U.S. v. Brown, 78-5345

• Decision Date: 09 October 1979
• Docket Number: No. 78-5345,78-5345
• Citation: 604 F.2d 347
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James E. BROWN and David R. Scott, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 347

604 F.2d 347

UNITED STATES of America, Plaintiff-Appellee, v. James E. BROWN and David R. Scott, Defendants-Appellants.

No. 78-5345.

United States Court of Appeals, Fifth Circuit.

Oct. 9, 1979.

Rehearing Denied Nov. 15, 1979.

William F. Alexander, Kerry P. Fitzgerald, Dallas, Tex., for Brown.

Bill M. Glaspy, Mesquite, Tex., for Scott.

John H. Hannah, Jr., U. S. Atty., Heriberto Medrano, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before TJOFLAT and VANCE, Circuit Judges, and ALLGOOD, District Judge. ^*

VANCE, Circuit Judge:

This prosecution involves an alleged attempt and conspiracy by James E. Brown and David R. Scott during the summer of 1976 to have their grocery store in Wills Point, Texas, blown up. The events began in May 1976 when Scott sought information about purchasing untraceable explosives to blow up a building. A series of negotiations between Brown and undercover agents of the Bureau of Alcohol, Tobacco and Firearms concerning employment of an explosives expert to blow up the store ensued. The relevant sequence of events terminated on August 26, 1976, when contact between defendants and the undercover agents was broken off. Demolition of the store did not take place.

In December 1975, Brown and Scott borrowed approximately one hundred thousand dollars and purchased the store. They experienced cash flow problems, and their principal supplier put them on a cashier's check paying basis. In the summer of 1977 defendants agreed to sell the store including building, fixtures and merchandise to their store manager for one hundred five thousand dollars. On August 15, 1977, however, before the sale was closed, the store was totally destroyed by a fire that had been intentionally set. The identity of the arsonist has not been established. Scott filed a proof of loss claiming the full insurance coverage of one hundred sixty-five thousand dollars.

After the store was destroyed in the 1977 fire a federal grand jury returned indictments against defendants arising out of the 1976 events. Brown was charged in Count One with violating 18 U.S.C. § 844(i) by attempting to destroy by means of an explosive a building used in interstate commerce. In Count Two both defendants were charged with violating 18 U.S.C. § 371 by conspiring to destroy by means of an explosive a building used in interstate commerce. A jury found defendants guilty as charged.

On appeal they advance two challenges to the sufficiency of the evidence. ¹The first is whether the evidence established Brown's guilt of an attempt to blow up the building. The second concerns the sufficiency of the evidence of conspiracy particularly with respect to Scott. Familiar standards govern our review of both questions. We take the view of the evidence most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and we must sustain the denial of a motion for judgment of acquittal if a reasonable jury might decide that the evidence is inconsistent with every reasonable theory of defendants' innocence. United States v. Fredericks, 586 F.2d 470, 474 (5th Cir. 1978), Cert. denied, 440 U.S. 962, 99 S.Ct. 1507, 59 L.Ed.2d 776 (1979); United States v. Warner, 441 F.2d 821, 825 (5th Cir.), Cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).

I.

Brown does not contest that he had extensive conversations with A.T.F. undercover agents concerning blowing up the building. In fact he participated in five meetings and four telephone conversations. Many of the conversations were recorded, and the tapes were in evidence. Brown contends that this was nothing more than mere preparation and that preparation is not an attempt.

The meetings between Brown and A.T.F. agent Wernette began in Canton, Texas, on July 20, 1976, some two months after Scott first inquired about untraceable explosives. In an early meeting Brown asked the agent whether he had access to explosives and a man to use them. A few days later the agent told Brown he could get a man. Brown said he was willing to pay $5,000 and was interested in talking about it real soon.

At their next meeting ten days later in Dallas, Wernette told Brown that his man was interested. Brown described the building to be destroyed and told the agent it was at Wills Point, Texas. He told Wernette that it would have to be done at a certain time and that it was going to be an insurance deal. He mentioned an additional $25,000 in insurance. Brown told the agent the method he would use in blowing up the building, but said having someone else do it was worth $5,000 because it was so close to home.

On August 11, 1976, Brown told Wernette that he would like the explosives man to look at the building. He volunteered to show Wernette and the expert around the store, but said that in any case his partner would be at the store any time before 7:30 and that he would know more about exact dimensions. Two days later Wernette introduced Brown to a second undercover agent, Bowers, who pretended to be the explosives man. Brown said the job should run around $5,000 and for that amount he would want the building flat level to the ground. They discussed structural details, the amount of explosives needed, the time frame and the escape route to be used in leaving the building. Brown wanted the job done on a Saturday because it would be more profitable. Brown discussed procurement of the explosives with Bowers and agreed that if Bowers could come up with the explosives he would reimburse him. The two agents left to inspect the building. Brown had told Bowers that Wernette knew who to see when they arrived at the store. They went to the store and were shown around by Scott.

Three days later Brown and Wernette had a telephone conversation in which Wernette said that Bowers was willing to go ahead but that he still wanted something, referring to an advance of money for expenses. Brown said he thought that they were in agreement and confirmed that Bowers would be reimbursed for expenses in acquiring the explosives.

The last contact between the agents and Scott was on August 23, 1976. After that meeting no relevant events took place. No explosion occurred, and no money ever changed hands.

The question squarely presented by Brown on appeal is whether his conduct was sufficient to constitute an attempt or whether, as he contends, it was mere preparation. The problem of distinguishing preparation from an attempt under varying facts has caused recurring difficulty. The principles on which our resolution of the present problem will be based are found in United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974), Cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975), as refined by United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976) and United States v. Rivero, 532 F.2d 450 (5th Cir. 1976). Rivero distills from Judge Rives' opinion in Mandujano the following formulation:

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.

532 F.2d at 455 (quoting 499 F.2d at 376) Oviedo emphasizes the requirement that

the objective acts performed, without any reliance on the accompanying Mens rea, mark(ed) the defendant's conduct as criminal in nature.

525 F.2d at 885.

Brown's conduct clearly met the first of the stated Mandujano tests. Our consideration at this point focuses on the second. Did Brown's conduct include the taking of such a substantial step that it crossed the line from mere preparation? Did it strongly corroborate the firmness of his criminal intent and make his conduct criminal in nature? We conclude that it did in each of two particulars.

In Mandujano the court used the American Law Institute's Model Penal Code in its analysis and quoted from it at some length. 499 F.2d at 377 n. 6. Immediately subsequent to quoted portions the Code also contains the following:

Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law:

(c) reconnoitering the place contemplated for the commission of the crime.

(f) . . . collection . . . of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such . . . collection . . . serves no lawful purpose of the actor under the circumstances . . . .

Model Penal Code § 5.01 (Proposed Official Draft 1962).

Viewed as we must view it on appeal, the evidence shows that Brown (1) made a firm agreement with Bowers for acquisition of the explosives needed to blow up the store and (2) dispatched Wernette and Bowers to reconnoiter and inspect the building in preparation for its destruction. In both instances he engaged in conduct that met the second Mandujano test. We, therefore, conclude that the evidence was sufficient to...