8. If the neighbor knew the white powder was not cocaine but the defendant believed it was, which of the following is correct?

To be guilty of attempt, a defendant must have the intent that the crime be committed and take a substantial step, more than mere preparation, in furtherance of that crime.

At times, a criminal defendant has done everything in his power to accomplish the result he desires, but due to external circumstances, no substantive crime is committed. In such situations, the defendant will often argue that not only did the completed offense not occur, it could not have occurred. This is called the «impossibility» defense.

A claim of FACTUAL impossibility happens when the defendant makes a mistake concerning an issue of fact, such that if he had NOT been mistaken, he would have known that his attempt had no possibility of success. The defense of factual impossibility has almost never been successful because impossibility is no defense where, had the facts been as the defendant believed them to be, there WOULD have been a crime.

A true LEGAL impossibility defense arises when not only the defendant's completed actions could not possibly be a crime, but also, even if the facts had been as the defendant believed them to be, no crime would have been committed. Thus, the defendant engages in conduct that he believes is against the law, but he has misconstrued the meaning of the statute, and his actions are not, in fact, illegal. This is extremely rare. (Compare to «mistake of law,» where a defendant commits an illegal act but believes it is legal, which is NO defense.)

A way of determining if something is factual or legal impossibility is to ask: If the defendant were able to complete all the acts he intended to do, and if all of those circumstances were as the defendant believed them to be, would the defendant have committed a crime? If the answer is yes, it is factual impossibility and not a defense. In the unusual case where the answer is no, the defendant most likely has a legal impossibility defense.

A HYBRID case arises when the defendant makes a mistake of fact that bears upon the legality of his actions. This means a defendant understands what the statute prohibits, but mistakenly believes that the facts (as he understands them) bring his situation within that statute. A substantial majority of courts today reject this hybrid defense. For example, it is now standard practice for undercover narcotics agents to sell suspects a substance that purports to be a narcotic, but which is really sugar or some other non-narcotic. If the suspect makes the purchase, he will almost certainly be convicted of attempted possession of narcotics.

D is correct. Assuming that the neighbor knew that the white powder was not cocaine, but merely a look-alike substance, the neighbor did not intend to sell cocaine to the defendant. The neighbor, therefore, did not possess the requisite intent to commit the crime of selling or attempting to sell cocaine.

The defendant, on the other hand, bought the substance from the neighbor assuming that it was indeed cocaine, with the intent to buy that drug so that she could resell it. She then completed the purchase from the neighbor, repackaged it into smaller containers, and sold one to the undercover police officer — all actions that a court could construe as constituting more than mere preparation in selling cocaine (especially selling one of the packages to the officer). Because the defendant bought what she thought was cocaine and then resold part of it to the officer, she took a substantial step with the requisite intent and is guilty of attempting to sell cocaine.

Impossibility is not available as a defense for the defendant. Although the defendant could not have literally sold cocaine because it really was the lookalike substance (factual impossibility), most jurisdictions do not recognize this type of «hybrid» impossibility as a defense when a defendant mistakenly believes the facts bring her conduct within the meaning of a statute proscribing such conduct. Thus, even though the substance was not cocaine, had the circumstances been as the defendant believed them to be, she would have been attempting to sell cocaine.

A is incorrect. The defendant took a substantial step beyond mere preparation toward selling cocaine with the intent that the sale of the illegal drug would occur, and she may be convicted of attempting to sell cocaine. The neighbor, however, did not sell the defendant cocaine, but rather, a look-alike substance, knowing that it was not really cocaine. Because the neighbor did not sell the substance with the intent that the crime of selling cocaine would take place, the neighbor did not act with the requisite mens rea for attempt and cannot be guilty.

B is incorrect. It is correct that the neighbor is not guilty of attempting to sell cocaine because the neighbor intentionally sold a substance that was not really cocaine, and therefore the neighbor did not possess the necessary intent to sell cocaine. The defendant, however, purchased the substance from the neighbor and then repackaged and sold the substance, all while assuming it was in fact cocaine.

C is incorrect. As explained above, the neighbor knowingly did not sell the defendant cocaine and therefore, did not act with the requisite mens rea for attempt. The defendant, however, purchased and sold the substance, all while assuming it was in fact cocaine. The neighbor is not guilty of selling cocaine, but the defendant is.