United States v. Everett

An undercover agent for the Drug Enforcement Administration purchased methamphetamine and phenyl-2-propanone (P-2-P) from Ralph Horan. Horan was arrested after the methamphetamine sale but before the P-2-P sale was completed. Horan told officers that George Everett (defendant) was the source of the substances and agreed to cooperate with the government in closing the P-2-P deal with Everett. Horan and Everett planned to meet so Horan could buy six pints of P-2-P from Everett. Horan told Everett the client wanted a sample of the P-2-P before payment, which Everett agreed to provide. Undercover agents were posed as the client outside Everett’s house when Horan went to get the sample. Horan gave the sample to agents, who tested the liquid. The test indicated that the substance was P-2-P. The agents arrested Everett, who stated that he had obtained the substance from another person. Everett was indicted for the distribution and possession of P-2-P. However, later tests of the substance showed that the original result was inaccurate and that the sample was not actually P-2-P or any other controlled substance. Everett was subsequently indicted for conspiracy to distribute methamphetamine (count I) and for knowingly and intentionally attempting to distribute P-2-P in violation of 21 U.S.C. § 846, which punishes anyone who attempts or conspires to commit any offense involving a controlled substance (count II). The jury acquitted Everett on count I but convicted Everett on count II. Everett moved for acquittal, arguing that the fact that the sample was not P-2-P made Everett’s attempt to distribute impossible. The trial judge held that, while there was sufficient evidence to support the jury’s conclusion that Everett believed the liquid was P-2-P, there nonetheless could not be an attempt, because the substance distributed by Everett was not P-2-P or any other controlled substance. The government appealed the judgment of acquittal.