United States v. Partida
385 F.3d 546, 2004 U.S. App. LEXIS 19095, 2004 WL 2021559 (2004)
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Rule of Law:
Federal law punishes attempting to aid and abet the possession of a controlled substance with intent to distribute, even if the underlying offense is factually impossible, provided the defendant acts with criminal intent and takes substantial steps towards the crime.
Facts:
- The Federal Bureau of Investigation (FBI) began an investigation into alleged criminal activity within the Donna Police Department, focusing on former police officers Marco Abel Partida and Gerardo Vigil.
- FBI agents learned of a long-term friendship between Partida and Rigoberto Quintanilla, a reputed drug dealer who later became a government informant.
- In July 1999, Partida informed FBI agents that he knew Quintanilla had transported 200 pounds of marijuana to Georgia, that Partida had flown there at Quintanilla's expense, smelled marijuana in Quintanilla's vehicle trunk, and was shown approximately $19,000 amassed from the drug transport.
- After his arrest in April 1999 for transporting 6,000 pounds of marijuana, Quintanilla became a confidential government source and told FBI agents that Partida was interested in assisting the transportation of marijuana.
- With Quintanilla's consent, FBI agents commenced a reverse sting operation where Quintanilla, posing as a drug dealer, arranged for Partida, while on duty, to escort what Partida believed were marijuana loads through Donna in his marked patrol vehicle.
- On April 20, 2001, Partida, believing he was protecting 300 pounds of marijuana, escorted a red Suburban (actually empty) driven by Quintanilla through Donna; five days later, Quintanilla paid Partida $500 for his assistance.
- In November 2001, Partida, now acting chief of police, recruited fellow officer Vigil to provide escort services for another 'load' (a camera-equipped red Suburban without drugs) for Quintanilla.
- On November 9, 2001, Vigil met Quintanilla and followed the Suburban; later that day, Quintanilla paid Vigil $700 and Partida $2,200 for their services.
Procedural Posture:
- A federal grand jury issued a five-count indictment against Marco Abel Partida and Gerardo Vigil in the United States District Court for the Southern District of Texas.
- On February 18, 2003, Partida and Vigil were tried together in the District Court, where they presented the sole defense of entrapment.
- On February 21, 2003, a jury convicted Partida of all charges (attempted aid/abet possession with intent to distribute, and two counts of Hobbs Act extortion) and convicted Vigil of Hobbs Act extortion, but acquitted Vigil of conspiracy.
- On May 21, 2003, the District Court sentenced Partida to concurrent terms of 151 months incarceration and Vigil to 97 months incarceration.
- Partida and Vigil appealed their convictions and sentences to the United States Court of Appeals for the Fifth Circuit.
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Issue:
Does federal criminal law prohibit attempting to aid and abet the possession of a controlled substance with intent to distribute when the defendant believes drugs are present, but the underlying offense is factually impossible due to a government sting operation?
Opinions:
Majority - Carl E. Stewart
Yes, federal criminal law prohibits attempting to aid and abet the possession of a controlled substance with intent to distribute, even when the underlying offense is factually impossible due to a government sting operation. The court affirmed the convictions, reasoning that criminal liability for attempt requires proving the defendant acted with the kind of culpability (criminal intent) required for the underlying offense and engaged in conduct constituting a substantial step toward its commission. Factual impossibility, where the crime could not be completed because the circumstances were not as the actor believed them to be (e.g., no actual drugs), is not a defense to an attempt charge because the defendant still manifests dangerousness and criminal intent. The court cited Model Penal Code § 5.01(3) and Fifth Circuit precedent, which consistently uphold convictions for attempting to aid and abet in reverse sting operations where the 'principal' (government informant) only pretends to commit the crime. The court also found the indictment sufficient for both the drug and Hobbs Act extortion charges, correctly rejecting arguments regarding jury instructions on constructive amendment and mens rea. For sentencing, the court upheld the two-level firearm enhancement for both defendants, finding circumstantial evidence (officer on duty, uniform, departmental policy) supported possession during the drug activities. It also denied a reduction for acceptance of responsibility, stating that asserting an entrapment defense is a denial of factual guilt. Finally, the court affirmed the use of the preponderance of the evidence standard for factual findings during sentencing, even for conduct underlying an acquitted charge, as long as the resulting sentence does not exceed the statutory maximum for the conviction.
Analysis:
This case significantly clarifies and reinforces the scope of federal attempt law, particularly concerning aiding and abetting in the context of government sting operations. It firmly establishes that factual impossibility is not a viable defense, emphasizing that a defendant's criminal intent and substantial actions are sufficient for liability. The ruling strengthens the ability of law enforcement to prosecute public corruption, especially when officers use their official positions to facilitate perceived criminal activity. Furthermore, the decision provides important guidance on applying sentencing enhancements for firearm possession by law enforcement officers involved in drug offenses and on the standard of proof for sentencing factors, including conduct for which a defendant was acquitted, thereby affirming a robust stance against public sector malfeasance.
