IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-60583 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JAMES ABDUL SMITH,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:97-CR-103-LN-ALL --------------------

September 3, 1999

Before KING, Chief Judge, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

James Abdul Smith was convicted for attempted possession

with intent to distribute cocaine base. Smith argues that the

evidence was insufficient to support his conviction for attempted

possession with intent to distribute crack cocaine. Smith makes

essentially three separate arguments to support his assertion.

First, Smith asserts that it was impossible for him to commit the

offense because there were no drugs to be had from the

cooperating individual. “[F]actual impossibility is not a

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-60583 -2-

defense if the crime could have been committed had the attendant

circumstances been as the actor believed them to be. United

States v. Conway,

(5th Cir. 1975).” United

States v. Contreras,

(5th Cir. 1991). There

can be no argument that Smith could not have attempted to and

ultimately possessed the crack cocaine if the cooperating

individual had the cocaine in his hotel room. This argument has

no merit.

Second, Smith asserts that he did not take a substantial

step toward the commission of the crime because he abandoned his

attempt to buy the cocaine base. “To be convicted of attempt

under

, a defendant ‘must have been acting with

the kind of culpability otherwise required for the commission of

the crime which he is charged with attempting,’ and ‘must have

engaged in conduct which constitutes a substantial step toward

commission of the crime[.]’” United States v. Stone,

(5th Cir. 1992) (citations omitted). “A substantial

step is one which strongly corroborates the `firmness of the

defendant’s intent.’” United States v. Briscoe,

(5th Cir. 1984) (citation omitted). “The acts, considered

alone, must `mark the defendant’s conduct as criminal in

nature.’”

(citation omitted). Viewed in the light most

favorable to the verdict, the evidence showed that Smith and

another individual met the cooperating individual at a designated

location, and asked to see the narcotics. The other individual

had a device used to smoke crack for the purpose of testing the

crack prior to the sale. Smith did not wish to do the No. 98-60583 -3-

transaction in the open parking lot and suggested alternate

locations. Although Smith did not show the money, he insisted to

the cooperating individual, up to the very moment of arrest that

he was interested in completing the transaction. These facts

were sufficient to support the conviction for attempted

possession of crack cocaine.

Smith asserts that the district court erred in refusing to

give the jury the requested instruction on abandonment. In

United States v. Pettigrew,

(5th Cir. 1996), a

case dealing with withdrawal from a conspiracy, the court held

that the defendant was not entitled to a withdrawal instruction

where there was no evidence that the defendant had withdrawn from

the conspiracy. There is no evidence that Smith abandoned his

attempt to buy the crack. This issue has no merit.

Smith asserts that the district court erred in denying his

motion for a new trail based on a claim of juror misconduct.

Rule 606(b), Fed. R. Evid., provides that “a juror may testify

[only] on the question whether extraneous prejudicial information

was improperly brought to the jury’s attention or whether any

outside influence was improperly brought to bear upon any juror.”

This also applies to statements or affidavits made by jurors.

In cases involving egregious factual assertions of

intentional juror misconduct, this court has held that Rule

606(b) did not allow the jurors to impeach their verdicts. See

United States v. Ortiz,

(5th Cir. 1991);

United States v. Marrero,

(5th Cir. 1990).

This issue has no merit. No. 98-60583 -4-

AFFIRMED.