                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2004

USA v. Earp
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3783




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                                          NOT PRECEDENTIAL


           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          NO. 02-3783




               UNITED STATES OF AMERICA

                               v.

                     STACY R. EARP, JR.,
                         Appellant




     On Appeal From the District Court of the Virgin Islands
             (D.C. Civil Action No. 02-cr-00042)
         District Judge: Honorable Thomas K. Moore




                   Argued December 8, 2003

BEFORE: NYGAARD, BECKER and STAPLETON, Circuit Judges

                (Opinion Filed: January 6, 2004)




                      Judith L. Bourne (Argued)
                      P.O. Box 6458
                      34B-35 Norre Gade
                      Charlotte Amalie, St. Thomas, USVI 00804
                       Attorney for Appellant
                                   John E. Stevens
                                   Office of the United States Atttorney
                                   United States Courthouse
                                   5500 Veterans Building, Suite 260
                                   Charlotte Amalie, St. Thomas, USVI 00802-6924
                                    and
                                   David M. Nissan
                                   United States Attorney
                                   Bruce Z. Marshack (Argued)
                                   Office of the United States Attorney
                                   1108 King Street, Suite 201
                                   Christiansted, USVI 00820
                                    Attorneys for Appellee




                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

              Defendant Stacy R. Earp (“Earp”) appeals his conviction and sentence for

attempted possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§

841(a)(1) and 846 (2002), and attempted importation of cocaine into the Customs

Territory of the United States, in violation of 21 U.S.C. §§ 952(a), 960(b)(1), and 963

(2002). Earp argues that the evidence presented by the government at trial was not

sufficient to support his conviction on either charge. Earp also argues that a statement

made to the jury by the government during its rebuttal closing argument resulted in a

violation of his right to due process. For the reasons set forth below, we will affirm the


                                             2
conviction.

I.            Facts and Procedural History

              On March 8, 2002, at approximately 11:35 a.m., Stacy R. Earp entered Cyril

E. King Airport at St. Thomas in the U.S. Virgin Islands. His flight to North Carolina

was scheduled to depart later that day, at approximately 4:20 p.m. While passing through

the pre-flight U.S. Customs inspection, Earp aroused the suspicion of his interviewer,

U.S. Customs Inspector Christopher Rice. Inspector Rice testified as to the reasons for

his suspicion. Earp could not, at first, recall when he arrived in St. Thomas, but then

stated that he had arrived the previous day. Additionally, on the subject of his sudden

departure, Earp told Inspector Rice that he had intended to stay in St. Thomas until March

28, 2002, but was leaving after one day because he had learned the night before that his

father had unexpectedly died. Furthermore, instead of returning to North Carolina on the

return portion of his original round-trip American Airlines ticket, the ticket that Earp

presented to Inspector Rice, and upon which he was flying that day, was a U.S. Airways

round-trip ticket that had been purchased on March 5, 2002 – before his father was

supposed to have died.1

              His suspicions aroused, Inspector Rice requested the assistance of U.S.

Customs Inspector Ralph Da Sant. The two began an inspection of Earp’s luggage, and



     1
    Mr. Earp claimed to have lost the return portion of his original American Airlines
ticket; however, that portion of his ticket was later found in a second bag that Mr. Earp
had checked before proceeding through U.S. Customs.

                                              3
found that Earp’s green carry-on bag was brand new and nearly empty except for its

original packing material and warranty card. Inspectors Rice and Da Sant then requested

a pat down of Appellant, but found nothing. Still suspicious, the inspectors allowed Earp

to pass and maintained surveillance on him. At approximately 12:29 p.m., video

surveillance showed Earp proceeding through the airport security checkpoint to the food

court area, where he sat at a bar.

              By the time Earp entered this passenger area, another man, later identified

as Shawn Callwood, had already passed through U.S. Customs. Callwood was brought

under surveillance because he was dressed similarly to Earp and both individuals had

been wearing a “fisherman’s type” hat. Callwood was also scheduled to depart St.

Thomas on the same flight as Earp. At 12:00 p.m., video surveillance showed Callwood

entering the airport restroom with one bag. When Callwood emerged from the restroom

at 12:17 p.m., he had an additional bag that appeared to be identical to the green carry-on

bag that Earp was carrying.

              At 12:57 p.m., forty minutes after Callwood emerged from the restroom and

twenty-eight minutes after Earp had sat at the bar, Callwood was observed walking up to

the bar at which Earp was sitting. At that point, Callwood had the green bag with him

that matched Earp’s green carry-on bag. For approximately thirty-five seconds, the video

surveillance showed that Callwood may have been speaking to Earp. The video,

however, did not show Earp saying anything to Callwood. At 12:58 p.m., Earp stood,


                                             4
walked away from Callwood, and went into the restroom for approximately two minutes.

Upon leaving the restroom, Mr. Earp sat in the departure area for his flight.

              At 1:08 p.m., Callwood was approached by U.S. Customs inspectors and

escorted to a less public area where his bags were searched. After finding what appeared

to be a controlled substance, Callwood was placed under arrest. Callwood’s original bag

was later found to contain fourteen kilograms of cocaine. Callwood’s green bag, which

matched the empty green bag carried by Mr. Earp, was found to contain thirteen

kilograms of cocaine. The U.S. Customs inspectors then returned to the departure area

and escorted Earp to a secure area. An inspection of Earp’s luggage turned up no

contraband. Earp was nevertheless placed under arrest, advised of his Miranda rights,

and held in a detention area. He waived his Miranda rights, however, and volunteered a

statement admitting his connection to the cocaine possessed by Callwood.

              According to his written statement, Earp is a beautician from North

Carolina. On March 7, 2002, one of his customers offered to pay him $4,000 2 if he would

travel to the U.S. Virgin Islands to transport a bag containing cocaine into North Carolina.

Earp agreed to traffic the cocaine. He was given a round-trip American Airlines ticket for

a flight scheduled to depart that evening. According to the plan, Earp would be met that

night at the airport and taken to a hotel, where he would be given $150 to pay for a room.



   2
     Earp later testified that he had actually been promised only $2,500 for delivering the
cocaine. He stated that he had written “$4,000” at the time of his detention because he
felt embarrassed that he had agreed to participate for such a low sum.

                                             5
In his room, he would find the green carry-on bag, and at 11:00 a.m. the next morning, he

would be driven to the airport. After passing through U.S. Customs, Earp was to enter the

restroom, where he would switch his empty green bag for an identical bag containing the

cocaine. Upon arriving in North Carolina, he would be relieved of the bag and paid the

$4,000.

              Subsequently, a two-count indictment was brought against Earp. Count

One charged him with attempted possession of cocaine with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two charged him with attempted

importation of cocaine into the Customs Territory of the United States, in violation of 21

U.S.C. §§ 952(a), 960(b)(1), and 963.

              A jury trial was held on June 13, 2002, at which Earp took the witness stand

to testify in his own defense. He told the jury that he was in need of money to obtain his

hairstylist license from the State of North Carolina and that he was behind on his rent.

Faced with the prospect of “quick cash,” he told the jury that he originally agreed to carry

out the plan. Earp testified that by the next morning, however, he had decided not to pick

up the drugs. He explained that the only way he thought he could return home was to go

to the airport appearing as if he were complying with his instructions as much as possible.

Instead of picking up the drugs, however, he testified that he was simply going to get on

his plane when it boarded. Although his instructions called for him to enter the restroom

and switch his bag as soon as he passed through Customs, he told the jury, he instead


                                             6
went to hide at the bar and read a book until his plane boarded. He also testified that after

his U.S. Customs interview and pat-down, he believed that he was being watched by the

airport cameras. He also believed that someone involved in the drug scheme could have

been watching him as well.

              With respect to the interaction between Earp and Callwood at 12:57 p.m.,

Earp testified that he did not know who Callwood was, that he had not spoken with

Callwood, and that Callwood had simply ordered a beer from the bartender. He told the

jury that, at that point, he went to the restroom because he genuinely had to use the

restroom and when he emerged two minutes later, he had changed his mind about hiding.

He stated that he believed that the person who came up to him at the bar, Callwood, could

have been involved in the drug scheme. Instead of returning to the bar, he went to sit in

the boarding area for his flight because, he testified, he wanted to be out in the open.

According to Earp, he wanted be seen by the cameras so that no one could later say that

he was participating in any illegal activity.

              When asked at trial why his written statement did not mention that he had

decided not to obtain the cocaine, Earp explained that he simply wrote what he was asked

to write because he thought he would then be allowed to return to North Carolina. At the

time, he testified, he believed that he was helping the investigators by telling them the

truth. He also told the jury that he believed he was exonerating himself because he

believed that the fact that no drugs were found in his possession meant that he could not


                                                7
be charged with a crime.

              Defense counsel moved for a judgment of acquittal under Rule 29 of the

Federal Rules of Criminal Procedure both after the government’s case-in-chief and after

the close of all evidence. Defense counsel’s argument was that all of Earp’s actions were

preparatory in nature and did not constitute the required substantial step towards the

commission of the offenses for which he was charged. The government argued that the

crime of attempt was completed at the time that Earp took the flight to St. Thomas. The

District Court denied defense counsel’s motion, stating that “clearly a substantial step was

taken” but that step was more than just traveling to St. Thomas. App. at D-130.

              After closing arguments,3 the jury returned a verdict of guilty on both

counts. The District Court entered a judgment and commitment order on September 30,

2002 and Earp filed a notice of appeal that same day.

II.           Jurisdiction

              The District Court had jurisdiction over this case under 48 U.S.C. § 1612

(2002) and 18 U.S.C. § 3231 (2002). We have appellate jurisdiction pursuant to 28

U.S.C. §§ 1291 and 1294(3) (2002) to review the final judgment of the District Court of

the Virgin Islands.




      3
    As will be discussed below, Earp’s second argument on appeal is based upon a
comment made by the government during its rebuttal closing argument. At a sidebar,
defense counsel objected to the government’s comment but the District Court declined to
give a curative instruction. App. at D-244.

                                             8
III.          Discussion

              A.     Sufficiency of the Evidence

              Earp’s first argument on appeal is that the District Court erred in denying

his Rule 29 motion for a judgment of acquittal. Earp claims that the government failed to

introduce any evidence that he took a “substantial step” toward the commission of a

substantive offense. In deciding whether a jury verdict is based on legally sufficient

evidence, we apply a “particularly deferential” standard of review. United States v.

Cothran, 286 F.3d 173, 175 (3d Cir. 2002) (quoting United States v. Dent, 149 F.3d 180,

187 (3d Cir. 1998), cert. denied, 525 U.S. 1085 (1999)). The verdict must be sustained if

there is substantial evidence to support it. Burks v. United States, 437 U.S. 1, 17 (1978);

United States v. Beckett, 208 F.3d 140, 151 (3d Cir. 2000). “It is not our role to weigh the

evidence or to determine the credibility of the witnesses.” Cothran, 286 F.3d at 175.

“We must view the evidence in the light most favorable to the Government and sustain

the verdict if any rational juror could have found the elements of the crime beyond a

reasonable doubt.” Id.

              Earp was convicted of an attempted violation of 21 U.S.C. §§ 841(a)(1),

952(a), and 960(b)(1). The federal attempt statutes with respect to these violations are

codified at 21 U.S.C. §§ 846 and 963, which identically provide that “[a]ny person who

attempts or conspires to commit any offense defined in this subchapter shall be subject to

the same penalties as those prescribed for the offense, the commission of which was the


                                             9
object of the attempt or conspiracy.” These two provisions, originally enacted as §§ 406

and 1013 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L.

No. 91-513, 84 Stat. 1236 (Oct. 27, 1970), do not contain a definition of “attempt.” See

United States v. Rovetuso, 768 F.2d 809, 821 (7th Cir. 1985). Nevertheless, we

recognized in United States v. Everett, 700 F.2d 900 (3d Cir. 1983), that the word

“attempt” is a common law term, and when Congress uses a common law term in a

federal criminal statute without otherwise defining it, Congress is presumed to adopt the

meaning given that term at common law. Id. at 903-04 (citing Morissette v. United

States, 342 U.S. 246, 263, 72 S. Ct. 240, 249, 96 L. Ed. 288 (1952)). 4

              Accordingly, in applying 21 U.S.C. § 846, we have relied upon the “well-

settled principles of the law of attempts” that are embodied in Model Penal Code § 5.01

(1985). See United States v. Cruz-Jiminez, 977 F.2d 95, 102 & n.10 (3d Cir. 1992) (citing

United States v. Kikumura, 918 F.2d 1084, 1108 (3d Cir. 1990)). In Cruz-Jiminez, we

noted that the Model Penal Code formulation of attempt is consistent with our own

caselaw, id. at 102 (citing Everett, 700 F.2d at 908), and has been adopted by a majority

of federal courts. Id. at 102 n.8 (citing United States v. Stone, 960 F.2d 426, 433 (5th Cir.

1992); United States v. Leiva, 959 F.2d 637, 642 (7th Cir. 1992); United States v. Watson,



   4
    We also recognized, however, that the generally accepted common law definition of a
term will not be imposed “if there are ‘grounds for inferring an affirmative instruction
from Congress’ to define it otherwise.” Everett, 700 F.2d at 904 (reviewing the
legislative history of § 846 to discern whether Congress intended to eliminate an
impossibility defense) (citing Morissette, 342 U.S. at 273, 72 S. Ct. at 255).

                                             10
953 F.2d 406, 408 (8th Cir. 1992); United States v. Leopard, 936 F.2d 1138, 1140 (10th

Cir. 1991); United States v. Pennyman, 889 F.2d 104, 106 (6th Cir. 1989); United States

v. Dworken, 855 F.2d 12, 17 (1st Cir. 1988); United States v. Delvecchio, 816 F.2d 859,

861 (2d Cir. 1987)). We also found that the Model Penal Code formulation “is logical

and in conformity with the purposes of the criminal law to require corroborative

behavior.” Cruz-Jiminez, 977 F.2d at 102 n.10 (quoting Everett, 700 F.2d at 908-09).

Subsequently, we adopted the Model Penal Code formulation in contexts other than drug

trafficking. See, e.g., United States v. Hsu, 155 F.3d 189, 202-03 (3d Cir. 1998)

(attempted misappropriation of trade secrets, under 18 U.S.C. § 1832(a)(4)); United

States v. Cicco, 10 F.3d 980, 984-85 (3d Cir. 1994) (attempted coercion of municipal

employees into performing services for a political party as a condition of employment,

under 18 U.S.C. § 601(a)). We will therefore apply the Model Penal Code formulation of

attempt to this case as well.

              Under the Model Penal Code:

       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 . . .
       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.

Cruz-Jiminez, 977 F.2d at 102 (quoting Dworken, 855 F.2d at 16-17; Model Penal Code §

5.01(1)(c) (1985)). This test requires the government to prove: “(1) the intent, or kind of

culpability otherwise required, to engage in the criminal conduct; and (2) conduct


                                             11
constituting a ‘substantial step’ toward commission of the substantive offense that

strongly corroborates the criminal intent.” Id. at 101-02 & n.8. With respect to evidence

of a defendant’s intent, we have noted that:

       [I]f substantial steps are the only proof of the defendant’s criminal intent,
       then those steps must unequivocally evidence such an intent; “that is, it
       must be clear that there was a criminal design and that the intent was not to
       commit some non-criminal act.” Dworken, 855 F.2d at 17. If, however,
       there is evidence of criminal intent independent of that demonstrated by the
       defendant’s substantial steps in furtherance of his criminal design, “the
       substantial steps do not themselves need to be unequivocally indicative of
       criminal intent – they must merely corroborate criminal intent.” Id. at 17
       n.3 (citing Model Penal Code Part 1, § 5.01, cmt. at 330-31).

Cruz-Jiminez, 977 F.2d at 102. As for the “substantial step” element, “[f]or a defendant

to have taken a ‘substantial step,’ he must have engaged in more than ‘mere preparation,’

but may have stopped short of ‘the last act necessary’ for the actual commission of the

substantive crime.” United States v. Yousef, 327 F.3d 56, 134 (2d Cir. 2003) (quoting

United States v. Rosa, 11 F.3d 315, 337 (2d Cir.1993)). "There is no clear line between

preparation and attempt." United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996) (citing

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].”)). “Whether

conduct represents a substantial step depends on the ‘surrounding factual circumstances’

and, therefore, such determinations are necessarily fact specific.” Id. (quoting United

States v. Gaines, 969 F.2d 692, 689 (8th Cir. 1992); see also United States v. Crowley,


                                               12
318 F.3d 401, 408 (2d Cir. 2003) (“Determining whether particular conduct constitutes a

substantial step is ‘so dependent on the particular factual context of each case that, of

necessity, there can be no litmus test to guide the reviewing courts.’” (quoting United

States v. Manley, 632 F.2d 978, 988 (2d Cir.1980)).

               In this case, the District Court’s charge to the jury was consistent with the

law of attempt. The District Court first instructed that the government was required to

prove beyond a reasonable doubt that Earp had intended to commit each substantive

offense. App. at D-228, D-231. The District Court went on to instruct on the meaning of

“substantial step,” stating that:

       [T]he government must prove beyond a reasonable doubt that the mental
       processes of this defendant passed and went beyond the stage of just
       thinking about the crime to actually intending to commit the crime, and that
       the physical process of the defendant, what he was doing, what he did, went
       beyond and passed from the stage of mere preparation to some firm, clear
       and undeniable action to accomplish the intent of the offense.

App. at D-234. Based upon this correct statement of the law of attempt, we hold that

sufficient evidence was presented for a rational juror to find beyond a reasonable doubt

that Earp attempted to commit each of the substantive offenses as charged.

               With respect to the intent element, the jury was presented with Earp’s

written statement confessing to his participation in a criminal design to take possession of

cocaine and to import such cocaine into the Customs Territory of the United States.

Viewed in the light most favorable to the government, this statement provided

independent evidence of Earp’s criminal intent. See Cruz-Jiminez, 977 F.2d at 102 n.11

                                              13
(“[A] defendant’s confession could furnish evidence of criminal intent independent from

that demonstrated by any substantial steps taken in furtherance of the crime.”). Despite

Earp’s testimony that he had decided not to go through with the plan, a rational juror

could have believed that any abandonment of the criminal design occurred, if at all, only

after Earp passed through his U.S. Customs inspection and concluded that he was under

government surveillance. Earp’s own testimony revealed that he believed he aroused

suspicion during the inspection and that he would be under surveillance thereafter. The

question, therefore, is whether Earp’s conduct up to that point constituted a substantial

step that corroborated his criminal intent. We find that sufficient evidence was presented

for a rational juror to find beyond a reasonable doubt that it did.

              In accordance with the confessed plan, Earp: (1) accepted airline tickets

worth a substantial amount of money, (2) traveled to the U.S. Virgin Islands, (3) allowed

himself to be driven to a hotel by one or more conspirators, (4) accepted $150.00 to pay

for the hotel room, (5) accepted a green carry-on bag to be used in the scheme, (6)

allowed himself to be driven back to the airport on March 8, 2002 by one or more

conspirators with the carry-on bag, (7) entered the airport at the agreed-upon time, and (8)

gave deceitful answers to U.S. Customs Inspectors in order to reach the airport’s

passenger area. We need not determine which of these actions were merely preparatory

and which actions constituted substantial steps. Rather, we hold that a rational juror,

reviewing these actions and weighing all of the relevant facts, could have found,


                                             14
consistent with the District Court’s instruction, that Earp’s conduct went beyond the stage

of mere preparation. At the very least, giving deceitful answers to U.S. Customs

inspectors in order to reach the area in which the cocaine would be obtained may be

deemed a substantial step that strongly corroborated the independent evidence of criminal

intent. Accordingly, we reject Earp’s sufficiency of the evidence argument.

              B.     Due Process

              Earp’s second argument relates to a statement made by the prosecution

during its rebuttal argument to the jury. The prosecution stated, with respect to Earp’s

thirty-five second encounter with Callwood at the airport bar:

       Isn’t it more likely that Mr. Earp was letting him know I got your bag
       buddy. Mr. Earp was waiting for the right time to get that bag with the
       drugs. Now, he had a lot of time to do that. Remember this is occurring
       around 1 o’clock that night [sic], he wasn’t leaving until 4:20.

App. at D215. At trial, defense counsel objected to this statement, arguing that it

improperly asked the jury to speculate as to what Earp and Callwood may have done. The

District Court did not give a curative instruction. Earp now argues on appeal that the

prosecution’s statement violated his fundamental right to due process because it “was a

clear invitation to the jury to consider as evidence of his guilt whether M r. Earp would

have had the opportunity to complete the crime.” Appellant’s Br. at 15. The issue before

the jury, Earp argues, was whether he had taken substantial steps towards commission of

the offense, “not whether he would have had the opportunity to do so within the next few

hours.” Id. at 15-16. We reject this argument.

                                             15
              “The relevant question is whether the prosecutor[’s] comments ‘so infected

the trial with unfairness as to make the resulting conviction a denial of due process.’”

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974)). Here, we find no impropriety in the prosecution’s remarks,

much less misconduct of constitutional dimensions. As a factual matter, Earp is

inaccurate in stating that the prosecution asked the jury to base its verdict upon an

opportunity that Earp had to obtain the cocaine at some later point in time. Rather, the

prosecution’s statement was made in the context of discussing Earp’s credibility. When

the prosecution made the remarks at issue, it was in the process of arguing that the jury

should not believe Earp’s testimony with respect to his thirty-five second encounter with

Callwood at the airport bar. Earp had testified that there was no exchange of words

between the two men and that Callwood had simply ordered a beer at the bar. The

prosecution argued that given the circumstances, it was more likely that Earp and

Callwood were discussing how and when to exchange their green carry-on bags. The

remarks also appear to have been part of a broader prosecution argument that the jury

should not believe Earp’s testimony that he had decided not to go through with his plan

before returning to the airport on March 8, 2002. It was not improper for the prosecution

to ask the jury to draw a reasonable inference from the evidence in order to find that Earp

was not a credible witness. See United States v. White, 241 F.3d 1015, 1023 (8th Cir.

2001) (“It is permissible for a prosecutor [in his closing arguments] to interpret the


                                             16
evidence as indicating that the defendant is not telling the truth.”).

              We also note that any possible suggestion that the jury could find Earp

guilty because of what he may have done before his plane boarded was dispelled by the

District Court’s instructions to the jury. At trial, the District Court clearly instructed the

jury as to what it would be required to find in order to return a conviction. At no point

was the jury allowed to consider Earp’s possible future conduct as an element of the

attempt offenses. Accordingly, Earp’s due process argument is without merit.

III.          Conclusion

              For the reasons stated above, we will affirm the judgment of the District

Court.




                                              17
TO THE CLERK:

         Please file the foregoing not precedential opinion.




                                        /s/ Walter K. Stapleton
                                        Circuit Judge




                                       18
