Amicus Curiae Brief — Juan Martinez, Petitioner v. United States

No. 26-68

In the

Supreme Court of the United States

JUAN MARTINEZ,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eleventh Circuit

BRIEF OF CRIMINAL LAW

PROFESSORS AS AMICI CURIAE

SUPPORTING PETITIONER

Kenneth M. Levy

Counsel of Record

Paul M. Hebert Law Center

Louisiana State University

1 East Campus Drive

Baton Rouge, LA 70803

(646) 675-7171

klevy@lsu.edu

Counsel for Amici Curiae

August 14, 2026

121254

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Whether a defendant can be guilty of criminal

conspiracy to steal trade secrets when the conspiracy is

impossible to achieve because of a legal fact—specifically,

the defendant was legally authorized to obtain and use

the information—rather than because of a non-legal,

circumstantial fact.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. There Are Two Kinds of Legal Impossibility:

Pure and Hybrid . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. Legal Impossibility Is Exculpatory;

Factual Impossibility Is Inculpatory . . . . . . . . 7

III. Courts Are Overlooking a Critical Distinction Between Hybrid Legal Impossibility and

Hybrid Factual Impossibility . . . . . . . . . . . . . . . 9

IV. T h e I mp o s si bili t y i n M r . M a rt i n ez ’ s

Ca se I s Hy brid L ega l a nd T herefore

Exculpatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

APPENDIX — LIST OF AMICI CURIAE . . . . . . . . . 1a

iii

TABLE OF CITED AUTHORITIES

Cases

Page

United States v. Berrigan,

482 F.2d 171 (3d Cir. 1973) . . . . . . . . . . . . . . . 5, 7, 8, 15

State v. Bird,

285 N.W.2d 481 (Minn. 1979) . . . . . . . . . . . . . . . . . . . . 7

United States v. Carter,

15 F.4th 26 (1st Cir. 2021) . . . . . . . . . . . . . . . . . . . 4, 5, 8

Ciminelli v. United States,

598 U.S. 306 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Contreras,

950 F.2d 232 (5th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 7

United States v. Everett,

692 F.2d 596 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 9

United States v. Farner,

251 F.3d 510 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . 5, 10

United States v. Fernandez,

722 F.3d 1 (1st Cir. 2013) . . . . . . . . . . . . . . . . . . . . . 4, 5

United States v. Fiander,

547 F.3d 1036 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 9

iv

Cited Authorities

Page

United States v. Frazier,

560 F.2d 884 (8th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . 8

United States v. Hair,

356 F. Supp. 339 (D.D.C. 1973) . . . . . . . . . . . . . . . . . . 6

United States v. Heng Awkak Roman,

356 F. Supp. 434 (S.D.N.Y. 1973),

aff’d, 484 F.2d 1271 (2d Cir. 1973) . . . . . . . . . . . . . . 7, 8

United States v. Hsu,

155 F.3d 189 (3d Cir. 1998) . . . . . . . . . . . . . . . 4, 8, 9, 11

United States v. Innella,

690 F.2d 834 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 7

United States v. Joseph Martinez,

16 F.3d 202 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 15

United States v. Korn,

557 F.2d 1089 (5th Cir. 1977) . . . . . . . . . . . . . . . . . . . . 7

United States v. LaBudda,

882 F.2d 244 (7th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 9

United States v. Lange,

312 F.3d 263 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 7

United States v. Lanier,

520 U.S. 259 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

v

Cited Authorities

Page

State v. Logan,

232 Kan. 646 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Martinez,

No. 4:22-cr-170, 2023 WL 8702733

(S.D. Ga. Dec. 15, 2023) . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Martinez,

No. 24-10533, 2026 WL 184361

(11th Cir. Jan. 23, 2026) . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. McInnis,

601 F.2d 1319 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . 10

United States v. McKenzie,

178 F.4th 74 (1st Cir. 2026) . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Middleton,

690 F.2d 820 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . 14

United States v. Oviedo,

525 F.2d 881 (5th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . 7

United States v. Petit,

841 F.2d 1546 (11th Cir. 1988) . . . . . . . . . . . 4, 9, 11, 12

United States v. Powell,

1 F. Supp. 2d 1419 (N.D. Ala. 1998),

aff’d, 177 F.3d 982 (11th Cir. 1999) . . . . . . . . . . . . . . . 7

vi

Cited Authorities

Page

United States v. Powell,

24 M.J. 603 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Roeseler,

55 M.J. 286 (C.A.A.F. 2001) . . . . . . . . . . . . . . . . . . . . . 4

United States v. Sanford,

547 F.2d 1085 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . 4

In re Sealed Case,

223 F.3d 775 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . 4, 5

Simmons v. South Carolina,

512 U.S. 154 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Spurlock,

386 F. Supp. 2d 1072 (W.D. Mo. 2005) . . . . . . . . . . . . 5

Strauss v. United States,

376 F.2d 416 (5th Cir. 1967) . . . . . . . . . . . . . . . . . . . . 14

United States v. Thomas,

13 U.S.C.M.A. 278 (1962) . . . . . . . . . . . . . . . . . . . 7, 8, 9

United States v. Tykarsky,

446 F.3d 458 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Wallach,

935 F.2d 445 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . 4

vii

Cited Authorities

Page

United States v. Yang,

281 F.3d 534 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 9

United States v. Zheng,

113 F.4th 280 (2d Cir. 2024) . . . . . . . . . . . . . . . . . . . . . 8

Other Authorities

18 U.S.C. § 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

18 U.S.C. § 1832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Model Penal Code and Commentaries § 5.01

(Am. Law Inst. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

U.S.S.G. § 2A1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S.S.G. § 2A2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1

INTEREST OF AMICI CURIAE*

Amici are a group of criminal law professors whose

teaching and research involve fundamental questions

of criminal responsibility. Further information about

the amici is contained in the appendix, attached hereto.

Institutional affiliations are listed for identification

purposes only, and the views herein are those of the listed

individuals, not of their institutions.

Amici are interested in this case given the confusion

and conflicts that the impossibility defense has generated

among the circuits. As criminal-law professors, we must

tell our students that a fundamental question of criminal

responsibility yields entirely contradictory outcomes

depending on the jurisdiction. This confusion stems largely

from courts consistently conflating legal impossibility with

factual impossibility, often due to a misguided reliance

on the Model Penal Code, which attempts to abolish the

impossibility defense altogether. Amici believe that this

Court needs to provide clarity on this defense and ensure

that defendants like Mr. Martinez are no longer deprived

of their constitutional right to challenge the sufficiency of

the government’s proof.

* No party’s counsel authored any part of this brief. No

person or entity other than amici curiae, their members, or

their counsel made a monetary contribution intended to fund the

brief’s preparation or submission. Counsel of record for all parties

received timely notice of the intent to file this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case presents a recurring and unresolved

question that has split the circuits for decades and that

lower courts cannot answer with confidence: whether

defendants who are legally entitled to the information that

they are charged with conspiring to steal can nonetheless

be convicted because a factfinder might find that they were

ignorant of this entitlement.

The Second, Third, and Ninth Circuits have held

that legal impossibility is no defense to conspiracy at

all, treating the objective legality of the defendant’s goal

as irrelevant once an agreement and an overt act are

shown. Other courts, including the panel below, have

recognized that legal impossibility can defeat a conspiracy

charge in principle, but—precisely because they have

not distinguished hybrid legal impossibility from hybrid

factual impossibility, see infra Part III—have never

articulated a workable test for determining whether a

particular conspiracy is legally impossible. The result

is that trial courts decide, ad hoc and without guidance,

whether a defendant’s claim of legal authorization is fit

for a jury at all.

This case supplies a timely opportunity to resolve

that uncertainty: the record contains a fully litigated,

contract-based authorization defense that the trial court

barred from closing argument, giving this Court a

concrete vehicle for clarifying a defense that criminal-law

professors cannot teach with consistency and that lower

courts continue to apply in conflicting ways.

3

The trial court unjustly deprived Mr. Martinez of

the opportunity to employ the impossibility defense on

the basis of a false assumption: that his conspiracy to

steal trade secrets was factually impossible and therefore

more akin to attempted pickpocketing than attempting to

violate a non-existent law.

Mr. Martinez’s objective of stealing trade secrets was

not factually impossible but rather legally impossible.

His conspiracy to steal trade secrets could not have been

successful not because of an external, circumstantial

fact such as a law-enforcement sting operation. Rather,

it could not have been successful because of a legal fact:

the Proprietary Information Agreement (“PIA”) between

his employer, APAC, and Gulfstream legally authorized

Mr. Martinez’s use of Gulfstream technical documents.1

In this way, Mr. Martinez’s conduct was not materially

different from conspiring to steal a car that turned out

to be his own.

At most, Mr. Martinez intended to steal trade

secrets. But mere intent to steal trade secrets is legally

insufficient for theft, and therefore for conspiracy to

commit theft. Culpability for conspiracy to steal trade

secrets additionally requires that the information be

legally off-limits to the defendant. And that was simply

not the case here.

1. Amici assume throughout this amicus brief that the PIA

legally authorized Mr. Martinez’s use of Gulfstream’s technical

documents. The focus of this brief is whether, given this factual

assumption, Mr. Martinez had a valid legal-impossibility defense

that the district court should have allowed the jury to consider.

4

ARGUMENT

I.

There Are Two Kinds of Legal Impossibility:

Pure and Hybrid.

The Model Penal Code (MPC) famously recommends

abolishing the impossibility defense to criminal attempt

and criminal conspiracy. See Model Penal Code and

Commentaries § 5.01 cmt. at 295, 297, 307 (Am. Law Inst.

1985). While no federal courts have adopted the MPC’s

recommendation with respect to criminal attempt, some

federal courts have adopted it with respect to criminal

conspiracy. See United States v. Wallach, 935 F.2d 445, 470

(2d Cir. 1991), abrogated on other grounds by Ciminelli v.

United States, 598 U.S. 306 (2023); United States v. Hsu,

155 F.3d 189, 203 (3d Cir. 1998); United States v. Sanford,

547 F.2d 1085, 1091-92 (9th Cir. 1976); United States v.

Petit, 841 F.2d 1546, 1550-51 (11th Cir. 1988); United

States v. Roeseler, 55 M.J. 286, 291-92 (C.A.A.F. 2001).

What these courts and the MPC fail to realize is that

“pure” legal impossibility—the impossibility of violating

a law that does not exist—is always a defense to criminal

conspiracy (as well as criminal attempt). See United

States v. Carter, 15 F.4th 26, 36 (1st Cir. 2021); United

States v. Fernandez, 722 F.3d 1, 31 (1st Cir. 2013); In

Re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000). For

example, conspiring to grow tomatoes in the backyard

cannot possibly be a crime if growing tomatoes on one’s

property is not itself a crime. Likewise, if Persons A and

B conspire to throw a surprise birthday party for Person

C under the mistaken belief that there is a law prohibiting

surprise birthday parties, they cannot be arrested for,

or convicted of, conspiracy to throw a surprise birthday

5

party because what they are agreeing to do is not itself a

crime. See Carter, 15 F.4th at 36; Fernandez, 722 F.3d at

31; United States v. Berrigan, 482 F.2d 171, 190 (3d Cir.

1973); Sealed Case, 223 F.3d at 779; cf. United States v.

Spurlock, 386 F. Supp. 2d 1072, 1082 (W.D. Mo. 2005) (“[I]f

John Doe believes that it is unlawful to tear a phone book

and he rips a page out of his own home telephone book,

then even though he believes he has committed a crime,

he has not. Hence, legal impossibility.”).

The reason why pure legal impossibility is always a

defense is the so-called “legality principle,” which says

that there cannot be just punishment without law. See

United States v. Lanier, 520 U.S. 259, 265-66 (1997). The

defense of pure legal impossibility is simply a corollary

of the legality principle; it says that a person cannot be

convicted of either attempt or conspiracy if their purpose

was not illegal. See Berrigan, 482 F.2d at 186; United

States v. Farner, 251 F.3d 510, 513 n.3 (5th Cir. 2001).

In addition to pure legal impossibility, there is a

second kind of legal impossibility: “mixed fact/law” or

“hybrid”. Hybrid legal impossibility involves a particular

legal fact making the relevant criminal law entirely

inapplicable. See Fernandez, 722 F.3d at 31; Berrigan,

482 F.2d at 188-89; Sealed Case, 223 F.3d at 779. For

example, Person A tries to commit bigamy by marrying

Person B but fails to realize that he is no longer married

to Person C. The law of bigamy is inapplicable because of

a legal fact—the absence of a particular marital status.

Another example: A thinks that she is stealing B’s car, but

it is really A’s car. Despite being unaware of it, A’s legal

possession of the car renders the law of theft entirely

inapplicable and therefore the charge of attempted theft

6

entirely unwarranted. See United States v. Hair, 356 F.

Supp. 339 (D.D.C. 1973) (holding that the defendant did

not commit attempted receipt of stolen property because

of the legal fact that the television was not in fact stolen

property).

This objective inquiry must be kept distinct from the

mistake-of-fact defense, with which it is easily confused.

Mistake of fact is a defense not just to attempt and

conspiracy but to all crimes requiring intent or knowledge;

it asks whether a defendant’s false belief about a material

fact both (a) is reasonable and (b) negates the intent or

knowledge required for the crime. By contrast, hybrid

legal impossibility asks only whether the defendant’s

objective was, as a matter of law, actually illegal—a

question that does not turn on what the defendant believed

at all. See United States v. McKenzie, 178 F.4th 74, 88-89

(1st Cir. 2026). A defendant who mistakenly believes that

she is stealing a car that she in fact owns has a legalimpossibility defense regardless of her belief; a defendant

who mistakenly and reasonably believes that a stolen car

is not stolen has, at most, a mistake-of-fact defense.

The reason why legal impossibility of both kinds,

pure and hybrid, is a defense rather than a crime is

because intent to break a law is not sufficient to render

criminal either the purpose or the act performed in order

to achieve this purpose. Culpability also requires that

both the purpose and the act performed be objectively,

not just subjectively, illegal. An individual’s subjective

belief that their conduct or purpose is illegal does not

make it so. Only the law—not the individual’s subjective

belief—determines the legality or illegality of both their

act and their purpose. Because A actually owns the car,

7

the law of theft is rendered entirely inapplicable to her

taking of it and therefore also to her purpose of taking it.

A’s subjective belief that she is stealing simply does not

override the objective legal reality of her ownership. See

Berrigan, 482 F.2d at 186; United States v. Contreras,

950 F.2d 232, 238 (5th Cir. 1991), cert. denied, 504 U.S.

941 (1992); United States v. Korn, 557 F.2d 1089, 1091 (5th

Cir. 1977); United States v. Oviedo, 525 F.2d 881, 884-86

(5th Cir. 1976); United States v. Lange, 312 F.3d 263, 268

(7th Cir. 2002); United States v. Powell, 1 F. Supp. 2d 1419,

1421-22 (N.D. Ala. 1998), aff’d, 177 F.3d 982 (11th Cir.

1999); United States v. Innella, 690 F.2d 834, 835 (11th

Cir. 1982), cert. denied, 460 U.S. 1071 (1983).

II. Legal Impossibility Is Exculpatory;

Factual Impossibility Is Inculpatory.

Legal impossibility is distinct from two other kinds

of impossibility: “inherent” or “intrinsic” and “factual”.

Intrinsic impossibility refers to acts that under no

circumstances could possibly achieve the illegal objective.

What makes the illegal purpose impossible to achieve

is not a legal fact—the absence or inapplicability of a

criminal statute—but rather the laws of nature. An

example of intrinsic impossibility is Person A trying to

commit murder by using means that simply do not and

cannot work—e.g., voodoo or telekinesis. See Lange, 312

F.3d at 269; United States v. Heng Awkak Roman, 356

F. Supp. 434, 438 (S.D.N.Y. 1973), aff’d, 484 F.2d 1271

(2d Cir. 1973), cert. denied, 415 U.S. 978 (1974); United

States v. Thomas, 13 U.S.C.M.A. 278, 284-85 (1962); State

v. Logan, 232 Kan. 646, 649-50 (1983); State v. Bird, 285

N.W.2d 481, 482 (Minn. 1979).

8

Factual impossibility refers to acts that under

the particular circumstances cannot possibly achieve

the illegal objective. What makes the illegal purpose

impossible to achieve is not a legal fact (the absence or

inapplicability of a criminal statute) but rather a nonlegal fact—a fact about the person, intended victim, the

particular circumstances, or the environment. See Carter,

15 F.4th at 36; Roman, 356 F. Supp. at 434; Berrigan, 482

F.2d at 188; United States v. Frazier, 560 F.2d 884, 888

(8th Cir. 1977), cert. denied, 435 U.S. 968 (1978).

The classic example of factual impossibility is

attempted pickpocketing. If B’s pocket does not contain a

wallet but A, believing that it does, reaches into B’s pocket

to take it, A cannot possibly steal B’s wallet. A’s attempt

is factually impossible, not legally impossible—that is,

impossible not because of any legal fact but because of

the non-legal, circumstantial fact that B’s pocket contains

no wallet. For this reason, factual impossibility is not

a defense. Instead, it is a crime—again, the crime of

attempted theft. See United States v. Zheng, 113 F.4th

280, 298 (2d Cir. 2024); Berrigan, 482 F.2d at 188; Frazier,

560 F.2d at 888; United States v. Powell, 24 M.J. 603, 607

(1987); Thomas, 13 U.S.C.M.A. at 284, 288. Likewise,

attempted murder is a crime even if—unbeknownst to

the defendant—the intended victim could not possibly

have been killed because they were not home. What was

impossible here was not violation of a law; the law of

homicide very much existed and applied. Rather, what was

impossible in these particular factual circumstances was

the homicide itself. See United States v. Tykarsky, 446

F.3d 458, 465 (3d Cir. 2006); Hsu, 155 F.3d at 199.

Putting this all together, while legal impossibility

says that a defendant tried but failed to break a law that

9

either does not exist at all or that is rendered inapplicable

by a legal fact, both intrinsic and factual impossibility

say that a defendant tried but failed to break an existing

and applicable law by means of an act that could not

succeed. If it could not succeed under any circumstances,

the impossibility is intrinsic; if it could not succeed

under these particular circumstances, the impossibility

is factual. Unlike legally impossible conduct, which is

legally permissible and therefore exculpatory, a factually

impossible attempt is legally impermissible and therefore

inculpatory. (The status of intrinsic impossibility is unclear

because there is so little federal jurisprudence on it.)

III. Courts A re Overlooking a Critical Distinction

Between Hybrid Legal Impossibility and Hybrid

Factual Impossibility.

Some courts have decided that hybrid impossibility is

not a valid defense to conspiracy. These courts generally

argue as follows: A conspiracy to, for example, receive

stolen goods is a crime even if the goods are not stolen

because the objective fact of the goods being stolen is not

an element of conspiracy. The object of the conspiracy—

receiving stolen goods—is illegal; therefore the conspiracy

to achieve this illegal objective is also illegal. See Hsu, 155

F.3d at 203-04; United States v. Yang, 281 F.3d 534, 543-44

(6th Cir. 2002); United States v. LaBudda, 882 F.2d 244,

248-49 (7th Cir. 1989); United States v. Fiander, 547 F.3d

1036, 1042-43 (9th Cir. 2008); United States v. Everett,

692 F.2d 596, 599-600 (9th Cir. 1982); Petit, 841 F.2d at

1550-51; Thomas, 13 U.S.C.M.A. at 286-87.

Importantly, however, these courts fail to realize that

this argument succeeds only in certain circumstances, not

10

in others. It succeeds only when the hybrid impossibility

of achieving the conspiracy to receive stolen goods is

factual—that is, due to a non-legal fact; it fails when the

impossibility of achieving the conspiracy to receive stolen

goods is legal—that is, due to a legal fact.

The classic example of the former—a factually

impossible conspiracy to receive stolen goods—is a lawenforcement sting operation. In a sting operation, the

conspiracy to receive stolen goods is frustrated simply

because the goods were supplied by undercover police

officers rather than actual thieves. The circumstantial

fact that police intervened prevents the goods from being

stolen. This is factual impossibility and therefore not at

all exculpatory. See Farner, 251 F.3d at 513 (holding that

factual impossibility is not a defense to an attempt charge

where the defendant believed that he was communicating

with a 14-year-old girl who was actually an adult FBI

agent, stating that “the only reason he failed was because

the true facts were not as he believed them to be”).

An example of the latter—a legally impossible

conspiracy to receive stolen goods—is a situation in which

the goods cannot possibly be stolen because, unbeknownst

to the defendants, they themselves owned the goods all

along. Belonging to the defendants is a legal fact, a fact

about property ownership, making their conspiracy

legally impossible and therefore fully exculpatory. See

United States v. McInnis, 601 F.2d 1319 (5th Cir. 1979)

(affirming dismissal of conspiracy to kidnap count on the

grounds of legal impossibility where defendants never

contemplated any unlawful detention of the victim prior

to his crossing the international boundary and the victim

voluntarily transported himself, rendering it impossible to

11

satisfy the statutory requirement of an unlawful seizure,

confinement, or holding under 18 U.S.C. § 1201).

The Third Circuit in Hsu concluded that legal

impossibility is categorically not a defense to conspiracy

to steal trade secrets or to receive stolen goods. See Hsu,

155 F.3d at 203 (“[L]egal impossibility is not a defense

to conspiracy. ... [W]e are persuaded by the views of our

district courts, and by the decisions of our sister circuits,

that the impossibility of achieving the goal of a conspiracy

is irrelevant to the crime itself.”); see also Petit, 841

F.2d at 1550 (“Although some courts have recognized an

impossibility defense with regard to attempted crimes

… ‘[c]ourts have generally taken a broader view of the

purposes of the law of conspiracy.’”) (citations omitted).

The reason why courts like the Third Circuit in Hsu

and the Eleventh Circuit in Petit made this doctrinal

error is because they fundamentally conflated hybrid legal

impossibility with hybrid factual impossibility. In both Hsu

and Petit, the conspiracies were frustrated by a non-legal

fact: the individuals essential to the conspiracies’ success

were not actual co-conspirators, but rather undercover

law enforcement conducting a sting operation. See Hsu,

155 F.3d at 192; Petit, 841 F.2d at 1548. The hybrid

impossibility in both cases was therefore factual, and the

defendants’ conduct therefore culpable. But rather than

correctly classifying a sting operation as non-exculpatory

factual impossibility, both courts undermined the legalimpossibility defense—Hsu by categorically abolishing

it outright, and Petit by failing to draw the distinction

that would have preserved it. In its place, both courts

substituted a pure subjective-intent test for the objective

statutory requirements that legal-impossibility doctrine

demands.

12

The Petit court’s failure to distinguish hybrid legal

from hybrid factual impossibility laid the historical

groundwork for the erroneous, subjective-intent test

that the district court applied in barring Mr. Martinez

from presenting his impossibility defense to the jury at

all. See United States v. Martinez, No. 4:22-cr-170, 2023

WL 8702733, at *6 (S.D. Ga. Dec. 15, 2023) (explicitly

relying on Petit to preclude Mr. Martinez’s impossibility

argument), aff’d on other grounds, No. 24-10533, 2026

WL 184361 (11th Cir. Jan. 23, 2026). The Eleventh Circuit

affirmed without reaching the categorical question Petit

posed—indeed, the panel expressly recognized that legal

impossibility “can, in certain cases,” defeat a conspiracy

charge—but it left undisturbed the district court’s ruling

that kept Mr. Martinez’s jury from ever considering the

question.

IV. The Impossibility in Mr. Martinez’s Case Is Hybrid

Legal and Therefore Exculpatory.

For purposes of illustrating why the district court’s

error matters, amici assume that the Proprietary

Information Agreement (“PIA”) legally authorized Mr.

Martinez’s use of Gulfstream’s technical documents.

Given this stipulation, the impossibility in Mr.

Martinez’s case is hybrid legal (and therefore exculpatory),

not hybrid factual (and therefore inculpatory). Even if Mr.

Martinez had believed that he was conspiring to steal

trade secrets, his objective was impossible to achieve not

because of any external, circumstantial fact such as a

law-enforcement sting operation but because the law of

theft itself was rendered entirely inapplicable by the PIA.

13

A conviction for conspiracy to steal trade secrets

under 18 U.S.C. § 1832 requires that the defendant seek

to appropriate the information “without authorization.”

But ex hypothesi, the contract between APAC and

Gulfstream completely authorized—legally authorized—

Mr. Martinez’s use of Gulfstream technical documents,

even if Mr. Martinez did not know this—indeed, even if

Mr. Martinez thought himself to be getting away with

something. Because the PIA provided explicit, preexisting legal authorization, the statutory requirement

that the information be obtained “without authorization”

could not possibly be satisfied as a matter of objective

legal fact.

It may seem at first as though all the elements of

conspiracy—the agreement, the intent, and the overt

act—are satisfied and therefore that Mr. Martinez is

obviously guilty. But the agreement must be to commit an

actual crime. Consider the parallel: If A agrees to take a

car that she objectively owns, the objective itself is legally

permissible regardless of whether A knows that she

owns it. That is the essence of hybrid legal impossibility:

the defense turns on the objective legal fact, not on the

defendant’s awareness or ignorance of it.

The district court’s stated reason for barring Mr.

Martinez’s defense—that he was unaware of the PIA—

was a legal error, not merely a factual one. In deciding

whether Mr. Martinez’s theory was even legally sufficient

to go to the jury, the court asked whether he knew of and

relied on the PIA—a mistake-of-fact inquiry into his state

of mind. See supra Part I. 2

2. Under the panel’s own settled framework, the threshold

question is “whether the facts constituting the defense ... if

14

But the correct threshold question for a hybrid-legalimpossibility defense does not turn on the defendant’s

awareness. Assuming that a jury credited Mr. Martinez’s

account of his conduct, would the PIA, properly construed,

have authorized it as an objective legal matter? Because

the district court applied the wrong test at the threshold, it

never permitted the jury to resolve the factual disputes—

what Mr. Martinez’s conduct actually was, and whether it

fell within the PIA’s terms3 —that the correct test would

have required it to submit.

At most, Mr. Martinez was intending to steal trade

secrets. But mere intent to steal trade secrets is insufficient

for theft and therefore for conspiracy to commit such theft.

The law of theft must also be applicable to the information

that Mr. Martinez sought and used. But—once again—it

was not applicable in this case because of the PIA.

Finally, it may be argued that Mr. Martinez has

proven himself to be “dangerous” and should not benefit

from the fortuitous accident of contract. But, first, this

point runs straight into the legality principle. We do

believed by the jury, are legally sufficient to render the accused

innocent.” See United States v. Middleton, 690 F.2d 820, 826 (11th

Cir. 1982) (quoting Strauss v. United States, 376 F.2d 416, 419 (5th

Cir. 1967)).

3. A third ground offered by the panel—that Section 15 of

the PIA authorized only Meghan Wright, not Gilbert Basaldua, to

disclose Gulfstream information to APAC—is not addressed here.

That ground presents a narrower, more textual question about who

may act as a discloser under the PIA, distinct from the awareness

and scope-of-purpose issues discussed in text, and amici take no

position on whether it independently supports the district court’s

categorical preclusion of the defense.

15

not punish suspected dangerousness; the state’s power

to punish requires violation of an actual, applicable

law. See Simmons v. South Carolina, 512 U.S. 154

(1994) (“Arguments relating to a defendant’s future

dangerousness ordinarily would be inappropriate at the

guilt phase of a trial, as the jury is not free to convict a

defendant simply because he poses a future danger; nor

is a defendant’s future dangerousness likely relevant to

the question whether each element of an alleged offense

has been proved beyond a reasonable doubt.”); Berrigan,

482 F.2d at 186 n.27.

Second, criminal law accommodates “moral luck”

all the time. If A shoots at B with the intent to kill, but

a bird intercepts the bullet, A is saved from a murder

conviction—and will likely serve less time for attempted

murder—by a purely physical accident outside A’s control.

See U.S.S.G. §§ 2A1.1, 2A2.1 (prescribing a lower base

offense level for attempted first degree murder (33) than

for first degree murder (43)); United States v. Joseph

Martinez, 16 F.3d 202, 205-06 (7th Cir. 1994) (“‘[M]oral

luck,’ as philosophers refer to distinctions in culpability

that are based on consequences rather than intentions,

is, rightly or wrongly, a pervasive characteristic of moral

thought in our society, at least the moral thought that

informs the criminal law.”). It is no different with hybrid

legal impossibility; the “luck” simply involves a legal fact

rather than a physical one. Mr. Martinez might be “lucky”

that the PIA authorized his conduct, but we cannot ignore

that objective legal reality simply to satisfy a desire to

punish a guilty mind.

16

CONCLUSION

For the foregoing reasons, and those stated by

petitioners, this Court should grant the petition for a writ

of certiorari.

Respectfully submitted,

Kenneth M. Levy

Counsel of Record

Paul M. Hebert Law Center

Louisiana State University

1 East Campus Drive

Baton Rouge, LA 70803

(646) 675-7171

klevy@lsu.edu

Counsel for Amici Curiae

August 14, 2026

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX — LIST OF AMICI CURIAE . . . . . . . . . 1a

1a

Appendix

APPENDIX — LIST

OF AMICI CURIAE

Ian H. Marcus Amelkin

Associate Professor

Maurice A. Deane School of Law at Hofstra University

W. David Ball

Professor

Santa Clara University School of Law

Richard J. Bonnie

Harrison Foundation Professor Emeritus

of Law, Medicine, and Public Policy

Director Emeritus, Institute of

Law, Psychiatry and Public Policy

University of Virginia School of Law

John M. Burkoff

Professor of Law Emeritus

University of Pittsburgh

Chris Dearborn

Director, Suffolk Defenders Program

Co-Director, Trial & Appellate

Advocacy Concentration

Clinical Professor of Law

Suffolk University Law School

Michelle Madden Dempsey

Harold Reuschlein Scholar Chair and Professor of Law

Villanova University Charles Widger School of Law

2a

Appendix

Joshua Dressler

Distinguished University Professor Emeritus

Professor of Law Emeritus

Moritz College of Law, The Ohio State University

Jessica Frisina

Assistant Professor of Law

Rutgers Law School

Cynthia Godsoe

Professor of Law

Brooklyn Law School

Lissa Griffin

Professor of Law

Elizabeth Haub School of Law at Pace University

Angela P. Harris

Distinguished Professor

Seattle University School of Law

John Hasnas

Professor of Law (by courtesy)

Georgetown University Law Center

Taurus Myhand

Associate Professor of Law

Touro University, Jacob D. Fuchsberg Law Center

John Parsi, J.D., Ph.D.

Harry S. Redmon, Jr. & David Weston Robinson

Assistant Professor of Law

3a

Appendix

LSU Paul M. Hebert Law Center

James Robert Quick

Adjunct Professor of Law

UC Law San Francisco

Ira P. Robbins

Distinguished Professor of Law and Barnard T. Welsh

Scholar

American University Washington College of Law

John A. Strait

Emeritus Professor of Law

Seattle University School of Law

Wayne Unger

Associate Professor of Law

Quinnipiac University School of Law