United States v. Yossunthorn

167 F.3d 1267 (1999)

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Nature of the Case

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Facts

In 1992, 1993, and 1995, Kovittamakron and Kulkovit made heroin deliveries both directly to Mekvichitsang (D) and, at Mekvichitsang's direction, to Yossunthorn (D), whom Mekvichitsang described as 'one of his workers.' Purchases were from four ounces to one pound. On December 4, 1995, Kovittamakron told Mekvichitsang that he expected another heroin shipment. Mekvichitsang expressed interest in purchasing some of it. Later that day, Kovittamakron was arrested and he began cooperating with the government. Kovittamakron recorded a number of phone conversations with Mekvichitsang between December 5 and 7, 1995. On December 6, 1995, Kovittamakron called Mekvichitsang and told him that the heroin had arrived. Mekvichitsang suggested they meet at a McDonald's restaurant near his home at noon the following day to make arrangements for the heroin transaction. Kovittamakron refused to meet with Mekvichitsang on December 7 as planned. Government agents saw Ds act in ways consistent with conducting counter-surveillance. Yossunthorn walked through the parking lot and looking at cars and people that entered the lot. Mekvichitsang drove slowly past the McDonald's, through an adjoining parking lot, and around the block, while looking at the McDonald's parking lot. Mekvichitsang left the area without ever entering the McDonald's lot. Ds were arrested shortly thereafter. Ds were convicted of conspiring to distribute and possess with intent to distribute heroin. Yossunthorn was convicted of attempt on a Pinkerton theory of coconspirator liability. Ds appealed. Mekvichitsang challenges both his conspiracy conviction and his attempt conviction on the ground that there was insufficient evidence for a rational jury to convict him. Yossunthorn challenges both his and Mekvichitsang's attempt convictions