author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raleigh H. LAWHON, Defendant-Appellant.
    No. 73-3933.
    United States Court of Appeals, Fifth Circuit.
    Aug. 16, 1974.
    Rehearing and Rehearing Eh Banc Denied Oct. 7, 1974.

      Thomas D. Aitken, Tampa, Fla., Davisson F. Dunlap, Orlando, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Harrison T. Slaughter, Asst. U. S. Atty., Orlando, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Chief, App. Sec., John P. Burke, John B. Owens, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.
   DYER, Circuit Judge:

Lawhon seeks to upset his conviction for making and subscribing false income tax returns for the years 1963, 1964 and 1965, in violation of 26 U.S.C.A. § 7206(1), and for attempted tax evasion for the same years in violation of 26 U. S.C.A. § 7201. He makes three basic contentions: first, that venue was not proved; second, that the Government’s theory of taxability was unsound; and third, that the Government failed properly to discharge its burden of proof. Finding no merit to these and other assignments of error, we affirm.

For many years Lawhon has owned, and managed citrus groves in Florida. Since about 1940 he also managed orange groves which were owned by his four children. The produce of the children's groves was sold to various fruit marketers through contracts in the name of “R. H. Lawhon Associates” (Associates). The checks payable to Associates from fruit buyers sometimes went directly to the children, but often were sent to Lawhon. The Associates’ proceeds received by Lawhon were commingled with Lawhon’s other funds, but the appellant kept a journal at his home showing his computations of the proceeds from the fruit sales and the allocation to his children of expenses and profit. From time to time Lawhon would purchase certificates of deposit for his children, make deposits in their savings accounts, or write checks to cover their personal expenses. Only a fraction of these payments, however, were reported by the children on their respective income tax returns.

The proceeds of the Associates’ fruit sales were usually deposited either in Lawhon’s personal bank accounts or in the accounts of family corporations which he controlled. After subtracting certain “reductions” from Lawhon’s income, such as amounts of fruit income reported on the children’s tax returns, the Government calculated that Lawhon was taxable on the proceeds from the sale of fruit in 1963 in the amount of $181,741.72; in 1964, $81,023.81; and in 1965, $20,106.45. In contrast to these alleged total receipts, Lawhon reported on his tax returns for those years $116,039.00 in 1963, $712.00 in 1964, and zero in 1965. The Government also asserted that Lawhon understated his income from interest in 1963 by $3,912.28; by $16,982.46 in 1964; and by $1,114.32 in 1965.

Under a seven-count indictment returned in 1969, Lawhon was tried before a jury, was acquitted of making a false income tax return for 1962, but was convicted for attempted tax evasion for the three following years, as well as for making a false tax return in 1965. The jury, however, was unable to reach a decision on the charges that Lawhon had made a false tax return in either 1963 or 1964; consequently, the district court declared a mistrial on the last two charges. The court also granted a new trial on the four other counts of which he had been found guilty. The primary reason given by the district court for granting the retrial was the Government’s faulty evidentiary presentation of a summary chart of income reductions. In the first trial, the prosecution prepared a chart listing all amounts which the Government recognized as allowable reductions from Lawhon's fruit receipts. Defense counsel successfully objected to the introduction of the chart on the ground that it was not supported by evidence in the record. A revised chart was prepared by the Government which did contain the requisite evidentiary backing, but both the revised chart in the first trial and the chart employed in the second trial allowed Lawhon fewer reductions from income than the original summary.

After a second jury trial before a different judge, Lawhon was found guilty of all six charges and was fined $9,000. This appeal followed.

The first assignment of error is that the prosecution failed to prove venue in the Middle District of Florida. Section 7206(1) of the Internal Revenue Code proscribes “mak[ing] and subscribing] ” a false income tax return, and Lawhon points out that the Government offered no proof that these acts were done in the Middle District of Florida. Although venue is proper in the district where the return was made and subscribed, United States v. Hagan, D.Md.1969, 306 F.Supp. 620, venue may also lie in the district in which the return was filed. United States v. Gilkey, E.D.Pa.1973, 362 F.Supp. 1069. The question, then, is whether the Government showed by a preponderance of the evidence that Lawhon’s returns were filed in the district in which he was convicted. Cauley v. United States, 5 Cir. 1966, 355 F.2d 175, cert. denied, 384 U.S. 951, 86 S.Ct. 1572, 16 L.Ed.2d 548.

The district court found that the returns were filed in Jacksonville, thus establishing venue in the Middle District of Florida. The finding was based on evidence which showed that Lawhon was a resident of and had his principal place of business in Florida, that he was required to file his returns with the IRS District Director in Jacksonville, and that the returns were subsequently produced from the files of the District Director in Jacksonville. We conclude that this evidence was sufficient to support the inference that the returns were filed in Jacksonville, United States v. Graves, 5 Cir. 1970, 428 F.2d 196, cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269, especially in view of the fact that Lawhon nowhere affirmatively suggests that venue should have been laid in any other district. Cf. Hill v. United States, 9 Cir. 1960, 284 F.2d 754, 755, cert. denied, 1961, 365 U.S. 873, 81 S.Ct. 908, 5 L.Ed.2d 862.

The next issue is whether the Government’s theory of taxability was defective since Lawhon’s children held title to the citrus groves and therefore owned the fruit marketed by the appellant. In support of the contention that his children, as the owners of the groves, were the ones liable for the income tax, Lawhon relies on a number of cases which have focused on ownership in determining tax liability, see, e. g., Poe v. Seaborn, 1930, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239; Camp Wolters Land Co. v. Commissioner, 5 Cir. 1947, 160 F.2d 84, and on cases in which a parent was held not taxable on income derived from the management and sale of property owned by his children, see, e. g., Alexander v. Commissioner, 5 Cir. 1951, 190 F.2d 753; Visintainer v. Commissioner, 10 Cir. 1951, 187 F.2d 519, cert. denied, 342 U.S. 858, 72 S.Ct. 85, 96 L.Ed. 646. The Government does not challenge the principles established by these decisions, but does dispute .their applicability to the case now before us. The Government argues that the district court properly charged the jury that the question was whether Lawhon enjoyed “unfettered command” over the proceeds from the fruit sales. Corliss v. Bowers, 1930, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916. We agree that the charge to the jury was correct.

The facts in the case sub judice are subject to conflicting interpretations. For example, the defense argues that the certificates of deposit purchased by Lawhon for his children were not gifts, but rather constituted an informal method of distributing the children’s income. Weighing against this view is the Government’s evidence that the children had not reported the receipts as income on their tax returns. While we do not suggest that a taxpayer can be held liable for failing to report another’s income, that, of course, is not the Government’s position in this case. Rather, the contention is that the evidence was sufficient to give rise to a jury question of whether, regardless of who owned the fruit, the income should be taxed to Lawhon since he had “such control over it that, as a practical matter, he derive [d] readily realizable economic value from it.” Rutkin v. United States, 1952, 343 U.S. 130, 137, 72 S.Ct. 571, 575, 96 L.Ed. 833.

Poonian v. United States, 9 Cir. 1961, 294 F.2d 74, gives no support to Lawhon’s theory that ownership alone controls tax liability. In that case, a conviction for tax evasion was reversed because of a fatal variance between the indictment and the evidence adduced at the trial. Poonian was charged with failing to fully report his income, but the evidence failed to establish that the receipts from a farming operation were not his mother’s, but his own. Although the court noted that Poonian was acquitted of other counts because his mother was found to be the owner of the income-producing property, nothing in the opinion suggests that only the owner could be taxed on farm receipts. Rather, the decision turned on the Government’s failure to carry its burden of proof that Poonian himself had realized income. Finding no merit to the contention that the factor of ownership alone is outcome-determinative, we conclude, as did the court in Poonian, that the only question is whether the Government properly proved Lawhon’s tax liability on the proceeds from the Associates’ fruit sales.

The assignment of error which Lawhon presses most strongly concerns the burden of proving reductions for tax purposes from gross fruit receipts. The Government’s case was based upon the specific items method of proof; that is, the prosecution first introduced all the produce receipts which it considered to be income to the taxpayer, then presented its view of the items which should be subtracted from the gross proceeds to arrive at Lawhon’s taxable income. The nub of Lawhon’s position is that the Government had the burden not just to show the items which it considered to be reductions, but also to introduce evidence of any item which the jury might find to be an allowable reduction. More specifically, the contention is that the Government should have introduced evidence of the amounts Lawhon gave to his children in the form of certificates of deposit, for example, even though the prosecution considered them to be not reductions but gifts. This argument seems to rely upon an analogy to a prosecution for tax evasion based on the net worth theory, see generally Holland v. United States, 1954, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, in which the prosecution has the burden to follow up on all reasonable leads which, if true, could establish the taxpayer’s innocence. See also Merritt v. United States, 5 Cir. 1964, 327 F.2d 820. Similarly, in cases based on the bank deposit method of prosecution, the Government is required to prove that it has tried to discover and exclude all non-income items from the alleged tax deficiency. See, e. g., United States v. Morse, 1 Cir. 1974, 491 F.2d 149; Kirsch v. United States, 8 Cir. 1949, 174 F.2d 595. None of these cases, however, undergirds the proposition that the Government must introduce those items which it does not believe entitle the taxpayer to a reduction in the alleged understatement of his taxes. We find neither precedent nor good reason for reversing this conviction because the Government failed to shoulder the burden of introducing evidence of all items which the taxpayer claims should have been allowed as reductions.

To the extent that the district court’s original order in the first trial granting a new trial is inconsistent with our conclusion, we disagree with it. While the order is not entirely free from ambiguity, a fair interpretation of the court’s language reveals two concerns: first, that the Government’s summary chart be based upon evidence before the jury; and second, that the jury have before it evidence which would support the taxpayer’s contention that other reductions should have been allowed. After reviewing the record and exhibits, we are satisfied that both of these conditions were met.

Moreover, we detect no infirmity in the manner in which the summary chart was utilized. The primary evidence on which the chart was based was available for testing the accuracy of the summary; the agent who prepared the chart was available for cross-examination; and the jury was properly instructed that the chart was merely to aid in understanding the underlying documents and records. United States v. Kane, 5 Cir. 1971, 450 F.2d 77, 85, cert. denied, 1972, 405 U.S. 934, 92 S.Ct. 954, 30 L.Ed.2d 810; Gordon v. United States, 5 Cir. 1971, 438 F.2d 858, 876-877, cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56. Furthermore, contrary to the appellant’s assertion, the jury was instructed that the summary chart presented only the Government’s view of the case. Myers v. United States, 5 Cir. 1966, 356 F.2d 469, cert. denied, 384 U.S. 952, 86 S.Ct. 1572, 16 L.Ed.2d 548.

Apparently the Government changed its view of some of the reductions which it was willing to allow in the revised summary produced at the second trial. The defense did have the opportunity to introduce evidence of any additional reductions which would have negated the charges that Lawhon understated his income for the three years in question. Moreover, defense counsel questioned the agent who prepared the charts and elicited from him the fact that he had omitted items which Lawhon believed should have been included. Thus all the relevant evidence was before the jury, and the appellant cannot complain because the jury chose not to accept his theory of the case.

We mention briefly several minor issues related to the use of the charts. First, the captions on the charts are said to have been unduly suggestive. For example, one read, “Computation of Fruit Income.” (emphasis added). Although the use of a more neutral term, such as “Fruit Receipts,” might have been preferable, we refuse to ascribe error to a non-prejudicial choice of semantics. Compare Lloyd v. United States, 5 Cir. 1955, 226 F.2d 9, 17. Secondly, we are unpersuaded that the district court abused its discretion in refusing to allow a summary chart prepared by the defense to be distributed to the jury during closing argument, cf. United States v. Stone, 5 Cir. 1973, 472 F.2d 909, 914, particularly since defense counsel was allowed to use a marker and easel to illustrate its contentions. We are also unpersuaded that the use of the Government’s charts in this case was similar to that method condemned in Steele v. United States, 5 Cir. 1955, 222 F.2d 628. The record simply does not support the contention that the agent who prepared the charts attempted to pass on the credibility of the witnesses or otherwise to invade the province of the jury.

We have considered the other contentions raised by Lawhon and conclude that the judgment is free from reversible error.

Affirmed.

      . Lawhon concedes that there was an understatement of interest income in 1964 and 1965 in the amounts asserted by the Government. He contends, however, that the understatement for 1963 was only $209. Even accepting Lawhon’s calculations for 1963, we disagree that willfulness cannot be inferred, especially in view of our determination, infra, that the Government proved a three-year pattern of substantially understating farm income.

      . The pertinent part of the district court’s order granting the new trial reads :
      The issue, then, is whether the Government had the burden of proving reductions to gross income or whether its offer to make the reductions through [the original summary chart] without proof was sufficient so that its rejection by defendant leaves the defense without a basis for complaint. This Court concludes that the Government had the burden of proving by competent evidence both the gross income and reductions so that the net income would be established by proof.
      sfc * sfc sfc s sfc
      The failure of the Government to offer evidence of the alleged gifts of certificates of deposits resulted in an incomplete picture. The evidence relative to certificate of deposit purchases should have been available to the jury; if they were not reductions as a matter of law, the question of whether they were gifts from defendant’s income or distribution of his children’s income should have been for the jury.

      . Because the transcript of the first trial is not in the record in this appeal, we do not know what objection, if any, defense counsel made to the introduction 'of the revised summary. The record of the second trial, however, indicates that while the defense was not satisfied with the summary chart which allowed a greater aggregate of reductions than the revised chart in the first trial — but still a lesser total amount than allowed on the original chart — the district court gave .the defense an opportunity to examine the chart before admitting it into evidence. The record also shows that the defense had the • opportunity, not fully exploited, to impeach the agent who prepared the chart with the inconsistency between the original and the later positions of the Government.

      . 26 Ü.S.C.A. § 6091.

      . See note 2, supra.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Harold S. RODOVICH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1047.
    United States Court of Appeals, Fifth Circuit.
    Aug. 26, 1974.
    Rehearing Denied Oct. 4, 1974.
    Ray Sandstrom, Fort Lauderdale, Fla., for petitioner-appellant.
    Jerome B. Ullman, Jr., Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
    Before MOORE, AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   PER CURIAM:

This is an appeal from an order denying appellant’s motion under 28 U.S.C. § 2255 to set aside his conviction in the Southern District of Florida in March 1971 and his sentence for counterfeiting. Appellant’s conviction was affirmed by this Court on direct appeal in United States v. Russo, 455 F.2d 1225 (5th Cir.), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972). The present appeal does not involve the correctness of the prior conviction but, rather, attempts to brand as impermissibly tainted information which the Government was alleged to have illegally obtained in a federal prosecution against him in Connecticut as the result of the arrest of appellant, one Michael Calarusse, and confederates. Evidence seized at that time and leads obtained therefrom are said to have “tainted” appellant’s Miami trial. A brief statement of the facts is sufficient to demonstrate the lack of merit in this argument.

On September 19, 1970 four men, appellant Harold S. Rodovich, his brother, Peter, Michael Raymond Calarusse, and George C. Reynolds, drove into an East Hartford, Connecticut, gasoline station in two automobiles. They left one car, the property of George Reynolds, for servicing and departed in the other. During the servicing, the attendant discovered what he believed to be forty counterfeit $20 bills and notified the police. The next day the four men returned for Reynolds’ car in the same car in which they had departed the day before. The men were identified by the attendant and arrested.

After being told of their rights,- none of the four wished to speak with the East Hartford police. However, after a short while, Calarusse requested to speak with a friend in the F.B.I. This friend put Calarusse in touch with the Secret Service with whom Calarusse decided to cooperate.

In fulfillment of his desire to cooperate, Calarusse flew to Miami and introduced appellant to an undercover Secret Service Agent. Appellant sold $2,660 of counterfeit notes to the Agent and offered future sales in excess of $100,000. On November 10, 1970, appellant was arrested in the Miami Airport in possession of $250,000 of counterfeit $20 bills. The Miami crime was completely independent of and unrelated to the previous Connecticut crime. The only participation Calarusse had in the Miami transactions was to arrange the original introduction.

It was appellant’s contention at his § 2255 hearing that the cooperation of Calarusse which led to appellant’s arrest and conviction stemmed from Calarusse’s allegedly illegal arrest in Connecticut and thus was fruit from a poisonous tree. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

The facts do not support appellant’s “fruit of the poisonous tree” theory. Calarusse’s arrest in Connecticut was legal. The $800 in counterfeit bills was not suppressed. Calarusse’s motive in cooperating was solely to try to extricate himself from the Connecticut crime. His trip to Miami for this purpose was wholly independent of any proof discovered legally or illegally in Connecticut. Thus, there was no poisoned fruit — in fact, no fruit and no tree.

Calarusse’s participation and his reasons therefor have been well summarized in the words of the District Court:

He was prepared to save his own hide, and whether or not Mr. Rodovich was illegally arrested or whether or not he had property seized from him, or whether Calarusse even was illegally arrested, Calarusse was perfectly prepared to talk.

Calarusse’s cooperation was “because he saw himself in a situation and decided to get out of it. * * * ”

Appellant’s conviction resulted solely from his Miami crime, i. e., conspiracy to violate the counterfeiting laws. United States v. Russo, supra. Although he unsuccessfully raised the defense of entrapment, on that trial neither his prosecution nor his cross-examination arose out of any unlawful governmental conduct.

The order denying appellant’s § 2255 motion is affirmed.


author: LEWIS R. MORGAN, Circuit Judge.

text:
    Eunice B. LOCKE, Plaintiff-Appellant, v. BOARD OF PUBLIC INSTRUCTION OF PALM BEACH COUNTY et al., Defendants-Appellees.
    No. 73-2273.
    United States Court of Appeals, Fifth Circuit.
    Aug. 19, 1974.

      William M. Holland, West Palm Beach, Fla., for plaintiff-appellant.
    Beth L. Don, Atty., Washington, D. C., for the Commission (EEOC) amicus curiae.
    Michael E. Jackson, Palm Beach, Fla., for defendants-appellees.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge.

In December, 1972, Eunice B. Locke, plaintiff-appellant herein, filed a complaint in Federal District Court for the Southern District of Florida alleging that the Board of Public Instruction of Palm Beach County had discriminated against her because of her race and sex and in so doing had violated the equal protection and due process clauses of the Constitution, the guidelines set out in Singleton v. Jackson Municipal Separate School District (5th Cir. 1970), 419 F.2d 1211, the Civil Rights Act of 1954, the Equal Opportunity Act of 1972, as well as the guidelines as set out by various governmental agencies administering the above-mentioned statutes. Palm Beach County filed a motion to dismiss and a hearing was held. The district court, after hearing testimony and considering the record in the cause, denied plaintiff’s application for a temporary injunction and granted the defendants’ motion to dismiss. Plaintiff Locke appeals both portions of that order.

I. FACTS

The plaintiff-appellant, Eunice B. Locke, at the time of suit was a classroom teacher holding a continuing contract with the Board of Public Instruction of Palm Beach County. Plaintiff Locke was certified in French, English, Music Education, and Junior College. She had had a minimum of 12 years teaching experience, most of which involved the teaching of music. Mrs. Locke’s basic duties involved classroom teaching; however, she received a special supplement to compensate her for extra duties she performed as music instructor for choral groups.

At the end of June, 1972, Mrs. Locke requested a leave of absence from her teaching position for the purpose of having a child. The school board, of course, granted this request and in addition sent Mrs. Locke a letter which reiterated the published policy of the school board as to maternity leave. That letter stated in part:

“According to the Board’s policy on maternity leave of absence, ‘maternity leave of absence will be given to instructional personnel for the remainder of the school year. If there is a vacancy sooner for which an individual is considered qualified by the County Superintendent, duties may be resumed subject to a period of at least 90 days having elapsed since the birth of the child or if the time has not been 90 days, subject to the attending physician’s statement certifying the person is able to resume work. If the school year closes without return to a position, every effort will be made toward placement the following year. In all instances of returning to employment it is necessary that a letter be submitted to the Superintendent stating that such is desired. Instructional personnel are not eligible to substitute when they are on any type of authorized leave’.”

On August 14, 1972, the regular school session started for Palm Beach County, and on August 21, Mrs. Locke gave birth to her child. Within a month of the birth of her child, Mrs. Locke requested that she be returned to her teaching position. This request was accompanied by a doctor’s certificate.

It is important to note at this time that Palm Beach County for 17 years prior to 1972 had been involved in extensive litigation concerning integration of Palm Beach County schools’ student bodies, administrators and teachers. In the fall of 1972, they were attempting to comply with the mandate of Singleton v. Jackson (5th Cir. 1970), 419 F.2d 1211, and the guidelines set down by the Office of Civil Rights and the Department of Health, Education and Welfare as to integration of their school system. In attempting to strictly comply with these various federal orders and mandates, Palm Beach County was forced to adopt a quota system as to the black to white ratio in not only student bodies, but also in faculties and administrations. There was a substantial reshuffling of faculty and administration at this time in order to meet these quotas.

As was stated above, within a month of the birth of her child, Mrs. Locke requested reinstatement in her old position. On September 22, 1972, she received a letter from the principal of the high school where she had taught the previous year. That letter stated:

I have received a copy of your recent letter to Mr. Early relative to your returning to the school system. Since I am not in compliance with our racial quota for instructional staff members, I have discussed with Mr. Harold Brake the possibility of transferring a white music teacher here and you replacing the transferred teacher. I will discuss this with other principals to see if we can expedite this matter for the children sorely need your services.

As it turned out, such a transfer did not take place and the only job opening the school system had at that time was that of an English teacher at a different junior high school. On October 9, 1972, Mrs. Locke was back at work, but at a different school and teaching English. Her base salary was the same, and she was offered a supplement if she would agree to do the same extra work she had done the previous year. The testimony at the hearing shows that Mrs. Locke refused the supplement saying that too much work was involved.

In December of 1972, Mrs. Locke filed suit in the district court alleging that because she was black and female she was discriminated against. The mechanics of this alleged discrimination involve the application of the various federal guidelines to the school at which Mrs. Locke had been teaching. Mrs. Locke asserts that because she is female and susceptible to pregnancy, and for that reason became pregnant, she was discriminated against when her old teaching position, due to her leave status, was declared vacant and the Board of Public Instruction manipulated that vacancy so as to comply with the various federal orders. This discrimination, Mrs. Locke alleges, violated not only her rights under the Fourteenth Amendment to the Constitution of the United States, but also her rights to equal employment and her rights as a woman.

Meanwhile, after the action had been filed in the Federal District Court, Mrs. Locke’s husband, who is also an employee of the Board of Public Instruction of Palm Beach County, was assigned to a position some distance (40 to 50 miles) from the Locke’s home and Mrs. Locke’s prior teaching location. Mrs. Locke then requested that she be transferred to a school closer to her husband’s place of employment. She was then offered, as per her request, a position teaching music, and in addition was offered a supplement doing extra music work. She accepted and moved her family to Pahokee, where Mr. and Mrs. Locke and family now reside. There is no indication in the record of the court below or in the oral arguments before this court that the transfer of Mrs. Locke’s husband was in any way related to Mrs Locke’s transfer, nor is there any such claim. Furthermore, a new maternity leave policy was adopted on December 12, 1972, and the old maternity leave policy which Mrs. Locke came under is no longer in effect. Also, although Mrs. Locke had a continuing contract with the school system, it was specifically stated therein that she was subject to transfer anywhere within that school district.

It should be noted at this point that in her original complaint the only relief sought by Mrs. Locke other than money damages was an injunction restraining the school system from implementing its present leave policy against the plaintiff in a discriminatory manner, and in that vein it was requested that Mrs. Locke be returned to her former position as a music and vocal teacher. Since that time, as stated above, a new maternity leave policy has been adopted for Palm Beach County and Mrs. Locke has been assigned to a position where she is both a music and vocal teacher with supplement, as she was before. This assignment was at her own request.

II. MOOTNESS

It is the opinion of this court that the issues presented in this case as to the individual plaintiff, Mrs. Locke, are moot and the appeal as to her individually should be dismissed.

Although neither party has urged that this case is moot, resolution of the question is essential if federal courts are to function within their constitutional sphere of authority. It has frequently been repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. Local No. 8-6, Oil Workers Union v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960). To be cognizable in a federal court a suit “must be definite and concrete, touching the legal relationships of parties having adverse legal interests. ... It must be a real and substantial controversy admitting of specific relief to a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). Mootness is a jurisdictional question because federal courts are not empowered to decide moot questions or abstract propositions. United States v. Alaska S. S. Company, 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808 (1920). The federal courts impotence to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy. Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). See, North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971).

The recent Supreme Court case of DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), outlines an excellent analysis, to be employed in deciding whether an individual case is moot. First, we find that the federal courts are without power to decide questions that cannot affect the rights of the litigants before them. This inability of the federal judiciary to review moot cases derives from Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy. It is clear from the facts before us, as it was clear to the Supreme Court in DeFunis, supra, that the plaintiff herein has now been satisfied as to her request for a job complete with supplemental work and pay. The counsel for the school board, as did the counsel for the State of Washington in DeFunis, has assured this court that the school board always had, and still maintains, good will toward Mrs Locke. Furthermore, it is clear that the school board has done everything within its power to comply with Mrs. Locke’s wishes within the limitations placed upon the board by the various federal orders and mandates. This court is aware, as was the Supreme Court in DeFunis, that “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the cases, i. e., does not make the case moot.” See, DeFunis, 416 U.S. at 318, 94 S.Ct. at 1706, 40 L.Ed.2d at 169 (1974). But, the mootness in this case, as it was in DeFunis, depends not at all upon a voluntary cessation of activity, but rather depends on the simple fact that Mrs. Locke’s wishes have been complied with and it is a matter of record that the school board is complying with the various' federal mandates and orders as to integration of its school system. Even though, as in DeFunis, it could be argued that this is a question that is capable of repetition, here, more so than in DeFunis, that is not possible. The maternity leave policy allegedly forced on Mrs. Locke is no longer in existence, a new one having taken its place on December 12, 1972. Mrs. Locke will never again be forced to comply with that leave policy.

At oral argument, when counsel for Mrs. Locke was asked what remedy she desired, counsel stated that possibly she should receive money damages to compensate her for having to move from her old home to her new home in Pahokee. It should be noted that Mrs. Locke moved to Pahokee of her own volition, after having requested that she be given an assignment there. The transfer by the school board had nothing to do with the controversies in this ease and therefore no damages would be forthcoming because of such a move. Mrs. Locke was under a continuing contract with the school, that contract stating that she could be transferred to any school within reasonable distance of her home, which was done immediately after her return from maternity leave. Furthermore, she was offered a job supplement, which she turned down, and this court would be hard put to enunciate a sound reason why the school board should be forced to pay damages to a teacher that it transferred in order to comply with federal orders and mandates and, further, which transfer was authorized, consented to and requested by that teacher in not only her contract but the other actions that she took voluntarily while such a teacher.

For the reasons set out above, this case is moot and appellant Locke’s individual appeal should.be dismissed.

III. THE CLASS ACTION

In the original complaint, Mrs. Locke declared that she was bringing a class action under Federal Rule 23(b). This court finds that no such action could have been properly brought because the prerequisites for bringing a class action were not met.

An action may be maintained under Rule 23(b) only if the prerequisites of 23(a) are satisfied. These prerequisites are “One or more members of a class may sue or be sued as representative parties of all only if (1) the class is so numerous that joinder of all members if impractical, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the' class.” Rule 23(b)(2) states that in addition to the prerequisites of subdivision (a), “The party opposing the class has acted or refused to act on grounds generally. applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole;

In considering this appeal then it must be determined whether in fact this action is properly brought as such a class action under the above rules. The district court did not determine whether the action should have been maintained as a class action and enter the order required by Rule 23(c) of the Federal Rules of Civil Procedure. Therefore, for the purpose of jurisdiction, procedural and substantive due process, and to determine the binding effect of any judgment in this matter, it must be decided if this is a proper class action. There is some question as to the correct appellate procedure to be followed when there has not previously been made a determination of whether an action is maintainable as a class action. However, the importance of the notice requirement of Rule 23 and the effect a judgment will have on an absent member of the so-called class makes it imperative that the propriety of maintaining a class action be examined. If this issue has not been considered before the action comes to a reviewing court, it would appear the better practice for the reasons of judicial economy for the appellate court to make such a determination on the basis of the record before it rather than remanding for a decision on this question. Caldwell v. Craighead (6th Cir. 1970), 432 F.2d 213.

Appellant’s complaint states that it meets the prerequisites for maintaining a class action contained in Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class of individuals it purports to represent in this litigation is all women employed in the school system and subject to defendants’ acts violating the constitutional rights of the equal protection, due process and statutory provisions prohibiting discrimination on the basis of sex, and in behalf of all employees in the school system whose rights or under mandate of Singleton’s case are abridged.

To decide whether this action is maintainable as a class action the character of the interests sought to be protected by the named parties in this action must be examined and compared with those interests allegedly held in common by the group of individuals the named parties seek to represent. The gravamen of appellant Locke’s cause of action is denial of Fourteenth Amendment rights to due process, equal protection and violation of the statutory prohibitions against discrimination on the basis of sex and race. There can be no doubt from reading the complaint and studying the facts surrounding this litigation that the actions taken by the school board were taken in part due to appellant Locke’s sex and race. Mere allegations, however, of racial and sexual discrimination allegedly amounting to a violation of plaintiff’s constitutional statutory rights which are without a basis in objective fact do not make that a case for relief on these grounds as to a class. Plaintiff Locke’s complaint correctly alleges that she was transferred because of her sex and race. She has not, however, made out a case for violation of her constitutional and statutory rights and, furthermore, it should be noted she is no longer being “forced” to teach in a location or to teach a subject which she finds disagreeable. Having had these facts presented, it must be considered whether the conduct of one of the litigants subsequent to the initiation of this lawsuit moots this cause as to the alleged class.

The test of whether this class action controversy is moot involves several considerations. The absence or presence of any single factor is not necessarily determinative of whether a jurisdictional controversy exists. In United States v. Alaska S. S. Company, supra, it is stated that a case becomes moot when by an action of the parties, or a subsequent law, the existing controversy has come to an end, and the court is not empowered “to declare for the government of future eases, principles or rules of law which cannot affect the results as to the thing in issue in the case before it.” In United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), the constitutionality of the Hatch Act passed by Congress was drawn into question. On the question of mootness, the Court observed that “the power of courts . . . to pass upon the constitutionality of Acts of Congress arises only when the interest of the litigants require the use of this judicial authority for their protection against actual interference.” [Emphasis supplied]. Finally, it is stated that a controversy is moot when a court cannot render an effective decree responsible to the complaint, Singleton v. Board of Commissioners of State Institutions (5th Cir. 1966), 356 F.2d 771, because there is “no longer a subject matter on which the judgment (can) operate.” St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943).

For all intents and purposes the controversy between Eunice Locke,- the alleged class she represents, and Palm Beach County Board of Instruction has ended. (See, II Mootness, above). Mrs. Locke and her entire family, husband included, have moved to another location, she is teaching a subject and receiving a salary which is satisfactory to her and which was given to her at her own request, and it would serve no purpose to order Mrs. Locke reinstated to her prior position even if this court were to find that it was right for such to be done. While a declaration of her rights might be undertaken, this would merely be a hypothetical ruling as between these parties. Furthermore, the maternity leave policy which allegedly violates the rights of the alleged class no longer exists. In addition, although this matter has generated public concern, the nature of the case itself we find is that of a single individual alleging infringement on her rights. This does not make the dispute one of “general public interest” requiring a decision even if many attributes of mootness exist. See, United States v. W. T. Grant, 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). It is concluded, therefore, that appellant Locke’s claim raised in this action has been mooted as to her individually and as to any class she allegedly represents.

The judgment below is vacated and the case is remanded to the District Court with instructions to dismiss it as moot.

      . Palm Beach County is more than twice the size of the State of Rhode Island, with most of its 350,000 residents clustered along the Atlantic Coastline. In the west end of the county are the communities of Belle Glade and Pahokee and the farming areas of the perimeter of Lake Okeechobee. The schools in the west end of the county are some 40 miles distant from the schools in the coastal area.

      . The text of appellant Locke’s contract is set out below;
      i t-cc CONTINUING CONTRACT OF EMPLOYMENT FOR INSTRUCTIONAL AND ADMINISTRATIVE OR SUPERVISORY PERSONNEL OF PUBLIC SCHOOLS
      EXPLANATORY NOTE:
      To bo uced only for inAructional and administrativo or supervisory penosiael holding o regular certificase (Graduate; Post Graduate; Advanced Boat Graduate; Ptufrocirmal, based ost a Gradufete Certificate; life Graduate State, based on a Graduate State Certificate granted on a four-year degree) based at least on graduation from a standard four-year college and who have completed the neccisary period of service as provided by Section 231.36, Florida Statutes.


author: COLEMAN, Circuit Judge.

text:
    Joseph TAYLOR et al., Plaintiffs-Appellees, v. W. L. STERRETT et al., Defendants-Appellants. Julius Dwain PERRY, Sr., et al., Plaintiffs-Appellees, v. James E. (Bill) DECKER et al., Defendants-Appellants. Joseph TAYLOR et al., Plaintiffs-Appellees, v. W. L. STERRETT et al., Defendants-Appellants.
    Nos. 72-2443, 72-3689.
    United States Court of Appeals, Fifth Circuit.
    Aug. 19, 1974.

      Henry Wade, Crim. Dist. Atty., Dallas County, John B. Tolle, Gerald Weatherly, Asst. Crim. Dist. Attys., Earl Luna, Robert W. Porter, Dallas, Tex., for defendants-appellants.
    Robert L. Byrd, Ft. Worth, Tex., John F. Jordan, Dallas, Tex., Stanley A. Bass, New York City, James E. Clayton, Dallas, Tex., for plaintiffs-appellees.
    Before COLEMAN and SIMPSON, Circuit Judges, and RUBIN, District Judge. .
   COLEMAN, Circuit Judge.

This litigation concerns conditions in the Dallas County, Texas, jail. The opinion of the District Court is reported, Taylor v. Sterrett, 344 F.Supp. 411 (1972). We affirm and remand in part; we also vacate and remand in part for the further consideration of the District Court in light of intervening Supreme Court decisions and the ongoing circumstances of the case.

The District Court properly declined to apply the doctrine of abstention to this case, Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224.

In the exercise of its pendent jurisdiction, associated with the federal constitutional claims hereinafter mentioned, the Court ordered steps to insure compliance with the laws of Texas with reference to local prison facilities. The exercise of pendent jurisdiction in this area was correct, Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Mobil Oil Corporation v. Kelley, 5 Cir., 1974, 493 F.2d 784.

As to the enforcement of state laws applicable to this jail [Paragraphs 1, 2, 11 and 12 of the District Court order, 344 F.Supp. 422-423], we have recently vacated a stay originally entered here pending appeal. It was specified that this action was without prejudice to the rights of the appellants to seek any justifiable modification in the District Court. It could hardly be expected that a United States District Court, -in the exercise of appropriate pendent jurisdiction, would decline the enforcement of laws which the state, of its own volition, had enacted for the improvement of prison conditions within its jurisdiction. The decree of the District Court on these topics is affirmed. The case is nevertheless remanded to enable the Court to enter such modifications, if any, as ought to be had in the light of the ongoing circumstances.

Equity never seeks the impossible nor orders the unreasonable — its orders are adapted to the' exigencies of the case. The criticisms which appellants level against the decree with reference to state requirements at this jail are accordingly left to the sound judicial discretion of the trial court, with full power to assay the merits of these criticisms and decree accordingly.

Paragraphs 5 and 6 of the District Court order prohibiting the unnecessary destruction of prisoner reading matter, etc., is affirmed as a reasonable provision for the protection of First Amendment rights.

As to Paragraph 7 of the District Court order, relating to rules of conduct of inmates, we are informed by the briefs, and there is no suggestion of dispute about it, that the Sheriff has, in fact, filed such rules with the District Court. We therefore consider this issue as substantially moot, but the District Court will be free to enter any modifications or amendments as may appear appropriate within the teachings of Wolff v. McDonnell, post, or any other applicable decision of this or of the Supreme Court.

This brings us to Paragraph 8 of the District Court order, which reads as follows:

“The Sheriff is directed not to allow persons to see prisoners except with the consent or request of the inmates. This has particular reference to ‘copout’ men, who have had free access to the jail.”

As a general proposition we agree that prisoners should be left free of unwanted visitors, contacts, or importunities. Yet, we are of the view that the provisions of Paragraph 8 are too restrictive, especially since the primary jurisdiction of the federal courts in this area is limited to the vindication of rights guaranteed by the federal constitution. Conceivably, the order would eliminate visits from official investigators engaged in efforts to solve crimes or to perform other legitimate duties. As to prisoners who choose not to be represented by counsel or who, as indigents, are charged with such misdemeanors as not to require counsel, this order could block efforts to bring their cases to a speedy resolution, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. Upon remand we suggest that an effort be made specifically to limit this requirement to the evil it is intended to extirpate, if that evil does, in fact, rise to constitutional dimensions.

With reference to Paragraph 9 of the District Court order, concerning classifications as to pretrial detainees and convicted inmates, we are similarly advised that since the decision of the court below the State of Texas has enacted appropriate legislation by which those convicted of felonies are now held within the state prisons pending appeal. Upon remand, the District Court will reconsider this portion of its order in light of the realities of the ease.

Paragraph 10 of the District Court order reads as follows:

“The Sheriff is enjoined from using inmates as corridor bosses to enforce rules and preserve discipline.”

We note the key language, “to enforce rules and preserve discipline”. We construe this to mean that the use of unarmed trusty prisoners for other functions is left undisturbed.

Since there are guards who could see to enforcing rules and preserving discipline, leaving unarmed trusties to perform duties affording no real opportunity to mistreat and abuse their fellow prisoners in violation of their constitutional rights, we do not regard this provision as an abuse of equity discretion within the four corners of this case.

Being aware, as we were, that some of the problems raised by this appeal, such as abstention on the state law issues, were pending on writs of certiorari in the Supreme Court of the United States, (and in keeping with our usual practice) we deferred decision in order that we might thereafter act with the guidance of that Court. One important issue below involved the censorship and opening of prisoner mail, Paragraph 4 of the District Court order, 344 F.Supp. 422. This portion of the District Court order is vacated and remanded for further consideration in light of the decisions of the Supreme Court in Wolff v. McDonnell, — U.S. —, 94 S.Ct. 2963, 41 L.Ed.2d 935, and Procunier v. Martinez, supra.

Massive precedent in the matter of state prison operation reflects the long maintained attitude of this Court to avoid unnecessary intervention in and interference with the internal administration of state penal institutions, subject to one paramount principle, the Court never hesitates to vindicate the federally guaranteed constitutional rights of those imprisoned therein. We have sought to consider and decide this case within those guidelines.

In the respects indicated, the judgment of the District Court is affirmed and remanded. In others, as set forth, the judgment is vacated and remanded for further proceedings not inconsistent herewith.

With these provisos, the entire cause will now be remanded to the District Court for the exercise of a retained jurisdiction.


author: RIVES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roy MANDUJANO, Defendant-Appellant.
    No. 74-1445.
    United States Court of Appeals, Fifth Circuit.
    Aug. 19, 1974.
    Rehearing Denied Sept. 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. 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, “[Y]ou 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; 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.

Apparently there is no legislative history indicating exactly what Congress meant when it used the word “attempt” in section 846. 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. 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. United States, supra, and United States v. Quincy, 1832, 31 U.S. (6 Pet.) 445, 8 L.Ed. 458, discussed infra.

Gregg v. United States, 8 Cir. 1940, 113 F.2d 687, involved in part a conviction for an attempt to import intoxicating liquor into Kansas. The court in this case acknowledges with apparent approval the definition of attempt urged by appellant Gregg:

“He calls attention to the fact that an attempt is an endeavor to do an act carried beyond mere preparation, but falling short of execution, and that it must be a step in the direct movement towards the commission of the crime after preparations have been made. People v. Collins, 234 N.Y. 355, 137 N.E. 753. The act must ‘carry the project forward within dangerous proximity to the criminal end to be attained.’ Cardozo, J., in People v. Werblow, 241 N.Y. 55, 148 N.E. 786, 789; People v. Rizzo, 246 N.Y 334, 158 N.E. 888, 55 A.L.R. 711; People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913; State v. McCarthy, 115 Kan. 583, 224 P. 44; State v. Davis, 319 Mo. 1222, 6 S.W 2d 609; Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55; Wooldridge v. United States, 9 Cir., 237 F. 775.”

113 F.2d at 690. The court held, however, that Gregg’s conduct went beyond “mere preparation”:

“The transportation of goods into a state is essentially a continuing act not confined in its scope to the single instant of passage across a territorial boundary. In our view the appellant advanced beyond the stage of mere preparation when he loaded the liquor into his car and began his journey toward Kansas. From that moment he was engaged in an attempt to transport liquor into Kansas within the clear intent of the statute.”

113 F.2d at 691. Also see United States v. Duane, D.Neb 1946, 66 F.Supp. 459.

In 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 th.e 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. The decisions are too numerous to cite, and would not help much anyway, for there is, and obviously can be, no definite line; but Judge Cullen’s discussion in People v. Sullivan, and Mr. Justice Holmes’ in two Massachusetts decisions, are particularly enlightening. In the second of the Massachusetts opinions Holmes, J., said: “Preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.’ We have found scarcely any decisions of federal courts, but, so far as they go, they are in accord. There can be no doubt in the case at bar that ‘preparation’ had become ‘attempt.’ The jury were free to find that the packet was to be delivered that night, as soon as they both thought it safe to do so. To divide ‘attempt’ from ‘preparation’ by the very instant of consummation would be to revert to the old doctrine.”

185 F.2d at 632, 633. Also see United States v. Butler, S.D N.Y.1962, 204 F.Supp. 339, 343, where the court considered “whether the conduct of the defendant went sufficiently far towards the commission of the crime to constitute an attempt or whether it merely constituted preparation.”

In United States v. Robles, N.D.Cal.1960, 185 F.Supp. 82, 85, a case in which the defendant was charged with using communication facilities in attempting to import heroin illegally, the court enunciated the following test:

“The language of Title 18 U.S.C. § 1403 is such as to compel a conclusion that an attempt may be made by the mere use of communication facilities. To attempt to do an act does not imply a completion of the act, or in fact any definite progress towards it. Any effort or endeavor to effect the act will satisfy the terms of the law. United States v. Quincy, 6 Pet. 445, 31 U.S 445, 8 L.Ed. 458; and see: United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553; and Simpson v. United States, 9 Cir., 195 F.2d 721, 13 Alaska 635

The language used in Robles, supra, is drawn directly from United States v. Quincy, 1832, 31 U.S. (6 Pet.) 445, at 464, 8 L.Ed. 458, which involved an indictment under a statute which made it unlawful to attempt to fit out and arm a vessel with intent to employ her in the service of a foreign people. The Supreme Court in Quincy further stated that, “The offence consists principally in the intention with which the preparations were made .... And this must be a fixed intention .... This intention is a question belonging exclusively to the jury to decide It is the material point on which the legality of criminality of the act must turn.” 31 U.S. (6 Pet.) at 466, 8 L.Ed. 458.

In Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 148, we noted that, “Much ink has been spilt in an attempt to arrive at a satisfactory standard for telling where preparations ends [sic] and attempt begins,” and that the question had not been decided by this Court. The Court in Mims, at 148 n. 40, did note that the following test from People v. Buffum, 40 Cal.2d 709, 256 P.2d 317, 321, has been “frequéntly approved”:

“ ‘Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature. * * * ’ (Emphasis added.)”

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. United States v Quincy, supra, 31 U.S. (6 Pet.) at 466, 8 L.Ed. 458 (“The offence consists principally in the intention with which the preparations were made”); Wooldridge v. United States, supra, 237 F. at 779 (“although it may have been his intention”); United States v. Baker, supra, 129 F.Supp. at 685 (“the intent to commit a crime”); Giles v. United States, supra, 157 F.2d at 590 (“the design to commit a crime”); United States v. Coplon, supra, 185 F.2d at 633 (“the intent to complete [the crime] renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime” [emphasis added]); United States v. Noreikis, supra, 481 F.2d at 1181 (“ ‘the crime he intends to commit’ ” [emphasis added]); United States v. Heng Awkak Roman, supra, 356 F.Supp at 437 n. 5 (“There is no doubt here, and I so find, that the defendants had the requisite mens rea; that is, that their actions were knowing and intentional, and with the purpose of distributing the heroin.”); People v. Buffum, supra (“the will of the attempter”).

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. Wooldridge v. United States, supra, 237 F. at 779 (“an overt act toward the commission of the crime charged”); Lemke v. United States, supra, 211 F.2d at 75 (“an overt act done toward its [the crime’s] commission”); United States v. Baker, supra (“some overt act in pursuance of the intention”) ; Giles v. United States, supra (“an act tending toward the accomplishment, and done in part execution of the design to commit a crime”); Gregg v. United States, supra, 113 F.2d at 690 (“a step in the direct movement towards the commission of the crime after preparations have been made”); United States v. Coplon, supra, 185 F.2d at 633 (“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 . . . there is, and obviously can be, no definite line”); United States v. Robles, supra 185 F.Supp. at 85 (“Any effort or endeavor to effect the act”); United States v. Noreikis, supra 481 F.2d at 1181 (“the commission of an overt act, the ‘doing something directly moving toward, and bringing him nearer, the crime he intends to commit’ ”); People v. Buffum, supra, 256 P.2d at 321 (“there must be some appreciable fragment of the crime committed .... the act must not be equivocal in nature”). The use of the word “conduct” indicates that omission or possession, as well as positive acts, may in certain cases provide a basis for liability. The phrase “substantial step,” rather than “overt act,” is suggested by Gregg v. United States, supra (“a step in the direct movement toward the commission of the crime”); United States v. Coplon, supra (“before he has taken the last of his intended steps”) and People v. Buffum, supra (“some appreciable fragment of the crime”) and indicates that the conduct must be more than remote preparation. 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, United States v. Quincy, supra, and by the approach taken in United States v. Coplon, supra 185 F.2d at 633 (“. . . some preparation may amount to an attempt. It is a question of degree”).

III.

The district court charged the jury in relevant part as follows:

“Now, 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.
“ * -x- x- jn 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.”

(Tr. Jury Trial Proc., pp. 138-139.) These instructions, to which the defendant did not object, are compatible with our view of what constitutes an attempt under section 846.

After the jury brought in a verdict of guilty, the trial court propounded a series of four questions to the jury:

“(1) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally placed several telephone calls in order to obtain a source of heroin in accordance with his negotiations with Officer Cavalier which were to result in the distribution of approximately one ounce of heroin from the defendant Roy Mandujano to Officer Cavalier?”
“(2) Do you find beyond a reasonable doubt that the telephone calls inquired about in question no. (1) constituted overt acts in furtherance of the offense alleged in the indictment?”
“(3) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally requested and received prior payment in the amount of $650.00 for approximately one ounce of heroin that was to be distributed by the defendant Roy Mandujano to Officer Cavalier ?”
“(4) Do you find beyond a reasonable doubt that the request and receipt of a prior payment inquired about in question no. (3) constituted an overt act in furtherance of the offense alleged in the indictment?"

Neither the government nor the defendant objected to this novel procedure. After deliberating, the jury answered “No” to question (1) and “Yes” to questions (3) and (4). The jury’s answers indicate that its thinking was consistent with the charge of the trial court.

The evidence was sufficient to support a verdict of guilty under section 846. 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.

IV.

Mandujano claims prejudicial error with regard to two evidentiary questions. The first question arose near the beginning of Agent Cavalier’s testimony:

“A. Shortly after we have been talking for awhile, Mr. Mandujano looks at Mr. O’Leary and asks Mr. O’Leary if he was looking for stuff. I entered saying, ‘Yes, I was.’
“Q. In your understanding, what were you talking about, the stuff?
“MR. ALEXANDER [Attorney for Defendant]: Objection. This would be a conclusion on the witness’ part.
“MR. PINCKNEY [U.S. Attorney] : Of his own state of mind, your Honor, not someone else’s.
“THE COURT: How long have you been in the .job that you have?
“A. Since May, 1972, sir, on my present assignment.
“THE COURT: And how many times have you acted in an undercover capacity?
“A. Between November of ’72 and May of ’73 I acted in a total undercover capacity eighty-six times, I believe, sir. .
“THE COURT: In your experience dealing in the narcotics traffic, what have you understood the word ‘stuff’ to mean? I am asking it, counsel, and the record will reflect that you are objecting to it, and the Court will overrule the objection.
“A. ‘Stuff’ on the street, between narcotic traffickers and some of the local people in those streets, ‘stuff’ refers to narcotics.”

(Tr. 24-25.) Mandujano argues that allowing Cavalier to testify as to his understanding of the word “stuff” exposed the jury to the inference that Mandujano dealt in narcotics. In the light of Cavalier’s later testimony that Mandujano said he had good brown Mexican heroin available for sale, if Cavalier would wait until the regular man made his deliveries, and that Mandujano later tried to locate an immediate source of heroin for Cavalier, it is doubtful that Cavalier’s testimony on this point was prejudicial. At any rate, a trial court has some latitude in permitting a witness on direct examination to testify as to his conclusions, based on common knowledge or experience. See United States v. Trenton Potteries, 1927, 273 U.S. 392, 407, 47 S.Ct. 377, 71 L.Ed. 700; Batsell v. United States, 8 Cir. 1954, 217 F.2d 257, 262; Wiley v. United Sates, 8 Cir. 1958, 257 F.2d 900, 908; VII Wigmore Evidence (3rd ed.) §§ 1923, 1924, 1925. The court in this instance ascertained that Cavalier had wide experience as an undercover agent dealing in the narcotics traffic. We conclude that the trial court acted within its discretion in allowing Cavalier to testify as to his understanding of the word “stuff.”

The second evidentiary question developed near the end of Cavalier’s testimony. Cavalier had just testified that “We aborted the deal” (Tr. 31), and the United States Attorney proposed to ask Cavalier why he didn’t try to contact Mandujano again After a bench conference and then a conference in the absence of the jury, the trial court decided to allow the following which was read to the jury by the court reporter:

“Q. Subsequent to the calls that you received on the evening of March 29th, 1973, why did you not again attempt to contact Mr. Mandujano?
“A. Based on the information that I had received, it would be unsafe for either my informant or myself to return to this area.”

(Tr. 40.) The court cautionéd the jury immediately that the answer to this question was admitted “only to show what was in his mind, not as proof to you or any evidence to you that it actually was unsafe, but only what he had been told and why he didn’t go back.” As limited by the trial court, the testimony was admissible to show Cavalier’s state of mind. See VI Wigmore, Evidence (3rd ed.) § 1789. This testimony was not so inherently prejudicial that the trial court should have suppressed it.

For the reasons stated in this opinion, the judgment is

Affirmed.

      . Count One of the indictment charged:
      “On or about the 29th day of March, 1973, in the Western District of Texas, ROY MANDUJANO, the defendant herein, did knowingly and intentionally attempt to distribute one ounce of heroin, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Sections 841(a)(1), all in violation of Title 21, United States Code, Section 846.”
      Count Two of the same indictment charged perjury before the Grand Jury. That count has been separately considered by the district court, 365 F.Supp. 155, and by this Court, 5th Cir. 1974, 496 F.2d 1050.

      . “(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
      “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
      Tit. 21, U.S.C. § 841(a) (1).
      Under subsection 802(11) the term “distribute” means “to deliver (other than by administering or dispensing) a controlled substance.” Subsection 802(8) defines the terms “deliver” or “delivery” to mean “the actual, constructive or attempted transfer of a controlled substance, whether or not there exists an agency relationship.”

      . In opening argument, the United States Attorney stated: “There is a stipulation that has been entered into by the Government stating categorically that no heroin exchanged hands in this case * * (Tr. 16) During the cross-examination of Cavalier, the court asked Mandujano’s attorney if he agreed with the stipulation as stated in the opening argument. Mandujano’s attorney replied, “Yes, sir, in general that was the stipulation Your Honor.” (Tr. 53)

      . House Report No. 91-1444 on the Drug Control Act simply states that “Section 406 provides that any person who attempts or conspires to commit any offense defined in this title may be punished by imprisonment and/or fine which may not exceed the maximum amount set for the offense, the commission of which was the object of the attempt or conspiracy.” 1970 U.S.Code Cong. & Admin.News, ps. 4566, 4617.

      . This comment to the Model Penal Code catalogues a number of formulations which have been adopted or suggested, including the following:
      (a) The physical proximity doctrine — the overt act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime, or must amount to the commencement ■of the consummation.
      (b) The dangerous proximity doctrine — a test given impetus by Mr. Justice Holmes whereby the greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger is the case for calling the act an attempt.
      (c) The indispensable element test — -a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control.
      (d) The probable desistance test — the conduct constitutes an attempt if, in the ordinary and natural course of events, without interruption from an outside source, -it will result in the crime intended.
      (e) The abnormal step approach — an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist.
      (f) The res ipsa loquitur or unequivocality test — an attempt is committed when the actor’s conduct manifests an intent to commit a crime.

      “1. 173 N.Y. 122, 133-136, 65 N.E. 989, 63 L.R.A. 353.

      “2. Commonwealth v. Kennedy, 170 Mass. 18, 20, 22, 48 N.E. 770; Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56.

      “3. Wooldridge v. United States, 9 Cir., 237 F. 775; Gregg v. United States, 8 Cir., 113 F.2d 687; United States v. Duane, D.C., 66 F.Supp. 459, 464, 465.

      . Our definition is generally consistent with and our language is in fact close to the definitions proposed by the National Commission on Reform of Federal Criminal Laws and the American Law Institute’s Model Penal Code.
      Section 1001 of the proposed federal criminal code provides as follows :
      “(1) Offense. A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A substantial step is any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed them to be.”
      This proposed section was changed slightly from the version proposed in the Study Draft:
      “(1) Offense. A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he intentionally engages in conduct constituting a substantial step toward commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the offense. Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be.”
      A comment justifying the study draft version of proposed section 1001 appears at 1 Working Papers of the National Commission on Reform of Federal Criminal Laws, 351-368 (1970).
      Proposed section 1001 is generally consistent with, and probably taken in part from, section 5.01 of the Model Penal Code (Proposed Official Draft 1962) :
      “(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
      “(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
      “(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
      “(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(2) Conduct Which May Be Held Substantial Step Under Subsection (l)'(c). Conduct shall not be held to constitute a substantial step under Subsection (1) (c) of this Section unless it is strongly corroborative of the actor’s criminal purpose.”
      Also, see the recently adopted tests for attempt in the following states, among others: Colorado — § 40-2-101, Colorado Crim.Code, approved June, 1971; Georgia — § 26-1001, Tit. 26, adopted 1968; Hawaii — § 500, Act 9, 1972, to be codified as Tit. 37, Hawaii Rev.Stat.; Illinois' — Art. 8-4, Ill.Crim.Code, 1961; Kansas — § 21-3301, ■ ch. 180, 1969 laws; Kentucky — § 50, Ky. Penal Code, adopted in 1972; Oregon — § 54, Ore.Crim. Code of 1971.