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April 18, 1995




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.


 To support Count One charging the Defendant with attempted assassination of the President in violation of 18 U.S.C. § 1751(c), the Government presented evidence that a White House visitor who resembles President Clinton, Mr. Dennis Basso, was standing on the White House grounds with three other men when the Defendant began shooting. The Government presented further evidence that the bullets struck trees and the building in the area where Mr. Basso was standing, and that the shooting occurred immediately after two school children mistook a man standing in that location for Bill Clinton. The purpose of presenting this and other related evidence, of course, was to persuade the jury that the Defendant shot at Mr. Basso believing him to be the President of the United States.

 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.




 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 of the substantial authority rejecting the defense of impossibility, however, the Court cannot adopt Judge Flannery's cursory reasoning.

 Finally, none of the other cases cited by the Defendant would persuade the Court to grant the Defendant's Motion. While, like Jaffe, the majority of state cases the Defendant relies upon have been legislatively rejected, *fn10" and are otherwise of dubious authoritative value in this Court, the federal cases to which he cites are largely inapplicable here as they involve a completed crime rather than the inchoate crimes of attempt or conspiracy. See, e.g., United States v. Monasterski, 567 F.2d 677, 684 (6th Cir. 1977) (cannot convict for receipt of stolen goods where owner had recovered possession before delivery to the intended receiver); United States v. Warshawsky, 20 F.3d 204, 208 (6th Cir. 1994) (questioning Monasterski's applicability to the crime of conspiracy, which is complete without satisfaction of each element of the underlying offense).

 Rather, the Court finds that the better approach is that espoused by the majority of the Circuits that have addressed the impossibility defense, to wit, that a defendant may be convicted of attempt where his objective conduct, taken as a whole, corroborates the requisite criminal intent. In essence, this view mirrors the dual elements of the crime of attempt: that the defendant had the specific intent to commit the substantive crime and that he took a substantial step towards commission of that crime. See Braxton v. United States, 500 U.S. 344, 349, 114 L. Ed. 2d 385, 111 S. Ct. 1854 (1991) (holding that to be responsible for the crime of attempting to kill a deputy marshal under 18 U.S.C. § 1114, the defendant "must have taken a substantial step towards that crime, and must have had the requisite mens rea"). Under 18 U.S.C. § 1751(b), the crime of attempt is complete once these elements are met, that is, once the actor takes a substantial step towards killing an official designated under the statute with the specific intent to do so.

 In considering a Motion for judgment of acquittal, the Court must view the evidence in the light most favorable to the Government. United States v. Kelley, 36 F.3d 1118, 1126 (D.C. Cir. 1994); United States v. Contreras, 950 F.2d 232, 236 (5th Cir. 1991), cert. denied, 504 U.S. 941, 112 S. Ct. 2276, 119 L. Ed. 2d 202 (1992). Based on the evidence proffered by the Government in this case, a reasonable jury could find that this crime of attempt was complete long before the Defendant even pulled the trigger of his firearm -- when, for example, having left a trail of written threats on the President and other government officials from Colorado to Washington, D.C., he arrived at the White House on the morning of October 29, 1994, concealing a rifle under his trench coat. The fact that Mr. Basso was standing in front of the White House at the time of the shooting, while President Clinton was elsewhere, is irrelevant. Under the approach adopted by the Fifth, Ninth and Eleventh Circuits, and consistent with that of the Second Circuit, the evidence was more than sufficient to show that the Defendant had the specific intent to kill the President and that his intent was corroborated by the steps he took in preparation for the actual shooting.



 Relying again on Berrigan, the Defendant further argued in his Motion that the Government failed to prove that the Defendant had the specific intent to kill the President, an essential element of 18 U.S.C. § 1751. In particular, the Defendant attempts to distinguish motive, desire and expectation from criminal intent, arguing that under the Government's theory, while the Defendant had the motive or desire to kill the President, he ultimately intended to kill Mr. Basso when he shot at him, having mistook Mr. Basso for the President. Motion at 8 (citing Berrigan, 482 F.2d at 188 n.35 (quoting Keedy, Criminal Attempts at Common Law, 102 U. Pa. L. Rev. 319, 466-67 n.29 (1955)). In this Court's view, however, neither a footnote in Berrigan nor the 1955 law review article it cites are persuasive authority for drawing such a distinction. Rather, the Court of Appeals for this Circuit has made clear that specific intent refers to the "bad purpose" of the actor, and the Government presented ample evidence upon which the jury could find that the Defendant's purpose in acting was to kill President Clinton. United States v. Haldeman, 559 F.2d 31, 113, 181 U.S. App. D.C. 254 (D.C. Cir. 1976) (en banc), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977). Accordingly, the Court rejects the Defendant's argument that the Government failed to present sufficient evidence of specific intent to kill President Clinton to warrant sending Count One to the jury.



 With respect to the assault Counts, defense counsel briefly argued that, as to three of the officers, "the evidence is insufficient . . . that Mr. Duran had any idea that they were there." Tr. at 8. As the Court had already held in its Order of March 20, 1995, however, assault is a general intent crime, *fn11" such that "'an actor must entertain merely the criminal intent to do the acts therein specified.'" United States v. Kleinbart, 307 U.S. App. D.C. 136, 27 F.3d 586 (D.C. Cir.), cert. denied, 130 L. Ed. 2d 365, 115 S. Ct. 456 (1994) (quoting United States v. Feola, 420 U.S. 671, 686, 43 L. Ed. 2d 541, 95 S. Ct. 1255 (1975)). See Order entered March 20, 1995. "Where this is so and it is shown that a person has knowingly committed an act which the law makes a crime, intent may be inferred from the doing of the act." Haldeman, 559 F.2d at 113. Under this definition of general intent, there is no question that the Government proffered ample evidence in its case-in-chief to defeat a motion for judgment of acquittal on the assault Counts.

 The Defendant's argument assumed that, notwithstanding the Court's ruling that assault on a federal officer is a general intent crime, the Government had to prove that the Defendant spotted the officers, pointed the weapon in their direction, and intentionally shot at them. Because the Defendant submitted no authority to support the proposition that such a showing is required for a general intent crime, the Court finds no merit to the Defendant's Motion for judgment of acquittal on the assault Counts.

 In any event, the Court charged the jury in a manner not inconsistent with the Defendant's proposed instructions on this issue. At the charge conference held on April 2, 1995, counsel for the Defendant objected to the Court's instructing the jury that general intent may be inferred from the doing of the acts in question, namely, from the Defendant's use of a gun to assault the named officers while they were engaged in the performance of their official duties at the time of the crimes. In an effort to accommodate the Defendant in every possible way, the Court amended the definition in light of the Defendant's proposed jury instructions, and defense counsel did not object to this modification. In the Court's view, the final charge on this issue favored the Defendant by placing a heavier burden on the Government than did the Court's original instruction. The jury was instructed that the Government needed to prove under the assault Counts that the Defendant acted consciously, voluntarily and purposely, and not because of mistake, inadvertence or accident. Under Haldeman, this definition appears closer to describing specific intent than general intent. The Court observes that, in the end, defense counsel failed to argue pointedly the whole matter of requisite mens rea to the jury.


 For the foregoing reasons, the Court denied the Defendant's "Motion for Judgment of Acquittal on Count One Charging Attempted Assassination of the President," as well as his oral Motion for judgment of acquittal on the assault Counts.

 April 18Th, 1995



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