constitutes an "attempt" has long been the subject of judicial chagrin. "Eminent judges have been puzzled where to draw the line, or even to state the principle on which it should be drawn...." O.W. Holmes, Jr., The Common Law 68 (1881). This difficult subject has occasioned an array of inconsistent approaches and outcomes in the caselaw. A more recent commentator has characterized the law of attempts as "a complete obstacle to intelligible judicial speech and an encumbrance on intelligent judicial action." T. Arnold, Criminal Attempts--The Rise and Fall of an Abstraction, 40 Yale L.J. 53, 79 (1940).
Nevertheless, most federal courts have in recent years attempted to achieve a modicum of consistency by adhering to the doctrine of attempts developed in the Model Penal Code. See, e.g., United States v. Rivera-Sola, 713 F.2d 866, 869 (1st Cir....
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