U.S. v. Cartlidge
| Decision Date | 14 January 1987 |
| Docket Number | No. 86-4373,86-4373 |
| Citation | 808 F.2d 1064 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jacob CARTLIDGE, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Rabun Jones, Howard Dyer, III (Court-appointed), Greenville, Miss., for defendant-appellant.
Richard T. Starrett, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before GOLDBERG, RUBIN, and POLITZ, Circuit Judges.
The defendant, a former state law-enforcement officer, contends that evidence introduced to establish that he took a bribe to provide protection for a purported marijuana smuggling operation was not enough to show that he had attempted to aid and abet in the possession and distribution of marijuana, as charged in the federal indictment on which the jury found him guilty. We hold that--when the actions that would have constituted the crime of aiding and abetting consist of silence and providing warnings when needed--promises of such assistance, assurances of ability to provide protection against law enforcement interference, and supplying information about a convenient time for the operation, coupled with the acceptance of payment for these services, supplied sufficient evidence to show more than mere preparation and to prove an attempt to aid and abet in a federal crime. Turning to other issues, we hold that the district court did not commit plain error, if indeed it erred at all, in failing to exclude testimony given by a government witness in response to questioning by defense counsel and affirm the district court's decision that the prosecutor's exercise of peremptory challenges was not racially discriminatory in violation of the rule of Batson v. Kentucky 1 even if that rule applies to a case tried before Batson.
Jacob Cartlidge was Chief Deputy Sheriff of Sharkey County, Mississippi. Because the sheriff of this rural county, Joe E. Ford, was a farmer as well as a police officer, he left the active management of the sheriff's office to Cartlidge, who supervised the four other deputies employed in the office. Construed most favorably to the government, as it must now be, 2 the evidence showed that the present episode began when Neal Wade, who lived in Rolling Fork, Mississippi, a town of 2,590 population, approached Bill Marshall, a Mississippi Bureau of Narcotics agent, who knew Wade to have been a user of controlled substances. Wade told Marshall that Cartlidge had solicited money from him in return for providing protection for drug deals. Marshall was incredulous but agreed to secrete a transmitter and tape recorder on Wade's person and to monitor a meeting between Wade and Cartlidge.
Marshall monitored the meeting together with another state agent and Rolling Fork Chief of Police Charles McPhail. Via the transmitter, they heard Cartlidge demand $500 a month to provide protection for Wade's involvement in what Cartlidge assumed to be a drug operation. Two days later Marshall again met with Wade, again concealed a transmitter and tape recorder on Wade, and provided him with $250 in state funds. Wade then met with Cartlidge and paid him the $250, promising the balance at a future date. After this meeting, Marshall played the recordings of the two meetings to Sheriff Ford in confidence.
A few days later, Marshall and another Mississippi agent met with agents of the Drug Enforcement Administration, Sheriff Ford, and others to discuss a plan. Undercover law enforcement agents would be introduced to Cartlidge by Wade as drug smugglers from Louisiana. Wade would pay Cartlidge an additional $250 with state funds provided by Marshall, and the conversation would once again be recorded and transmitted by concealed instruments. Cartlidge met Wade at Wade's place of business in Rolling Fork. The two rode in Cartlidge's deputy sheriff's car to a cemetery outside Rolling Fork where they met the two undercover agents. One of the agents told Cartlidge that he proposed to have planes fly thousand-pound loads of marijuana to Sharkey County and would pay Cartlidge $1,000 per load initially, and more later, to provide protection. He gave Cartlidge $500 cash, promising him $500 more when the first load landed. Cartlidge said that he could provide security and that the timing was right because the sheriff was going to be out of town within the next two or three days. He assured the undercover agents that federal agents could not investigate suspected drug dealers in Sharkey County without his knowledge.
Cartlidge testified that these activities were part of his own undercover investigation and efforts to arrest drug dealers. He had not, however, mentioned these activities to the sheriff or to any other employee of the sheriff and had no notes of his investigation, although he stated, when first confronted, that he had made notes. He said he had put the first $250 paid him in a safe at his home to use as evidence but that he was unable to retrieve the money because his wife had found and spent it. His wife, who had been separated from Cartlidge at the time of his arrest but later had reconciled with him, testified at trial that she had taken the money two days before Cartlidge was arrested and had told him so the day after his arrest. She also testified that, although she knew the importance of accounting for the money, she did not inform any law-enforcement agent that she had taken the money until she appeared at trial. Cartlidge's first trial ended in a mistrial. On retrial he was convicted.
While there is no general federal statute making an attempt to commit a crime a separate criminal act, a federal statute imposes criminal punishment on "any person who attempts or conspires to commit any offense" proscribed by the Drug Control Act. 3 The statute, however, does not otherwise define what constitutes an attempt, and the legislative history offers no illumination. 4 Hence, in determining what acts--directed toward a criminal act but not accomplishing it--can be considered an attempt under this and other federal statutes relating to other specifically forbidden attempts, federal courts have, like state courts faced with a similar problem, followed the principles of attempt liability developed at common law. 5
A recurrent problem in determining whether a defendant has committed an attempt is "pinpointing the time in the unfolding of a criminal plan at which the actor becomes liable for an attempt." 6 The execution of a crime, other than one committed impetuously, involves planning and preparation. Like the jurisprudence of most states, federal law defines the threshold of criminality as the time when the defendant has gone beyond those preliminary activities and committed the additional act that constitutes the proscribed attempt even though he has not yet committed the contemplated crime.
In attempting to describe what constitutes an attempt, one jurisprudential theory requires evidence of an act that conforms to objective criteria defined in advance and determinable independently of the actor's intent. Professor George Fletcher labels this the "objectivist" view. 7 Others, adopting what Professor Fletcher calls the "subjectivist" view, do not essay specific criteria constituting attempts to commit various crimes but require instead that some act beyond preparation be done that is sufficient to verify the actor's commitment to carrying out his criminal plan. 8
Most states have adopted the subjective-criminality approach. 9 Thus the Model Penal Code defines an attempt as "an act or omission constituting a substantial step in a course of conduct planned to culminate in ... commission of [a] crime." 10 The drafters of the Model Penal Code note that this approach emphasizes what the defendant has already done rather than what remains to be done, imposes liability only if some firmness of criminal purpose is shown, and permits the defendant's conduct to be assessed in the light of the statements. 11 It also recognizes that an attempt to aid in the commission of a crime is sufficient for criminal sanction, 12 and several state statutes explicitly condemn such conduct. 13
The federal cases appear also to adopt a subjectivist approach. 14 After reviewing a number of federal decisions interpreting Sec. 846 and other attempt statutes, a panel of this circuit in United States v. Mundujano provided a general definition of conduct that constitutes a criminal attempt:
First, the defendant must have acted 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 the commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent. 15
Applying these criteria, the Mandujano court found the following evidence of attempt sufficient: the fact that an undercover agent gave a defendant $650 with which to buy the ounce of heroin as a sample for the agent; the defendant's statement that he could get the drug from a "good contact"; and the defendant's "comments and conduct" before and after the payment. The court emphasized that the request for, and the receipt of, the money
On the other hand, another panel found insufficient evidence to constitute an attempt in United States v. Oviedo. 16 Oviedo sold a substance to an undercover agent, representing it to be heroin. In fact, it was procaine hydrochloride, an uncontrolled substance. Because Oviedo could not be prosecuted for...
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