Number range CHAPTER

**Chapter 5.00**

**ATTEMPTS**

*Table of Instructions*

**Instruction**

5.01 Attempt\--Basic Elements

5.02 Sham Controlled Substance Cases

5.03 Abandonment or Renunciation

**5.01 ATTEMPT -- BASIC ELEMENTS**

\(1\) Count \_\_\_ of the indictment accuses the defendant of attempting
to commit the crime of \_\_\_\_\_\_\_ in violation of federal law. For
you to find the defendant guilty of this crime, you must be convinced
that the government has proved both of the following elements beyond a
reasonable doubt:

\(A\) First, that the defendant intended to commit the crime of
\_\_\_\_\_\_\_.

\(B\) And second, that the defendant did some overt act that was a
substantial step towards committing the crime of \_\_\_\_\_\_\_.

\(C\) Merely preparing to commit a crime is not a substantial step. The
defendant\'s conduct must go beyond mere preparation, and must strongly
confirm that he intended to \_\_\_\_\_\_\_. But the government does not
have to prove that the defendant did everything except the last act
necessary to complete the crime. A substantial step beyond mere
preparation is enough.

\(2\) If you are convinced that the government has proved both of these
elements, say so by returning a guilty verdict on this charge. If you
have a reasonable doubt about either one of these elements, then you
must find the defendant not guilty.

**Committee Commentary 5.01**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit has not addressed this instruction directly, but no
significant change has occurred in the Sixth Circuit definition of
attempt. The Sixth Circuit continues to rely on United States v.
Pennyman, 889 F.2d 104, 106 (6th Cir. 1989), which is discussed below in
the 1991 Commentary. *See, e.g.,* United States v. Price, 134 F.3d 340,
350 (6^th^ Cir. 1998); United States v. Shelton, 30 F.3d 702, 705 (6^th^
Cir. 1994) . In addition to relying on *Pennyman*, the court also
continues to rely on United States v. Williams, 704 F.2d 315 (6th Cir.
1983) and United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974).
*See* United States v. Bilderbeck, 163 F.3d 971, 975 (6^th^ Cir. 1999).

Although no change has occurred, the court has articulated some
refinements to attempt law. In a case relying on the *Pennyman* standard
generally, the court also characterized evidence as sufficient to
establish attempt if it shows that the "defendant's conduct goes beyond
'preliminary activities,' and 'a fragment of the crime \[was\]
essentially \... in progress.'" United States v. Price, *supra* at 351,
*quoting* United States v. Dolt, 27 F.3d 235, 239 (6^th^ Cir. 1994) and
United States v. Hadley, 918 F.2d 848, 853 (9^th^ Cir. 1990). The court
has noted that attempt "is to be construed in a 'broad and all inclusive
manner.'" United States v. Bilderbeck, *supra* at 975, *quoting* United
States v. Reeves, 794 F. 2d 1101, 1103 (6^th^ Cir. 1986). The proof of
the substantial step need not be sufficient to prove the criminal
intent, but only to corroborate it; the act and intent are ultimately
separate inquiries. *Bilderbeck,* 163 F.3d at 975. The standard for
evaluating the substantial step element is objective: whether any
reasonable person could find that the acts committed would corroborate
the firmness of a defendant's criminal intent, assuming the defendant
did, in fact, intend to commit the crime. *Id.* When a defendant engages
in active negotiations to purchase drugs, he fulfills the substantial
step requirement. *Id.* at 976, *citing Pennyman, supra; Williams,
supra;* and United States v. Dworken, 855 F.2d 12, 19 (1^st^ Cir. 1988).
No defense of withdrawal, abandonment or renunciation exists after the
crime of attempt is complete with proof of intent and acts constituting
a substantial step toward the substantive offense. United States v.
Shelton, *supra* at 706.

A frequent question is whether the defendant has met the substantial
step element in attempted drug crimes. The court often finds this
element satisfied. *See, e.g.,* *Price*, 134 F.3d 340 (evidence of
conduct sufficient based on defendant's action of assisting in driving,
standing surveillance, participating in the examination of the cocaine,
and carrying the bag of money).

*1991 Edition*

There is no general federal statute prohibiting attempts. United States
v. Rovetuso, 768 F.2d 809, 821 (7th Cir.1985), cert. denied, 474 U.S.
1076, 106 S.Ct. 838, 88 L.Ed.2d 809 (1986). But many federal statutes
defining substantive crimes include express provisions proscribing an
attempt to commit the substantive offense. See for example 18 U.S.C. s
2113, which expressly prohibits an attempted bank robbery as well as a
completed robbery. In United States v. Williams, 704 F.2d 315 (6th
Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983),
the Sixth Circuit generally defined the two requisite elements of an
attempt as: \"(1) an intent to engage in criminal conduct and (2) the
performance of one or more overt acts which constitute a substantial
step towards the commission of the substantive offense.\" Id. at 321.
Accord United States v. Pennyman, 889 F.2d 104, 106 (6th Cir.1989) (
\"the government must establish two essential elements: (1) the intent
to engage in the proscribed criminal activity, and (2) the commission of
an overt act which constitutes a substantial step towards commission of
the proscribed criminal activity\"). See also Ninth Circuit Instruction
5.03.

The main case cited by the Sixth Circuit in Williams in support of this
general definition was the Second Circuit\'s decision in United States
v. Manley, 632 F.2d 978 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101
S.Ct. 922, 66 L.Ed.2d 841 (1981). In Manley, the Second Circuit said
that the \"substantial step\" required to convict must be \"something
more than mere preparation, yet may be less than the last act necessary
before the actual commission of the substantive crime.\" Id. at 987. The
Second Circuit said that the defendant\'s behavior must be of such a
nature that \"a reasonable observer viewing it in the context could
conclude beyond a reasonable doubt that it was undertaken in accordance
with a design to violate the statute.\" Id. at 988.

The second case cited by the Sixth Circuit in Williams in support of
this general definition was the Fifth Circuit\'s decision in United
States v. Mandujano, 499 F.2d 370 (5th Cir.1974), cert. denied, 419 U.S.
1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). In Mandujano, the Fifth
Circuit approvingly quoted instructions stating that the \"substantial
step\" required to convict must be \"conduct strongly corroborative of
the firmness of the defendant\'s criminal intent.\" Id. at 376. This
language is consistent with the criminal attempt provisions of the Model
Penal Code, from which the \"substantial step\" test was taken. See
Model Penal Code s 5.01(2) (\"(c)onduct shall not be held to constitute
a substantial step \... unless it is strongly corroborative of the
actor\'s criminal purpose\").

See generally Seventh Circuit Instruction 5.10, Eighth Circuit
Instruction 8.01 and Ninth Circuit Instruction 5.03.

**5.02 SHAM CONTROLLED SUBSTANCE CASES**

\(1\) The fact that the substance involved in this case was not real
\_\_\_\_\_\_\_ is no defense to the attempt charge. But the government
must convince you that the defendant actually thought he was buying
\[selling\] real \_\_\_\_\_\_\_.

\(2\) The government must show that the defendant\'s actions uniquely
marked his conduct as criminal. In other words, the defendant\'s
conduct, taken as a whole, must clearly confirm beyond a reasonable
doubt that he actually thought he was buying \[selling\] real
\_\_\_\_\_\_\_.

**Use Note**

This instruction should be used when the defendant is charged with an
attempted controlled substance offense based on a sale or purchase of
sham drugs. This instruction should be given in addition to an
instruction outlining the elements of attempt.

If the defendant is charged with buying or selling sham drugs knowing
they were sham, the defendant lacks the mens rea for an attempted
controlled substances crime and this instruction should not be given.

**Committee Commentary 5.02**

(current through December 31, 2007)

The Committee made no change in the text of the instruction.

The Committee did change the Use Note in two significant ways. In the
first paragraph, the second sentence was added to clarify that in sham
drugs cases, this instruction alone is not sufficient but is to be given
with the instruction setting out the elements of attempt. Also, the word
"fake" was replaced with "sham." This is not a substantive change but is
made for consistency.

The second paragraph in the Use Note is new. It was added to indicate
that an attempted controlled substances offense is only implicated if
the defendant believed that the substance involved was a real controlled
substance. Thus, if the defendant knew that the substance involved was
not a controlled substance but was sham drugs, this instruction is not
appropriate. In this situation, *i.e,* the drug is sham and the
defendant knows it, the appropriate instruction should be based on 21
U.S.C. §§ 802(32) and 813 (the Controlled Substance Analogue Enforcement
Act of 1986).

The Sixth Circuit law on sham controlled substances has not changed
since the 1991 edition of this instruction. *See, e.g.,* United States
v. Allen, 1993 WL 445082 at 4, 1993 U.S. App. LEXIS 28778 at 5 (6^th^
Cir. 1993)(unpublished)(relying on and quoting the *Pennell* standard
discussed in the 1991 Committee Commentary).

*1991 Edition*

In United States v. Pennell, 737 F.2d 521, 524-525 (6th Cir.1984), cert.
denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), the Sixth
Circuit held that the defendant could be convicted of an attempt to
possess a controlled substance even though the substance he purchased
from government agents was not real cocaine. The Sixth Circuit agreed
with the Third Circuit\'s analysis in United States v. Everett, 700 F.2d
900, 907-908 (3d Cir.1983), that \"Congress intended to eliminate the
impossibility defense in cases prosecuted under 21 U.S.C. ss 841(a)(1)
and 846.\" Pennell, supra at 525. Accord United States v. Reeves, 794
F.2d 1101, 1104 (6th Cir.) (\"there can be no question that the
Congressional intent in fashioning the attempt provision as part of an
all-out effort to reach all acts and activities related to the drug
traffic was all inclusive and calculated to eliminate technical
obstacles confronting law enforcement officials\"), cert. denied, 479
U.S. 963, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986).

To convict a defendant in a sham delivery case, the government \"must,
of course, prove the defendant\'s subjective intent to purchase (or
sell) actual narcotics beyond a reasonable doubt.\" United States v.
Pennell, supra, 737 F.2d at 525. And in order to avoid unjust attempt
convictions in these types of cases, the Sixth Circuit has held that the
following evidentiary standard must be met:

\"In order for a defendant to be guilty of a criminal attempt, the
objective acts performed, without any reliance on the accompanying mens
rea, (must) 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.\" Id.

Accord, United States v. Reeves, supra, 794 F.2d at 1104 (\"(t)his
standard of proof has been adopted in this circuit\").

What this means is that \"the defendant\'s objective conduct, taken as a
whole, must unequivocally corroborate the required subjective intent to
purchase or sell actual narcotics.\" United States v. Pennell, supra,
737 F.2d at 525. Accord United States v. Pennyman, supra, 889 F.2d at
106.

**5.03 ABANDONMENT OR RENUNCIATION**

(No Instruction Recommended)

**Committee Commentary 5.03**

(current through December 31, 2007)

The Committee made no change in its approach to this instruction and
continues to recommend that no instruction be given.

A panel of the Sixth Circuit has endorsed the approach of Instruction
5.03. In United States v. Tanks, 1992 WL 317179, 1992 U.S. App. LEXIS
28889 (6^th^ Cir. 1992) (unpublished), the district court refused to
give an instruction on abandonment. On appeal, the panel stated that a
defendant is entitled to instructions only on recognized defenses, and
since the abandonment defense was not recognized in the Sixth Circuit,
he was not entitled to an instruction. The panel quoted the paragraph of
commentary to the first edition of Pattern Instruction 5.03 in support
of its conclusion that the defense was not recognized. The panel then
stated that the defendant presented insufficient evidence to raise the
defense at any rate.

In United States v. Shelton, 30 F.3d 702, 706 (6^th^ Cir. 1994), the
Sixth Circuit made clear that it does not recognize the defense of
abandonment or renunciation, holding that "withdrawal, abandonment and
renunciation, however characterized, do not provide a defense to an
attempt crime." The court stated that the crime of attempt is "complete
with proof of intent together with acts constituting a substantial step
toward commission of the substantive offense," but noted that if a
defendant withdraws prior to forming the required intent or taking the
substantial step, then the question arises if he has committed the
offense since the elements of the crime cannot be proved. *Id*.

*1991 Edition*

No federal cases have explicitly recognized voluntary abandonment or
renunciation as a valid defense to an attempt charge. The closest the
federal courts have come are two cases which assumed, without deciding,
that even if abandonment or renunciation is a defense, the facts of the
particular cases did not support a finding that a voluntary abandonment
or renunciation had occurred. See United States v. Bailey, 834 F.2d 218,
226-227 (1st Cir.1987); and United States v. McDowell, 705 F.2d 426, 428
(11th Cir.1983). See generally Model Penal Code s 5.01(4).

Given the lack of clear case law supporting the existence of this
defense, the Committee does not recommend any instruction on this point.