U.S. v. Reeves

• Decision Date: 24 June 1986
• Docket Number: No. 85-5579,85-5579
• Citation: 794 F.2d 1101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny E. REEVES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1101

794 F.2d 1101

UNITED STATES of America, Plaintiff-Appellee, v. Johnny E. REEVES, Defendant-Appellant.

No. 85-5579.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 7, 1986.

Decided June 24, 1986.

Dale M. Quillen, Nashville, Tenn., Lucinda Smith (argued), for defendant-appellant.

Joe B. Brown, U.S. Atty., Nashville, Tenn., Ross Alderman (argued), for plaintiff-appellee.

Before MARTIN and KRUPANSKY, Circuit Judges, and CHURCHILL, District Judge. ^*

KRUPANSKY, Circuit Judge.

Defendant/appellant Johnny E. Reeves appealed the jury's verdict of guilty for violating 21 U.S.C. Sec. 846 ¹ --knowingly attempting to unlawfully distribute or unlawfully possess with intent to distribute a quantity of a controlled substance.

Reeves was a deputy sheriff with the Wayne County Tennessee Sheriff's Department. On December 6, 1984, Reeves was contacted by Phillip Thune, an agent for the Drug Enforcement Agency who was posing as an importer of cocaine. Thune contacted Reeves after Thune had been advised by an individual named Don Moyer that Reeves was seeking to enter the illegal drug business and use his official position to further illegal drug activities in return for easy money. A meeting with Reeves was scheduled at a Waynesboro, Tennessee restaurant. Upon inquiry at the meeting, Reeves informed Thune that he knew of remote areas in Waynesboro where drugs could be safely air dropped from aircraft.

Thune and Reeves met again on December 27, 1984 at an abandoned store in Collinwood. From Collinwood, the two men drove in Reeves' marked Wayne County Sheriff's patrol car to a location about five miles from Collinwood to examine an area previously described by Reeves as a suitable drop zone for drugs.

On January 7, 1985, at a prearranged time Reeves spotted the drop zone for Thune and his pilot during a fly-over so as to permit the pilot to mark the site on his aeronautical chart to facilitate future drug drops.

Reeves was also to provide security and protection before, during and after the drugs were dropped and retrieved, and to ensure passage of the drugs from the vulnerable drop site to a safer location. Reeves was to receive $500.00 per drug drop.

When Reeves and Thune again spoke on January 8, 1985, Reeves advised Thune of his intention to obtain an untraceable weapon which he intended to use to eliminate any interference with the drug drops.

On January 15, 1985, Thune returned to Wayne County accompanied by Special Agent Goodowens of the Drug Enforcement Agency, who was also masquerading as a drug importer. After meeting Reeves in Collinwood, the two undercover agents followed him back to the drop zone. As Reeves and Thune had directed, an aircraft dropped a cannister which Thune retrieved. On the return trip to Collinwood in Reeves' patrol car, Thune told Reeves that the cannister contained cocaine, although in reality it contained a non-controlled substance prepared by the Drug Enforcement Agency. Thune paid Reeves five hundred dollars and agreed to a future drop. Reeves provided Thune with safe passage from the area.

On January 23, 1985, Thune and Goodowens again met Reeves in Collinwood for a second airdrop. As they approached the drop area, they observed an automobile with California license plates parked at the site. Reeves escorted it, in his patrol car, to the highway to ensure against interference with the drug drop. Thune and Goodowens remained at the drop site. After Reeves returned to the drop site, the aircraft was signaled to make the drug drop. A cannister purportedly containing cocaine was dropped and retrieved. During the return trip to Collinwood, Reeves advised Thune that he would attempt to sell a quantity of the cocaine to an individual identified as Roberson. Thune paid Reeves $1,000 for the second airdrop. The serial numbers of the currency used to pay Reeves had been previously recorded by Thune and was ultimately recovered from Reeves after his arrest later that day.

After initially denying any implication in the incidents, Reeves admitted that he had in fact directed Thune to a remote field where a container containing cocaine was air dropped and retrieved by Thune. Reeves also stated that his presence at the site was prompted by his agreement to provide protection for the cocaine and Thune. Reeves moreover affirmed all other aspects of his participation in the January 15, 1985 operation. Finally, Reeves admitted that he had solicited participation in the drug trade through another individual in the community and was thereafter contacted by Thune.

On February 20, 1985, Reeves was indicted on two counts of violating Section 406 of the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. Sec. 846--knowingly attempting to unlawfully distribute or unlawfully possess with intent to distribute a quantity of cocaine. The case was tried before a jury and Reeves was found guilty on each count. There followed this timely appeal.

Reeves argued on appeal that the government failed to prove beyond a reasonable doubt that he participated in any overt acts integral to the commission of the charged substantive offense. Specifically, Reeves charged that the evidence was insufficient to prove that he possessed or attempted to possess the substance he believed to be cocaine. ²

It should initially be noted that the requisite conduct necessary to support a conviction for attempt is not always capable of easy analysis. As the Eighth Circuit has observed, "whether conduct represents a 'substantial step' toward commission of the criminal design is, in Justice Holmes' words, 'a question of degree,' depending on the factual circumstances peculiar to each case." United States v. Joyce, 693 F.2d 838, 841 (8th Cir.1982) (quoting Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56 (1901)). It is, however, abundantly clear that Congress, in its promulgation of the attempt statute, intended that the term "attempt" should be construed in a broad and all inclusive manner. As the court stated in United States v. Gomez, 593 F.2d 210, 212-213 (3d Cir.1979) (en banc) cert. denied, 441 U.S. 948, 99 S.Ct. 2172, 60 L.Ed.2d 1052 (1979) A reading of the Drug Abuse Act makes it apparent that Congress, in legislating against drug abuse, intended to encompass every act and activity which could lead to a proliferation of drug traffic. Nothing in the statute indicates any congressional intent to limit the reach of this legislation, which is described in its very title as "Comprehensive."

The Third Circuit later observed:

Congress [had] manifested an attitude not of lenity but of severity toward violation of the narcotics law. Gore v. United States, 357 U.S. 386, 391, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958) ... Faced with a drug abuse problem that had grown to "epidemic proportions," H.R.Rep. No. 91-1444, 91st Cong., 2d Sess. 6, reprinted in [1970] U.S. Code Cong. & Ad. News 4566, 4569, Congress turned the screws tighter still by enacting the Comprehensive Drug Abuse Prevention and Control Act to strengthen the drug laws. Albernaz, 450 U.S. at 343, 101 S.Ct. [1137] at 1144 [67 L.Ed.2d 275 (1981) ]; United States v. Moore, 423 U.S. 122, 139, 96 S.Ct. 335, 343, 46 L.Ed.2d 333 (1975); United States v. Tighe, 551 F.2d 18, 20 (3d Cir.) cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977). Congress embraced the philosophy that "the illegal traffic in drugs should be attacked with the full power of the Federal Government. The price for participation in this traffic should be prohibitive. It should be made too dangerous to be attractive." H.R.Rep. No. 91-1444, 91st Cong., 2d Sess. 9, reprinted in [1970] U.S. Code Cong. & Ad. News 4566, 4574-75. To squelch the drug traffic Congress drew the statute to cover "just about everything." 116 Cong.Rec. 33656 (1970) (remarks of Rep. Randall).

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A spokesman for the bill emphasized that it provided "a comprehensive range of offenses which will render unlawful all drug-related activities which will defeat the purpose of this bill." 116 Cong.Rec. 33314 (1970) (remarks of Rep. Bush).

United States v. Everett, 700 F.2d 900, 907-08 (3d Cir.1983) (footnotes omitted).

Thus there can be no question that the Congressional intent in fashioning the attempt provision as part of an all-out effort to reach all acts and activities related to the drug traffic was all inclusive and calculated to eliminate technical obstacles confronting law enforcement officials in their pursuit to interdict the proliferating drug traffic.

In United States v. Oviedo, 525 F.2d 881 (5th Cir.1976), the Fifth Circuit suggested the proper standard of proof to be required of the government to establish an attempt in order to avoid punishing ".... one's thoughts, desires or motives, through indirect evidence, without reference to any objective fact." 525 F.2d at 885. The court posited that "the objective acts performed [by the defendant], without any reliance on the accompanying mens rea, 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." Oviedo, 525 F.2d at 885. This standard of proof has been adopted in this circuit. United States v. Pennell, 737 F.2d 521, 525 (6th Cir.1984) cert. denied, --- U.S. ---, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985).

Applying the enunciated standard to the instant case, it is apparent that the government carried this burden. In order to prove attempt, the government had to introduce evidence to establish: (1) the intent to engage in criminal activity, and (2) the commission of one or more overt acts which constituted a substantial step towards the commission of the substantive offense, in this case possession of cocaine for distribution. United States v. Williams, 704 F.2d 315 (6th Cir.1983) cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983).

It is beyond peradventure that the first element of the offense,...