United States v. Smith ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60583
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JAMES ABDUL SMITH,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:97-CR-103-LN-ALL
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September 3, 1999
Before KING, Chief Judge, EMILIO M. GARZA, and STEWART, Circuit
Judges.
PER CURIAM:*
James Abdul Smith was convicted for attempted possession
with intent to distribute cocaine base. Smith argues that the
evidence was insufficient to support his conviction for attempted
possession with intent to distribute crack cocaine. Smith makes
essentially three separate arguments to support his assertion.
First, Smith asserts that it was impossible for him to commit the
offense because there were no drugs to be had from the
cooperating individual. “[F]actual impossibility is not a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-60583
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defense if the crime could have been committed had the attendant
circumstances been as the actor believed them to be. United
States v. Conway, 507 F.2d 1047, 1050 (5th Cir. 1975).” United
States v. Contreras, 950 F.2d 232, 237 (5th Cir. 1991). There
can be no argument that Smith could not have attempted to and
ultimately possessed the crack cocaine if the cooperating
individual had the cocaine in his hotel room. This argument has
no merit.
Second, Smith asserts that he did not take a substantial
step toward the commission of the crime because he abandoned his
attempt to buy the cocaine base. “To be convicted of attempt
under 21 U.S.C. § 846, a defendant ‘must have been acting with
the kind of culpability otherwise required for the commission of
the crime which he is charged with attempting,’ and ‘must have
engaged in conduct which constitutes a substantial step toward
commission of the crime[.]’” United States v. Stone, 960 F.2d
426, 433 (5th Cir. 1992) (citations omitted). “A substantial
step is one which strongly corroborates the ``firmness of the
defendant’s intent.’” United States v. Briscoe, 742 F.2d 842,
846 (5th Cir. 1984) (citation omitted). “The acts, considered
alone, must ``mark the defendant’s conduct as criminal in
nature.’” Id. (citation omitted). Viewed in the light most
favorable to the verdict, the evidence showed that Smith and
another individual met the cooperating individual at a designated
location, and asked to see the narcotics. The other individual
had a device used to smoke crack for the purpose of testing the
crack prior to the sale. Smith did not wish to do the
No. 98-60583
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transaction in the open parking lot and suggested alternate
locations. Although Smith did not show the money, he insisted to
the cooperating individual, up to the very moment of arrest that
he was interested in completing the transaction. These facts
were sufficient to support the conviction for attempted
possession of crack cocaine.
Smith asserts that the district court erred in refusing to
give the jury the requested instruction on abandonment. In
United States v. Pettigrew, 77 F.3d 1500, 1514 (5th Cir. 1996), a
case dealing with withdrawal from a conspiracy, the court held
that the defendant was not entitled to a withdrawal instruction
where there was no evidence that the defendant had withdrawn from
the conspiracy. There is no evidence that Smith abandoned his
attempt to buy the crack. This issue has no merit.
Smith asserts that the district court erred in denying his
motion for a new trail based on a claim of juror misconduct.
Rule 606(b), Fed. R. Evid., provides that “a juror may testify
[only] on the question whether extraneous prejudicial information
was improperly brought to the jury’s attention or whether any
outside influence was improperly brought to bear upon any juror.”
This also applies to statements or affidavits made by jurors.
Id. In cases involving egregious factual assertions of
intentional juror misconduct, this court has held that Rule
606(b) did not allow the jurors to impeach their verdicts. See
United States v. Ortiz, 942 F.2d 903, 909-13 (5th Cir. 1991);
United States v. Marrero, 904 F.2d 251, 261 (5th Cir. 1990).
This issue has no merit.
No. 98-60583
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AFFIRMED.