Facts
- Federal authorities used an informer, John T. Smith, to investigate an international plan to import and sell large quantities of heroin in the United States.
- On November 7, 1972, Smith met in Singapore with Heng Awkak Roman and Lee Koo to discuss importing and selling narcotics in the United States.
- Defendants took Smith’s suitcase from his hotel and later showed him the contents at Heng’s residence; Smith saw white powder described as 2.5 kilograms of heroin, later confirmed by laboratory analysis to be heroin of over 96% purity.
- Heng drove Smith to the airport with the suitcase in the trunk; without Heng’s knowledge, Smith turned the suitcase over to federal narcotics agents, who removed the heroin and kept it in law enforcement custody.
- Smith traveled to New York; on November 20, 1972, he retrieved the suitcase from the agents, now containing soap powder packaged to resemble heroin, and placed it in a Pennsylvania Station locker.
- Defendants traveled to New York pursuant to the plan, met Smith at a Manhattan hotel, and were shown the locker key; Smith later showed Heng the suitcase in the locker but did not open it.
- Defendants continued arrangements to complete a sale in New York of what they believed was heroin and were arrested.
- Defendants were indicted for conspiracy to violate federal narcotics laws and for possessing 2.5 kilograms of heroin in the Southern District of New York with intent to distribute.
Issues
- Whether defendants could be convicted of attempt to possess heroin with intent to distribute when, unknown to them, the suitcase in New York contained no heroin because agents had removed and substituted it.
- Whether the evidence showed acts sufficient to constitute an attempt, rather than mere preparation, toward possession with intent to distribute.
- Whether the sentencing court abused its discretion under Federal Rule of Criminal Procedure 32(c)(1) by declining to order a presentence investigation report.
Decision
- After a bench trial, the district court found both defendants guilty of the conspiracy count.
- The district court reserved decision on the substantive possession count and, after briefing, found both defendants guilty of attempt to commit the charged possession-with-intent-to-distribute offense.
- The district court rejected the argument that the absence of heroin in New York barred attempt liability.
- The court of appeals affirmed the convictions, adopting the district court’s reasoning on attempt and impossibility.
- The court of appeals also held that declining to order a presentence report was not an abuse of discretion under Rule 32(c)(1).
- Certiorari was denied.
Legal Principles
- Factual impossibility is not a defense to a federal criminal attempt where the defendant intends to commit the substantive offense and takes substantial steps that would complete the crime if circumstances were as the defendant believed.
- In narcotics prosecutions, police removal or substitution of contraband, unknown to defendants, does not defeat attempt liability for possession with intent to distribute.
- Conduct that advances an agreed narcotics importation-and-sale plan beyond preparation—such as securing the substance, coordinating transport and delivery, traveling to the distribution location, and proceeding to complete the transaction—can constitute a substantial step supporting attempt.
- Under then-applicable Federal Rule of Criminal Procedure 32(c)(1), a presentence report was discretionary; a sentencing judge does not abuse that discretion by declining a report after determining it would not provide useful information.
Conclusion
The convictions were sustained because defendants intended to possess and distribute heroin and took substantial steps to do so, making the government’s substitution of a harmless substance a case of factual impossibility that did not bar attempt liability; the sentencing court also acted within its discretion in declining to order a presentence report.