U.S. v. Quijada, 78-1514

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation588 F.2d 1253
Docket NumberNo. 78-1514,78-1514
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Abel V. QUIJADA, Defendant-Appellant.
Decision Date02 November 1978

Paul T. Willis, Tucson, Ariz., for defendant-appellant.

Dale A. Danneman, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before CHOY and SNEED, Circuit Judges, and SPENCER M. WILLIAMS, * District Judge.

SNEED, Circuit Judge:

Appellant Abel V. Quijada was convicted of attempt to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. This appeal presents an issue of first impression in this circuit: Whether an individual may be convicted of an attempt to distribute cocaine when the substance he offers to sell is a noncontrolled substance rather than cocaine. Under the circumstances of this case, we conclude that he may. We, therefore, affirm.

Appellant and one James Lewis, an informant for the Drug Enforcement Administration, negotiated the sale and delivery of eight ounces of "snow." The discussions took place over a three-day period during which the two men met three times and spoke on the telephone once. Appellant indicated several times that he had the "stuff" and delivered a sample of the substance to Lewis at their second meeting. When Lewis introduced appellant to Jim Stevenson, an undercover agent for the Arizona Department of Public Safety, appellant again said that he had the "stuff." At the time of the sale, Stevenson performed a common chemical field test on the substance which indicated that it was cocaine.

Appellant was arrested and charged with distribution of cocaine. A subsequent laboratory analysis of the substance revealed it to be lidocaine hydrochloride, which resembles cocaine, but is not a controlled substance. Appellant was then indicted for attempting to distribute cocaine and found guilty by a jury at his third trial; the two earlier trials resulted in mistrials because the juries failed to reach unanimous verdicts.

In this the third trial the jury was charged in part as follows:

The elements of an attempt to commit a crime are: first, the specific intent to commit the crime charged; second, the execution of some overt act in pursuance of such intent; and third, a failure to consummate a crime for some reason.

An overt act, as that term is used in these instructions, means any act knowingly or willfully committed in an effort to accomplish the intended crime. If you find, beyond a reasonable doubt, that Abel V. Quijada knowingly and intentionally attempted to distribute cocaine, it is no defense that the substance he distributed was not cocaine.

On the other hand, if you do not find beyond a reasonable doubt that the defendant believed the substance involved to be cocaine even though you might find all of the other elements of the offense present beyond a reasonable doubt, then it would be your duty to acquit the defendant. This is because he had to have the state of mind and the evidence must establish beyond a reasonable doubt that he had the state of mind to intend to distribute cocaine.

The jury's verdict indicates that it found beyond a reasonable doubt that the appellant intended to distribute cocaine.

Appellant contends that the conviction cannot stand because the substance he sold was not, in fact, cocaine. He relies primarily upon United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976) and United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973). 1 The government, on the other hand, relies on United States v. Heng Awkak Roman, 356 F.Supp. 434 (S.D.N.Y.), Aff'd, 484 F.2d 1271 (2d Cir. 1973), Cert. denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974). The reliance of neither is misplaced; the cases do tend to support their respective positions. Being forced to choose, we select Roman as the authority upon which we rest our decision.

In that case government agents surreptitiously replaced heroin in the defendants' suitcase with soap powder. Thinking the suitcase still contained heroin, the defendants attempted to sell the substance. The court found that the defense was one of Factual impossibility, but further held that "however this impossibility may be characterized," the evidence of criminal intent was sufficient to convict defendants on the charge of attempted possession with intent to distribute heroin and, "since the defendants' objective here was criminal, impossibility is no defense." 356 F.Supp. at 438. Because the evidence supports the jury's implied finding that the defendant intended to distribute cocaine, a criminal objective, impossibility is here also no defense.

In a case such as this it is tempting to go beyond merely deciding the case and to undertake an analysis in depth of the applicable doctrine which in this instance is that of the defense of impossibility. We resist, however, confident that the existing literature provides the required guidance. Of particular assistance to us was Judge Bryan's opinion in Roman, 356 F.Supp. 434, and Wechsler, Jones, and Korn, The Treatment of Inchoate Crimes In The Model Penal Code Of The American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum.L.Rev. 571, 578-85 (1961). S...

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    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
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