The opinion of the court was delivered by: Judge Walter Herbert Rice
VERDICT OF GUILTY AS CHARGED; FURTHER PROCEDURES ORDERED
The Defendant is charged by Grand Jury Indictment in Count 2 with attempting to possess with intent to distribute five kilograms of Cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii), all in violation of 21 U.S.C. § 846. By means of Stipulation, he has agreed that on August 18, 2005, in the Southern District of Ohio, he knowingly, willfully, intentionally and unlawfully attempted to possess a certain quantity of Cocaine, a Schedule II controlled substance, with the specific intent to distribute it. However, he denies attempting to possess with intent to distribute five kilograms of that controlled substance. While a reasonable doubt might exist whether he intended to possess with intent to distribute five kilograms of Cocaine, a preponderance of the evidence, the operative standard in sentencing, shows that it is more likely than not that he had such an intent. While the Defendant raises the defense of entrapment, in the alternative, such defense does not apply to him, because of his stipulation which, in essence, admits his guilt to attempting to possess with intent to distribute cocaine, leaving only the amount in question.
The captioned cause came on to be heard upon the testimony, the evidence and the stipulations of the parties, before the Court sitting as the trier of fact, a jury having been waived in open Court and in writing by the Defendant.
On August 18, 2005, Defendant Gary Smith ("Smith" or "Defendant") was arrested and charged with attempting to possess with intent to distribute five kilograms of cocaine. The arrest followed an investigation into a series of drug deals and a number of phone calls between Smith and Detective Williams, an undercover agent.
The Defendant was arrested after a drug deal which took place on August 18, 2005, between himself and Detective Williams at a Bob Evans restaurant ("Bob Evans") on Miller Lane, Dayton, Ohio. At the meeting, Detective Williams continually offered to sell Defendant five kilograms of cocaine. Smith refused Detective Williams' offers, saying he did not have enough money. At the end of the conversation, in response to Detective Williams' last offer of five kilograms, Smith said, "whatever you want to do." Subsequent to the meeting, Smith followed Detective Williams to Williams' car, took possession of a five kilogram bag of (sham) cocaine and left for his own vehicle. Upon seeing the agents approaching him, Mr. Smith threw the bag out the car window, without ever having looked into the container. He was then arrested.
Before the arrest, Detective Williams and Smith had engaged in multiple drug deals. These deals were never for more than an ounce of cocaine. During phone calls discussing price and meeting times, leading up to the final meeting, Smith continually refused and resisted Detective Williams' offers to sell him five kilograms of cocaine. During a call soon before the Bob Evans meeting, in response to a question from Detective Williams as to whether he wanted two or five kilograms of cocaine, Smith said, "I gotcha." This call, other calls, prior drug deals and the final drug deal at the Bob Evans led to Mr. Smith's arrest.
Due to Smith's stipulation, he is unquestionably guilty of attempting to possess with intent to distribute cocaine. The Court is left to resolve the quantity of that substance he attempted to possess with intent to distribute, which, as explained below, will bear only on his sentence. A conviction for attempting to possess with intent to distribute two kilograms of cocaine results in a five to forty year sentence. 21 U.S.C. S 841(b)(1)(A)(ii). A conviction for attempting to possess with intent to distribute five kilograms of such, however, results in a sentence of ten years to life. 21 U.S.C. 841(a)(1).
The government, to increase the mandatory minimum from five to ten years, need only prove by a preponderance of the evidence that Mr. Smith attempted to possess with intent to distribute five kilograms of cocaine.*fn1 Only for sentencing in excess of the forty year statutory maximum does the government need to prove its case beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Because the Court may sentence above the statutory maximum, upon the proper finding, an attempt analysis will follow under both standards of proof, beyond a reasonable doubt and preponderance of the evidence.*fn2
21 U.S.C. 841(a)(1) and (b)(1)(A)(ii) prohibit any person from knowingly, intentionally and unlawfully possessing with intent to distribute of cocaine. To be convicted of an attempt crime, the government must prove beyond a reasonable doubt both that a defendant intended to commit a criminal act and the commission of an overt act that constitutes a substantial step toward that criminal act.United States v. Bilderbeck, 163 F.3d 971, 975 (6th Cir. 1999). A defendant's objective conduct must unequivocally corroborate a subjective intent to purchase cocaine. United States v. Pennell, 737 F.2d 521, 525 (6th Cir. 1984), cert. denied, 469 U.S. 1158 (1985). A defendant may be convicted of attempting to possess cocaine even if the cocaine was sham cocaine. Id. at 524-25.
a. A REASONABLE DOUBT EXISTS AS TO WHETHER MR. SMITH ATTEMPTED TO POSSESS WITH INTENT TO DISTRIBUTE FIVE KILOGRAMS OF COCAINE
The government relies on three pieces of evidence to show that Smith attempted to possess with intent to distribute five kilograms of cocaine. First, that Smith accepted Detective Williams' offer to sell five kilograms during an earlier phone conversation where Smith said "I gotcha" in response to the offer. True, "I gotcha" could be interpreted as an acceptance of Detective Williams' offer. Moreover, it could also mean "I understand," not "I accept." Additionally, in response to Detective Williams' offer to sell five kilograms at Bob Evans, Smith said, "whatever you want to do." These words show that Smith was open to the purchase of five kilograms. However, mere openness to committing a criminal act falls short of an ...