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UNITED STATES v. DURAN

April 18, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant.


INTRODUCTION

At the close of the Government's case-in-chief, the Defendant filed a "Motion for Judgment of Acquittal on Count One Charging Attempted Assassination of the President." *fn1" The next morning, the Government filed an Opposition thereto. After a hearing on March 24, 1995, the Court denied the Defendant's Motion. This Memorandum Opinion shall set forth the reasons for the Court's ruling.

 BACKGROUND

 In addition to the evidence regarding the events on the day of the shooting, October 29, 1994, the Government submitted evidence that the Defendant had told other people of his desire to kill the President; that he wrote materials that threatened the life of the President and other government officials; *fn2" that he bought a firearm; that he bought multiple round clips and multiple rounds of ammunition for that firearm; that he bought a trench coat to conceal the firearm; that he bought a folding stock and pistol grip for the firearm so that it could be folded up and concealed under the trench coat; and that he traveled to Washington, D.C., and waited outside the White House for the opportunity to make an attempt on the life of the President of the United States. Based on all of the evidence proffered, the jury convicted the Defendant on Count One, attempted assassination of the President, in addition to the other nine Counts of the Indictment.

 DISCUSSION

 
I. NOTWITHSTANDING DEFENSE COUNSEL'S ASSERTION TO THE CONTRARY, THE DEFENDANT'S CLAIM IS ONE OF LEGAL IMPOSSIBILITY, WHICH THE COURT FINDS IS NOT A VALID DEFENSE TO THE CHARGE OF ATTEMPTED ASSASSINATION OF THE PRESIDENT

 In his Motion, the Defendant argued that, because Dennis Basso is not the President of the United States or another official identified in 18 U.S.C. § 1751, *fn3" the Defendant could not have been prosecuted under that statute had he succeeded in killing Mr. Basso and, therefore, he could not be charged with attempting to commit that crime.

 Although counsel for the Defendant asserted at the hearing that the Motion presented "a statutory construction argument combined with a jurisdiction argument," *fn4" and "not impossibility at all," the Court is wholly unpersuaded by defense counsel's semantical dance. Transcript of proceedings on March 24, 1995 [hereinafter "Tr."] at 7-8. The Defendant's argument, however couched by his counsel, is essentially one of legal impossibility. "Legal impossibility is said to occur where the intended acts, even if completed, would not amount to a crime." United States v. Berrigan, 482 F.2d 171 (3rd Cir. 1971); United States v. Frazier, 560 F.2d 884, 888 (8th Cir. 1977), cert. denied, 435 U.S. 968, 56 L. Ed. 2d 58, 98 S. Ct. 1605 (1978). *fn5" Thus, relying upon Berrigan (among other impossibility cases), the Defendant contended that "because the act would not have been a violation of Section 1751 if it 'had been consummated,' the act which falls short cannot then be an 'attempted' violation of the statute." Motion at 7. This, at bottom, is a claim of legal impossibility, pure and simple.

 Viewing the Defendant's argument as such, the Court finds that it must fail. Aside from the Third Circuit in Berrigan, every Circuit that has considered the defense of impossibility has rejected it -- a fact of critical importance which defense counsel conveniently ignored in representing that "it is without question that 'a person who commits or attempts to commit what is not a crime in law cannot be convicted of attempting to commit a crime . . . .'" Motion at 4 (emphasis supplied) (quoting Berrigan, 482 F.2d at 186). *fn6" The Court takes this opportunity to admonish defense counsel for failing to abide by the Code of Professional Responsibility which "prescribe[s] circumstances in which an attorney must disclose facts and law contrary to his or her client's interests." McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 440-41, 100 L. Ed. 2d 440, 108 S. Ct. 1895 (1988) (citing Rule 3.3 of the ABA Model Rules of Professional Conduct (1984) and G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 352 (1985)); Rule 3.3 of the District of Columbia Bar Rules Annotated (1994). As the Supreme Court observed, the commentary to Rule 3.3 provides that "'there are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.'" Id. at 441 n.14. Under the circumstances at bar, where the Motion at issue was of grave importance and defense counsel had ample time to prepare it, and where the authority adverse to the Defendant's position is overwhelming, the Court observes that defense counsel's omission borders on just such an affirmative misrepresentation. Indeed, it is simply inaccurate to state that Berrigan is "without question" the law. Motion at 4.

 Rather, there is no consensus amongst the federal courts on the subject of impossibility, with most courts and commentators rejecting Berrigan's strict recognition of legal impossibility as a valid defense. United States v. Oviedo, 525 F.2d 881, 883-84 (5th Cir. 1976); United States v. Brooklier, 459 F. Supp. 476, 480 (C.D. Cal. 1978). The Circuit cases dealing with legal impossibility fall into three categories. While the Third Circuit held in Berrigan that, regardless of criminal intent, legal impossibility is a valid defense, the Second Circuit's view is that, consistent with the Model Penal Code, "attempt is established when 'the defendants' actions would have constituted the completed crime if the surrounding circumstances were as they believed them to be.'" United States v. Marin, 513 F.2d 974, 976 (2d Cir. 1975) (quoting United States v. Heng Awkak Roman, 356 F. Supp. 434, 434 (S.D.N.Y.), aff'd, 484 F.2d 1271 (2d Cir. 1973), cert. denied, 415 U.S. 978, 39 L. Ed. 2d 874, 94 S. Ct. 1565 (1974)). The Fifth Circuit takes a middle ground, requiring "that the objective acts of the defendant, taken as a whole, strongly corroborate the required culpability" for criminal attempt. United States v. Korn, 557 F.2d 1089, 1091 (5th Cir. 1977); Oviedo, 525 F.2d at 885. *fn7" The Ninth and Eleventh Circuits have specifically adopted the Fifth Circuit view. *fn8" See United States v. Everett, 692 F.2d 596, 600 (9th Cir. 1982), cert. denied, 460 U.S. 1051, 75 L. Ed. 2d 930, 103 S. Ct. 1498 (1983); United States v. Bagnariol, 665 F.2d 877, 896 (9th Cir. 1981), cert. denied, 456 U.S. 962, 102 S. Ct. 2040, 72 L. Ed. 2d 487 (1982); United States v. Innella, 690 F.2d 834, 834 (11th Cir. 1982), cert. denied, 460 U.S. 1071, 75 L. Ed. 2d 949, 103 S. Ct. 1526 (1983).

 Upon careful consideration of these and other cases, the Court flatly rejects the Berrigan approach urged by the Defendant. Indeed, the Third Circuit itself has recognized that the doctrine of impossibility "has become 'a source of utter frustration,' plunging the state courts into a 'morass of confusion,'" and that it "has lost whatever acceptance at common law it may have possessed when the statute considered in Berrigan was enacted in 1930." United States v. Everett, 700 F.2d 900, 905 (3rd Cir. 1983) (quoting United States v. Thomas, 13 U.S.C.M.A. 278, 286-87, 32 C.M.R. 278, 286-87 (1962)). Accordingly, the Third Circuit held that impossibility is no defense to the charge of attempted distribution of a controlled substance under 21 U.S.C. § 846, recognizing that the doctrine of impossibility, "whose viability at common law was questionable at best, should not hamper federal efforts to enforce the drug laws." Id. at 907.

 Furthermore, the Court is wholly unpersuaded by the Defendant's heavy reliance on People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (N.Y. 1906), a case almost a century old, for the proposition that a defendant cannot be charged with an attempt to commit an act which would not have been a crime had it been consummated. What defense counsel failed to advise the Court is that Jaffe is no longer the law in New York state. *fn9"

 In turn, the Court declines to follow Judge Flannery's application of the Jaffe rationale in United States v. Hair, 356 F. Supp. 339 (D.D.C. 1973). Observing that the impossibility defense is "'so fraught with intricacies and artificial distinctions that [it] has little value as an analytical method for reaching substantial justice,'" Judge Flannery nevertheless leaves the quandary up to the legislature and follows Jaffe as the "more logical" approach. Id. at 342 (quoting State v. Moretti, 52 N.J. 182, 244 A.2d 499 (N.J. 1968)). In light ...


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