A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A substantial step is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed them to be.
Appellant contested his conviction by the lower court of attempted distribution of heroin in violation of 21 U.S.C.S § 846. During the trial, an agent testified that at appellant’s request, he gave him $650.00 for one ounce of heroin, which appellant said he could get from a "good contact." Appellant then made several phone calls to locate a source. Appellant argued that his conduct did not rise to the level of an attempt to distribute heroin under 21 U.S.C.S. §846. He claimed that at most he was attempting to acquire a controlled substance, not to distribute it; that it was impossible for a person to attempt to distribute heroin which he did not possess or control; that his acts were only preparation, as distinguished from an attempt; and that the evidence was insufficient to support the jury's verdict. The appellate court affirmed the lower court’s ruling that evidence was sufficient to support a verdict of guilty.
Could appellant, in accepting money and making phone calls to locate a source of heroin, be convicted of an attempt to distribute heroin even if he did not have heroin in his possession at the time?
Appellant was acting knowingly and intentionally and that he engaged in conduct, the request for and the receipt of the $650.00, which in fact constituted a substantial step toward distribution of heroin. Certainly, in the circumstances of the case, the jury could have found the transfer of money strongly corroborative of the firmness of appellant's intent to complete the crime. Of course, proof that appellant's "good contact" actually existed, and had heroin for sale, would have further strengthened the government's case. However, such proof was not essential.