Opinion
Cr. No. 02-003 (PLF/JMF).
March 28, 2002
DETENTION MEMORANDUM
This case is a bit out of the ordinary. This defendant has been indicted for attempting to distribute cocaine even though he did not sell cocaine but some ersatz substance. Additionally, since he had a gun, he has also been indicted for possessing a firearm as a convicted felon and possessing a firearm during or in relation to a drug trafficking offense. If the sale of the ersatz substance is not truly an attempt to distribute cocaine, then it would follow that the defendant did not possess a firearm during or in relation to a drug trafficking offense. Thus, defendant would not be eligible for pre-trial detention because he is not legitimately accused of a violation of the Controlled Substances Act, punishable by ten years or more. 18 U.S.C.A. 3142(f)(1)(C)(2) (2000). Additionally, if he is not legitimately accused of such a violation or of possessing a firearm during or in relation to a drug trafficking crime, there is no presumption of his dangerousness. 18 U.S.C.A. 3142(e) (2000).
The government profferred that undercover officers were driving in the area of 525 Mellon Street, S.E. on November 16, 2001, at about 9 p.m when defendant hailed them. One officer asked for two bags and defendant asked if the officer was a cop. Defendant then put two bags on a wall. The officer was suspicious that the bags did not in fact contain crack cocaine. His suspicion must have showed; defendant pulled a gun half way out of his pocket as if to deter any further complaints. A woman said: "Be careful." The officers were; they drove off and radioed an arrest team which ultimately arrested defendant. They found the gun but not the $20 the officer had given defendant to buy the crack.
At the conclusion of the detention hearing, I discussed with counsel my concern that the fact that the substance sold was not cocaine bore on the sufficiency of the government's proffer regarding defendant's eligibility for pre-trial detention. I then asked them to brief the question presented.
Defendant, relying entirely on United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976), insists that legal impossibility is a defense to the charge of attempt to commit a crime and that it was impossible for the defendant to attempt to sell a controlled substance when the substance he sold was not in fact a controlled substance. The government, relying onUnited States v. Everett, 700 F.2d 900 (3d Cir. 1983), insists that "impossibility is no defense to the charge of attempted distribution of a controlled substance under 21 U.S.C. § 846 (1976)." Id. at 904.
The law pertaining to impossibility and attempt is a thicket. Oviedo, 525 F.2d at 883 n7 (reviewing cases "to illustrate the inconsistency of approach which plagues this area of legal theory"). But, there is a path through that thicket.
If, and it is a big if, Everett is right and Congress abolished the principle that legal impossibility is a defense to an attempt to distribute cocaine, then a defendant who attempts to sell cocaine thinking it is cocaine is guilty of that attempt even if, unbeknownst to him, the substance he thought was cocaine is not. It is in this sense that I read Everett and the cases that follow Everett implicitly or explicitly, upon which the government relies. I view them as being animated by the jurisprudential position articulated in the Model Penal Code — that a person may be guilty of an attempt if "he purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be . . ." Model Penal Code § 5.01(1)(a) (1985). Thus, the pickpocket who puts his hand in the empty pocket or the pawnbroker who sells the television set, mistakenly thinking it was stolen, are guilty of attempt. It would then follow that this defendant would be guilty of an attempt if he thought that he was selling crack, regardless of whether he was selling crack or talcum powder. But, there is the rub — what was he thinking?
E.g. United States v. Dominguez, 992 F.2d 678, 682 (7th Cir. 1993); United States v. Fletcher, 945 F.2d 725, 728 (4th Cir. 1991);United States v. Reeves, 794 F.2d 1101 (6th Cir. 1986) (substance believed to be cocaine); United States v. Quijada, 588 F.2d 1253 (9th Cir. 1978). Note that in Everett, the defendant thought he was selling a controlled substance.
The evidence in this case is susceptible of two interpretations of defendant's knowledge and his resulting intent: (1) defendant has been tricked by his supplier and thought he was selling crack, or (2) defendant was himself out to trick people and was selling what he knew to be bogus "crack." The problem for the government is that on this record, either inference is as legitimately drawn as the other. But the most fundamental principle is that if the evidence is in equipoise, the party with the burden of proof fails to carry that burden. The Bail Reform Act requires, as a pre-condition to detention, a showing that the case "involves" ( inter alia) a felony punishable by more than 10 years in prison under the Controlled Substances Act. 18 U.S.C.A. § 3142(f) (2000). Since the inference that defendant thought he was selling cocaine is as legitimate as the inference that he knew that he was not, the government has failed to carry its burden.
In my view, therefore, this is not really a case of legal impossibility but of intent. If the defendant thought he was selling cocaine, then the cases which follow Everett or the Model Penal Code approach would say that he intended to commit the crime he attempted and there is no impediment to his conviction. On the other hand, if defendant knew that he was not selling cocaine, then I am hard pressed to understand how he could be said to be attempting to sell cocaine. He was not attempting to sell cocaine — he was attempting (and succeeding) to take money from people by gulling them into believing that he was selling cocaine when he was actually selling them talcum powder. While doing the latter is a crime, it is not the crime of attempting to sell cocaine.
I therefore must conclude that defendant is not eligible for pre-trial detention because the government's proffer did not carry its burden of proof that defendant was attempting to distribute cocaine. Since that is so, I also must conclude that the government's proffer was equally insufficient to establish that he carried the firearm in relation to a drug trafficking offense. I believe, instead, that he carried the gun incident to a theft offense. Instead of ordering the defendant's pre-trial detention, I will order him committed to the District of Columbia for placement in a halfway house.