499 F.2d 370 (5th Cir. 1974)
Roy Mandujano was convicted in the district court of attempted distribution of heroin in violation of 21 U.S.C. § 846 and sentenced to fifteen years imprisonment.1
On March 29, 1973, San Antonio police officer Alfonso H. Cavalier, assigned to the Office of Drug Abuse Law Enforcement and working undercover, along with a government informer, went to the Tally-Ho Lounge on Guadalupe Street in San Antonio.2 The informant introduced Cavalier to Roy Mandujano.3 Mandujano asked if they were looking for 'stuff' and offered to sell good brown Mexican heroin for $650.00 an ounce, but stated that Cavalier would have to wait until later in the afternoon for deliveries.4
When Cavalier indicated he could not wait, Mandujano made four telephone calls in an effort to locate another source.5 Mandujano then proposed going to a contact who kept narcotics at home but required the money upfront.6 Mandujano received $650.00 from Cavalier at about 3:30 P.M., left the bar, and returned approximately one hour later without the heroin, returning the money.7
Agent Gerald Courtney of the Drug Enforcement Administration observed Mandujano leave the bar around 3:15 or 3:30 P.M. and return at about 4:30 P.M.8
Cavalier called at 6:00 P.M. and 6:30 P.M. but was told Mandujano was not available.910 Cavalier did not attempt further contact because he believed it would be unsafe based on information he had received.11
Mandujano was indicted on a count charging that on or about March 29, 1973, he knowingly and intentionally attempted to distribute one ounce of heroin.12 At trial, the only government witnesses were Agents Cavalier and Courtney.13 The jury returned a verdict of guilty, and the district court imposed a fifteen-year sentence.14 Mandujano appealed the judgment of conviction to the United States Court of Appeals for the Fifth Circuit.15
Whether Roy Mandujano's conduct on March 29, 1973, constituted an attempt to distribute heroin under 21 U.S.C. § 846?16
Under 21 U.S.C. § 846, a criminal attempt requires that the defendant act with the kind of culpability otherwise required for the commission of the crime.17 The defendant must also engage in conduct which constitutes a substantial step toward commission of the crime, where a substantial step is conduct strongly corroborative of the firmness of the defendant's criminal intent.18
Yes. Mandujano acted with specific intent to distribute heroin when he offered good brown Mexican heroin for sale at $650 per ounce to undercover officer Cavalier.19 He stated he could obtain it from a good contact who kept narcotics at home. Mandujano then requested and received the $650 upfront from Cavalier at the Tally-Ho Lounge before leaving to locate the heroin.20
He returned without it and assured Cavalier of his reliability by referencing his wife and business. This conduct of receiving payment constituted a substantial step strongly corroborative of the firmness of Mandujano's intent, as the jury specifically found in its answer to interrogatory (4).21
Mandujano's conduct on March 29, 1973, constituted an attempt to distribute heroin under 21 U.S.C. § 846.22
Whether the evidence presented at trial was sufficient to support a conviction for attempted distribution of heroin?23
Evidence is sufficient to support a conviction for attempted distribution of heroin under 21 U.S.C. § 846 when it shows the defendant knowingly and intentionally engaged in conduct that constituted a substantial step toward distribution. Such conduct includes requesting and receiving upfront payment for heroin from a buyer.24
Yes. The testimony of Agent Cavalier established that Mandujano negotiated the sale of one ounce of heroin, made telephone calls to locate a source, accepted $650 from Cavalier to obtain the heroin from his contact, and returned the money only after failing to complete the transaction.25 Agent Courtney's surveillance corroborated Mandujano's departure and return to the bar around the time of the payment.26 The jury's affirmative answer to interrogatory (4) confirmed that the request and receipt of payment was an overt act in furtherance of the offense, rendering the evidence sufficient even without proof that the contact actually possessed heroin.27
The evidence presented at trial was sufficient to support a conviction for attempted distribution of heroin.28
Whether the district court's instructions to the jury on the elements of criminal attempt were appropriate?29
Jury instructions on criminal attempt are appropriate when they require proof of specific intent to commit the crime.30 They must also require a willful attempt and a direct but ineffectual overt act done knowingly and intentionally in furtherance of the attempt.31 The instructions must distinguish mere preparation from the actual commencement of the criminal deed.32
Yes. The district court instructed the jury that the essential elements included a specific intent to commit the crime, a willful attempt, and a direct but ineffectual overt act knowingly and intentionally done in furtherance.33 The court explained that mere preparation such as planning or arranging means is insufficient but acts clearly indicating an unambiguous intent and constituting an immediate step in execution will constitute an attempt.34 These instructions aligned precisely with the legal definition of attempt requiring intent plus a substantial step strongly corroborative of criminal purpose.35
The jury's answers to the special interrogatories demonstrated that it applied the instructions consistently with the evidence of Mandujano's receipt of payment.36
The district court's instructions to the jury on the elements of criminal attempt were appropriate.37
Whether the district court erred in admitting Agent Cavalier's testimony interpreting the term 'stuff' as referring to narcotics?38
A trial court does not err in admitting a witness's testimony interpreting slang terms such as 'stuff' when the witness has extensive experience in undercover narcotics work.39 The testimony must be based on common knowledge or experience in the narcotics traffic.
No. Agent Cavalier testified based on his experience of eighty-six undercover operations between November 1972 and May 1973 that 'stuff' refers to narcotics among traffickers.40 The district court overruled the objection after ascertaining Cavalier's qualifications and permitted the testimony as within the court's latitude to allow conclusions based on experience.41 Any potential inference that Mandujano dealt in narcotics was not prejudicial because Cavalier later testified directly that Mandujano offered brown Mexican heroin for sale and attempted to locate an immediate source.42
The district court did not err in admitting Agent Cavalier's testimony interpreting the term 'stuff' as referring to narcotics.43
Whether the district court erred in admitting Agent Cavalier's testimony regarding his reasons for not contacting Mandujano again?44
A trial court does not err in admitting testimony regarding a witness's state of mind when the testimony is admitted solely to explain the witness's conduct.45 The court must give a limiting instruction that the testimony is not proof of the underlying facts.
No. After Cavalier testified that he aborted the deal and did not attempt further contact, the district court allowed his statement that it would be unsafe based on information received.46 The court immediately cautioned the jury that the answer was admitted only to show what was in Cavalier's mind and not as evidence that it actually was unsafe.47 As limited by this instruction, the testimony was admissible to explain Cavalier's conduct in not returning to the area.48
The district court did not err in admitting Agent Cavalier's testimony regarding his reasons for not contacting Mandujano again.49