United States v. Carothers

United States Court of Appeals,

Eleventh Circuit.

No. 95-8903.

UNITED STATES of America, Plaintiff-Appellee,

v.

James Kevin CAROTHERS, Defendant-Appellant.

Sept. 10, 1997.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-CR-
234-7-GET), G. Ernest Tidwell, Judge.

Before EDMONDSON, Circuit Judge, and KRAVITCH and HENDERSON, Senior Circuit Judges.

PER CURIAM:

Before August 1994, agents of the Drug Enforcement Agency ("DEA") were conducting a

long-term investigation of Defendant-Appellant James Carothers ("Defendant") and several other

people about a conspiracy to distribute cocaine and MDMA (a/k/a "Ecstasy"). At this time, the DEA

was using an informant to make several controlled buys of cocaine and MDMA from these

conspirators, including Stephen Farrar. In August 1994, the DEA, based upon the informer's

knowledge, approached Farrar about his involvement in the conspiracy; Farrar agreed to cooperate

with the DEA.

On 30 September 1994, the DEA set up a sting operation in which Farrar participated. The
operation involved Farrar acting as a middleman between Stephen Smith and Defendant. As a

result, the DEA arrested Defendant, Smith, and Thomas Lehr (another party to the transaction) for

the attempted distribution of MDMA.1 The 1994 transaction is the subject of this opinion, but the

evidence discussed below is relevant to the decision.

At trial, Farrar testified that from 1991 to 1993 he dealt illegal drugs, including cocaine and

MDMA, with Defendant and several other people. Farrar said that he bought MDMA from

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The MDMA involved in this transaction turned out to be a noncontrolled legal substance
rather than an illegal form of MDMA. Therefore, the parties could not be convicted of the
substantive offenses of possession and distribution of MDMA.
Defendant ten to twelve times and described the different ways in which the exchanges took place.

Also, Farrar testified that Defendant made it clear that they were not to use the terms "Ecstasy" or

"MDMA" on the telephone. Instead, Farrar was to use code language to communicate to Defendant

the amount of MDMA he wanted.

Farrar testified about a drug transaction that took place on 8 December 1993 that involved

himself, Rob Canavan, Joe Sternagle, and Defendant. Canavan and Sternagle met Farrar in a

restaurant parking lot and gave him $9,500. Farrar took this money and bought 1,000 tablets of

MDMA from Defendant and then delivered the MDMA to Canavan. Farrar also testified that

Defendant preferred using Farrar as a middleman when dealing with Canavan because Defendant

believed Canavan was too high-profile of a drug dealer.

Canavan corroborated Farrar's testimony about the December 1993 drug transaction and

stated that Farrar had told him that his source was Defendant. On 17 December 1993, Canavan sold

100 of the MDMA tablets he bought from Farrar to a DEA agent. These pills were an illegal form

of MDMA. Canavan also testified that when he attempted to buy MDMA directly from Defendant,

Defendant had told him to use Farrar as a middleman.

In addition, other witnesses testified about transactions that they had with Defendant

involving cocaine and MDMA. One of these witnesses, Andre Bedard, stated that he had conducted

deals in the same manner as Farrar had with Defendant. He specifically testified that Defendant had
warned him not to use the terms "MDMA" and "Ecstasy" on the telephone.

Farrar also testified about his participation in the drug deal on 30 September 1994 that led

to Defendant's arrest. Defendant had contacted Farrar and informed him that he had MDMA

available, and Farrar (working for the DEA) then contacted Smith (the buyer) to set up a transaction.

Smith gave Farrar money and the title to a car, which Farrar gave to Defendant. Defendant then left

and met with Lehr (the supplier) to purchase 3,000 tablets of what was supposed to be MDMA.

These tablets later turned out to be a noncontrolled legal substance. In the meantime, to complete

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the transaction, Farrar picked up a package from the DEA to give it to Smith. Following these

transactions, Defendant, Smith, and Lehr were arrested.

Based on this evidence, Defendant was convicted by a jury for the conspiracy to possess with

the intent to distribute quantities of MDMA, distribution of MDMA, and attempt to possess with the

intent to distribute MDMA. Defendant's motion for a new trial and judgment of acquittal were

denied, and Defendant appealed.

Discussion2

Defendant argues that he did not intend to sell illegal drugs on 30 September 1994; instead,

he contends that he was merely passing off a legal substance as MDMA, an illegal drug. Defendant

says that, because the pills were, in fact, not an illegal substance, the evidence was insufficient to

convict him of Count VI—attempt to possess MDMA with the intent to distribute.

In evaluating the sufficiency of evidence, a question of law, we conduct a de novo review.

United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989). Also, we look at the evidence in the light

most favorable to the government and accept all of the jury's inferences and determinations of

credibility. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

To convict for attempt, the government must prove: (1) the defendant was acting with the

kind of culpability otherwise required for the commission of the crime for which he is charged with

attempting; and (2) the defendant was engaged in conduct that constitutes a substantial step toward

the commission of the crime. United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974). We

later clarified this test in United States v. Oviedo, 525 F.2d 881, 885 (5th Cir.1976), and wrote that

for a defendant to be guilty of attempt, the defendant's objective acts, without reliance on the

2
In addition to the issues discussed, Defendant made the following claims on appeal: (1) that
the government, through prosecutorial misconduct, violated Defendant's Sixth Amendment right
to counsel of his choice; (2) that the district court erred in failing to exclude Casey Caylor's
testimony; (3) that the trial court erred in failing to grant Defendant's motion for judgment of
acquittal; (4) that the district court erred in denying Defendant's motion for severance; (5) that
insufficient evidence supported Defendant's conviction on Count V of the indictment,
distribution of MDMA; and (6) that the trial court erred in instructing the jury. We conclude
that none of these contentions have merit and affirm the district court's decision on each of these
matters.

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accompanying mens rea, must mark the defendant's conduct as criminal. "In other words, the

defendant's acts, taken as a whole, must strongly corroborate the required culpability; they must not

be equivocal." United States v. McDowell, 705 F.2d 426, 428 (11th Cir.1983) (citing United States

v. Korn, 557 F.2d 1089 (5th Cir.1977)).

In this case, the Defendant's objective acts, taken as a whole, unequivocally mark his

conduct as criminal. The evidence established that the Defendant was periodically involved in

systematic and continuous illegal drug transactions. Defendant's objective acts include: (1) multiple

drug transactions with Farrar and Bedard; (2) clandestine behavior between Defendant, Farrar, and

Bedard on deals for MDMA; (3) systematic use of a middleman in conducting the transactions; (4)

a large-scale drug deal for MDMA involving several other parties; and (5) the exchange of large

sums of money, indicating the illegal nature of the substances.

Viewing the evidence as a whole and in favor of the government, we cannot say the fact that

legal pills were sold on this particular occasion (30 September 1994) by Defendant casts doubt on

the unequivocal criminal nature of Defendant's conduct. Cf. McDowell, 705 F.2d at 428 (upholding

conviction for attempted possession with intent to distribute, despite defendant's refusal to complete

transaction, based on (1) prior drug transaction; (2) conversations about the deal; (3) defendant's

trip to the site of deal; and (4) possession of drug paraphernalia and gun by defendant). Simply

because Defendant received no illegal drugs from his supplier on this occasion does not provide a
defense to a crime for which his objective acts clearly demonstrate an intent to commit.

AFFIRMED.

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