Brief Fact Summary.
Silvey, an inmate serving a thirty-year sentence, began selling marijuana in prison with Lewis, a prison guard. Lewis was stopped, arrested, and searched, finding $71.00 on his person. Lewis was arrested and convicted of attempting to deliver marijuana.
Synopsis of Rule of Law.
Actual possession of contraband is not required to constitute an attempt to deliver marijuana, however, a showing of more than a mere preparation is required.
Kenneth W. Silvey, was in custody serving a thirty year sentence in the James River Correctional Center. Silvey testified that he received large amount of money by conducting illegal transactions with other prisoners. Lewis, Defendant, a prison guard, realized the amount of money Silvey was making and asked him if wanted to make more money by selling marijuana. Silvey accepted Lewis’ request because Lewis said the prison officials would help
him and promised to get him off on parole. Three month later, a correction official gave Silvey $150.00 that contained a substance that would only be visible under fluorescent light, to buy marijuana. Subsequently, Silvey gave the money to Lewis, and Lewis was to deliver marijuana to him later that night. At 8p.m. that evening, Lewis took his work break and as he was walking towards a gate by the inmate compound, he was stopped, arrested, and searched. The officer did not only found $71.00 on his persons with the same substance the $150.00 carried. Lewis consented to a search of his home and vehicle, and the officer did not find any marijuana or illegal contraband. At trial, Lewis contended that he found the money in a drawer at work and denied offering or intending to deliver marijuana to Silvey. Lewis was convicted of attempting to deliver marijuana and fined $2500.
Whether the Government has failed to show that the defendant’s conduct constituted an attempt.
Yes, the Government has failed to show that the defendant’s conduct constituted an attempt.
An attempt required â€œthe intention to commit the crime, and the doing of some direct act towards its consummation which is more than mere preparation[,] but falls short of execution of the ultimate purpose.â€ In this case, the Government failed to show that any act in furtherance of delivery. The evidence does not indicate the Lewis possessed marijuana or that the money on found on him was connected to marijuana. Actual possession of contraband is not required, however, any conduct or action that would indicate more than a mere preparation is. Because the Government has not presented any evidence to support a finding of more than mere preparation, Lewis’ conduct does not support a finding of an attempt.