United States v. Mandujano

United States Court of Appeals for the Fifth Circuit · 1974 · Criminal Law

499 F.2d 370 (1974)

Updated August 1, 2026

Criminal Lawattempt21 U.S.C. § 846substantial stepmere preparationcriminal intentdistribution of heroinovert act

Facts

Undercover agent Cavalier met Mandujano in a San Antonio bar after being introduced by an informer. Mandujano said he had good brown Mexican heroin for $650 an ounce, made unsuccessful telephone calls trying to find another source when Cavalier did not want to wait, then said he had a good contact but needed the money up front and accepted $650 from Cavalier. Mandujano left the bar for about an hour, returned without heroin, said he could not locate his contact, and gave the money back. The government also presented surveillance testimony confirming that Mandujano left and later returned to the bar during that time.

Issue

Whether Mandujano's conduct constituted an attempt to distribute heroin under 21 U.S.C. § 846, even though no heroin was ever transferred and the evidence did not prove that his alleged contact actually existed. The court also considered whether the challenged testimony was improperly admitted.

Rule

For an attempt under 21 U.S.C. § 846, the defendant must act with the kind of culpability otherwise required for commission of the crime and must engage in conduct constituting a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent and must be more than mere preparation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In El Paso, Diego Serrano told an undercover officer he could supply two ounces of heroin that evening for $1,200. After making several calls, Diego said he needed the full amount in advance to pick up the heroin from a contact, accepted the cash, left for 45 minutes, and returned empty-handed saying the contact could not be found; he immediately refunded the money.

If Diego is charged with attempted distribution of heroin under 21 U.S.C. § 846, which is the strongest basis for upholding the charge?

Explanation. The majority held that attempt under § 846 requires the culpability for the completed offense plus a substantial step toward commission of the crime, and that the substantial step must strongly corroborate the firmness of the defendant’s criminal intent. Requesting and receiving payment in advance for heroin may itself constitute that substantial step. Proof of actual possession or of a real source is not essential.