U.S. v. York

Decision Date23 August 1978
Docket NumberNo. 77-5633,77-5633
Citation578 F.2d 1036
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Thomas YORK and Stephen Joseph York, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Theodore J. Sakowitz, Federal Public Defender, Robyn J. Hermann, Asst. Federal Public Defender, Miami, Fla., for James York.

Michael J. Doddo, Miami, Fla. (Court-Appointed), for Stephen York.

Jack V. Eskenazi, U. S. Atty., Richard A. Woolf, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before COLEMAN, GEE and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

During a visit to his brother, James, an inmate at the Federal Correctional Institution at Miami, Florida, Stephen York unknowingly dropped from his pants leg, while the two were on the visitor's patio, an orange balloon, which was retrieved by Correctional Officer Cason and found to contain marihuana. The brothers were separated by prison authorities. Stephen was searched, and nothing was found on him. James was taken to a segregation room, stripped and searched by a security officer. Nothing was found. A half hour later a captain on the institution force conducted another strip search of James and found part of a green balloon protruding from the inmate's rectum. This was removed and found to contain marihuana. 1 Each of the brothers was indicted of an attempt to introduce contraband into a federal correctional institution, 2 and convicted. 3 Each now urges deficiencies in the evidence and the illegality of the second body search of James; moreover, each contends that the government proved a completed crime and, therefore, could not convict them for an attempt because failure is an essential element of a criminal attempt. Finding their attacks on their convictions to be without merit, we affirm as to each.

I.

To attempt a federal offense is not, of itself, a federal crime. Although there are general statutes proscribing aiding and abetting a crime,18 U.S.C. § 2, and conspiracy, 18 U.S.C. § 371, attempts are separately dealt with in various criminal statutes dealing with the offense committed. 4 When Congress has deemed an attempt to be criminal, it has specifically so declared, as in the present statute, which states: "Whoever, contrary to any rule or regulation promulgated by the Attorney General, introduces Or attempts to introduce into or upon the grounds of any Federal penal or correctional institution or takes or attempts to take or send therefrom any thing whatsoever, shall be imprisoned not more than ten years." (Emphasis supplied.) 18 U.S.C. § 1791.

The crime of attempt is often defined as if failure were an essential element. See, for example, the cases quoted in United States. v. Mandujano, 5 Cir. 1974, 499 F.2d 370, 374, Cert. denied, 1975, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812. Most of these cases concern the distinction between preparation for a crime, which is not criminal, and an attempt, which has ripened into an offense. A few state cases, however, do hold that proof of a completed crime eliminates the possibility of conviction of an attempt, 5 and, in some states, this is the rule by statute. 6 There can be no doubt that the evidence establishes more than a mere attempt to introduce something prohibited by the Attorney General into a correctional institution; the marihuana was in fact brought into the visitor's room. If, therefore, upon successful completion of a crime, the attempt to commit it vanishes, the basis for the defendants' indictment has disappeared.

At common law, an attempt was a misdemeanor. The assumption that none but a failure may be condemned for his attempt may be derived from the old common law rule of merger under which, if an act resulted in both a misdemeanor and a felony, the misdemeanor was said to be absorbed into the felony. State v. Gallegos, 1975, 193 Neb. 651, 228 N.W.2d 615; United States v. Fleming, D.C.App.1966, 215 A.2d 839; LaFave and Scott, Criminal Law 452 (1st ed. 1972). The rationale behind this obliteration is undermined if both the attempt and the successful crime are misdemeanors, as it is if both are felonies. See Bellande v. United States, 5 Cir., 1928, 25 F.2d 1, and Steigman v. United States, 3 Cir. 1915, 220 F. 63, both rejecting the merger rule as applied to conspiracies. The English merger rule was erased by statute in 1851, 14 § 15 Vict. c. 100, § 12 (1851), and there is no reason to apply it in this country a century and a quarter later. Iannelli v. United States, 1975, 420 U.S. 770, 777 n. 11, 95 S.Ct. 1284, 1290 n. 11, 43 L.Ed.2d 616 (concerning whether a conspiracy merges into the completed offense). See also LaFave and Scott, Supra. A fortiori, there is no reason to incorporate doctrines derived from the common law of crimes into federal offenses, which are wholly statutory. Dickey v. United States, 5 Cir. 1968, 404 F.2d 882.

To compel acquittal of an attempt because the completed offense was proved would result in the "anomalous situation of a defendant going free 'not because he was innocent, but for the very strange reason, that he was too guilty.' " (Footnote omitted.) United States v. Fleming, supra, 215 A.2d at 840-841. Moreover, requiring the government to prove failure as an element of attempt would lead to the anomalous result that, if there were a reasonable doubt concerning whether or not a crime had been completed, a jury could find the defendant guilty neither of a completed offense nor of an attempt. Therefore, every court, not otherwise bound by statute, that has considered the matter in recent years has refused to require that a defendant be acquitted of an attempt because he was guilty of completing what he had set out to do. United States v. Malasanos, 7 Cir. 1973, 472 F.2d 642 (conviction for attempted bank robbery although the attempt was successful); Giles v. United States, 9 Cir. 1946, 157 F.2d 588, Cert. denied, 1947, 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 (conviction for an attempt to escape although the defendant had escaped); Guzik v. United States, 7 Cir. 1931, 54 F.2d 618, Cert. denied, 1931, 285 U.S. 545, 52 S.Ct. 395, 76 L.Ed. 937 (conviction for an attempt to evade income taxes although the attempt was successful); O'Brien v. United States, 7 Cir. 1931, 51 F.2d 193, Cert. denied, 1931, 284 U.S. 673, 52 S.Ct. 129, 76 L.Ed. 569 (conviction for an attempt to evade taxes although the evasion was completed); Lightfoot v. State, 1976, 278 Md. 231, 360 A.2d 426 (conviction for attempted armed robbery although the robbery was completed); State v. Gallegos, 1975, 193 Neb. 651, 228 N.W.2d 615 (conviction for attempt to burgle although burglary was completed); People v. Johnson, 1971, 21 Cal.App.3d 235, 98 Cal.Rptr. 393 (conviction for attempt to obliterate the manufacturing number on a revolver although obliteration was proved); State v. Fox, Iowa 1968, 159 N.W.2d 492 (conviction for an attempt to break and enter which succeeded); Greenwood v. United States, D.C.App.1967, 225 A.2d 878 (conviction for attempted unauthorized use of motor vehicle, although the offense had been completed); State v. Sercovich, 1964, 246 La. 503, 165 So.2d 301; Dotye v. Commonwealth, Ky.App.1956, 289 S.W.2d 206 (conviction for attempted abortion although there was an actual miscarriage); People v. Jelke, 1956, 1 N.Y.2d 321, 152 N.Y.S.2d 479, 135 N.E.2d 213 (conviction for attempting to induce a woman to be a prostitute although the attempt was successful); People v. Baxter, 1928, 245 Mich. 229, 222 N.W. 149 (conviction for attempted bribery over defendant's objection that bribery was proved); Cf. Echols v. State, 1975, 134 Ga.App. 216, 213 S.E.2d 907 (conviction for assault with intent to commit murder although battery was proved); State v. Mathis, 1966, 47 N.J. 455, 221 A.2d. 529, Rev'd on other grounds, 1971, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855 (conviction for killing during a robbery attempt although the evidence established the completed robbery).

This, indeed, is the doctrine we have adopted in conspiracy cases: the conspiracy is not merged into the substantive crime even though successful completion of the crime that was the objective of the agreement is proved; the defendants may be separately charged and convicted for each offense. Iannelli v. United States, 1975, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616; Pinkerton v. United States, 1946, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; United States v. Cantu, 5 Cir. 1977, 557 F.2d 1173; United States v. Nims, 5 Cir. 1975, 524 F.2d 123, Cert. denied, 1976, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385; United States v. Vasquez, 5 Cir. 1974, 504 F.2d 555; United States v. Jacobs, 5 Cir. 1971, 451 F.2d 530, Cert. denied, 1972, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231; United States v. Cheers, 5 Cir. 1971, 439 F.2d 1097; United States v. Mayes, 6 Cir. 1975, 512 F.2d 637, Cert. denied, 1975, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670; United States v. Lozano, 7 Cir. 1975, 511 F.2d 1, Cert. denied, 1975, 423 U.S. 850, 96 S.Ct. 94, 16 L.Ed.2d 74; United States v. Bobo, 4 Cir. 1973, 477 F.2d 974, Cert. denied, 1975, 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 774; United States v. Bishop, 9 Cir. 1972, 462 F.2d 127, Cert. denied, 1972, 409 U.S. 951, 93 S.Ct. 296, 341 L.Ed.2d 222.

Consequently, proof that a crime had been completed does not absolve the defendants of the attempt. Unlike conspiracy, however, the prosecution may not obtain convictions for both the completed offense and the attempt as separate crimes if the attempt has in fact been completed. The attempt is an offense included in the completed crime, and, therefore, cannot support a separate conviction and sentence. Jeffers v. United States, 1977, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168; Brown v. Ohio, 1977, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187; Harris v. Oklahoma, 1977, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054.

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