No. It is not a crime to attempt to sell drugs if the substance isn't actually drugs. The court said that a person's bad intentions aren't enough to make them a criminal. Their actions have to actually be illegal or look very illegal. Here, what Oviedo actually did was sell a bag of legal powder. This could just be a scam, which isn't the same crime. Because his actions weren't clearly criminal on their own, the court decided it was too risky to punish him just for what the jury thought he was thinking.

No, Oviedo cannot be found guilty of trying to sell heroin because his actions alone, without considering his thoughts, do not clearly show criminal behavior. The court explains the difference between legal and factual impossibility. Legal impossibility is when the planned actions, even if completed, would not be a crime. Here, selling procaine hydrochloride is not a crime, no matter what Oviedo believed.

The court says that to be guilty of attempt, a person's actions must strongly show criminal intent. The actions should be unusual, not common, because common actions could lead to guilty verdicts based only on thoughts, without clear proof. Oviedo's actions - offering to sell a substance and hiding it in a TV - could be part of a legal activity and do not prove criminal intent.

The court disagrees with the government's argument that Oviedo can be found guilty based only on his intent to sell heroin. Allowing guilty verdicts based only on thoughts, without actions that are clearly criminal, would be dangerous and could punish people just for their ideas. Requiring clear criminal actions helps prevent guilty verdicts based on unreliable guesses about intent.

—"this court required that `the objective acts performed, without any reliance on the accompanying mens rea, mark the defendant's conduct as criminal in nature.'"

The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law

—the substance sold to an undercover agent as heroin was shown upon chemical analysis to be an uncontrolled substance, procaine hydrochloride, and the defendant was charged with an attempt to distribute heroin.

—where we concluded that "some preparations may amount to an attempt" so long as this conduct is "more than remote preparation" and is "strongly corroborative of the firmness of the defendant's criminal intent

Legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime

This requirement "prevents the conviction of persons engaged in innocent acts on the basis of a mens rea proved through speculative inferences, unreliable forms of testimony, and past criminal conduct."

We have said that the second element of an attempt charge—whether the defendant took a substantial step—requires the government to prove beyond a reasonable doubt that "the defendant's objective acts, without reliance on the accompanying mens rea,... mark the defendant's conduct as criminal."

Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective.

We cannot say that these actions are insufficient for conviction by virtue of being so "commonplace that they are engaged in by persons not in violation of the law."

No. A defendant does not commit a criminal attempt when their objective acts are not, in themselves, criminal in nature. The court rejected the government's argument that Oviedo's criminal intent alone was sufficient for a conviction. It held that relying solely on inferred intent, without objective acts that corroborate that intent, creates too great a risk of convicting individuals for their thoughts rather than their actions. The court reasoned that when the substance sold is not actually a narcotic, a key objective fact supporting criminal intent is removed, and the conduct becomes ambivalent. Oviedo's actions—selling a legal white powder—were consistent with a noncriminal enterprise (a 'rip-off') and did not, on their own, unequivocally mark his conduct as criminal. Therefore, allowing the jury's determination of his intent to be the sole basis for a criminal offense was impermissible.

No, Oviedo cannot be convicted of attempted distribution of heroin because the objective acts he performed, without relying on his intent, do not mark his conduct as criminal in nature. The court distinguishes between legal and factual impossibility, noting that legal impossibility occurs when the acts performed, even if fully carried out as intended, would not constitute a crime. Here, Oviedo's act of selling procaine hydrochloride, a non-controlled substance, is not itself a crime, regardless of his belief that it was heroin.

The court emphasizes that for a defendant to be guilty of attempt, there must be objective acts that are strongly corroborative of criminal intent. The acts should be unique rather than commonplace, as engaging in commonplace acts could lead to convictions based on intent alone, without any objective proof. Oviedo's actions - offering to sell a substance and hiding it in a television - are consistent with a non-criminal enterprise and do not sufficiently establish his criminal intent.

The court rejects the government's argument that Oviedo's conviction can be sustained solely based on his intent to sell heroin. Allowing convictions based on intent alone, without objective acts that are unequivocally criminal, would pose inherent dangers and allow for punishment based on mere thoughts or desires. The requirement of objective acts serves as an important safeguard to prevent convictions based on speculative or unreliable evidence of intent.

United States v. Oviedo

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