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Criminal Resource Manual

Criminal Resource Manual
CRM 1500-1999

1608. "Any Act Or Endeavor" Test

This test was used in a case in which a defendant was charged with using communication facilities in attempting to commit the crime of illegally importing narcotic drugs, having mailed a letter to a Mexican manufacturer of heroin in which the defendant asked to purchase some. The court said:

To attempt to do an act does not imply a completion of the act, or in fact any definite progress toward it. Any effort or endeavor to effect the act will satisfy the terms of the law.

United States v. Robles, 185 F. Supp. 82, 85 (N.D. Cal., 1960). This position must be examined with an eye to those cases which have striven to distinguish the terms "attempt" and "endeavor," thereby forcing a definition of the former term in much the same terms as under the dangerous proximity test. See Osborn v. United States, 385 U.S. 323, 333 (1966). The gravity of the violations encompassed by the statute would indicate the propriety of prosecution as an attempt for conduct which might as to other violations be considered mere preparation or endeavor.

Inasmuch as the assault provision of this statute, 18 U.S.C. §  351(e), makes no provision for aggravated assaults (i.e., assault by use of a deadly or dangerous weapon) and since the penalty for assaults not resulting in personal injury is so light, consideration should be given to prosecuting as an attempted killing under 18 U.S.C. § 351(d) when a deadly or dangerous weapon is involved in an incident where no injury results.

[cited in JM 9-65.700]