U.S. v. August, 87-3578

• Decision Date: 15 December 1987
• Docket Number: No. 87-3578,87-3578
• Citation: 835 F.2d 76
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allen Pierre AUGUST, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 76

835 F.2d 76

UNITED STATES of America, Plaintiff-Appellee, v. Allen Pierre AUGUST, Defendant-Appellant.

No. 87-3578

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Dec. 15, 1987.

Alcide J. Gray, Lake Charles, La., for defendant-appellant.

Curtis Collier, Robert Hamilton, Asst. U.S. Attys., John P. Volz, U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, GARWOOD and JONES, Circuit Judges.

PER CURIAM:

Allen Pierre August appeals his convictions of attempted possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1) and Sec. 846, and of use of a communication facility to facilitate the commission of the crime of attempted possession of cocaine, 21 U.S.C. Sec. 843(b).

Facts

Last spring the DEA, in cooperation with an air freight concern, made a controlled delivery to the residence of one Taza Hazy. A consequent search of his New Orleans residence pursuant to a warrant revealed 2 kilograms of cocaine in the freight package. Admitting that the cocaine was his, Hazy agreed to finger his intended customers for the cocaine.

DEA special agent Fenner, wearing a recording device, accompanied Hazy to his former residence, where they waited for customer's calls. That evening appellant August telephoned Hazy, advising that he would be arriving in New Orleans from Birmingham at eight o'clock the next day. During the course of this conversation Hazy inquired: "How much paper are you coming with?" August responded: "I got seven. You ah ... you, you still gone do nine for me?" Later in the conversation, August said: "How is it? It's good?"

Although drugs were never directly mentioned, Agent Fenner testified that, based on the telephone conversation, on the context, on the representations of Hazy, and on her experience that the parties to the conversation were negotiating a drug transaction in which 9 ounces of cocaine ("nine") were to be purchased by August for $7,000 ("seven").

Because August had not specified whether he would be arriving in New Orleans at 8 A.M. or 8 P.M., Hazy called him back at the instruction of Agent Fenner. During his second conversation August said a friend was picking him up at the airport "unless you [Hazy] want to pick me up." Hazy agreed to pick August up at eight the following evening. At the time agreed upon, Agent Fenner and Hazy met August's plane. Hazy introduced Agent Fenner as "another one of Donald's victims ¹." Agent Fenner and Hazy and August walked to the parking lot, where conversation ensued between Hazy and August which was largely inaudible--either to Agent Fenner's ear or to the tape recorder that she carried. Neither money nor drugs exchanged hands on the walk from the airport to the parking lot, where August was arrested. Subsequently, he consented to a search of his carry-on luggage, which revealed $7,070 stuffed into a shoe.

On timely appeal from his conviction, August contends that the jury charge on "attempt" was inadequate and that the jury's finding of attempted possession of cocaine with intent to distribute was not supported by sufficient evidence.

Analysis

The correct standard of review to be applied to challenges to jury instructions is whether the court's charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of law applicable to the factual issues confronting them. United States v. Nixon, 777 F.2d 958, 966 (5th Cir.1985); United States v. Grote, 632 F.2d 387, 391 (5th Cir.1980), cert. denied, 454 U.S. 819, 102 S.Ct. 98, 70 L.Ed.2d 88.

In the seminal case of United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975), we delineated the elements of attempt for purposes of 21 U.S.C. Secs. 841(a)(1) and 846:

First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting.

....

Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent.

Citations omitted. ²

The "attempt" charge delivered in this case stated:

To "attempt" an offense means willfully to take some substantial step in an effort to bring about or accomplish something the law forbids to be done.

Obviously, this minimal charge is not a complete statement of the law of attempt as defined in Mandujano; nor does it compare in elaboration with the charge delivered in that case--an all-purpose declaration equal to any occasion, set out at note 2. As the Second Circuit, citing to Mandujano, has pointed out, however, the function of the "substantial step" requirement is to corroborate the existence of a criminal intent firmly bent on action--not on daydreams or on the laying of groundwork. And as it goes on to say, correctly, we think,

"[w]hether conduct represents a substantial step towards the fulfillment of a criminal design is a determination so dependent on the particular factual context of each case that, of necessity, there can be no litmus test to guide the reviewing courts." United States v. Manley, 632 F.2d 978, 988 (2d Cir.1980).

United States v. Mowad, 641 F.2d 1067, 1073 (2nd Cir.1981). Bearing these principles in mind, we turn to August's conduct in this case. As we must, we view the evidence in the light most favorable to the verdict of conviction. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

So viewed, August telephoned Hazy long-distance to verify that he had received an...