## Facts

- An undercover agent arranged to buy one pound of heroin from Martin Molina Oviedo, Jr.
- Oviedo met the agent, transferred a substance, and demanded payment.
- The agent performed a field test that indicated a positive result, and Oviedo was arrested.
- Officers later searched Oviedo’s residence and found two additional pounds of a similar substance.
- Laboratory analysis showed the substances were procaine hydrochloride, an uncontrolled substance, not heroin.
- The government charged Oviedo with attempted distribution of heroin under 21 U.S.C. § 846 rather than distribution.
- At trial, Oviedo testified he knew the substance was not heroin and intended to defraud the agent; the jury rejected that account.
- The trial court instructed the jury it could convict if Oviedo delivered the substance believing it was heroin; the jury convicted.
- On appeal, the court assumed for purposes of decision that Oviedo believed he was selling heroin.

## Issues

1. Whether selling a noncontrolled substance, while believing it to be heroin, constitutes attempted distribution of heroin under 21 U.S.C. § 846.
2. What level of “objective acts” must be shown to corroborate criminal intent and support attempt liability when completion is impossible because the substance is not controlled.

## Decision

- The Fifth Circuit reversed the conviction for attempted distribution of heroin.
- The court held that attempt requires culpable intent plus objective conduct that, without reliance on statements or belief alone, clearly indicates a criminal venture.
- Oviedo’s objective acts—transferring an uncontrolled substance—were not sufficiently unequivocal or near to the completed offense of heroin distribution to constitute a criminal attempt under § 846.
- Sustaining the conviction would improperly base attempt liability primarily on mental state, risking punishment of intent divorced from criminally indicative conduct.

## Legal Principles

- Criminal attempt requires both intent to commit the substantive offense and an overt act that goes beyond preparation.
- Attempt liability must be supported by objective acts that “mark the defendant’s conduct as criminal in nature” and strongly corroborate the firmness of the criminal intent.
- Where the defendant’s objective conduct remains ambiguous in its criminality—consistent with noncriminal behavior—attempt conviction should not rest solely on the defendant’s belief or admissions.
- The legal/factual impossibility labels are less important than whether the defendant’s conduct, as performed, sufficiently approximates and unequivocally corroborates movement toward the completed offense.

## Conclusion

Because Oviedo’s conduct consisted of selling an uncontrolled substance and did not, by itself, clearly approximate or signify the crime of heroin distribution, the Fifth Circuit held the objective-acts requirement for attempt was not met and reversed the § 846 conviction.


United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976)