United States v. Doyon

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2030



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                        LAURIER J. DOYON,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. D. Brock Hornby, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                                

                  Hill, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Peter E. Rodway, by appointment of the court, for appellant.

     F. Mark Terison, Assistant United States Attorney, with whom

Jay P. McCloskey, United States Attorney, was on brief for the

United States.


October 19, 1999


BOUDIN, Circuit Judge.  Laurier Doyon was tried by a jury

of attempting to possess cocaine with intent to distribute, 21

U.S.C.  841, 846, and convicted of the offense.  Because he had

two prior drug felonies, he was sentenced as a career offender to

262 months in prison and now appeals.  One of his claims is that

the evidence was insufficient to support the conviction, so we set

forth the facts in the light most favorable to the government. 

United States v. Munoz, 36 F.3d 1229, 1234 (1st Cir. 1994), cert.

denied, 513 U.S. 1179 (1995).  The evidence at trial permitted the

jury to find that the following had occurred.

  In late August or early September 1997, one Eduardo

Escobar-Reyes shared an apartment in Portland, Maine, with a drug

dealer named Johnny and became involved in Johnny's drug

operations.  They sold powder cocaine which they obtained from a

source in New York.  In late October 1997, Doyon helped Escobar and

Johnny move to a hotel.  Shortly thereafter, at another location,

Escobar sold three ounces of cocaine to Doyon for approximately 

$3,300; the drug was "fronted" to Doyon, meaning that he paid an

extra amount per ounce but did not have to pay Escobar up front, a

practice that is common in deals between drug traffickers.

  Thereafter, Escobar left for New York, where he and

Johnny purchased five ounces of cocaine; Escobar returned to

Portland on November 4, 1997.  At some point thereafter, Doyon

called Escobar at the hotel and said that he had the money he owed

Escobar from the prior deal and wanted to meet him.  (Doyon knew

about the New York buying trip because he had driven Johnny part of

the way there.)  Doyon also indicated an interest in a possible

further purchase, but Escobar--who was planning to sell his new

inventory to another of his customers (one Harry Brady)--told Doyon

that he did not have any drugs to supply.  Escobar and Doyon agreed

to meet later.  This call was not recorded, but Escobar testified

to it at trial.

  On November 6, 1997, Escobar met with Brady to transfer

the cocaine, but Brady was in fact an undercover government agent

and Escobar was arrested.  Escobar then agreed to cooperate and,

while giving a statement, received a pager signal from Doyon and

returned Doyon's call in the presence of government agents.  That

call, and a second occurring soon thereafter, were recorded by the

agents using a tape recording device.  The tapes and transcripts

were offered at trial together with agent testimony that the tapes

accurately reflected what they had heard Escobar say.

  In the first conversation Escobar indicated that Doyon

could not buy any more drugs until he paid off his earlier debt, to

which Doyon replied: "I have the money Eduardo."  Later in the

conversation, Escobar stated: "How, how much you, you want?"  Doyon

replied: "What do you mean?  I want four ounces, at least dude.  I

want ten."  Doyon asked to have Johnny call him and concluded that

he and Escobar would meet that night.

  At 12:30 p.m., about half an hour after the first call, 

Escobar (acting under the government's supervision) paged Doyon and

a second telephone conversation ensued.  In the second

conversation, Doyon and Escobar agreed to meet at the hotel at

around 5 p.m. Escobar asked Doyon whether he had "all the money";

and Doyon replied: "Of course."  Doyon agreed that they would meet

at 5 p.m. and persisted in asking Escobar to have Johnny page

Doyon.  

  Under police surveillance, Doyon arrived at the hotel

shortly before 6 p.m., entered Escobar's room briefly and then

(after not finding Escobar) returned to his truck and started to

drive away.  When police cars turned on their lights and sirens,

Doyon raced away, hitting one vehicle and just missing another, and

was caught when he stopped about a quarter mile away.  Agents

retrieved large amounts of cash from Doyon's pocket and wallet, but

evidence of the exact amount was not provided at trial.

  Prior to trial, Doyon had sought unsuccessfully to

suppress the tape recordings.  Following the government's

presentation of its case, Doyon asked for a directed judgment of

acquittal for lack of sufficient evidence.  The district court,

although regarding the issue as a close one, denied the motion and

the case was submitted to the jury.  After several hours of

deliberation, the jury convicted Doyon of attempting to possess

cocaine with intent to distribute.

  At sentencing, the district court attributed to Doyon the 

four ounces of cocaine that the court thought Doyon had attempted

to buy and, as related conduct, the three ounces he had purchased

in late October.  This would ordinarily have produced an offense

level of 18, which the district court adjusted upward for Doyon's

possession of a weapon and for endangerment of others caused by

Doyon's flight.  In addition, based on two prior drug felony

convictions in state court, the district court determined that

Doyon was a career offender, U.S.S.G.  4B1.1, and, after declining

to depart, imposed the minimum sentence of 262 months.

  The law of attempt is reasonably clear in the center but

quite fuzzy around the edges; different formulations have been used

to cope with a range of problems, such as degree of involvement,

impossibility and withdrawal.  See Model Penal Code  5.01 cmt.

(1985).  In this circuit, as in a number of others, the court has

taken the Model Penal Code as its guide.  See United States v.

Dworken, 855 F.2d 12, 16-17 (1st Cir. 1988).  Under the Code

definition, set forth in section 5.01 (reprinted as an appendix to

this opinion), we have viewed the two key elements of the offense

of attempt as (1) an "intent" to commit the substantive offense and

(2) a "substantial step towards [its] commission."  See United

States v. Rivera-Sola, 713 F.2d 866, 869 (1st Cir. 1983).

  In this case, Doyon's "intent" to acquire cocaine is

difficult to dispute (and Doyon does not now challenge the

inference that he intended to distribute what he got).  Doyon had

said at the outset that he wanted to acquire four to ten ounces; he

had acquired three ounces from the same source on a prior occasion;

and his alacrity in pressing to pay off a prior drug debt supported

the inference that he had further interest in acquiring more

inventory and reasonably soon.

  On appeal, Doyon's attack on the evidence rests on the

premise that Doyon could not have intended to accept the new

delivery at the same time that he paid off his old debt (because

Escobar had said earlier that he did not have any drugs) and that

the payment of an old debt as a first step in securing a later

delivery is not the "substantial step" toward possession required

to make out an attempt.  The case law, says Doyon, usually involves

conduct by defendant that brings him somewhat closer to final

commission of the object crime.  E.g., United States v. Fisher, 3

F.3d 456, 462 n.18 (1st Cir. 1993) (planning deal, accepting

sample, arriving at scene of planned deal).

  It is a close question whether the evidence taken as a

whole would permit the jury to conclude that Doyon expected to buy

cocaine at the same time that he paid off his old debt.  Based on

evidence not presented to the jury, it appears that Doyon may well

have expected to make an immediate purchase; but, of course, our

concern is solely with what the jury could reasonably have found on

the evidence before it.  Escobar's statement that he had no drugs

occurred before Doyon came to the hotel, yet it might well be a

stretch to suppose that the jury could find beyond a reasonable

doubt that Doyon expected to make a purchase on November 6.

  The point need not be pursued.  In considering the motion

to acquit, the district judge rejected the notion that the jury

could find that Doyon had an intent to make a simultaneous

purchase, and in closing arguments both lawyers invited the jury to

focus on a different question, namely, whether in context Doyon's

effort to pay off his drug debt could be regarded as a substantial

step toward a purchase in the near future and might therefore

constitute a substantial step toward possession with intent to

distribute.  We consider the issue in the same light and, while

agreeing that this could be regarded as a close case, uphold the

refusal to direct a verdict.

  The evidence already mentioned was ample for the jury to

find beyond a reasonable doubt that Doyon intended to make a

purchase of cocaine from Escobar or Johnny in the near future and

that Doyon's effort to pay his prior drug debt was intended by him

to remove an express obstacle to this purchase.  The more difficult

question is whether Doyon's effort to make the payoff constituted

a substantial step "toward" the commission of the possession,

United States v. Figueroa, 976 F.2d 1446, 1459 (1st Cir. 1992),

cert. denied, 507 U.S. 943 (1993), or (as the Code frames the

issue) a substantial step "in a course of conduct planned to

culminate in [the defendant's] commission of the crime" in

question.  Model Penal Code  5.01(1)(c).

  Both the Code, and instructions we have approved, say

that the substantial step must be one "strongly corroborative of

the actor's criminal purpose."  Model Penal Code  5.01.  But "[i]f

there is separate evidence of criminal intent independent from that

provided by the substantial steps (e.g., a confessed admission of

a design to commit a crime), then the substantial steps need not

themselves be unequivocally indicative of criminal intent--they

must merely corroborate that intent."  Dworken, 855 F.2d at 17 n.3. 

Doyon's original, express statement of his aim to acquire four to

ten ounces after paying off his debt provides this independent

evidence of his intent, and his arrival at the hotel with ample

cash corroborates that intent.

  The difficult question is whether the conduct, here

Doyon's travel to the hotel with cash to pay off the prior debt, is

substantial in relation to reaching the criminal goal.  Decisions

often distinguish between a "substantial step" and "mere

preparation," but whether this comparison helps or hinders the

jury, it simply shifts the locus of ambiguity from one term to

another.  However, both our case law and the Code's specific

examples of conduct that may be found sufficient as a substantial

step show that the defendant does not have to get very far along

the line toward ultimate commission of the object crime in order to

commit the attempt offense.

  Contrary to at least some common law cases, the Code

names, as examples of acts that may be a substantial step, "lying

in wait, searching for or following the contemplated victim of the

crime," "reconnoitering" the place where the crime is to be

committed, and "possession of materials to be employed" in the

crime if specially designed for unlawful use.  Model Penal Code 

5.01(2).  The cases often involve somewhat more robust facts, but

the defendant's arrival at the scene ready to commit the crime has

been found adequate to constitute a substantial step in a number of

cases.  See United States v. Argencourt, 996 F.2d 1300, 1304 (1st

Cir. 1993), cert. denied, 510 U.S. 1061 (1994); Chapdelaine, 989

F.2d at 33.

  The main purpose of the substantial step requirement is

to distinguish between those who express criminal aims without

doing much to act on them and others who have proved themselves

dangerous by taking a "substantial step" down a path of conduct

reasonably calculated to end in the substantive offense.  Model

Penal Code  5.01 cmt. 6, at 329-31.  It is this purpose that

informs the judgment whether a specific act or acts, in context and

coupled with proof of intent, can be regarded as substantial, and

it helps explain the Code's otherwise confusing conflation of

intent and conduct in defining what is a substantial step.

  Given this guiding purpose, one can imagine a step toward

the offense--literally substantial in time and effort--that might

still not qualify as an attempt, at least if the intent was very

general.  But here, Doyon did not merely seek to pay off a drug

debt while generally contemplating some future purchase.  Doyon had

a prior relationship with his "wholesalers," he had made a prior

purchase on credit, he was paying off the first debt as a condition

of making a second purchase from the same wholesalers, and his plan

to acquire more drugs was specific down to the quantity of drugs

being sought.  Thus, the "fit" was tight enough for the jury to

conclude that Doyon's effort to pay off his prior debt was

effectively a substantial step toward possessing more drugs.

  There is one further concern.  Too ready classification

of an otherwise lawful act as a substantial step may capture

someone who might well have thought better, and abandoned the

effort, before the attempt flowered into the substantive crime. 

The Code attempts to deal with this problem by giving the defendant

an affirmative defense where he abandons the attempt by manifesting

"a complete and voluntary renunciation of his criminal purpose." 

Id.  5.01(4); see also Dworken, 855 F.2d at 20.  This is of no use

to Doyon whose attempt was frustrated and not voluntarily

abandoned.

  Doyon's other ground of appeal is his claim that the

district court erred in admitting the tape recordings.  He argues

that there was an inadequate "foundation" for admitting the tapes

because the government did not establish that the recording device

was in proper working order.  Indeed, the government admitted in

court that the tape recorder was an old one that had to be operated

manually and, at least in this instance, omitted the first few

seconds of both of the taped conversations that were introduced in

evidence.  Doyon argues that this undermined the necessary

foundation and also rendered the evidence misleading and subject to

exclusion under Fed. R. Evid. 403.

  The "foundation" required in order to authenticate real

evidence--here the tape recordings--is simply an evidentiary

showing of whatever facts are necessary in the circumstances to

prove that the item is what the proponent claims it to be.  Fed. R.

Evid. 901.  In the case of recorded conversations, some courts have

a recipe for this showing, e.g., United States v. McMillan, 508

F.2d 101, 104 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975),

but this circuit has simply required proof that the tape recording

accurately reflects the conversation in question.  

  It is true, as Doyon argues, that evidence derived from

the operation of a machine or instrument normally depends for its

validity on the premise that the device was in proper working

order, but the nature and stringency of this requirement varies

with the circumstances.  A scale that produces wildly disparate

readings is unlikely to furnish usable evidence of drug weight; but

a tape recorder that cuts off introductory remarks may (and so far

as we know here did) produce a perfectly accurate recording of the

remainder of the conversation.  An accurate tape recording of part

of a conversation is not inherently less admissible than the

testimony of a witness who heard only part of a conversation and

recounts the part that he heard.

  This brings us to the real issue, which is whether the

tapes' probative value was substantially outweighed by their

tendency to mislead on account of the missing portions.  Fed. R.

Evid. 403.  Such judgments, as to which the trial judge has

considerable latitude, United States v. Font-Ramirez, 944 F.2d 42,

47 (1st Cir. 1991), require a certain amount of imagination

wherever the exact content of the omitted portion is unknown.  But

the recorded portion of the conversation may contain

straightforward admissions and there may be no reason to suspect

that they were qualified by anything said in the omitted portions.

  This appears to be just such a case:  the key admissions

on the tapes were Doyon's expressed desire to purchase four to ten

ounces of cocaine, his intent to pay off his old debt as a

predicate, and his plan to meet promptly with Escobar at the hotel. 

These intentions were either confirmed by or at least consistent

with other evidence (the trip to the hotel, the possession of

money, the attempted flight), and Doyon himself is unable to

suggest what else would likely be on the missing portions of the

two tapes that might have tempered or contradicted the admissions.

  Thus, no basis exists to suppose that the tapes were

misleading at all, let alone that the district judge abused his

discretion in rejecting the objection.  Nor was there any

suggestion that the government chose to cut off portions of the

conversation or that it was doing anything other than its best to

obtain a complete recording.  See generally 1 Weinstein's Federal

Evidence  106.07[2], at 106-26 (McLaughlin ed., 2d ed. 1999). 

Thus, the conviction was proper and, while the sentence was

certainly severe, federal sentencing is largely outside the control

of federal judges.

  Affirmed.                             APPENDIX



Model Penal Code  5.01 (1985).  Criminal Attempt.

   (1) Definition of Attempt.  A person is guilty of an attempt to

commit a crime if, acting with the kind of culpability otherwise

required for commission of the crime, he:



    (a) purposely engages in conduct that would

  constitute the crime if the attendant

  circumstances were as he believes them to be;

  or



    (b) when causing a particular result is an

  element of the crime, does or omits to do

  anything with the purpose of causing or with

  the belief that it will cause such result

  without further conduct on his part; or



    (c) purposely does or omits to do anything

  that, under the circumstances as he believes

  them to be, is an act or omission constituting

  a substantial step in a course of conduct

  planned to culminate in his commission of the

  crime.



   (2) Conduct That May Be Held Substantial Step Under Subsection

(1)(c).  Conduct shall not be held to constitute a substantial step

under Subsection (1)(c) of this Section unless it is strongly

corroborative of the actor's criminal purpose.  Without negativing

the sufficiency of other conduct, the following, if strongly

corroborative of the actor's criminal purpose, shall not be held

insufficient as a matter of law:



    (a) lying in wait, searching for or following

  the contemplated victim of the crime;



    (b) enticing or seeking to entice the

  contemplated victim of the crime to go to the 

  place contemplated for its commission;



    (c) reconnoitering the place contemplated for

  the commission of the crime;



    (d) unlawful entry of a structure, vehicle or

  enclosure in which it is contemplated that the

  crime will be committed;



    (e) possession of materials to be employed in

  the commission of the crime, that are

  specially designed for such unlawful use or

  that can serve no lawful purpose of the actor

  under the circumstances;



    (f) possession, collection or fabrication of

  materials to be employed in the commission of

  the crime, at or near the place contemplated

  for its commission, if such possession,

  collection or fabrication serves no lawful

  purpose of the actor under the circumstances;



    (g) soliciting an innocent agent to engage in

  conduct constituting an element of the crime.



   (3) Conduct Designed to Aid Another in Commission of a Crime. 

A person who engages in conduct designed to aid another to commit

a crime that would establish his complicity under Section 2.06 if

the crime were committed by such other person, is guilty of an

attempt to commit the crime, although the crime is not committed or

attempted by such other person.



    (4) Renunciation of Criminal Purpose.  When the actor's conduct

would otherwise constitute an attempt under Subsection (1)(b) or

(1)(c) of this Section, it is an affirmative defense that he

abandoned his effort to commit the crime or otherwise prevented its

commission, under circumstances manifesting a complete and

voluntary renunciation of his criminal purpose.  The establishment

of such defense does not, however, affect the liability of an

accomplice who did not join in such abandonment or prevention.



   Within the meaning of this Article, renunciation of criminal

purpose is not voluntary if it is motivated, in whole or in part,

by circumstances, not present or apparent at the inception of the

actor's course of conduct, that increase the probability of

detection or apprehension or that make more difficult the

accomplishment of the criminal purpose.  Renunciation is not

complete if it is motivated by a decision to postpone the criminal

conduct until a more advantageous time or to transfer the criminal

effort to another but similar objective or victim.