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June 26, 1981


The opinion of the court was delivered by: GREEN

The United States brought defendant George Everett to trial on a two count indictment. Count I alleges that defendant participated in a conspiracy to distribute Methamphetamine, a schedule I non-narcotic controlled substance, in violation of 21 U.S.C. § 846 while count II alleges that he attempted to distribute Phenyl 2 Propanone (P2P), a schedule II non-narcotic controlled substance, also in violation of 21 U.S.C. § 846. On May 22, 1981, a jury acquitted Mr. Everett of the charge stated in count I but convicted him on count II of attempted distribution of P2P.

 Now before me is defendant's motion for judgment of acquittal made pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The sole issue presented is whether the conviction for attempt can be sustained given that the substance distributed by Mr. Everett was not P2P or any other controlled substance. After careful consideration of the arguments of and the cases cited by the parties, I have determined that the conviction must be reversed and judgment of acquittal entered.

 Viewed in the light most favorable to the government, the facts of this case are as follows. Ralph Horan agreed to sell some methamphetamine and P2P to Donn Jerre Miller, an undercover agent for the Drug Enforcement Administration (DEA). On February 4, 1981, after selling some twelve ounces of methamphetamine to Agent Miller, Mr. Horan was arrested. Upon questioning about the promised P2P, Horan told the DEA agents that it was still in the hands of his source, defendant Everett.

 Having agreed to cooperate with the government, Mr. Horan had several telephone conversations with Mr. Everett regarding the purchase of P2P; these conversations were tape recorded by the government. Subsequently, Mr. Horan went to defendant Everett's house and obtained from him a pint of liquid which the defendant claimed to be P2P. DEA agents, who were waiting outside, tested the liquid sample, finding it positive for P2P. Mr. Everett was arrested and five other pints of the liquid were seized from his house.

 Mr. Everett made a post-arrest statement to federal agents in which he identified one George Jackson as his source of P2P. He also told them that he believed that Jackson got the P2P from someone called Frank.

 Subsequent laboratory tests done by the government revealed that while it looked and smelled like P2P, the liquid given by Everett to Horan and that seized from Everett's house was not P2P or any other controlled substance. At trial, the government chemist testified to these findings.

 Both the defendant and the prosecution apparently believe that this case turns on whether or not the evidence produced at trial established that Mr. Everett believed, at the time, that the substance he was giving Horan was P2P. Defendant argues that the evidence did not prove such a belief on his part; therefore, it would be legally impossible for him to be guilty of an attempt to distribute P2P. The prosecution contends that the conviction must be sustained because the evidence showed that Mr. Everett believed the substance to be P2P. In the government's view, this case presents an issue of factual impossibility and that is not a defense to an attempt charge.

 In my charge to the jury, I instructed them that they could not convict the defendant of the P2P charge unless they were convinced beyond a reasonable doubt that Mr. Everett believed the liquid to be P2P at the time he gave it to Mr. Horan. Given their verdict of guilt on count II, the jury apparently found that Mr. Everett believed the liquid to be P2P, and I hold that there is sufficient evidence of record to support such a conclusion. *fn1" Although I agree with the government on this point, I do not believe that such a finding disposes of the issue presented by this motion for judgment of acquittal.

 While the government cites several decisions from other circuits, I must follow United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973), which is the statement of the law on this issue in the Third Circuit. In Berrigan, the Court of Appeals reversed the convictions of two well-known opponents of American involvement in the Vietnam War; Father Philip Berrigan and Sister Elizabeth McAlister. *fn2" Without proper authorization from prison authorities, defendants caused a series of letters to be carried in and out of a federal prison in violation of federal law, 18 U.S.C. § 1791, as augmented by 28 C.F.R. § 6.1.

 Section 1791 provides:

Whoever, contrary to any rule or regulation promulgated by the Attorney General, introduces or attempts to introduce into or upon the grounds of any Federal penal or correctional institution or takes or attempts to take or send therefrom anything whatsoever, shall be imprisoned not more than ten years. *fn3"

 Because the prison officials had discovered the mail smuggling scheme and allowed it to continue, with the exception of one count, defendants were charged with and convicted of merely attempting to smuggle the ...

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