                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                    No. 97-2644
                                   _____________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * Eastern District of Arkansas.
                                         *
Darnell Lecato Burks,                    *
                                         *
             Appellant.                  *
                                   _____________

                                 Submitted: December 10, 1997
                                     Filed: February 2, 1998
                                  _____________

Before BOWMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                         _____________

BOWMAN, Circuit Judge.

      A jury convicted Darnell Burks of attempted possession with intent to distribute
cocaine. See 21 U.S.C. § § 846, 841(a)(1) (1994). Burks filed a Motion for Acquittal
or Alternate Motion for New Trial. The District Court1 denied the motion. Burks
appeals, claiming that the evidence was insufficient to allow a jury to conclude that he
completed a substantial step toward possessing the cocaine. We conclude that the
record contains sufficient evidence to support Burks's conviction.



      1
       The Honorable Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas.
                                           I.

       The case involves the controlled delivery of a package containing cocaine to
Burks at his apartment on June 24, 1996. The package was addressed to Burks at his
home address, and included a return address of Mary Ann Evans, 826 Galapago Street,
Spring Valley, California 91977. See Trial Tr. at 38. The label on the package,
however, indicated that it was actually mailed from an office located in the 92113 zip
code area, see id., which is in San Diego, California. Law enforcement officers
intercepted the package, found 542 grams of cocaine contained inside, repackaged it,
and then delivered it to Burks. Burks was at home and signed for the package. At the
time of delivery, Postal Inspector Ron Nelson observed that Burks was the only one
present and that the window shades were open. See id. at 55.

        Approximately two minutes after Burks accepted the package, officers entered
Burks's home and executed a search warrant. When the officers entered the home,
Burks was seen running from the master bedroom to the bathroom. See id. at 83. The
shades were closed, and officers found the package in the master bedroom. See id. at
76-77. The package had not been opened so that the contents were exposed, but a cut
had been made down one side. Officers found a utility knife beside the package, see
id. at 46, and elsewhere in the master bedroom found a plate, a razor blade, and a small
plastic baggie with some residue. See id. at 62-63. In the headboard of the bed in the
master bedroom, officers found seven hundred dollars in cash and three Western Union
Money Order receipts totaling seven hundred dollars. The three receipts named Burks
as the sender, Darrell Bell in San Diego as the recipient, and were sent on June 20,
June 21, and June 23 of 1996. See id. at 85-86, 69-70.



                                          II.




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        Burks claims that the evidence is insufficient to support his conviction. We will
reverse the conviction only "if a reasonable minded jury must have a reasonable doubt
as to the existence of one of the crime's essential elements." United States v. Watson,
953 F.2d 406, 408 (8th Cir. 1992). In reviewing the claim, we examine the evidence
in the light most favorable to the jury verdict and give that verdict the benefit of all
reasonable inferences. See United States v. Duke, 940 F.2d 1113, 1117 (8th Cir.
1991), cert. denied, 116 S. Ct. 224 (1995).

       To prove attempt, the government must show 1) intent to engage in the crime and
2) conduct constituting a substantial step towards the commission of the crime. See
United States v. Buchanan, 985 F.2d 1372, 1376 (8th Cir. 1993), cert. denied, 512 U.S.
1228 (1994). "A substantial step goes beyond mere preparation but may be less than
the last act necessary before commission of the substantive crime." United States v.
Plenty Arrows, 946 F.2d 62, 66 (8th Cir. 1991) (internal quotation marks omitted).

       Burks argues that, because he never opened the package, his actions did not
constitute a substantial step. Burks relies primarily on United States v. Joyce, 693 F.2d
838 (8th Cir. 1982). In Joyce, Joyce flew from Oklahoma City to St. Louis to meet
with an informant who was posing as a cocaine seller. The parties agreed on a price,
but Joyce refused to show the informant his money until the package was opened so
that Joyce could see the cocaine. When the informant refused to open the package,
Joyce left without making the purchase. Joyce was then arrested and convicted of
attempt to possess with the intent to distribute cocaine. On appeal, we reversed Joyce's
conviction, finding that Joyce's acts had not constituted a substantial step. See id. at
841-43. We determined that "[w]hatever intention Joyce had to procure cocaine was
abandoned prior to the commission of a necessary and substantial step" and the fact
that he "unambiguously refused" either to show the money or to purchase the cocaine
negated the government's effort to consummate the sale. Id. at 841-42. Subsequent
decisions also have turned on whether it was the defendant himself--rather than a third
party--who ended the chain of events leading toward, but not resulting in, the



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commission of a substantive crime. See, e.g., United States v. Jonsson, 15 F.3d 759,
762 (8th Cir.), cert. denied, 513 U.S. 986 (1994) (finding that, even though the
defendant had not yet indicated the number of bombs he wanted to purchase, his acts
constituted a substantial step because he "continued to negotiate with the government
agents until his arrest prevented him from doing so" ); United States v. Mims, 812 F.2d
1068, 1078 (8th Cir. 1987) (finding that the defendant's acts constituted a substantial
step because "[u]nlike Joyce, in the present case it was [another party], rather than [the
defendant], who ended the negotiations").

      This case differs from Joyce because here it was the intervention by government
agents that ended the chain of events. Officers entered the home just a couple of
minutes after Burks received the package. Burks was seen running from the bedroom,
where the package was found. The package had been cut down the side and a utility
knife was lying beside the package. The jury reasonably could infer that, but for the
execution of the search warrant just two minutes after the package had been delivered,
Burks would have taken irrefutably knowing possession of the cocaine.

       Furthermore, the jury was presented with other circumstantial evidence that
supports the conclusion that Burks's actions constituted a substantial step toward actual
possession of the cocaine. "A reasonable fact-finder may find guilt beyond a
reasonable doubt based solely on circumstantial evidence." United States v. Garrett,
948 F.2d 474, 476 (8th Cir. 1991), cert. denied, 117 S. Ct. 374 (1996). Burks was
found alone in his home with a large amount of drugs that had been sent directly to him
at his residence. Also found near the drugs in his home were a plate, baggies, and a
razor blade, and the three Western Union Money Order receipts found in the headboard
of the bed in the master bedroom of Burks's home provided yet more circumstantial
evidence supportive of the jury verdict. The receipts named Burks as the sender and
San Diego as the place to which he sent the money orders. San Diego is, of course, the
same city from which the package of cocaine came.




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      We conclude the evidence was sufficient for the jury to convict Burks of
attempted possession with intent to distribute cocaine. We therefore affirm Burks's
conviction.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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