U.S. v. Pennell, 83-1243

Citation737 F.2d 521
Decision Date31 July 1984
Docket NumberNo. 83-1243,83-1243
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gordon PENNELL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Peter J. Kelley, Ann Arbor, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Maura Corrigan, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee.

Before ENGEL and CONTIE, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CONTIE, Circuit Judge.

Gordon Pennell, the defendant, appeals from jury convictions for one count of conspiracy to possess with intent to distribute cocaine (21 U.S.C. Secs. 841(a)(1) and 846), one count of attempt to possess with intent to distribute cocaine (21 U.S.C. Secs. 841(a)(1) and 846), seven counts of unlawful use of a communications facility (21 U.S.C. Sec. 843(b)) and one count of unlawful carrying of a firearm during the commission of a felony (18 U.S.C. Sec. 924(c)(2)). For the reasons set forth below, we affirm.

I.

This case involves a "reverse buy" in which Pennell paid $43,000 in cash for two pounds of sham cocaine from Drug Enforcement Administration (DEA) undercover agents who were posing as narcotics suppliers. The DEA learned of Pennell from a confidential informant. This informant had sold four ounces of cocaine weekly for the defendant prior to September 1980. Pennell had "fronted" the cocaine to the informant, i.e., the informant took the cocaine and paid for it from the proceeds of subsequent sales.

By September 1980, the informant had fallen $15,000 behind in his payments. Consequently, Pennell refused to front more cocaine and eventually "sold" the account receivable to a man named MacDonald. MacDonald thereby obtained the right to "collect" the debt. Fearing for his safety, the informant contacted the DEA in October 1980 with hopes of receiving enough money in exchange for his information that he would be able to pay his debt.

The DEA declined to pay for the information and insisted that the informant fully cooperate by testifying against Pennell and MacDonald. The informant refused to testify for fear of reprisal. The informant's last contact with the DEA was in December 1980.

In January 1981, the informant agreed to sell cocaine for MacDonald in order to clear his account. After this plan failed, the informant found himself $11,000 further in debt.

The informant next met Pennell in March 1981. The defendant claimed to have ceased selling cocaine and asked the informant if he had been approached by a DEA agent named Frank. The informant stated that he had not. 1 The defendant then purported to forgive the informant's debt. A general conversation ensued. During this conversation, Pennell remarked that the informant had been a "dumb a--" for dealing with MacDonald at $33,000 per pound. The informant retorted that he knew the price had been inflated but that he currently could obtain cocaine for $22,500 per pound from a Florida source. Pennell immediately expressed interest in the Florida cocaine because the price was low enough to allow both he and the informant to make a profit upon resale. The defendant urged the informant to have the Florida people call Pennell's office. He promised to reduce the informant's debt by $5,000 for each pound of cocaine sold.

The informant telephoned DEA Agent Rodriquez the following day and warned the latter that Pennell was aware of Agent Frank Catalonga's true identity. The informant met with Rodriquez and Catalonga that evening. After the informant again expressed a reluctance to testify, Catalonga suggested that the former supply Pennell with the Florida telephone number of DEA Agent Pedro Valazco rather than the number of the purported Florida cocaine source. The informant agreed to this plan. Over the next week to ten days, Pennell repeatedly requested the telephone number of the Florida source. On April 16 or 17, the informant gave Pennell the number that had been supplied by Agent Catalonga.

Pennell, using the alias "Doug", called undercover Agent Velazco on April 21. The defendant offered to buy cocaine and Velazco quoted a price of $21,500 per pound. Pennell, however, demanded a sample of the cocaine before committing himself to the purchase.

Velazco then arranged for undercover Agent Wagner to meet the defendant and provide the sample. When Wagner called Pennell, a misunderstanding arose because Wagner offered to sell four pounds of cocaine whereas the defendant only wanted to purchase one pound. Pennell refused to accept Wagner's terms.

On April 29, Velazco telephoned the defendant and assured him that Wagner had been mistaken. During a subsequent conversation with Wagner, the defendant stated that he could sell at least one pound of cocaine, and possibly two pounds, immediately. Wagner agreed to meet Pennell at a local airport in order to provide the sample. On May 8, Wagner confirmed that he would arrive at the airport the following Tuesday and indicated that he might have a package of cocaine in addition to the sample if a Kansas City buyer did not want the package.

On May 12, Agents Wagner and Fredenburg met Pennell at Mettetal Airport. As Wagner showed the defendant four one-pound packages of sham cocaine, the latter remarked that he could immediately sell one pound to a "Mr. T" who was visiting Detroit from Los Angeles. After Wagner responded that the Kansas City customer still had an option to purchase the packages, Pennell indicated that he could hold his Los Angeles customer until Wagner determined whether the Kansas City buyer would be able to purchase the cocaine.

On May 13, Wagner informed the defendant that the Kansas City buyer had been unable to complete the transaction. Pennell increased his order to two pounds. On May 14 at a Detroit airport restaurant, the defendant purchased two pounds of sham cocaine from the agents for $43,000. He was immediately apprehended. The arresting agents discovered a .38 caliber revolver concealed on his person.

The grand jury returned an eleven count indictment. The trial jury convicted the defendant on all counts, save for count six, one of the unlawful use of a communications facility counts. The district court sentenced Pennell to concurrent nine-year terms on the conspiracy and attempt counts, to concurrent one-year terms on the unlawful use of a communications facility counts and to a consecutive one-year term on the weapons count. The court also assessed fines totaling $50,000. It is from this judgment that the defendant appeals.

II.

Pennell contends that he may not be convicted of attempt to possess with intent to distribute cocaine 2 as a matter of law because the substance he purchased from the undercover agents in fact was sham cocaine. The defense essentially is one of impossibility. The resolution of this question is important to the effective enforcement of the federal drug laws because the DEA has adopted a policy in "reverse buy" situations of not furnishing real narcotics. If the defendant's claim is meritorious, the government will be forced to supply real drugs in future "reverse buy" cases. See United States v. Everett, 700 F.2d 900, 907-08 n. 16 (3d Cir.1983).

We agree with the Third Circuit's thorough analysis in Everett and conclude that Congress intended to eliminate the impossibility defense in cases prosecuted under 21 U.S.C. Secs. 841(a)(1) and 846. See 700 F.2d at 903-08. Thus, the purchase of a noncontrolled substance that the defendant subjectively believes to be a controlled substance can constitute an attempt to possess with intent to distribute under Sec. 846. See id. at 908; United States v. Korn, 557 F.2d 1089, 1091 (5th Cir.1977). 3

The government must, of course, prove the defendant's subjective intent to purchase (or sell) actual narcotics beyond a reasonable doubt. Meeting this burden of proof can be problematic if the substance involved in a given situation is a fake narcotic. In order to avoid unjust attempt convictions in these types of cases, the courts have fashioned the following evidentiary rule:

In order for a defendant to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea, [must] mark the defendant's conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law.

Everett, 700 F.2d at 909; United States v. Innella, 690 F.2d 834, 835 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1526, 75 L.Ed.2d 949 (1983); United States v. Oviedo, 525 F.2d 881, 885 (5th Cir.1976); see also United States v. McDowell, 705 F.2d 426, 428 (11th Cir.1983). In other words, the defendant's objective conduct, taken as a whole, must unequivocally corroborate the required subjective intent to purchase or sell actual narcotics. See McDowell, 705 F.2d at 428; Innella, 690 F.2d at 835.

In the present case, the jury clearly could have concluded beyond a reasonable doubt that Pennell intended to purchase real cocaine. Among the defendant's objective acts, we highlight two. First, Pennell insisted upon obtaining a sample so that he could attempt to ascertain the quality of the cocaine that he was purchasing. Second, the defendant paid $43,000 for two pounds of a white powdery substance resembling cocaine. No reasonable person would pay such a price for two pounds of a white powdery substance unless he believed the substance to be genuine contraband. Cf. Korn, 557 F.2d at 1091 ($20,000 paid for sham methaqualone tablets). We hold, therefore, that Pennell's objective acts unequivocally corroborated the necessary intent to purchase real cocaine.

The Oviedo case, heavily relied upon by the defendant, does not mandate a contrary result. In Oviedo, the defendant sold sham heroin rather than purchasing it. Under the facts of that case, the Fifth Circuit held that the government had...

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