United States v. Yossunthorn

Court of Appeals for the Ninth Circuit
99 Cal. Daily Op. Serv. 1196, 1999 U.S. App. LEXIS 2336, 167 F.3d 1267 (1999)

ELI5:

Rule of Law:

An agreement to meet to negotiate the terms of a future drug transaction, coupled with countersurveillance at the proposed meeting location, does not constitute a 'substantial step' required for the crime of attempt if essential elements of the transaction, such as quantity and method of delivery, have not yet been agreed upon.

Facts:

From 1992 to 1995, Paiboon Mekvichitsang and Sunthorn Yossunthorn had an established history of purchasing heroin from Zagar Kovittamakron and Throngboon Kulkovit.
On December 4, 1995, Kovittamakron informed Mekvichitsang of an upcoming heroin shipment, and Mekvichitsang expressed interest in buying some.
Shortly thereafter, Kovittamakron was arrested and began cooperating with the government, leading to a series of recorded phone calls with Mekvichitsang between December 5 and 7.
In a December 6 call, Mekvichitsang and Kovittamakron agreed to meet at a McDonald's restaurant the next day to make arrangements for a heroin transaction.
On December 7, Yossunthorn was observed in the McDonald's parking lot looking at cars and people, while Mekvichitsang drove slowly past the location without entering the parking lot.
Key terms of the potential drug deal, such as the quantity of heroin to be purchased and the method of delivery, had not been agreed upon prior to the planned meeting.

Procedural Posture:

Paiboon Mekvichitsang and Sunthorn Yossunthorn were charged in a federal district court.
A jury convicted both Mekvichitsang and Yossunthorn of conspiracy to distribute heroin and attempted possession with intent to distribute heroin.
The defendants filed post-verdict motions for acquittal, which the district court denied.
Mekvichitsang, as appellant, challenged both his conspiracy and attempt convictions before the U.S. Court of Appeals for the Ninth Circuit.
Yossunthorn, also as appellant, challenged only his attempt conviction before the U.S. Court of Appeals for the Ninth Circuit.

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Issue:

Does a defendant take a substantial step toward possessing drugs with intent to distribute by agreeing to meet a supplier to arrange a future transaction and conducting countersurveillance at the meeting place, when essential elements of the transaction like quantity and delivery method have not yet been agreed upon?

Opinions:

Majority - Schwarzer, Senior District Judge

No, a defendant's actions do not constitute a substantial step toward possessing drugs when essential elements of the transaction remain unsettled. To be convicted of attempt, the government must prove both criminal intent and a substantial step toward completing the violation, which must cross the line from 'mere preparation' to an 'appreciable fragment' of the crime. Here, while Mekvichitsang's intent was clear from his history and phone calls, his actions—arranging a meeting to negotiate a deal and conducting countersurveillance—were analogous to the reconnoitering activities found to be insufficient for attempt in bank robbery cases like United States v. Buffington. Unlike cases where defendants had done all they could to complete the offense, Mekvichitsang had not yet agreed on quantity or delivery, meaning essential elements of the transaction were still pending negotiation. Therefore, his actions remained in the realm of preparation and did not constitute a substantial step.

Analysis:

This decision refines the 'substantial step' requirement for attempt convictions in the Ninth Circuit, particularly in the context of drug offenses. The court clearly separates the element of intent from the overt act, holding that even strong evidence of intent does not transform preparatory acts into a substantial step. By requiring that essential elements of the underlying offense (like quantity and delivery in a drug deal) be agreed upon, the ruling makes it more difficult for prosecutors to secure attempt convictions in cases where law enforcement intervenes during early negotiation stages. This precedent forces courts to scrutinize how far along a criminal plan has progressed before it 'ripens into an attempt.'

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