U.S. v. Joyce

• Decision Date: 03 December 1982
• Docket Number: No. 82-1602,82-1602
• Citation: 693 F.2d 838
• Parties: UNITED STATES of America, Appellee, v. Michael Dennis JOYCE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 838

693 F.2d 838

UNITED STATES of America, Appellee, v. Michael Dennis JOYCE, Appellant.

No. 82-1602.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1982.

Decided Dec. 3, 1982.

Duane Miller, Oklahoma City, Okl., for appellant.

Thomas E. Dittmeier, U.S. Atty., Charles A. Shaw, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Michael Dennis Joyce was convicted after a jury trial on one count of attempting to possess cocaine with the intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1976) (Count I), and one count of traveling in interstate commerce to facilitate an unlawful activity in violation of 18 U.S.C. Sec. 1952 (1976) (Count II). The trial court sentenced Joyce to a term of ten years imprisonment on Count I and a term of five years probation on Count II, to be served consecutively. A timely appeal was filed. Though Joyce raises several issues on appeal, we are primarily concerned here with his claim that the evidence presented at trial was insufficient to sustain his conviction. ¹ For the reasons set forth herein, we reverse Joyce's conviction on each count.

I.

The facts as presented to the jury in this case are undisputed and based entirely upon the uncontradicted testimony of the government's only two witnesses: Robert Jones, a St. Louis police officer assigned to the Drug Enforcement Administration Task Force, and James Gebbie, a government informant.

During 1980, the St. Louis Metropolitan Police Department conducted what has been termed a "reverse sting operation," in which undercover police officers posed as drug sellers actively soliciting major drug transactions with reputed drug dealers. As part of that operation, government informant James Gebbie, who testified to having prior drug dealings with Joyce, contacted Joyce by telephone in September and early October, 1980, to inform Joyce about the prospective availability of drugs for purchase in St. Louis. Joyce told Gebbie to call back when Gebbie found out more definite information.

On October 20, 1980 Gebbie again called Joyce, this time informing Joyce that cocaine was available for purchase in St. Louis. Joyce indicated that he had twenty-two thousand dollars and would be in St. Louis the following day, October 21, 1980. Gebbie and Joyce agreed that twenty-two thousand dollars would be more than sufficient to purchase a pound of cocaine.

On October 21, 1980, Joyce flew from Oklahoma City, Oklahoma to St. Louis, Missouri, where he met Gebbie and undercover officer Robert Jones, who was posing as a cocaine seller. Jones and Gebbie took Joyce to a room in a local St. Louis hotel, where Joyce immediately asked to see the cocaine. Jones told Joyce that the cocaine was not in the hotel room, but could be easily obtained by Jones if Joyce was interested in dealing rather than merely talking. After Joyce professed his interest in dealing, Jones recited prices for various quantities of cocaine and Joyce said that he could "handle" a pound of cocaine for twenty thousand dollars. Officer Jones then went to his office and obtained the cocaine.

When officer Jones returned to the hotel room, he handed Joyce a duct-tape wrapped plastic package said to contain a kilogram of cocaine. Without unwrapping the tape, Joyce immediately returned the package, stating that he could not see the cocaine. Jones then unwrapped about half of the tape covering the plastic package and handed the package back to Joyce. Joyce again returned the package to Jones and asked Jones to open up the package so that Joyce could examine the cocaine more closely. Jones answered that he would only open the plastic package if and when Joyce showed the money that he intended to use to purchase the cocaine. Joyce then replied that he would not produce his money until Jones first opened up the plastic package. After Jones persisted in asking Joyce to produce his money, Joyce again refused, stating that he would not deal with officer Jones no matter how good the cocaine was. Realizing that Joyce was not going to show his money or purchase the cocaine, Jones told Joyce to leave and Joyce left, with no apparent intention of returning at a later time to purchase any cocaine.

As Joyce left the hotel, he was arrested by DEA agents. A search warrant was thereafter obtained and used to search Joyce's luggage revealing twenty-two thousand dollars in cash.

II.

The issue before us is whether the evidence, taken in its entirety and viewed most favorably to the government, is sufficient to prove beyond a reasonable doubt that Joyce attempted to purchase cocaine with the intent to distribute. To resolve this issue we must determine whether Joyce's conduct crossed that shadowy line dividing acts of "mere preparation" to commit a crime and acts constituting an "attempt."

The government argues that Joyce's attempt to possess cocaine was established by evidence that he traveled from Oklahoma City to St. Louis with twenty-two thousand dollars pursuant to a previously discussed drug purchase arrangement, that he expressed an initial willingness to deal with Jones, and that he agreed with Jones on the price for a pound of cocaine. Furthermore, the government adds, Joyce would have purchased the cocaine had it not been for the disagreement between Joyce and Jones resulting from Jones' refusal to open the plastic bag containing the purported cocaine until Joyce first showed his money. The government points out that Jones was acting in compliance with DEA guidelines which prohibit illegal drugs from going into the physical possession of persons under investigation.

Joyce, on the other hand, contends that his conduct did not rise to the level of an attempt to possess cocaine because while he admittedly possessed sufficient money to purchase the cocaine at the agreed upon price, he ultimately refused either to purchase the cocaine or to produce his money. He thus had abandoned any designs he might have had of obtaining cocaine and distributing it before taking the necessary and overt steps of producing the money and obtaining the cocaine.

Although there is no comprehensive statutory definition of attempt in federal law, federal courts have rather uniformly adopted the standard set forth in Section 5.01 of the American Law Institute's Model Penal Code (Proposed Official Draft 1962) ² 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 actor's criminal intent. United States v. Manley, 632 F.2d 978, 987 (2nd Cir.1980), cert. denied, sub nom. Williams v. United States, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981); United States v. Snell, 627 F.2d 186, 187 (9th Cir.1980), cert. denied, 450 U.S. 957, 101 S.Ct. 1416, 67 L.Ed.2d 382 (1981); United States v. Monholland, 607 F.2d 1311, 1319-20 (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). While we adopt this standard here, we are also mindful of Judge Learned Hand's candid, yet poignant, observation that a verbal formulation aimed at dividing mere preparation from attempt is, in itself, not particularly useful. United States v. Coplon, 185 F.2d 629, 633 (2nd Cir.1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952). Indeed, whether conduct represents a "substantial step" toward the commission of the criminal design is, in Justice Holmes' words, "a question of degree," necessarily depending on the factual circumstances peculiar to each case. Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56 (1901). However, as the Tenth Circuit analyzed in United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979):

The cases universally hold that mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in the commission of the particular crime.

With this in mind, we conclude that even assuming Joyce went to St. Louis intending to purchase cocaine, there was clearly insufficient evidence to establish that he engaged in conduct constituting a "substantial step" toward the commission of the crime of possession of cocaine with the intent to distribute. Whatever intention Joyce had to procure cocaine was abandoned prior to the commission of a necessary and substantial step to effectuate the purchase of cocaine. The attempt, of course, need not be successful, but generally the abortion of the attempt occurs because of events beyond the control of the attemptor. As the court recognized in Monholland, 607 F.2d 1319, "the [attemptor's] act must have passed the preparation stage so that if it is not interrupted extraneously, it will result in a crime." Also see Mims v. United States, 375 F.2d 135, 148 n. 40 (5th Cir.1967); People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 309 (1935). Here it is undisputed that Joyce, despite having both the opportunity and ability to purchase the cocaine at the agreed upon price, unambiguously refused either to produce his money or to purchase the cocaine. This effectively negated the government's effort to consummate the sale.

This case is comparable to the case of People v. Miller, 2 Cal.2d 527, 42 P.2d 308 (1935) where the defendant announced his intention to kill another, obtained a .22 caliber rifle, pursued his intended victim into an open field carrying the .22 caliber rifle, and after loading the rifle apparently changed his mind and voluntarily surrendered the rifle to a third person standing nearby. The Supreme Court of California...