47 F3d 1178 United States of America v. Keeling

47 F.3d 1178

UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
Keith KEELING, also known as "Petey", Defendant-Appellee.

Nos. 93-1360, 93-1379.
(D.C. No. 92-CR-378)
United States Court of Appeals,
Tenth Circuit.

Feb. 22, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT1

Before BRORBY, Circuit Judge, LAY, Senior Circuit Judge,2 and McWILLIAMS, Senior Circuit Judge.

1

In count 1 of a two-count indictment, Keith Keeling was charged in the United States District Court for the District of Colorado with unlawfully attempting to distribute on April 22, 1992, five grams or more of a mixture or substance containing "cocaine base ("crack" cocaine)," a Schedule II controlled substance, in violation of 21 U.S.C. 841(a)(1) and

2

(b)(1)(B)(iii) and 846. In a second count, Keeling was charged with unlawfully attempting to distribute on April 22, 1992, a mixture or substance containing "a detectable amount of cocaine," a Schedule II controlled substance, in violation of 21 U.S.C. 841(a)(1) and 846.

3

After a trial to a jury, Keeling was convicted on both counts of the indictment. Counsel thereafter renewed his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(c). The district court granted the motion as to count 1, but denied it as to count 2, and sentenced Keeling to imprisonment for 27 to 33 months on count 2. The United States appeals the district court's order granting defendant's motion for acquittal on count 1, our No. 93-1360. Keeling, by cross-appeal, appeals his conviction and sentence imposed on count 2, our No. 93-1379.

Facts

4

Denise Ross is a single mother who works as a manicurist. To help make ends meet, she began selling small amounts of drugs, some of which she obtained from Keeling whom she had met in her job as a manicurist.

5

Late in 1991, Ms. Ross made a sale of powder cocaine to Tommy Ross (no relation), a Special Agent for the FBI acting in an undercover capacity. In an effort to avoid "jail time," Ms. Ross agreed to cooperate with the FBI, and, inter alia, she tried to arrange a purchase of cocaine from Keeling.

6

The government's theory of the case was that on April 22, 1992, Keeling unlawfully attempted to sell Ms. Ross both crack cocaine and cocaine, the latter referred to by the parties to these appeals as "powder cocaine," as opposed to "crack cocaine." In this regard, Ms. Ross on that date drove her car to Keeling's house and Keeling came outside and entered Ms. Ross' vehicle. Prior to this meeting, Ms. Ross and Keeling had engaged in detailed discussions relating to the sale of cocaine. Ms. Ross testified that Keeling was supposed to deliver the cocaine to her at that time, but that Keeling said he did not have the drugs but would get them for her shortly. In any event, Ms. Ross on that occasion, at Keeling's request, gave Keeling $2,200 which had been given her by the Denver Police. It would appear, however, that Keeling soon realized he was being observed by the police. Keeling left the car and did not return. Ms. Ross eventually drove away and met with the authorities in a somewhat hysterical condition. Keeling was observed entering his house, exiting shortly thereafter, getting into his vehicle and driving off.

No. 93-1360

7

As indicated, the United States has appealed the district court's order granting defendant's post-trial motion for judgment of acquittal on count 1 which charged defendant with an attempt to distribute crack cocaine. Counsel correctly points out that the district court had denied defendant's motion for judgment of acquittal on both counts 1 and 2 made at the close of all the evidence and submitted both counts to the jury. Counsel further notes that the jury convicted defendant on both counts. Such, however, does not in any way impinge on a district court's power to grant a motion for judgment of acquittal. Fed.R.Crim.P. 29(c).

8

In granting the defendant's motion for judgment of acquittal on count 1, the district court spoke as follows:

9

The matter before the Court is defendant Keith Keeling's Motion for Judgment Of Acquittal pursuant to Fed.R.Crim.P. 29(c). The Indictment filed in the district of Colorado charged defendant in Count One with attempted distribution of cocaine base (crack cocaine) and in Count Two with attempted distribution of cocaine. This case was tried from June 7, 1993, through June 10, 1993, before a jury of twelve duly sworn to try the issues herein, the Honorable Zita L. Weinshienk, Judge, presiding. Mr. Keeling's trial proceeded to conclusion and the jury subsequently rendered its Verdict on June 10, 1993, finding defendant guilty of Counts One and Two of the Indictment.

10

The evidence presented at trial regarding Mr. Keeling's attempt to distribute crack cocaine consisted of a tape recorded conversation between Mr. Keeling and confidential informant Denise Ross as well as Ms. Ross' live testimony. After careful consideration of the exceedingly brief conversation between defendant and Ms. Ross, and the nebulous manner in which crack cocaine was allegedly discussed, the Court determines that the evidence was insufficient to sustain a conviction under Count One of the Indictment beyond a reasonable doubt. Accordingly, it is

11

ORDERED that defendant's Motion for Judgment of Acquittal is granted as to Count One of the indictment filed in the District of Colorado.

12

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13

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14

We agree with the district court's appraisal of the evidence concerning an intent on the part of Keeling to attempt to sell Ms. Ross crack cocaine, as opposed to powder cocaine. The government in its brief concedes that evidence "was not overwhelming as to the charge relating to the attempted distribution of 'crack' cocaine." Gov'ts Opening Brief at 10. Most certainly, the evidence of such intent is "not overwhelming," and in our view is legally insufficient to support a conviction on count 1. The testimony anent such intent was brief, most unclear and quite equivocal.3 We affirm in No. 93-1360.

No. 93-1379

15

As indicated, Keeling by cross-appeal seeks review of his conviction and sentence imposed on count 2, i.e. attempting to distribute powder cocaine on April 22, 1992. Counsel argues that the district court erred in denying the defendant's motion to dismiss the indictment because of misconduct before the grand jury which indicted Keeling and further, that the evidence failed to show a "substantial step" by Keeling to carry out any "attempt" on his part to distribute powder cocaine.

16

On the day of trial, defense counsel filed a motion to dismiss the indictment based on Agent Ross' testimony before the grand jury which indicted Keeling. The gist of the motion was that Agent Ross had testified incorrectly, if not falsely, before the grand jury and that but for his testimony, the grand jury would not have indicted. After some initial colloquy between court and counsel, it was decided to proceed with the trial and rule on the motion to dismiss after the evidence was in. In any event, the district court eventually denied the motion to dismiss, stating that though Agent Ross may well have testified incorrectly as to some of the details before the grand jury, he had not committed perjury, and the court concluded that, all things considered, the grand jury would have indicted regardless of Agent Ross' misstatements, citing Bank of Nova Scotia v. United States, 487 U.S. 250 (1988).

17

We are not inclined to disturb the district court's order denying defendant's motion to dismiss. District courts are understandably slow to dismiss an indictment returned by a duly constituted grand jury. The "presumption of regularity" given to grand jury proceedings is a difficult burden to overcome and requires significant misconduct on the part of the prosecutor or government agent which is prejudicial to the end that but for the misconduct the grand jury would not have returned an indictment. United States v. Edmondson, 962 F.2d 1535, 1539 (10th Cir.1992). The district court did not err in denying the motion to dismiss.

18

Counsel also argues that the evidence is insufficient to support Keeling's conviction and sentence on count 2. Even assuming an intent to distribute powder cocaine, counsel argues that there is insufficient evidence to show that he took a "substantial step" toward the commission of the substantive offense. In this regard, the evidence is that prior to the day in question, Ms. Ross and Keeling engaged in detailed discussions on more than one occasion regarding the sale of cocaine by Keeling to Ross, and on the day in question, Ms. Ross gave Keeling $2,200, which he accepted and was to be used by him in acquiring powder cocaine from another for delivery to Ms. Ross.

19

We realize that Keeling was charged with an "attempt" to distribute powder cocaine, and was not charged with the actual distribution thereof. The crime of attempt requires proof of (1) the requisite criminal intent, and (2) an act or omission constituting a "substantial step" toward commission of the substantive offense. United States v. Sullivan, 919 F.2d 1403, 1429 (10th Cir.1990). We have defined "substantial step" by stating: 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. United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979). Further, a substantial step must be conduct "strongly corroborative of the firmness of the defendant's criminal intent." United States v. Savaiano, 843 F.2d 1280, 1296 (10th Cir.1988) (quoting United States v. Prichard, 781 F.2d 179, 181 (10th Cir.1986)).

20

In United States v. Bunney, 705 F.2d 378 (10th Cir.1983), this court held that participation in detailed discussions of a criminal plan coupled with a "firm agreement" to carry out the plan constituted an attempt. Further, in United States v. Johnson, 767 F.2d 673, 676 (10th Cir.1985), this court cited with approval Bunney and noted that in the Johnson case, "not only were there detailed discussions concerning the purchase of a controlled substance but also a firm agreement to buy sealed by a cash payment."

21

In light of the conversation between Ms. Ross and Keeling which occurred in Ms. Ross' vehicle on April 22, 1992, concerning the sale of cocaine by Keeling to Ms. Ross, the previous discussions between Ms. Ross and Keeling regarding the sale of cocaine, the receipt by Keeling of $2,200 from Ms. Ross to be used by Keeling in obtaining the cocaine, then leaving the car, ostensibly to obtain the cocaine, is to us a "substantial step". In this regard, see United States v. Fuller, 974 F.2d 1474, 1478-79 (5th Cir.1992), cert. denied, 114 S.Ct. 112 (1993), where the Fifth Circuit held that the defendant's acceptance of drug money from an undercover agent and his departure from a hotel room constituted, when viewed in the light of all the surrounding facts and circumstances of that case, a "substantial step."

22

In like vein, in United States v. Johnson, 767 F.2d at 675 (10th Cir.1985), we cited with approval United States v. Mandujano, 499 F.2d 370, 379 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975), where that court found the payment of money for the purchase of a controlled substance "particularly convincing," and in connection therewith, opined "that the transfer of money strongly collaborates the firmness of Mandujano's intent to complete the crime."

23

The judgments are affirmed in all respects.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by designation

3

The tape recorded conversation between Ms. Ross and Keeling indicates that in response to Keeling's inquiry as to "what she wanted," she replied, "powder," and that when she then asked Keeling about "hard times," he said "Hum" and that when she said he could bring her "one each way" he replied, "Okay, I'll call you when I get 'em in," and that, "either way it go ... I can call you within ... 30 minutes, 45 minutes." Transcript of Recorded Conversation Between Denise Ross and Keith Keeling, 4/22/92, pp. 3-5, Record on Appeal, Vol. 1, 15, Exhibit C