United States v. Everett

700 F.2d 900 (3rd Cir. 1983)

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Nature of the Case

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Facts

On February 4, 1981, the government arrested Horan after he sold the agent methamphetamine but before the P-2-P deal could be consummated. Horan identified Everett (D) as his source for the P-2-P and methamphetamine, said that the P-2-P was still in D's hands, and agreed to cooperate in closing the P-2-P deal. Horan made several recorded conversations with D which were tape recorded by the DEA. Horan was to buy six pints of D's P-2-P at $1250 per pint. Horan's 'client' also wanted to inspect a sample of the P-2-P before giving D the money. D agreed to provide a sample. D gave Horan one pint of the liquid as a sample. Horan took the pint to the waiting agents who performed a quick field test. The test indicated that the liquid was P-2-P. DEA agents then placed D under arrest. D gave a statement to DEA agents. He identified the substance as P-2-P and said that he had gotten it from Mr. Joseph Jackson, who in turn had obtained it from someone known as Frank. The grand jury returned an indictment charging D with distribution and possession of P-2-P. The sample pint of liquid was not P-2-P or any other controlled substance. The government then obtained a superseding indictment charging that D had conspired with Horan to distribute the methamphetamine sold to the DEA agent. Count II charged that D did knowingly and intentionally attempt to distribute P-2-P. At trial, D did not testify or call any witnesses. The trial judge emphasized that to convict on Count II, it must find beyond a reasonable doubt that D believed the pint of liquid to be P-2-P. The jury acquitted D on Count I. It convicted him on Count II of attempting to distribute P-2-P. D then moved for judgment of acquittal on Count II. The trial judge set aside the verdict of guilty on Count II and entered judgment of acquittal on the ground that there could be no attempt as the liquid distributed by D was not P-2-P or any other controlled substance. The United States (P) appealed.