United States v. Mandujano

• Decision Date: 17 September 1974
• Docket Number: No. 74-1445.,74-1445.
• Citation: 499 F.2d 370
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy MANDUJANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

499 F.2d 370 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Roy MANDUJANO, Defendant-Appellant.

No. 74-1445.

United States Court of Appeals, Fifth Circuit.

August 19, 1974.

Rehearing Denied September 17, 1974.

Michael Allen Peters, Houston, Tex. (Court-appointed), for defendant-appellant.

William S. Sessions, U. S. Atty., John M. Pinckney, III, Asst. U. S. Atty., San Antonio, Tex., Ron Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.

RIVES, Circuit Judge:

Mandujano appeals from the judgment of conviction and fifteen-year sentence imposed by the district court, based upon the jury's verdict finding him guilty of attempted distribution of heroin in violation of 21 U.S.C. § 846.¹ We affirm.

I.

The government's case rested almost entirely upon the testimony of Alfonso H. Cavalier, Jr., a San Antonio police officer assigned to the Office of Drug Abuse Law Enforcement. Agent Cavalier testified that, at the time the case arose, he was working in an undercover capacity and represented himself as a narcotics trafficker. At about 1:30 P. M. on the afternoon of March 29, 1973, pursuant to information Cavalier had received, he and a government informer went to the Tally-Ho Lounge, a bar located on Guadalupe Street in San Antonio. Once inside the bar, the informant introduced Cavalier to Roy Mandujano. After some general conversation, Mandujano asked the informant if he was looking for "stuff." Cavalier said, "Yes." Mandujano then questioned Cavalier about his involvement in narcotics. Cavalier answered Mandujano's questions, and told Mandujano he was looking for an ounce sample of heroin to determine the quality of the material. Mandujano replied that he had good brown Mexican heroin for $650.00 an ounce, but that if Cavalier wanted any of it he would have to wait until later in the afternoon when the regular man made his deliveries. Cavalier said that he was from out of town and did not want to wait that long. Mandujano offered to locate another source, and made four telephone calls in an apparent effort to do so. The phone calls appeared to be unsuccessful, for Mandujano told Cavalier he wasn't having any luck contacting anybody. Cavalier stated that he could not wait any longer. Then Mandujano said he had a good contact, a man who kept narcotics around his home, but that if he went to see this man, he would need the money "out front." To reassure Cavalier that he would not simply abscond with the money, Mandujano stated, "You are in my place of business. My wife is here. You can sit with my wife. I am not going to jeopardize her or my business for $650.00." Cavalier counted out $650.00 to Mandujano, and Mandujano left the premises of the Tally-Ho Lounge at about 3:30 P.M. About an hour later, he returned and explained that he had been unable to locate his contact. He gave back the $650.00 and told Cavalier he could still wait until the regular man came around. Cavalier left, but arranged to call back at 6:00 P.M. When Cavalier called at 6:00 and again at 6:30, he was told that Mandujano was not available. Cavalier testified that he did not later attempt to contact Mandujano, because, "Based on the information that I had received, it would be unsafe for either my informant or myself to return to this area."

The only other government witness was Gerald Courtney, a Special Agent for the Drug Enforcement Administration. Agent Courtney testified that, as part of a surveillance team in the vicinity of the Tally-Ho Lounge on March 29, 1973, he had observed Mandujano leave the bar around 3:15 or 3:30 P.M. and drive off in his automobile. The surveillance team followed Mandujano but lost him almost immediately in heavy traffic. Courtney testified that Mandujano returned to the bar at about 4:30 P.M.

II.

Section 846 of Title 21, entitled "Attempt and conspiracy," provides that,

"Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy."

The theory of the government in this case is straightforward: Mandujano's acts constituted an attempt to distribute heroin; actual distribution of heroin would violate section 841(a) (1) of Title 21;² therefore, Mandujano's attempt to distribute heroin comes within the terms of section 846 as an attempt to commit an offense defined in the subchapter.

Mandujano urges that his conduct as described by agent Cavalier did not rise to the level of an attempt to distribute heroin under section 846. He claims that at most he was attempting to acquire a controlled substance, not to distribute it; that it is impossible for a person to attempt to distribute heroin which he does not possess or control;³ that his acts were only preparation, as distinguished from an attempt; and that the evidence was insufficient to support the jury's verdict.

Apparently there is no legislative history indicating exactly what Congress meant when it used the word "attempt" in section 846.⁴ There are two reported federal cases which discuss the question of what constitutes an attempt under this section. In United States v. Noreikis, 7 Cir. 1973, 481 F.2d 1177, where the defendants possessed the various chemicals necessary to synthesize Dimethyltryptamine (DMT), a controlled substance, the court held that the preparations had progressed to the level of an attempt to manufacture a controlled substance. In its discussion, the court commented that,

"While it seems to be well settled that mere preparation is not sufficient to constitute an attempt to commit a crime, 22 C.J.S. Criminal Law § 75(2)b, at 230 et seq., it seems equally clear that the semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule. The procuring of the instrument of the crime might be preparation in one factual situation and not in another. The matter is sometimes equated with the commission of an overt act, the `doing something directly moving toward, and bringing him nearer, the crime he intends to commit.\' 22 C.J.S., supra at 231."

481 F.2d at 1181.

In United States v. Heng Awkak Roman, S.D.N.Y.1973, 356 F.Supp. 434, aff'd, 2 Cir. 1973, 484 F.2d 1271, where the defendants' actions would have constituted possession of heroin with intent to distribute in violation of section 841 if federal agents had not substituted soap powder for the heroin involved in the case, the court held that the defendants' acts were an attempt to possess with intent to distribute. The district court in its opinion acknowledged that "`Attempt,' as used in section 846, is not defined. Indeed, there is no comprehensive statutory definition of attempt in federal law." The court concluded, however, that it was not necessary in the circumstances of the case to deal with the "complex question of when conduct crosses the line between `mere preparation' and `attempt.'" 356 F.Supp. at 437.

The courts in many jurisdictions have tried to elaborate on the distinction between mere preparation and attempt. See the Comment at 39-48 of Tent. Draft No. 10, 1960 of the Model Penal Code.⁵ In cases involving statutes other than section 846, the federal courts have confronted this issue on a number of occasions.

Wooldridge v. United States, 9 Cir. 1916, 237 F. 775, involved a conviction for an attempted rape prosecuted under a general criminal attempt provision of the Alaska code. The court reviewed the state authorities and several treatises and then opined as follows:

"In light of these and many other cases that might be cited, it must be held that there was a failure of proof with respect to the doing of an overt act toward the commission of the crime charged. The undisputed evidence of the occurrences at Rose\'s store is that no act was done by Wooldridge toward the commission of the crime, and although it may have been his intention when he went to the store to have intercourse with the girl, in the absence of evidence of an attempt to carry out such purpose, there could be no conviction of an attempted rape."

237 F. at 779. Thus, the court indicated that an attempt requires an intent to commit the specific crime and, in addition, an overt act toward its commission. A more recent Ninth Circuit opinion uses language similar to that used in Wooldridge: In Lemke v. United States, 9 Cir. 1954, 211 F.2d 73, 75, 14 Alaska 587, the court states, "Of course it is elementary that mere preparation to commit a crime, not followed by an overt act done toward its commission, does not constitute an attempt." The definition of attempt in United States v. Baker, S. D.Cal.1955, 129 F.Supp. 684, 685, is also consistent with the language of Wooldridge: "The classical legal elements of an `attempt' are the intent to commit a crime, the execution of some overt act in pursuance of the intention, and a failure to consummate the crime." Also see Giles v. United States, 9 Cir. 1946, 157 F.2d 588, 590, where the court found no error in the following jury instruction: "`An attempt is an act tending toward the accomplishment, and done in part execution of the design to commit a crime, exceeding an intent but falling short of an execution of it.'"

United States v. De Bolt, S.D. Ohio 1918, 253 F. 78, involved an apparent attempt to sabotage the manufacture of war materials in violation of federal law. With regard to the elements of an attempt, the court in this case quoted Bishop's New Crim. Law (1892) vol. 1, §§ 728, 729:

"`An attempt is an intent to do a particular criminal thing, with an act toward it falling short of the thing intended. Hence, the two elements of an evil intent and a simultaneous resulting act constitute, and yet only in combination, an indictable offense, the same as in any other crime.\'"

The court also cited Wooldridge v....