                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-1997

United States v. Cooper
Precedential or Non-Precedential:

Docket 96-1763




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iled August 11, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1763

UNITED STATES OF AMERICA,

v.

JIMMY LEE COOPER, a/k/a JIMMIE LEE COOPER,
a/k/a JIM DAVID

Jimmy Lee Cooper,

Appellant.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 95-cr-00558)

ARGUED MAY 8, 1997

BEFORE: STAPLETON and LEWIS, Circuit Judges
and WALLS,* District Judge.

(Filed August 11, 1997)



_________________________________________________________________
* Honorable William H. Walls, United States District Judge for the
District of New Jersey, sitting by designation.
William A. DeStefano (ARGUED)
DeStefano & Warren, P.C.
437 Chestnut Street
Lafayette Building, Suite 1006
Philadelphia, PA 19106

Attorney for Appellant

Zane D. Memeger (ARGUED)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

LEWIS, Circuit Judge.

Jimmy Lee Cooper was convicted of tampering with a
government informant. Because we find that there was
insufficient evidence to support his conviction, we will
reverse.

I.

On October 3, 1995, Cooper was indicted on two counts
of tampering with a government informant, in violation of
18 U.S.C. § 1512(b)(3), in the United States District Court
for the Eastern District of Pennsylvania. The charges
stemmed from events that occurred during the course of a
joint drug investigation by the Bristol Township Police
Department (BTPD) and the Drug Enforcement
Administration (DEA).

On April 13, 1995, Kinny Hicks, the informant, arranged
to meet Cooper to purchase crack cocaine. Prior to the
meeting, DEA agents searched Hicks, gave him $700 and
equipped him with a body recorder and electronic
transmitter. At the meeting, Cooper sold Hicks a white
substance for $700. After the meeting, Hicks turned the
substance over to the DEA. The DEA then conducted a

                                 2
preliminary field test which showed that the substance
"reacted positive to the presence of a caine derivative . . .
meaning lidocaine, procaine, or cocaine." S.A. at 9a-10a.
On May 31, 1995, the substance was sent to a DEA lab for
a full drug analysis.

On June 23, 1995, Hicks again contacted Cooper in order
to arrange a purchase of one and one-half ounces of crack.
Prior to this meeting, Hicks met again with DEA agents,
who searched him, gave him $1,400 and equipped him with
a body recorder and electronic transmitter. Hicks then went
to meet Cooper. At around 6:00 p.m., Cooper and two of his
friends arrived by car. Hicks entered the car and Cooper
tried to give him a bag containing white powder. Hicks did
not accept it, stating that he wanted crack and not cocaine
powder.

After failing to convince Hicks to take the powder, Cooper
told him that his friends would get the powder "cooked up."
A. at 22. Hicks then left the car and waited. Around
6:30 p.m., Cooper spoke again with Hicks about the delay.
At that time, Cooper spotted an unmarked police car
containing a DEA agent. He charged the car and began
"sticking his tongue out and pointing at himself, saying, uh
huh, this is me right here." A. at 24. He then accused Hicks
of trying to set him up and ordered one of his friends to get
his gun because he was going to kill Hicks. Hicks
subsequently left the scene and was picked up by DEA
agents.

Later that evening, Cooper called the BTPD and told a
BTPD detective that he knew Hicks "was a cop . . . or police
and that he was going to fuck up Kinny Hicks." S.A. at 51-
52. He also called Hicks' home and told Kinny Hicks'
brother that Kinny had set him up. Later in June, he told
Jermaine Perry, a mutual acquaintance, that Hicks had set
him up and that "when I see him I'm going to fuck him up."
S.A. at 61. On August 2, 1995, Cooper spotted Hicks at a
store and told him that he "had better watch[his] back." A.
at 33.

The substance that Cooper attempted to sell to Hicks on
June 23 was never recovered. In July 1995, the DEA
learned that the substance that Hicks bought from Cooper

                               3
on April 3, 1995, was procaine, which is not a controlled
substance.

At trial, the government presented testimony from Hicks
and other witnesses concerning these threats. At the
conclusion of the trial, the district court instructed the jury
that the government had the burden of proving that Cooper
"knowingly used intimidation and threats against a
government informant with the intent to hinder, delay or
prevent the communication to a law enforcement officer,
here the drug enforcement agents, of information relating to
the commission or possible commission of a federal offense,
in this instance trafficking in drugs." A. at 90. The court
also instructed the jury that "[s]elling drugs, such as
cocaine powder or crack, is a federal offense. So is selling
what is called a counterfeit substance as though it were the
genuine controlled substance, such as cocaine." A. at 91.
There were no objections to these instructions. On March
20, 1996, the jury returned a verdict of guilty on both
counts. On August 22, 1996, Cooper was sentenced to 42
months on each count, to be served concurrently.

The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Cooper makes three arguments on appeal: (1) there was
insufficient evidence to support his conviction for tampering
with a witness; (2) the jury instructions were flawed; and (3)
he received ineffective assistance of counsel because his
attorney failed to object to plainly erroneous jury
instructions. Cooper argues that, as a result, his conviction
must be reversed and that a retrial is barred by the Double
Jeopardy Clause of the Fifth Amendment.1
_________________________________________________________________

1. The Double Jeopardy Clause provides that no person shall "be subject
for the same offense to be twice put in jeopardy." U.S. Const. amend. V.
Thus, "when a defendant's conviction is reversed by an appellate court
on the sole ground that the evidence was insufficient to sustain the
jury's verdict, the Double Jeopardy Clause bars a retrial on the same
charge." Lockhart v. Nelson, 488 U.S. 33, 39 (1988); Taberer v. Armstrong
World Indus., Inc., 954 F.2d 888, 908 (3d Cir. 1992).

                               4
The government concedes that the jury instructions were
flawed but argues that the case should be remanded for a
new trial because there is sufficient evidence to convict
Cooper. As a result of this concession, we need only
address Cooper's first claim.2

"A claim of insufficiency of evidence places a very heavy
burden on the appellant." United States v. Coyle, 63 F.3d
1239, 1243 (3d Cir. 1995). In such cases, we must"view
the evidence in the light most favorable to the government."
Id. Moreover, we "must affirm the conviction[ ] if a rational
trier of fact could have found [the] defendant guilty beyond
a reasonable doubt, and the verdict is supported by
substantial evidence." Id. If there is substantial evidence to
support the jury's determination, we will "not disturb the
verdict although on that evidence we might not have made
the same decision." United States v. Hannigan , 27 F.3d
890, 892 (3d Cir. 1994).
18 U.S.C. § 1512, "Tampering with a witness, victim, or
an informant" (the "Witness Tampering Statute"), provides,
in relevant part:
_________________________________________________________________

2. The district court instructed the jury, without objection from trial
counsel, that the third essential element of witness tampering in this
case was that Cooper was involved in "trafficking in drugs." A. at 91. The
court then instructed the jury, again without objection, that "selling
drugs, such as cocaine powder or crack, is a federal offense. So is selling
what is called a counterfeit substance as though it were the genuine
substance, such as cocaine." Id.

There was insufficient evidence presented at trial from which the jury
could properly conclude that Cooper threatened the government
informant in relation to "trafficking in drugs," or specifically, the sale of
a counterfeit substance, in violation of 21 U.S.C.§ 841(a)(2). And
because the district court misapplied the term "counterfeit substance,"
see infra IIB, there is a strong possibility that the jury may have
improperly convicted Cooper of witness tampering if it had understood
the jury instructions to mean that one could be guilty of drug trafficking
if one sold procaine as if it were cocaine. The government concedes this
point. This concession moots the ineffective assistance of counsel claim.

                               5
Whoever knowingly uses intimidation or physical force,
threatens, or corruptly persuades another person, or
attempts to do so, or engages in misleading conduct
toward another person, with intent to . . .

hinder, delay, or prevent the communication to a law
enforcement officer or a judge of the United States of
information relating to the commission or possible
commission of a Federal offense or a violation of
conditions of probation, parole, or release pending
judicial proceedings;

shall be fined under this title or imprisoned not more
than ten years, or both.

18 U.S.C. § 1512(b)(3) (emphasis added.)

In United States v. Stansfield, 101 F.3d 909 (3d Cir.
1996), we considered a substantially similar provision of
the Witness Tampering Statute, section 1512(a)(1)(C). The
essential elements of an offense under that section are:

(1) the defendant killed or attempted to kill a person;

(2) the defendant was motivated by a desire to prevent
    the communication between the informant and
    law enforcement authorities concerning the
    commission or possible commission of an offense;

(3) the offense was actually a federal offense;

(4) the defendant believed that the informant might
    communicate with the federal authorities.

See id. at 918. Stansfield's analysis applies as well to
section 1512(b)(3), in cases in which a defendant threatens
another person.

B.

Cooper argues that the government failed to prove the
third Stansfield element, "the offense was actually a federal
offense."3 The government concedes that there was no
_________________________________________________________________

3. Cooper also argues that Stansfield requires that the government prove
that a defendant charged under the Witness Tampering Statute believe

                               6
evidence presented at trial from which the jury could
properly conclude that Cooper threatened Hicks in relation
to the actual sale of a controlled substance or counterfeit
substance. However, the government argues that there was
sufficient evidence to prove another underlying crime:
attempted sale of a controlled substance, a violation of 21
U.S.C. § 846.

We agree that the evidence does not support a finding
that there was an actual underlying sale of a controlled or
counterfeit substance. 21 U.S.C. § 841(a) provides in
relevant part, that

it shall be unlawful for any person knowingly or
intentionally --

(1) to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a
controlled substance; or

(2) to create, distribute, or dispense, or possession
with intent to distribute or dispense, a counterfeit
substance.

21 U.S.C. § 841(a) (1981). Because it is undisputed that
procaine is not a "controlled substance" under federal law,
see 21 U.S.C. § 812 (1981) (listing controlled substances),
there is no evidence here of an actual sale of drugs in
violation of 21 U.S.C. § 841(a)(1)(1981).

Moreover, 21 U.S.C. § 802(7) provides that
_________________________________________________________________

that the person threatened would communicate with federal law
enforcement agents. Here, Cooper testified that he believed that he was
under surveillance by BTPD. Moreover, a BTPD Detective testified that
he told Cooper on June 23 that he was the subject of a local law
enforcement investigation. Cooper argues that there is no basis in fact to
infer that he believed that Hicks worked for and would communicate
with federal law enforcement agents. Such a belief is unnecessary for
Cooper to have violated the Witness Tampering Statute. See United
States of America v. Bell, 1997 WL 269404, *5 (3rd Cir. May 22, 1997)
("What our analysis renders irrelevant is the defendant's `mental state'
regarding the fact that the officer is a federal officer" for the purposes of
the Witness Tampering Statute).

                               7
[t]he term `counterfeit substance' means a controlled
substance which, or the container or labeling of which,
without authorization, bears the trademark, trade
name, or other identifying mark, imprint, number, or
device, or any likeness thereof, of a manufacturer,
distributor, or dispenser other than the person or
persons who in fact manufactured, distributed, or
dispensed such substance and which thereby falsely
purports or is represented to be the product of, or to
have been distributed by, such other manufacturer,
distributor, or dispenser.

21 U.S.C. § 802(7)(1981) (emphasis added.) By definition, a
"counterfeit substance" is a "controlled substance." If a
particular substance is not a "controlled substance," then it
cannot be a "counterfeit substance" within the meaning of
Section 802(7). Because procaine is not a controlled
substance, it cannot be a counterfeit substance. Thus, the
sale of procaine cannot amount to a sale of a counterfeit
substance, in violation of 21 U.S.C. § 841(a)(2) (1981).

Despite this, the government argues that the evidence
presented at trial could support a jury's finding that Cooper
threatened the government informant in relation to an
attempt to distribute cocaine, in violation of 21 U.S.C.
§ 846. That section provides:

Any person who attempts or conspires to commit any
offense defined in this subchapter [including 21 U.S.C.
§ 841(a)(1), which makes it unlawful to distribute or
possess with intent to distribute cocaine] shall be
subject to the same penalties as those prescribed for
the offense, the commission of which was the object of
the attempt or conspiracy.

21 U.S.C. § 846 (1997).

In United States v. Everett, 700 F.2d 900 (3d Cir. 1983),
we held that in order for a defendant to be found
guilty of attempt under section 846, the government
must "introduce some measure of objective evidence
corroborating the attempted distribution of a controlled
substance." Everett, 700 F.2d at 908. In that case, Everett
was convicted of attempting to distribute P-2-P (a controlled
substance) even though the substance he actually had was

                               8
a non-controlled substance. We found sufficient evidence to
support the jury's finding because

[t]he government established not only that Everett
promised to sell a controlled substance and that he
transferred the substance furtively, but also that
immediately after arrest and proper Miranda warnings
Everett confessed, identifying the substance he had
distributed as P-2-P and revealing that he had gotten
his P-2-P from Joseph Jackson who had obtained it
from Frank. This statement unequivocally marked his
conduct as an attempt to distribute P-2-P.

Id. at 909. We concluded that "the objective acts performed,
without any reliance on the accompanying mens rea, mark
the defendant's conduct as criminal in nature." Id. (quoting
United States v. Oviedo, 525 F.2d 881, 885 (5th Cir. 1976)).
Thus, a defendant can be guilty of an attempt to sell drugs
even if the purported drugs turn out to be a non-controlled
substance. In other words, impossibility is not a defense to
the charge of attempted distribution of a controlled
substance. Id. at 908.

We also emphasized, however, that we require a strong
evidentiary basis to support a finding of attempt in the
absence of the drug itself. Id. at 909 ("The acts should be
unique rather than so commonplace that they are engaged
in by persons not in violation of the law.") (quoting United
States v. Oviedo, 525 F.2d 881, 885 (5th Cir. 1976)).

The Fifth Circuit has taken substantially the same
approach in Oviedo, finding that "the objective conduct of
the defendant must strongly corroborate the firmness of the
defendant's criminal intent." Oviedo, 525 F.2d at 886.
There, the court found that the evidence was insufficient
where there were only

two objective facts. First, Oviedo told the agent that the
substance he was selling was heroin, and second,
portions of the substance were concealed in a television
set. If another objective fact were present, if the
substance were heroin, we would have a strong
objective basis for the determination of criminal intent
and conduct consistent with and supportive of that
intent . . . . But when this objective basis for the

                               9
determination of intent is removed, when the
substance is not heroin, the conduct becomes
ambivalent . . . . We cannot conclude that the objective
acts of Oviedo apart from any indirect evidence of
intent mark his conduct as criminal in nature. Rather,
those acts are consistent with a non-criminal
enterprise.

Id. at 882.

In United States v. Hough, 561 F.2d 594, 595 (5th Cir.
1977), the Fifth Circuit again emphasized that objective
facts proven at trial must be "unequivocally corroborative of
criminal intent" before it could find sufficient evidence of
attempt to distribute a controlled substance. While
affirming Hough's conviction in the absence of a genuine
controlled substance, the court noted that

if the only fact on this record were Hough's negotiation
for the sale of a non-narcotic substance, Oviedo would
compel the court to grant the defendant's motion to
vacate his guilty plea. There is also present, however,
an objective fact which is unequivocally corroborative
of criminal intent: Hough's statement, under oath and
before a court of law, that he did in fact do those
things that the Assistant United States Attorney recited
(i.e., negotiated for sale a substance he admittedly
thought to be cocaine).

Id.

The government argues that there was sufficient objective
evidence to show that on June 23rd, Cooper attempted to
sell Hicks cocaine even though the powder was not
recovered. It relies on the following evidence: Cooper
contacted Hicks by telephone and negotiated a sale of one
and one-half ounces of crack cocaine for $1,400; he met
Hicks and attempted to give him a bag containing a white
powdery substance which he stated was cocaine; and he
agreed to get the substance "cooked up" into crack. This
evidence, the government argues, proves that Cooper
believed that he was selling genuine cocaine.

Cooper responds that the most compelling inference
regarding the events of June 23rd is that he was attempting

                               10
to defraud Hicks by selling him procaine and telling him
that it was cocaine, just as he had done on April 13th. He
relies on the following evidence to support this position. On
June 23, Hicks handed the substance back to Cooper"and
told him that is not what I wanted." A. at 22. Hicks also
testified that Cooper was trying to "pass" that substance
"off to me as crack," that he told Cooper that it was not
crack and that he "knew that it didn't have to be cooked
up." Id. Moreover, Cooper notes that his statements on
June 23rd were virtually identical to those he made on
April 13th, when he had sold procaine as if it were cocaine.
Finally, he argues that his antagonistic behavior toward law
enforcement agents -- sticking out his tongue at an
undercover agent and later calling the Bristol Township
Police Department -- were inconsistent with actions of one
who believed that he was involved in a genuine drug deal.

Although the government is entitled to have the evidence
viewed in the best possible light, Cooper's arguments are
compelling. A substantial possibility exists that Cooper was
perpetrating a fraud on Hicks, like the one that he had
committed on April 13th. Moreover, unlike in Everett and
Hough, there is no post-arrest admission by the defendant
which would provide strong objective evidence of an
attempt to commit a narcotics offense. Nor has the
government recovered a genuine controlled substance,
which would also provide strong objective evidence. See
Oviedo, 525 F.2d at 882. In our view, the government has
not provided sufficient evidence to convict Cooper of a
violation of the Witness Tampering Statute where the
underlying offense is attempt to sell cocaine in violation of
21 U.S.C. § 846.4
_________________________________________________________________

4. After oral argument, the government also argued that

clearly the protections afforded to a government informant (who is
assisting DEA in a lawful drug investigation which is based on
representations by the defendant that he is dealing cocaine) under
the witness tampering statute should not be predicated on whether
the drugs sold by the defendant were in fact a controlled substance
or believed by the appellant to be a controlled substance.

Appellee's Second Supplemental Brief at 1. To hold otherwise, the
government argues, would undermine the purpose of the statute, which
is to ensure that people come forward to testify at criminal trials.

                               11
For the foregoing reasons, we conclude that there was
insufficient evidence to support Cooper's conviction for
tampering with a government informant. We further
conclude that a retrial is barred by the Double Jeopardy
Clause. See Lockhart, 488, U.S. at 39; Taberer, 954 F.2d at
908 ("[T]he double jeopardy clause prohibits retrial when
the government has failed to present minimally sufficient
evidence at the first trial.").

III.

Because there was insufficient evidence to support the
jury's guilty verdict, we will reverse Cooper's conviction and
direct the entry of a judgment of acquittal.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

As we noted above, this position is inconsistent with the plain
language of the statute. The statute requires that the offense was
actually a federal offense. 18 U.S.C. § 1512(b)(3); Stansfield, 101 F.3d at
918. Moreover, as Cooper notes, Pennsylvania has an analogous witness
tampering statute that protects persons not within the reach of the
federal statute. See 18 Pa. C.S.A. § 4952(a) (Purdon's 1983) (punishing
persons who threaten or intimidate a witness or victim with the intent to
"impede, impair, prevent or interfere with the administration of criminal
justice . . . .").

                               12
