United States v. Neal ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5588
JAMES NEAL, III, a/k/a Sonny,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Charles E. Simons, Jr., Senior District Judge.
(CR-94-27)
Argued: February 2, 1996
Decided: March 20, 1996
Before ERVIN and MOTZ, Circuit Judges, and BLAKE,
United States District Judge for the District of Maryland,
sitting by designation.
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Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Ervin and Judge Blake joined.
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COUNSEL
ARGUED: John Frank Hardaway, Columbia, South Carolina, for
Appellant. Marvin Jennings Caughman, Assistant United States
Attorney, Columbia, South Carolina, for Appellee. ON BRIEF:
J. Preston Strom, Jr., United States Attorney, Columbia, South Caro-
lina, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
James "Sonny" Neal, III, was convicted by a jury of one count of
distribution of cocaine, one count of distribution of cocaine base
(crack), and one count of attempted distribution of crack. In this
appeal, he contends that the trial court erred in: (1) admitting evidence
of unrelated prior bad acts; (2) permitting a witness to testify concern-
ing statements of an alleged co-conspirator; and (3) refusing to grant
a judgment of acquittal as to the attempt offense. Finding no revers-
ible error, we affirm.
I.
In September, 1993, police arrested Greg Burris on drug charges.
Hoping to receive favorable treatment, Burris agreed to help police in
the investigation of Neal, from whom he claimed to have previously
purchased crack cocaine. Pursuant to this plan, on October 18, 1993,
Burris drove into Neal's neighborhood on the outskirts of Rock Hill,
South Carolina with $400 of government funds, intending to purchase
a quarter-ounce of crack cocaine from Neal. After failing to find Neal
at his home, Burris located Neal nearby at his mother's house. Burris
asked to purchase the quarter-ounce of crack from Neal but before the
sale could be completed, Neal and his younger brother began fighting.
Neal told Burris to return in a half-hour. Upon Burris's return, Neal
directed him to a nearby dead-end street. Neal arrived there a few
minutes later and told Burris that he had been able to obtain only an
eighth of an ounce of crack.1 Burris purchased the smaller amount
with $240 in government funds. Before parting, Neal agreed to sell
Burris a half-ounce of crack the next day.
The next day Burris returned to Neal's neighborhood to purchase
the half-ounce and again located Neal at his mother's house. Once
again Neal directed Burris to the nearby dead-end street. When Neal
arrived a few minutes later with the half-ounce, Burris purchased the
drugs with $700 in government funds.
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1 Lab testing later classified the substance as cocaine rather than crack.
2
The parties did not meet for a third sale until January 12, 1994.
Burris again drove to Neal's neighborhood and located Neal near his
mother's house. Burris asked Neal, "Could I get that ounce?" Neal
responded, "It would be a little while on that," and told Burris "to
come back around 3:00 [p.m.]." The two then parted. While these
negotiations were taking place, or shortly thereafter, Michael "Hoo-
ley" Douglas, who lives with Neal's sister, saw a van occupied by
police officers in the neighborhood. An officer testified that Douglas
spotted and recognized the officers as they sat in the van waiting to
arrest Neal. Subsequently, when Burris returned to Neal's house at
3:00 p.m., Neal refused to complete the drug transaction. Burris
asked, "What about tomorrow?" Neal simply replied, "No happen-
ings."
Later that evening, as Burris was driving in another part of Rock
Hill, he was hailed by his cousin, who introduced him to Wilmore
Thrower. Burris had heard that Thrower was a street dealer for Neal.
Burris testified that after Thrower began bragging about "how much
dope he could sell in a day," Burris asked him"could he get me a half
an ounce . . . and he said, yeah." Just then Neal drove up and sum-
moned Thrower. Burris watched the two engage in a lengthy discus-
sion after which Thrower returned to Burris's car and told him that
"he wasn't going to be able to do no deals with[Burris]" because
Hooley Douglas had spotted narcotics agents earlier in the day.
According to Burris's testimony, Thrower informed him that "when-
ever Sonny [Neal] tell him [Thrower] not to move anything, he don't
move nothing."
On the following day, January 13, 1994, Burris returned to Neal's
neighborhood again in hopes of making the one-ounce purchase. Bur-
ris found Neal near his mother's house and asked if they could make
a deal that day; Neal again said, "No happenings." Burris asked
whether he could purchase the drugs from Wilmore Thrower and Neal
told him that Thrower "ain't going to be able to do anything either."
Burris then drove away.2
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2 Police officers tape-recorded all of the Burris-Neal conversations and
videotaped some of them. The tapes were played for the jury and intro-
duced as exhibits at trial. Burris also testified as to these conversations.
The above quotations of these conversations were taken from Burris's
trial testimony.
3
As soon as Burris departed, police officers pulled up to the house.
They observed Neal with a white paper bag in his hand standing in
the yard talking with a friend. Recognizing the officers, Neal immedi-
ately fled to the back of his mother's house and through the back
door. The officers followed Neal inside the house where they found
the white paper bag in a trash can. Just outside the back door in an
otherwise empty garbage can, the officers found an eighth of an ounce
of crack. The crack was packaged in a cut-off corner of a plastic sand-
wich bag tied with red wire--similar to the packaging Neal had used
in the previous transactions with Burris. In the back yard officers also
found: a large number of plastic bags with their corners cut off; an
empty plastic container buried in the ground; and a plastic refrigerator
bag containing particles of crack residue. At Neal's nearby house the
officers found a sheet of paper with Thrower's name and the tele-
phone number where he could be reached.
A jury convicted Neal of two counts of distribution of a Schedule
II controlled substance in violation of 21 U.S.C.§ 841(a)(1) (based
on the events of October 18 and 19) and one count of attempt to dis-
tribute a Schedule II controlled substance in violation of 21 U.S.C.
§ 846 (based on the events of January 12 and 13).
II.
Neal first contends that the district court erred in permitting gov-
ernment witnesses to make comments portraying him as a high-level
drug dealer, or "kingpin." Neal asserts that these statements were
irrelevant to the charges brought against him and constituted inadmis-
sible evidence of prior bad acts.
Even if we agreed with Neal that the testimony was inadmissible,
Neal invited the error and therefore it provides no basis for reversal.
At trial, Neal did not object to any of the statements he now chal-
lenges, indeed, most were elicited by his own attorney from a govern-
ment witness during cross-examination. At one point, the prosecutor
even tried to warn Neal's attorney about pursuing a line of question-
ing relating to the defendant's prior conduct, but Neal's attorney per-
sisted. Under these circumstances, Neal "cannot complain of error
which he himself has invited." United States v. Herrera, 23 F.3d 74,
75 (4th Cir. 1994) (quotation omitted).
4
III.
Neal next contends that the district court erred in admitting hearsay
testimony. Neal argues that the district court should not have permit-
ted Burris to testify at trial concerning statements made by Wilmore
Thrower because the statements did not qualify for admission under
Rule 801(d)(2)(E) of the Federal Rules of Evidence. Neal maintains
that the statements did not qualify because they were not made during
the course of a conspiracy with Neal. Additionally, Neal contends that
the district court erred in failing to make an explicit finding that the
statements were made in furtherance of the conspiracy.
As noted previously, Burris met Thrower, whom he knew to be a
street dealer for Neal, after the third deal with Neal fell through.
Thrower told Burris that he could arrange to sell him the crack he
wanted. Immediately thereafter, Neal arrived on the scene and con-
ferred at length with Thrower. Burris testified that when the two had
finished conversing, Thrower told him that the sale could not take
place because police officers were in the neighborhood. Thrower then
made the statement that "whenever Sonny [Neal] tell[s] him
[Thrower] not to move anything, he don't move nothing." Neal
objected to Burris's testimony but, after a hearing, the district court
denied the objection. The court ruled that the government had proved
that a conspiracy existed between Neal and Thrower and that Burris's
testimony was therefore admissible under Rule 801(d)(2)(E).
To admit testimony under this rule, a court must conclude "(1) that
there was a conspiracy involving the declarant and the party against
whom admission of the evidence is sought and (2) that the statements
at issue were made during the course of and in furtherance of that
conspiracy." United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir.
1992). The government must establish these elements by a preponder-
ance of the evidence. Bourjaily v. United States , 483 U.S. 171, 175
(1987). A district court's decision to admit such testimony is
reviewed for abuse of discretion. Blevins, 960 F.2d at 1255.
Neal's principal argument on this point is that Burris's testimony
was inadmissible because the government provided no evidence of
the conspiracy independent of the statements themselves. This court
has not yet determined whether independent evidence of a conspiracy
5
is required. See United States v. Shores, 33 F.3d 438, 443 n.4 (4th Cir.
1994), cert. denied, 115 S. Ct. 1365 (1995). However, we have held
that an alleged co-conspirator's statements may be considered in
determining the existence of the conspiracy. Blevins, 960 F.2d at
1255. In this case we need not resolve whether a co-conspirator's
statements alone could provide proof of the conspiracy because the
government provided independent evidence to corroborate the exis-
tence of a conspiracy between Thrower and Neal.
In the challenged statements, Thrower told Burris that Neal had
called off the deal because Hooley Douglas had seen narcotics agents
in the area. This was corroborated through officers' testimony that
Douglas had, in fact, spotted them and the deal was called off soon
thereafter. The fact that Burris's deal with Thrower fell through
immediately after the latter spoke with Neal supports the govern-
ment's theory that Thrower worked for Neal. Additionally, on Janu-
ary 13, after Neal refused to deal with Burris for the second time and
Burris asked about the possibility of getting drugs from Thrower,
Neal said that Thrower "ain't going to be able to do anything either."
This statement also indicated that Thrower worked for Neal. Finally,
while searching Neal's house the police found a sheet of paper with
Thrower's name and the telephone number where he could be
reached. These three pieces of independent evidence sufficiently cor-
roborate the out-of-court statements to establish a conspiracy by the
preponderance of the evidence. See Shores, 33 F.3d at 443; United
States v. Clark, 18 F.3d 1337, 1342 (6th Cir.), cert. denied, 115 S. Ct.
152 (1994).
Neal's remaining challenges to the testimony about Thrower's
statements are also meritless. It is true that the trial court made no
specific ruling that the statements were made during the course of and
in furtherance of the conspiracy. However, our review indicates that
there was sufficient evidence that Thrower made the statements dur-
ing the course of and in furtherance of a conspiracy with Neal to sell
drugs to Burris. Accordingly, the lack of an explicit trial court ruling
to this effect does not require reversal. See Blevins, 960 F.2d at 1256(although preferable for trial court to make explicit rulings, this court
may affirm if our review of the record shows that the statement was
made during the course of and in furtherance of the conspiracy).
6
Finally, while Thrower's statement did not immediately "further"
the cause of the drug deal (Thrower merely related to Burris why the
deal could not take place), it did further the conspiracy. Thrower
stated that the deal could not take place due to police presence in the
neighborhood. Escaping detection and apprehension by police officers
furthered the continued viability of the conspiracy. See United States
v. Troop, 890 F.2d 1393, 1404 (7th Cir. 1989) ("Avoiding detection
by law enforcement officials clearly furthers the aims of a conspir-
acy."). Thrower's statement revealed to Burris the reason the deal
could not take place immediately but did not negate the possibility
that the deal would take place at a more opportune time--and thereby
furthered the continued possibility of a sale to Burris.
For these reasons, the district court did not err in admitting the
challenged statements.
IV.
Neal's final contention is that the evidence was insufficient to sup-
port his conviction of attempt to distribute crack. Although challenges
to the sufficiency of the evidence must overcome a heavy burden,
United States v. Hoyte, 51 F.3d 1239, 1244 (4th Cir.), cert. denied,
116 S. Ct. 346 (1995), Neal's challenge presents a close question.
Federal law provides no statutory definition of attempt. See United
States v. Dworken, 855 F.2d 12, 16 (1st Cir. 1988). Precedent, how-
ever, establishes that a defendant can be convicted of an attempt only
if the government proves beyond a reasonable doubt (1) culpable
intent to commit the crime charged and (2) a substantial step towards
the completion of the crime that strongly corroborates that intent. See
United States v. McLamb, 985 F.2d 1284, 1292 (4th Cir. 1993);
United States v. Sutton, 961 F.2d 476, 478 (4th Cir.), cert. denied, 506
U.S. 858 (1992). This definition is consistent with the definition of
attempt found in the Model Penal Code. See Model Penal Code
§ 5.01(1)(c) (Proposed Official Draft 1985); see also United States v.
McFadden, 739 F.2d 149, 152 (4th Cir.), cert. denied, 469 U.S. 920(1984).
Neal does not contest the presence of culpable intent. He does
assert, however, that the "evidence failed to prove any step [let alone
7
a substantial step] toward commission of the crime." A substantial
step is more than mere preparation but less, obviously, than comple-
tion of the crime. Sutton, 961 F.2d at 478. There is no clear line
between preparation and attempt. See United States v. Coplon, 185
F.2d 629, 633 (2d Cir. 1950) (Learned Hand, C.J.) ("The decisions are
too numerous to cite, and would not help much anyway, for there is,
and obviously can be, no definite line [between preparation and
attempt]"), cert. denied, 342 U.S. 920 (1952). Whether conduct repre-
sents a substantial step depends on the "surrounding factual circum-
stances" and, therefore, such determinations are necessarily fact
specific. See United States v. Gaines, 969 F.2d 692, 698 (8th Cir.
1992). On review, we examine the evidence in the light most favor-
able to the government, considering circumstantial as well as direct
evidence and allowing the government all reasonable inferences, to
determine whether any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. See United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
Applying this standard, we believe there was sufficient evidence
from which a rational juror could conclude that Neal attempted, as
charged, to "distribute crack . . . on or about January 13, 1994." First,
there was evidence from which a jury could determine that on January
12, Neal entered a definite agreement with Burris to sell him crack.
No price was mentioned at that meeting and the abbreviated street
language the parties used might not support a commercial contract.
Yet, from the tape recording of the transaction, Burris's testimony
about it, and evidence of the parties' prior deals within the previous
three months, a jury could conclude that Neal expressly agreed to sell
Burris a specific amount of crack--one ounce--at a specific price--
$1,400. Even so, if this was the sole step Neal took toward commit-
ting the crime, it might well be, as Neal claims, insufficient to prove
an attempt to distribute crack. See United States v. Delvecchio, 816
F.2d 859, 862 (2d Cir. 1987) ("[A] verbal agreement alone, without
more, is insufficient as a matter of law to support an attempt convic-
tion.")
It was not, however, Neal's sole step. Neal not only agreed to sell
Burris the crack, he also volunteered that it would take "a little while"
to obtain the crack and directed Burris to come back to Neal's moth-
er's house in forty-five minutes, at 3:00 p.m. The jury was entitled to
8
infer that Neal left the meeting to gather together the necessary
amount of crack, which he planned to sell to Burris. We recognize
that there is no direct evidence that this is what happened. Police offi-
cers did not follow Neal on January 12, nor did they unearth any ille-
gal drugs, or even conduct a search of Neal, his house, or his mother's
house on that date. Nevertheless, the inference that Neal left his meet-
ing with Burris to get the drugs appears reasonable in view of the par-
ties' previous dealings. On each prior occasion, the parties initially
met and agreed to deal, as they did on January 12, at Neal's mother's
house. On each prior occasion, Neal directed Burris to wait nearby,
presumably so that he could gather together the crack, and only then
was the sale completed. On January 12, Neal instructed Burris to
come back in forty-five minutes rather than wait nearby, but Neal had
to collect a significantly larger amount of crack.
Moreover, Neal's statements to Burris on January 12, including his
express agreement to the sale, did not constitute the only evidence of
his substantial step toward distributing crack "on or about January
13." When the police officers arrived to arrest Neal at his mother's
house on January 13, Neal tried to evade them. After they arrested
him, police found drug paraphernalia in the immediate area, including
the same packaging (cut-off plastic bag corners and red tie) Neal had
previously used in the other drug transactions. See United States v.
Nelson, 6 F.3d 1049, 1051 (4th Cir. 1993) ("corners cut from sand-
wich bags . . . are commonly used to package drugs for sale"), cert.
denied, 114 S. Ct. 2142 (1994). Police also found an eighth of an
ounce of crack packaged and ready for sale. In isolation, perhaps nei-
ther Neal's statements on January 12 nor his conduct (including pos-
session of a small amount of crack) on January 13, provided sufficient
evidence to establish a substantial step. Cf. id. at 1052-53 (defen-
dants' intent to distribute can be inferred from possession of approxi-
mately 400 grams of crack). However, when all the evidence is
viewed collectively: Neal's agreement to sell Burris the crack; his
instruction to Burris to wait because gathering the drug would take "a
little while"; Neal's evasion when police arrived; Neal's possession
of an eighth of an ounce of crack packaged for sale; and the drug par-
aphernalia found in the immediate vicinity, we believe there was suf-
ficient evidence that Neal engaged in a substantial step strongly
corroborative of his intent to commit the crime. Admittedly, the case
was not airtight. The jury could have concluded that Neal's conduct
9
did not constitute attempt. But we cannot say that a properly
instructed, reasonable jury could not have concluded that Neal was
guilty of an attempt to distribute drugs.
Neal's argument to the contrary is based on the fact that when Bur-
ris arrived at Neal's mother's house at 3:00 p.m. on January 12,3 Neal
said, "No happenings" and repeated the phrase when Burris asked to
buy crack the next day. Thus the sale was never consummated. Neal
argues that no matter what his motive for doing so, by ultimately
refusing to deal he never completed a substantial step. In fact, all that
failure to complete a crime proves is just that--the crime was not
completed. If completion of a crime was a necessary predicate to
criminal prosecution, an attempt would never be criminal. When, as
here, there is evidence of a substantial step strongly corroborative of
intent to commit the crime, the fact that police presence ultimately
caused Neal to forego completion of the crime in no way establishes
an abandonment of the attempt. See, e.g. , United States v. Wilks, 46
F.3d 640, 645 (7th Cir. 1995).
Nor do the three cases upon which Neal relies assist him. Only one,
United States v. Rosa, 11 F.3d 315 (2d Cir. 1993), cert. denied, 114
S. Ct. 1565 (1994), involved a defendant who, like Neal, was charged
with attempt as a drug seller. In Rosa , the only evidence of a substan-
tial step was of negotiations between the defendant and the would-be
buyer. Id. at 338-39. Even in those negotiations, defendant Rosa never
agreed to supply the drugs but consistently stated that he had to check
with his source to see if the source could obtain the requested heroin.
Id. Moreover, there was no evidence that Rosa ever made this inquiry.
Id. Thus, unlike Neal, Rosa never agreed to sell the illegal drugs and,
significantly, he was not apprehended shortly after such an agreement
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3 The government suggests that Neal's appearance at his mother's
house at 3:00 p.m. on January 12 constituted "reconnoitering the place
contemplated for the commission of the crime," which we, following the
Model Penal Code, have recognized as conduct that"may be considered
a substantial step." See McFadden, 739 F.2d at 154. While Neal literally
reconnoitered the place of the contemplated crime, that place was his
mother's house, where the evidence indicated he was often found even
when not engaging in criminal activity. Under these circumstances, we
cannot regard his presence there as demonstrating a substantial step.
10
with contraband in his possession. Id. at 340. For these reasons, the
Second Circuit's holding in Rosa is inapposite.
The remaining two cases are United States v. Delvecchio, 816 F.2d
859 (2d Cir. 1987), and United States v. Joyce , 693 F.2d 838 (8th Cir.
1982). The case at hand is readily distinguishable not only from
Delvecchio and Joyce, but also from other drug cases where courts
have ruled that evidence was insufficient to support attempt convic-
tions. See United States v. Baker, 985 F.2d 1248 (4th Cir. 1993), cert.
denied, 114 S. Ct. 682 (1994); United States v. Cea, 914 F.2d 881(7th Cir. 1990); United States v. Mims, 812 F.2d 1068 (8th Cir. 1987).
For example, Delvecchio involved "a verbal agreement alone" and no
other evidence of a substantial step. 816 F.2d at 862. In Mims, there
was no evidence of an agreement to buy, but only a single telephone
call between a prospective seller and the defendant in which the par-
ties did not discuss price or quantity and made no mention of illegal
drugs. 812 F.2d at 1079. Most significantly, however, in addition to
individual differences, a critical distinction separates the case at hand
from Delvecchio, Joyce, Baker, Cea, and Mims: Neal was a prospec-
tive seller while these defendants were prospective buyers.
Although neither the parties nor any of the cases discuss the impor-
tance of this distinction, it seems obvious. Possession of small or
moderate amounts of money is not illegal, or even suspicious, while
possession of controlled substances, even in very small amounts, is
illegal and may provide grounds to suspect other illegal activity, e.g.,
distribution. Accordingly, in order to prove a would-be seller guilty
of attempted distribution, evidence that the defendant possesses even
a small amount of an illegal substance can provide, as it does here,
significant if not decisive evidence that he has taken a substantial step
that strongly corroborates his intent to distribute. On the other hand,
when the defendant is a would-be buyer, possession of some money
proves little; only evidence that he possessed or sought to obtain the
(usually large) amount of money necessary to complete the sale is
probative. Compare Sutton, 961 F.2d at 478 (evidence sufficient to
establish a substantial step where defendant is shown to possess the
necessary funds); United States v. Scott, 767 F.2d 1308 (9th Cir.
1985) (same), with Baker, 985 F.2d at 1258 (evidence insufficient
where defendant is not shown to possess or to have sought to possess
the funds necessary to purchase cocaine for distribution). But see
11
Joyce, 693 F.2d at 841-43 (evidence insufficient even though defen-
dant possessed the necessary funds for purchase).
Drafters of the Model Penal Code noted the distinction between
possessing innocent and incriminating materials for use in allegedly
committing a crime:
[Existing case law] show[s] a tendency to make criminal the
possession of materials to be employed in the commission
of a crime when the materials [are] distinctively suited to
criminal purposes. The incriminating character of such dis-
tinctive materials would usually be apparent to the actor
himself, and his possession of them would generally mani-
fest a major commitment to the crime contemplated.
Model Penal Code § 5.01 Commentary at 342-43 (Proposed Official
Draft 1985). Unlike a prospective buyer of drugs for whom money is
the "material" necessary for commission of the crime, the primary
"material" required for a would-be seller is the drug itself, which is
always "incriminating." Accordingly, where there is evidence of very
recent and substantially similar prior transactions, the combination of
a defendant's agreement to sell drugs and his being found in posses-
sion of that drug packaged for sale is sufficient to permit a reasonable
jury to infer that the defendant has taken a substantial step corroborat-
ing his intent to sell the drug. In sum, weighing all the evidence, we
conclude that a reasonable jury could find Neal had taken a step
strongly corroborative of his intent to distribute crack.
For the foregoing reasons, Neal's convictions are
AFFIRMED.
12