United States v. Hair
356 F. Supp. 339, 1973 U.S. Dist. LEXIS 14285 (1973)
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Rule of Law:
An individual cannot be convicted of attempting to receive stolen property if the property was not actually stolen, as the defense of legal impossibility dictates that one cannot attempt to do an act which would not be a crime if completed.
Facts:
- An informer told Officer James E. Blackburn that the defendant, a grocery store operator, had previously purchased stolen merchandise and was interested in buying a stolen television.
- The informer also reported overhearing the defendant, within the last 72 hours, express a desire to purchase stolen property, including television sets.
- A police check of the defendant's record revealed prior arrests for larceny and receiving stolen property.
- Officer Blackburn secured a new color television and instructed the informer to sell it to the defendant.
- The informer was instructed to, and did, represent to the defendant that the television set was stolen.
- The defendant purchased the television set from the informer at his grocery store, believing it to be stolen.
Procedural Posture:
- Police applied for and received a search warrant from a D.C. Superior Court Judge based on an affidavit detailing a controlled sale of a television set.
- Police executed the warrant, seized the television and other property, and subsequently obtained a second warrant leading to more seizures.
- In the U.S. District Court, the defendant filed a motion to suppress all evidence seized from his premises.
- The District Court is now ruling on the defendant's motion to suppress.
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Issue:
Does a person commit the crime of attempted receiving of stolen property in the District of Columbia when they purchase property they believe to be stolen, but which is not, in fact, stolen?
Opinions:
Majority - Flannery, District Judge
No. A person does not commit the crime of attempted receiving of stolen property when the property is not actually stolen. The court adopted the rationale from People v. Jaffe, which holds that an unsuccessful attempt to do that which is not a crime cannot be held to be an attempt to commit the crime specified. Since the television set was never actually stolen, the defendant could not, as a matter of law, complete the crime of receiving stolen property. Therefore, his actions do not constitute a criminal attempt. The court acknowledged a split in jurisdictions, with California courts focusing on the defendant's criminal intent, but found the 'legal impossibility' defense more persuasive in the absence of a statute to the contrary. The court noted that while the Model Penal Code proposes eliminating the impossibility defense, this is a legislative matter, and until the statutes are revised, the court must follow the more logical rule that the underlying act must be a crime for an attempt to be criminal.
Analysis:
This decision solidifies the legal impossibility defense for attempt crimes within the District of Columbia, aligning it with the traditional New York rule from 'Jaffe'. It creates a significant hurdle for law enforcement conducting sting operations where the contraband or illicit property is supplied by the police. The court's opinion serves as a direct call for legislative action, suggesting that the modern trend of abolishing the distinction between factual and legal impossibility, as advocated by the Model Penal Code, is the appropriate solution but one that must be enacted by lawmakers, not judges.
