United States v. Farner - 251 F.3d 510 (5th Cir. 2001)

Rule:

Courts in the Fifth Circuit have properly eschewed the semantical thicket of the impossibility defense in criminal attempt cases and have instead required proof of two elements: first, that the defendant acted with the kind of culpability otherwise required for the commission of the underlying substantive offense, and, second, that the defendant had engaged in conduct which constitutes a substantial step toward commission of the crime. The substantial step must be conduct which strongly corroborates the firmness of defendant's criminal attempt.

Facts:

Appellant made sexual advances over the Internet to a person he thought was a minor and then arranged to meet that person. When he went to meet the person, she turned out to be a federal agent and appellant was arrested. Appellant was convicted of attempting to persuade and entice a minor to engage in criminal sexual activity after stipulating to the facts. Appellant challenged the denial of his motion for acquittal, arguing the evidence against him was insufficient as a matter of law based on the defense of legal impossibility because it was legally impossible for him to have committed the crime since the "minor" involved was actually an adult.

Issue:

Was the evidence against appellant insufficient as a matter of law based on the defense of legal impossibility? 

Answer:

No.

Conclusion:

The conviction was affirmed. The appellate court found that the district court correctly concluded from the stipulated evidence, beyond a reasonable doubt, that appellant intended to engage in sexual acts with a 14-year-old girl and that he took substantial steps toward committing the crime. Because appellant took substantial steps to commit what he believed to be a crime, the impossibility defense failed.