U.S. v. Oviedo

• Citation: 525 F.2d 881
• Decision Date: 12 January 1976
• Docket Number: No. 75--1899,75--1899
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin Molina OVIEDO, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 881

525 F.2d 881

UNITED STATES of America, Plaintiff-Appellee, v. Martin Molina OVIEDO, Jr., Defendant-Appellant.

No. 75--1899.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 1976.

Alan Brown, San Antonio, Tex., for defendant-appellant.

John E. Clark, U.S. Atty., Joel D. Conant, Ray Jahn, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, DYER and MORGAN, Circuit Judges.

DYER, Circuit Judge.

Oviedo appeals from a judgment of conviction for the attempted distribution of heroin, in violation of 21 U.S.C.A. § 846. ¹ Oviedo contends that under the facts of this case, he is not guilty of any criminal offense. We agree and reverse.

Oviedo was contacted by an undercover agent, who desired to purchase narcotics. Arrangements were made for the sale of one pound of heroin. The agent met Oviedo at the appointed time and place. Oviedo transferred the substance to the agent, and asked for his money in return. However, the agent informed Oviedo that he would first have to test the substance. A field test was performed with a positive result. Oviedo was placed under arrest.

Subsequent to the arrest, a search warrant was issued for Oviedo's residence. When the search was executed, two pounds of a similar substance was found hidden in a television set. Up to this point, the case appeared unexceptional.

A chemical analysis was performed upon the substances seized, revealing that the substances were not in fact heroin, but rather procaine hydrochloride, an uncontrolled substance. ² Since any attempt to prosecute for distribution of heroin would have been futile, the defendant was charged with an attempt to distribute heroin.

At trial, Oviedo took the stand and stated that he knew the substance was not heroin, and that he, upon suggestion of his cohorts, was merely attempting to 'rip off' the agent. It was, in his view, an easy way to pocket a few thousand dollars.

The court instructed the jury that they could find Oviedo guilty of attempted distribution if he delivered the substance thinking it to be heroin. ³ The jury rejected Oviedo's claimed knowledge of the true nature of the substance, and returned a verdict of guilty. Although Oviedo argues on appeal that there was insufficient evidence to establish that he thought the substance was heroin, this contention is without merit. ⁴ We thus take as fact Oviedo's belief that the substance was heroin.

The facts before us are therefore simple--Oviedo sold a substance he thought to be heroin, which in reality was an uncontrolled substance. The legal question before us is likewise simple--are these combined acts and intent cognizable as a criminal attempt under 21 U.S.C.A. § 846. The answer, however, is not so simple.

Oviedo and the government both agree the resolution of this case rests in an analysis of the doctrines of legal and factual impossibility as defenses to a criminal attempt. Legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime. U.S. v. Conway, 5 Cir. 1975, 507 F.2d 1047. Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective. Id. at 1050. The traditional analysis recognizes legal impossibility as a valid defense, but refuses to so recognize factual impossibility. U.S. v. Berrigan, 3 Cir. 1973, 482 F.2d 171.

These definitions are not particularly helpful here, for they do nothing more than provide a different focus for the analysis. In one sense, the impossibility involved here might be deemed legal, for those acts which Oviedo set in motion, the transfer of the substance in his possession, were not a crime. In another sense, the impossibility is factual, for the objective of Oviedo, the sale of heroin, was proscribed by law, and failed only because of a circumstance unknown to Oviedo. ⁵

Although this issue has been the subject of numerous legal commentaries, ⁶ federal cases reaching this question are few, and no consensus can be found. ⁷ United States v. Berrigan, 3 Cir. 1973, 482 F.2d 171; United States v. Heng Awkak Roman, S.D.N.Y.1973, 356 F.Supp. 434, aff'd 2 Cir. 1973, 484 F.2d 1271; Rosado v. Martinez, D.P.R., 1974, 369 F.Supp. 477; United States v. Hair, D.C.1973, 356 F.Supp. 339; see also United States v. Marin, 2 Cir. 1975, 513 F.2d 974.

In Roman, the defendants were transporting a suitcase containing heroin. Through the aid of an informer and unknown to the defendants, the contents of the suitcase were replaced with soap powder. The defendants were arrested when they attempted to sell the contents of the suitcase, and were subsequently charged with attempted possession with intent to distribute. The court rejected defendants' contention that they could not be charged with attempted possession, since it was impossible for them to possess heroin. Recognizing the difficulty in distinguishing between legal and factual impossibility, the court never so categorized the case. Nevertheless, the court concluded that since the objective of the defendant was criminal, impossibility would not be recognized as a defense.

The defendants in Berrigan were charged with attempting to violate 18 U.S.C.A. § 1791, prohibiting the smuggling of objects into or out of a federal correctional institution. Since the evidence established that the warden had knowledge of the smuggling plan, and since lack of knowledge was a necessary element of the offense, the defendants could not be found guilty of violating the statute. The court held that such knowledge by the warden would also preclude conviction for the attempt, since 'attempting to do that which is not a crime is not attempting to commit a crime.' Berrigan, at 190.

The Berrigan court rested its determination on a strict view of legal impossibility. According to the court, such impossibility exists when there is an intention to perform a physical act, the intended physical act is performed, but the consequence resulting from the intended act does not amount to a crime. In this analysis, the intent to perform a physical act is to be distinguished from the motive, desire or expectation to violate the law. ⁸

The application of the principles underlying these cases leads to no clearer result than the application of our previous definitions of legal and factual impossibility. Applying Roman, we would not concern ourselves with any theoretical distinction between legal and factual impossibility, but would affirm the conviction, since the objective of Oviedo was criminal. Applying Berrigan, we would look solely to the physical act which Oviedo 'intended', the transfer of the procaine in his possession, and we would conclude that since the transfer of procaine is not criminal, no offense is stated. The choice is between punishing criminal intent without regard to objective acts, and punishing objective acts, regarding intent as immaterial.

In our view, both Roman and Berrigan miss the mark, but in opposite directions. A strict application of the Berrigan approach would eliminate any distinction between factual and legal impossibility, and such impossibility would always be a valid defense, since the 'intended' physical acts are never criminal. ⁹ The Roman approach turns the attempt statute into a new substantive criminal statute where the critical element to be proved is mens rea simpliciter. It would allow us to punish one's thoughts, desires, or motives, through indirect evidence, without reference to any objective fact. See Berrigan, supra at 189, fn. 39. The danger is evident.

We reject the notion of Roman, adopted by the district court, that the conviction in the present case can be sustained since there is sufficient proof of intent, not because of any doubt as to the sufficiency of the evidence in that regard, but because of the inherent dangers such a precedent would pose in the future.

When the question before the court is whether certain conduct constitutes mere preparation which is not punishable, or an attempt which is, the possibility of error is mitigated by the requirement that the objective acts of the defendant evidence commitment to the criminal venture and corroborate the mens rea. United States v. Mandujano, 5 Cir. 1974, 499 F.2d 370. To the extent that this requirement is preserved it prevents the conviction of persons engaged in innocent acts on the basis of a mens rea proved through speculative inferences, unreliable forms of testimony, and past criminal conduct.

Courts could have approached the preparation--attempt determination in another fashion, eliminating any notion of particular objective facts, and simply could have asked whether the evidence at hand was sufficient to prove the necessary intent. But this approach has been rejected for precisely the reasons set out above, for conviction upon proof of mere intent provides too great a possibility of speculation and abuse.

In urging us to follow Roman, which found determinative the criminal intent of the defendants, the government at least implicitly argues that we should reject any requirement demanding the same objective evidentiary facts required in the preparation--attempt determination. We refuse to follow that suggestion.

When the defendant sells a substance which is actually heroin, it is reasonable to infer that he knew the physical nature of the substance, and to place on him the burden of dispelling that inference. United States v. Moser, 7 Cir. 1975, 509 F.2d 1089, 1092; United States v. Joly, 2 Cir. 1974, 493 F.2d 672, 676. ¹⁰ However, if we convict the defendant of attempting to sell heroin for the sale of a non-narcotic substance, we eliminate an objective element that has major evidentiary significance and we increase the risk of mistaken conclusions that the...