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…

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; that his acts were only preparation, as distinguished from an attempt; and that the evidence was insufficient to support the jury’s verdict.

…’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 The United States v. Coplon, 2 Cir. 1950, 185 F.2d 629, where the defendant was arrested before passing to a citizen of a foreign nation classified government documents contained in defendant’s purse, Judge Learned Hand surveyed the law and addressed the issue of what would constitute an attempt: ‘Because the arrest in this way interrupted the consummation of the crime one point upon the appeal is that her conduct still remained in the zone of ‘preparation,’ and that the evidence did not prove an ‘attempt.’ This argument it will be most convenient to answer at the outset. A neat doctrine by which to test when a person, intending to commit a crime which he fails to carry out, has ‘attempted’ to commit it, would be that he has done all that it is within his power to do, but has been prevented by intervention from outside; in short, that he has passed beyond any locus poenitentiae. Apparently that was the original notion, and may still be law in England; but it is certainly not now generally the law in the United States, for there are many decisions which hold that the accused has passed beyond ‘preparation,’ although he has been interrupted before he has taken the last of his intended steps.

Although the foregoing cases give somewhat varying verbal formulations, careful examination reveals fundamental agreement about what conduct will constitute a criminal attempt. First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting. Second, the defendant must have engaged in conduct which constitutes 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.

The requirement that the conduct be strongly corroborative of the firmness of the defendant’s criminal intent also relates to the requirement that the conduct be more than ‘mere preparation,’ and is suggested by the Supreme Court’s emphasis upon ascertaining the intent of the defendant, The district court charged the jury in relevant part as follows: ‘New, the essential elements required in order to prove or to establish the offense charged in the indictment, which is, again, that the defendant knowingly and intentionally attempted to distribute a controlled substance, must first be a specific intent to commit the crime, and next that the accused wilfully made the attempt, and that a direct but ineffectual overt act was done toward its commission, and that such overt act was knowingly and intentionally done in furtherance of the attempt.

In determining whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging a means for its commission, is not sufficient to constitute an attempt, but the acts of a person who intends to commit a crime will constitute an attempt where they, themselves, clearly indicate a certain unambiguous intent to wilfully commit that specific crime and in themselves are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.’

Agent Cavalier testified that at Mandujano’s request, he gave him $650.00 for one ounce of heroin, which Mandujano said he could get from a ‘good contact.’ From this, plus Mandujano’s comments and conduct before and after the transfer of the $650.00, as described in Part I of this opinion, the jury could have found that Mandujano was acting knowingly and intentionally and that he engaged in conduct- the request for and the receipt of the $650.00- which in fact constituted a substantial step toward distribution of heroin. From interrogatory (4), it is clear that the jury considered Mandujano’s request and receipt of the prior payment a substantial step toward the commission of the offense. Certainly, in the circumstances of this case, the jury could have found the transfer of money strongly corroborative of the firmness of Mandujano’s intent to complete the crime. Of course, proof that Mandujano’s ‘good contact’ actually existed, and had heroin for sale, would have further strengthened the government’s case; however, such proof was not essential.

For the reasons stated in this opinion, the judgment is Affirmed.

U.S. Court of Appeals for the Fifth Circuit, Selections from “United States of America, Plaintiff-appellee, v. Roy Mandujano, Defendant-appellant, 499 F.2d 370,” 1974.

At approximately 8:00 P.M. on the evening of July 16, 1977, the victim, age seventeen, went to Chicopee to visit some friends and to see her boyfriend. Upon discovering that her friends were not at home, she proceeded to the housing project where her boyfriend resided. As she passed the area of the project office, the defendant and his brother Maurice Cook attempted to engage her in conversation. Not knowing the Cooks, she spurned an invitation to join them and instead walked to her boyfriend’s residence. After ascertaining that he was not at home, she reversed her route, intending to stay at her friends’ home to await their return.

As she passed the office area for the second time, she accepted the Cooks’ renewed invitation to socialize, and she sat with the two brothers on a platform talking for approximately fortyfive minutes. The area apparently was used as a common meeting point for informal socializing, and while the victim was there several other people were in the vicinity, one of whom recognized the victim and called her by name. There was evidence that the Cooks smoked marihuana and drank beer but that the victim declined to smoke marihuana because her boyfriend disliked her “flying high.”

She did take a drink of beer. The defendant told her that he and his brother were caring for a nearby home whose occupants were away on vacation. Because the victim was having difficulty remembering their names, the defendant told her that he worked at Smith and Wesson. He also showed her his plant identification card with his picture on it, and his brother informed her of his employer and his address and displayed his driver’s license. About 9:00 P.M. Maurice Cook indicated that he was out of cigarettes and suggested that the three walk to a convenience store located about a minute and a half away. The victim agreed. To reach the store, the trio proceeded along the street to a narrow path or trail located behind the project office. This path led down a hill through a wooded area to the rear of a well-lit service station adjacent to the convenience store.

As they “walk(ed) towards the path” single file (with Maurice in front, the victim in the middle and the defendant in the rear), the victim “slipped . . . fell or something.” She sat on the ground for a few seconds laughing when “Maurice turned around and jumped on me . . . and told me I was going to love it.” After she screamed, Maurice covered her mouth with his hand, took off his belt and gave it to the defendant seated nearby. Maurice then scratched her with a stick or blunt object and said, “No blood, no blood.” The defendant was overheard laughing and saying, “The bitch doesn’t want to bleed, we’ll make her bleed.” Maurice then forcibly raped her. During the assault the victim lost consciousness. She awoke about 11:00 P.M. and went directly to her friends’ home.

The incident was subsequently reported to the police, and the Cooks were arrested. Maurice was indicted for rape and the defendant, in addition to the conspiracy indictment, was charged as an accessory to the rape.

A combination of two or more persons who seek by some concerted action to accomplish a criminal act may be punished as a conspiracy. It is essential to a conviction that the Commonwealth prove the existence of an agreement, because “(t)he gravamen of . . . conspiracy . . . is the unlawful agreement.” Commonwealth v. Soule, 384 N.E.2d 235 (1979).

“It must (also) be shown that the defendant was aware of the objective of the conspiracy which was alleged.” Commonwealth v. Nelson, 370 Mass. 192, (1976).

We are of the opinion that the evidence, tested against the foregoing principles, was insufficient to establish a conspiracy. The circumstances under which the victim and the Cooks met and socialized were not indicative of a preconceived plan between the defendant and his brother to commit a sexual assault. Rather, the meeting and subsequent engagement were consistent with a chance social encounter common between young persons. The area where the group stayed prior to setting out for the store was used frequently as a gathering spot, and there was no evidence either that the Cooks attempted to conceal from others the fact that they were with the victim or that they consciously attempted to mislead her as to their identities. The evidence cuts directly against any such inference because of the special efforts made by the defendant and his brother to identify themselves by disclosing their names and places of employment, and by showing the victim their photographs.

The purpose for leaving the area was on its face innocuous and was suggested by Maurice, not the defendant. While the route chosen was arguably suspicious, the evidence established that it also was selected by Maurice, not the defendant. There was evidence that the path provided a short, reasonably direct route to a gasoline station which was nearby, well-lighted, and visible from the crest of the hill. We do not think that the events up to the time the victim fell were sufficient to establish a criminal agreement or to warrant the jury in inferring the state of facts that the Commonwealth claims to have existed. Nor was the prosecution’s case strengthened by the circumstances surrounding the assault itself. There was no evidence that the defendant (or his brother for that matter) had anything to do with the victim’s falling to the ground. The fact that Maurice’s attack began immediately after the victim found herself in a compromising situation suggests spontaneity of action on his part rather than the purposeful execution of a predetermined plan.

In reaching our conclusion, we are mindful of the principle that proof of a tacit agreement to commit a crime may be enough to establish a conspiracy. But in this case it is just as reasonable to conclude that the defendant became implicated in the crime as an accomplice after it had commenced without any advance knowledge that it was to occur, as it is to infer that the minds of the parties had met in advance “understandingly, so as to bring about an intelligent and deliberate agreement to . . . commit the offense charged.”

The remaining question raised by the Commonwealth’s argument is whether the defendant can be convicted of conspiracy solely on the evidence tending to show his complicity as an accomplice in the commission of the substantive crime. We think on the evidence in this case such a conclusion would be unjustified. Accomplice and conspiratorial liability are not synonymous, and one can be an accomplice aiding in the commission of a substantive offense without necessarily conspiring to commit it.

The holdings which conceptually and practically separate the two types of criminal activity do so because of fundamental distinctions between them. As has already been discussed, the gist of conspiracy rests in the “agree[ment] (between the conspirators) to work in concert for the criminal or corrupt or unlawful purpose” and it is that agreement which constitutes the criminal act and which generally serves to manifest the requisite criminal intent.

Absent from the formulation of accomplice liability is the necessity of establishing an agreement or consensus in the same sense as those terms are used in describing the agreement or combination which hallmarks a conspiracy. When a defendant is convicted of conspiring with others to commit a crime, the conviction stems from, and is designed to punish, the unlawful agreement which preexists commission of the substantive offense. This is why proof of the conspiracy typically involves circumstantial evidence aimed at establishing a consensus prior to the commission of the target offense. Execution of the crime thus represents performance of the agreement. But because the conspiracy for practical purposes is at least one step removed from the substantive offense, the offense does not substitute for the agreement and the factfinder’s analysis of the conspiracy evidence is logically directed at ascertaining whether an underlying agreement exists.

We conclude that in this case the evidence of the confederation at the scene was insufficient to warrant the defendant’s conviction of conspiracy. The judgment is reversed, the verdict is set aside, and judgment is to be entered for the defendant. So ordered.

Appeals Court of Massachusetts, Hampden, Selections from “Commonwealth v. Cook, 411 N.E.2d 1326,” 1980.

On December 12, 1984, the defendant, then unemployed, and two other men-the defendant’s step-brother, Phillip Willey, and Jeffrey Colby-drove from his trailer in Belmont, Maine to the house of a friend, Joel Fuller. Fuller, with a sawed-off shotgun in his possession, joined the others. The defendant drove to the residence of Larry Ackley, where Fuller obtained 12-gauge shotgun shells. Later that evening, Fuller suggested that the four men drive to the house of a reputed cocaine dealer, Norman Grenier of Swanville, take Grenier by surprise, and rob him. The defendant agreed to the plan, reasoning that Grenier, being a reputed drug dealer, would be extremely reluctant to call the police and request they conduct a robbery investigation that might result in the discovery of narcotics in his possession. Fuller stated that Grenier had purchased two kilograms of cocaine that day, and that Grenier had been seen with $50,000 in cash. Fuller guaranteed the defendant $10,000 as his share of the proceeds of the robbery. The four drove up to Grenier’s house, which was situated in a heavily wooded rural area on a dead-end road in Swanville. The defendant and Fuller left the car and approached the house. The defendant carried a hunting knife and switchblade, and Fuller was armed with the shotgun. Willey and Colby drove off in the defendant’s car and returned later for the defendant and Fuller. The defendant and Fuller walked around to the back of Grenier’s house. At that time, Grenier and his girlfriend were watching television in their living room. The defendant and Fuller intended to break in the back door in order to place themselves between Grenier and the bedroom, where they believed Grenier kept a loaded shotgun. Because the back door was blocked by snow, the two men walked around to the front of the house. Under their revised plan the defendant was to break the living room picture window whereupon Fuller would show his shotgun to Grenier, who presumably would be dissuaded from offering any resistance. The defendant subsequently broke the living room window with his body without otherwise physically entering the house.

Fuller immediately fired a shot through the broken window, hitting Grenier in the chest. Fuller left through the broken window after having removed about $1,300 from Grenier’s pants pocket, later returning to the house to retrieve an empty shotgun casing. The two men returned to the road and waited behind a bush for the return of the defendant’s car. The defendant and Fuller were later dropped off at Fuller’s house, where both men burned several articles of their clothing. Fuller gave the defendant $500, presumably from the money stolen from Grenier

At a jury waived trial, which commenced on January 6, 1986, the defendant testified that he knew Fuller to be a hunter and that it was not unusual for Fuller to carry a firearm with him, even at night. He nevertheless stated that he had no knowledge of any reputation for violence that Fuller may have had. The defendant further testified that he had no intention of causing anyone’s death in the course of the robbery. At the completion of the trial on January 8, 1986, the trial justice found the defendant guilty of robbery and, on a theory of accomplice liability, found him guilty of murder. The court specifically found that the defendant possessed the intent to commit the crime of robbery, that Fuller intentionally or at least knowingly caused the death of Grenier, and that this murder was a reasonably foreseeable consequence of the defendant’s participation in the robbery.

The defendant contends that the accomplice liability statute impermissibly allows the State to find him guilty of murder, which requires proof beyond a reasonable doubt that the murder was committed either intentionally or knowingly, without having to prove either of these two culpable mental states. Instead, the defendant argues, the accomplice liability statute permits the State to employ only a mere negligence standard in convicting him of murder in violation of his right to due process. We find the defendant’s argument to be without merit. The second sentence of section 57(3)(A) endorses the “foreseeable consequence” rule of accomplice liability…. We have stated that section 57(3)(A) is to be interpreted as follows: Under the first sentence of that section, which is to be read independently of the second sentence, liability for a “primary crime” . . . [here, robbery] is established by proof that the actor intended to promote or facilitate that crime. Under the second sentence, liability for any “secondary crime” . . . [here, murder] that may have been committed by the principal is established upon a two-fold showing: (a) that the actor intended to promote the primary crime, and (b) that the commission of the secondary crime was a “foreseeable consequence” of the actor’s participation in the primary crime.

Furthermore, the foreseeable consequence rule as stated in Section 57(3)(A) merely carries over the objective standards of accomplice liability as used in the common law.

Thus, a rule allowing for a murder conviction under a theory of accomplice liability based upon an objective standard, despite the absence of evidence that the defendant possessed the culpable subjective mental state that constitutes an element of the crime of murder, does not represent a departure from prior Maine law. Moreover, we have upheld the constitutionality of two related statutes, the felony murder statute, and the depraved indifference murder statute. As in the felony murder and depraved indifference statutes, the Legislature in enacting the accomplice liability statute similarly intended that a subjective culpable mental state on the part of the accomplice is not required. So long as the accomplice intended to promote the primary crime, and the commission of the secondary crime was a foreseeable consequence of the accomplice’s participation in the primary crime, no further evidence of the accomplice’s subjective state of mind as to the secondary crime is required. We find no fundamental unfairness in this statutory scheme.

The potential penalty of life imprisonment for murder under a theory of accomplice liability based on an objective standard “does not denote such punitive severity as to shock the conscience of the public, nor our own respective or collective sense of fairness.” . . . “In the criminal homicide field the jurisprudence of this State has been constant in maintaining that the subjective mental, emotional or other behavioral state or condition of the defendant not be an indispensably controlling factor in evaluation of the punitive seriousness of the crime.” For the foregoing reasons, we find no constitutional defect in this statutory provision, nor any fundamental unfairness in its operation.

Supreme Judicial Court of Maine, Selections from “State v. Linscott, 520 A.2d 1067,” 1987.