(D.C. Criminal No. 95-cr-00558)
BEFORE: STAPLETON and LEWIS, Circuit Judges and WALLS, *fn* District 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.
On October 3, 1995, Cooper was indicted on two counts of tampering with a government informant, in violation of 18 U.S.C. Section(s) 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 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 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. Section(s) 3231. We have jurisdiction pursuant ...