UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: February 15, 1983.
UNITED STATES OF AMERICA, APPELLANT
EVERETT, GEORGE, APPELLEE
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Adams, Garth, Circuit Judges, and Gerry,*fn* District Judge.
Opinion OF THE COURT
GERRY, District Judge:
Appellee George Everett was convicted by a jury of attempting to distribute the drug phenyl-2-propanone (P-2-P) in violation of 21 U.S.C. § 846 (1976). The district court granted Everett's motion for judgment of acquittal on the ground that it was legally impossible for Everett to commit the crime. United States v. Everett, 520 F. Supp. 46 (E.D. Pa. 1981). The United States appeals from the judgment of acquittal. We will reverse.
FACTS AND PROCEEDING BELOW
An undercover agent from the Drug Enforcement Administration (DEA) arranged to purchase metamphetamine and P-2-P from Mr. Ralph Horan. Both metamphetamine and P-2-P are non-narcotic controlled substances, see 21 U.S.C. § 812 Sch. I, II (1976); P-2-P has no other use than in the manufacture of metamphetamine. On February 4, 1981, the government arrested Horan after he sold the agent metamphetamine but before the P-2-P deal could be consummated. Horan identified Everett as his source for the P-2-P and metamphetamine, said that the P-2-P was still in Everett's hands, and agreed to cooperate in closing the P-2-P deal.
Horan then had several telephone conversations with Everett which were tape recorded by the DEA. In those conversations the two set up a meeting at which Horan would buy six pints of Everett's P-2-P at $1250 per pint. Horan also informed Everett that Horan's "client" wanted to inspect a sample of the P-2-P before giving Everett the money. Everett agreed to provide a sample.
At the appointed time Horan, unaccompanied, entered Everett's house while DEA agents posing as the "client" remained outside in a car. Everett 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 entered the house and placed Everett under arrest.*fn1 Once in custody Everett 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 to Everett only as Frank. App. at 150a, 159a; Trial Transcript of May 22, 1981, at 60.
The grand jury returned an indictment charging Everett with distribution and possession of P-2-P in violation of 21 U.S.C. § 841(a) (1976).*fn2 Subsequent tests by the DEA revealed, however, that despite strong physical resemblance to 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 of two counts under 21 U.S.C. § 846 (1976).*fn3 Count I charged that Everett had conspired with Horan to distribute the metamphetamine sold to the DEA agent. Count II charged that Everett did knowingly and intentionally attempt to distribute P-2-P.
Everett pled not guilty to both counts. During trial the government introduced the tapes and the testimony of Horan and the agents. A chemist for the DEA testified that the sample pint of liquid was not P-2-P. Everett did not testify or call any witnesses. In his charge to the jury, the trial judge emphasized that to convict on Count II it must find beyond a reasonable doubt that Everett believed the pint of liquid to be P-2-P.*fn4
The jury acquitted Everett on Count I. It convicted him on Count II of attempting to distribute P-2-P. Everett then moved for judgment of acquittal on Count II. The trial judge held that there was sufficient evidence in the record to support the jury's conclusion that Everett believed the pint of liquid to be P-2-P. Nonetheless, 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 Everett was not P-2-P or any other controlled substance.
The government now takes an appeal of right pursuant to 18 U.S.C. § 3731 (1976) from the entry of judgment of acquittal after a jury verdict of guilty. Government of the Virgin Islands v. Christensen, 673 F.2d 713, 717-19 (3d Cir. 1982); see United States v. Wilson, 420 U.S. 332, 352-53, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975). We have jurisdiction under section 3731 to hear the appeal. United States v. Jannotti, 673 F.2d 578, 580 n.1 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S. Ct. 2906, 73 L. Ed. 2d 1315 (1982).*fn5
In his motion for judgment of acquittal, Everett claimed that the fact that the sample liquid was not P-2-P or any other controlled substance prevented his conviction under 21 U.S.C. § 846 (1976). He argued that based on our holding in United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973), it was legally impossible for him to violate the statute. The district court held that it was required under Berrigan to reverse Everett's conviction. 520 F. Supp. at 50.
In Berrigan a federal prisoner tried to smuggle several letters out of his penitentiary using as a courier another prisoner on study-release. The warden learned of the prisoner's first letter; the courier carried all subsequent letters with the knowledge and consent of the warden. The prisoner was then convicted of attempting to send the letters from a federal penal institution without the knowledge and consent of the warden. 18 U.S.C. § 1791 (1976); 28 C.F.R. § 6.1 (1981).*fn6 The prisoner appealed his convictions for the passing of all letters but the first, arguing that the government had failed to prove all elements of the crime charged. 482 F.2d at 184. We reversed the convictions, holding that the government did not and could not prove absence of knowledge and consent of the warden "because it was a legal impossibility." Id. at 189.
Berrigan does not control the result in this case. Unlike Berrigan, this case involves a statute by which Congress intended to punish attempts even when completion of the attempted crime was impossible.
The problem confronting this court in Berrigan was that of statutory interpretation. We refused to uphold the prisoner's convictions on any basis other than the statute enacted by Congress. "Federal criminal law is purely statutory; there is no federal common law of crimes." 482 F.2d at 185. We therefore turned to "the rudiments of the law of attempt" for the basis of our decision. 482 F.2d at 187. We held that the prisoner's conduct did not amount to an attempt under 18 U.S.C. § 1791 (1976). We stated in conclusion:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal impossibility. Until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal attempt.
Id. at 190.*fn7
In this case we are confronted with the interpretation of another attempt provision, section 406 of the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 846 (1976). We cannot rest on Berrigan's interpretation of what Congress meant by the word "attempts" when it enacted 18 U.S.C. § 1791 (1976). Instead we must examine legislative intent anew. If Congress chose in enacting 21 U.S.C. § 846 (1976) to define "attempt" to punish efforts to violate section 841 regardless of impossibility, that intent governs.
When Congress used the word "attempt" in section 846 it used a common law term. Impossibility, of course, is also a creation of the common law, originally expounded as part of the definition of "attempt." Generally, where Congress uses a common law term in a federal criminal statute without otherwise defining it, Congress is presumed to adopt the meaning given that term at common law. Morissette v. United States, 342 U.S. 246, 263, 96 L. Ed. 288, 72 S. Ct. 240 (1952); United States v. Nedley, 255 F.2d 350, 357 (3d Cir. 1958). Of course, Congress is not compelled to adopt common law concepts when it creates a statutory crime. United States v. Bailey, 444 U.S. 394, 406, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980). If Congress uses a term in a criminal statute which has no widely accepted common law meaning at the time of enactment, the term should be given the meaning consistent with the purpose of the enactment and its legislative history. United States v. Turley, 352 U.S. 407, 411-13, 1 L. Ed. 2d 430, 77 S. Ct. 397 (1957). Even if the word had a generally accepted common law meaning, the courts will not impose that meaning if there are "grounds for inferring an affirmative instruction from Congress" to define it otherwise. Morissette, 342 U.S. at 273. For example, the courts should not infer congressional adoption of a common law definition plagued by "hair-splitting distinctions." Bailey, 444 U.S. at 406-07.
We are convinced that Congress intended to eliminate the defense of impossibility when it enacted section 846.*fn8 First, when Congress enacted section 846 the doctrine of impossibility had become enmeshed in unworkable distinctions and was no longer widely accepted as part of the meaning of "attempt" at common law. Second, the legislative history and purpose of section 846 provide grounds for inferring an affirmative instruction from Congress to define "attempt" to exclude the defense of impossibility.
When Congress enacted section 846 in 1970, the doctrine of impossibility had become mired in fine distinctions and had lost whatever acceptance at common law it may have possessed when the statute considered in Berrigan was first enacted in 1930. A few years before, the Supreme Court had questioned whether the doctrine of impossibility "with all its subtleties" had any "continuing validity" in the law of criminal attempt. Osborn v. United States, 385 U.S. 323, 333, 17 L. Ed. 2d 394, 87 S. Ct. 429 (1966). The doctrine had become "a source of utter frustration," plunging the state courts into a "morass of confusion." United States v. Thomas, 13 U.S.C.M.A. 278, 286-87, 32 C.M.R. 278, 286-87 (1962). Attempts to apply the doctrine had resulted in "considerable conflict of authority" among common law courts. Id.; accord United States v. Hair, 356 F. Supp. 339, 342 (D.D.C. 1973). A 1970 annotation of the common law found in the cases "a definite trend toward restricting or eliminating the defense." Annot., 37 A.L.R.3d 375, 381 (1970). For example, one state court surveyed the "confused mass of law throughout the country" and rejected the defense of impossibility, saying:
Our examination of these authorities convinces us that the application of the defense of impossibility is so fraught with intricacies and artificial distinctions that the defense has little value as an analytical method for reaching substantial justice . . . . We think the effort to compartmentalize factual patterns into these categories of factual or legal impossibility is but an illusory test leading to contradictory, and sometimes absurd, results.
State v. Moretti, 52 N.J. 182, 189, 244 A.2d 499, 503, cert. denied, 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968); accord Hair, 356 F. Supp. at 342; Thomas, 13 U.S.C.M.A. at 286, 32 C.M.R. at 286. Another state court, bound by precedent to apply the doctrine, criticized the distinctions between types of impossibility as "more theoretical than practical" and urged the state legislature to adopt a "progressive and more modern view." People v. Rollino, 37 Misc. 2d 14, 18-19, 22, 233 N.Y.S.2d 580, 584-86 (1962); accord Booth v. State, 398 P.2d 863, 872 (Okla. Crim. App. 1964). By 1970 the abolition of the defense of impossibility had become "the overwhelming modern position." I Working Papers of the National Commission on Reform of the Federal Criminal Laws 360 (1970).
It was with this backdrop that the President in 1969 proposed the first provision to make criminal an attempt to commit an offense under the drug laws.*fn9 Section 504 of the President's proposal punished attempt in language identical to that of the present 21 U.S.C. § 846 (1976).*fn10 Bills adopting the President's proposal and containing the provision were introduced in both the House and the Senate. H.R. 13472, 91st Cong., 1st Sess. § 504 (1969); H.R. 13743, 91st Cong., 1st Sess. § 504 (1969); S. 2637, 91st Cong., 1st Sess. § 504 (1969).
The Senate acted first. In the Senate-passed bill the attempt provision was amended to substitute the word "endeavor" for "attempt." S. 3246, 91st Cong., 2d Sess. § 504 (1970). The Senate report left no doubt that the change was meant to abolish the defense of impossibility:
The Committee has used the word "endeavor" in section 504 to avoid the maze of hypertechnical defenses which have arisen over the years with respect to criminal attempts, and to make clear that the section is interested [sic] to reach any effort or essay to accomplish the evil purposes that the Act is designed to prevent. U.S. v. Russell, 255 U.S. 138, 143 [65 L. Ed. 553, 41 S. Ct. 260]; Osborn v. U.S., 385 U.S. 323, 332-333 [17 L. Ed. 2d 394, 87 S. Ct. 429].
S. Rep. No. 91-613, 91st Cong., 1st Sess. 26 (1969).*fn11
In the House the Senate-passed bill eventually was renumbered H.R. 17463; its attempt provision still used the word "endeavor." H.R. 17463, 91st Cong., 2d Sess. § 504 (1970). The House considered H.R. 17463 along with H.R. 13742, which used the word "attempt." In commenting on the two bills, Administration witnesses used the words "endeavor" and "attempt" interchangeably.*fn12 No witness in the Ways and Means Committee Hearings recommended that the "endeavor" provision of H.R. 17463 be changed.*fn13 A new bill was then introduced to add to the bill passed by the Senate a new title addressing the need for preventing drug addiction. H.R. 18583, 91st Cong., 2d Sess., tit. I (1970). Although nothing in the reasons advanced in favor of that new bill suggested that any change was intended in the attempt provision, the new bill used the word "attempt" rather than "endeavor." H.R. 18583, supra, at § 506. House members were advised, however, that the new bill punished the same conduct as had section 504 of H.R. 17463:
ENDEAVOR AND CONSPIRACY -- H.R. 17463 and H.R. 18583 both provide that any person who endeavors or conspires to commit any offense under the Act may be punished by imprisonment and/or fine, which may not exceed the maximum punishment prescribed for committing the offense.*fn14
There was no further comment concerning the attempt provisions. After an unrelated amendment caused the attempt provision of H.R. 18583 to be renumbered as section 406, the bill passed the House and Senate. Section 406 was codified at 21 U.S.C. § 846 (1976).
The purpose of the Comprehensive Drug Abuse Prevention and Control Act gives further indication of what Congress intended when it enacted section 846. In the gradual evolution of the prior federal drug laws "Congress [had] manifested an attitude not of lenity but of severity toward violation of the narcotics laws." Gore v. United States, 357 U.S. 386, 391, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958). "The history of narcotics legislation in this country 'reveals the determination of Congress to turn the screws of the criminal machinery -- detection, prosecution and punishment -- tighter and tighter.' " Albernaz v. United States, 450 U.S. 333, 343, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981) (quoting Gore, 357 U.S. at 390). Faced with a drug abuse problem that had grown to "epidemic proportions," H.R. Rep. No. 91-1444, 91st Cong., 2d Sess. 6, reprinted in  U.S. Code Cong. & Ad. News 4566, 4569, Congress turned the screws tighter still by enacting the Comprehensive Drug Abuse Prevention and Control Act to strengthen the drug laws. Albernaz, 450 U.S. at 343; United States v. Moore, 423 U.S. 122, 139, 46 L. Ed. 2d 333, 96 S. Ct. 335 (1975); United States v. Tighe, 551 F.2d 18, 20 (3d Cir.), cert. denied, 434 U.S. 823, 54 L. Ed. 2d 80, 98 S. Ct. 68 (1977). Congress embraced the philosophy that "the illegal traffic in drugs should be attacked with the full power of the Federal Government. The price for participation in this traffic should be prohibitive. It should be made too dangerous to be attractive." H.R. Rep. No. 91-144, 91st Cong., 2d Sess. 9, reprinted in  U.S. Code Cong. & Ad. News 4566, 4574-75. To squelch the drug traffic Congress drew the statute to cover "just about everything." 116 Cong. Rec. 33656 (1970) (remarks of Rep. Randall). As we found in United States v. Gomez, 593 F.2d 210 (3d Cir.) (en banc), cert. denied, 441 U.S. 948, 60 L. Ed. 2d 1052, 99 S. Ct. 2172 (1979), a reading of the Act and its legislative history
makes it apparent that Congress, in legislating against drug use, intended to encompass every act and activity which could lead to proliferation of the drug traffic. Nothing in the statute indicates any congressional intent to limit the reach of this legislation, which is described in its title as "Comprehensive."
Id. at 212-13; see United States v. Bommarito, 524 F.2d 140, 144 (2d Cir. 1975) (section 846 is "all-inclusive"). A spokesman for the bill emphasized that it provided "a comprehensive range of offenses which will render unlawful all drug-related activities which will defeat the purposes of this bill." 116 Cong. Rec. 33314 (1970) (remarks of Rep. Bush).*fn15
In light of the legislative history and purpose of section 846, we conclude that Congress did not intend to adopt the old common law definition of attempt. The Senate clearly intended that the doctrine of impossibility, whose viability at common law was questionable at best, should not hamper federal efforts to enforce the drug laws. Members of the House were assured that the substitution of H.R. 18583 for the Senate bill worked no changes in the Senate's prohibition of any effort or essay to commit a drug-related offense. We cannot believe that when Congress created an attempt provision as part of an all-out effort to reach all acts and activities related to the drug traffic,*fn16 the House without comment substituted the word "attempt" in order to give section 846 the narrowest possible meaning. See United States v. Turley, 352 U.S. 407, 413-17, 1 L. Ed. 2d 430, 77 S. Ct. 397 (1957).*fn17 Impossibility is therefore no defense to the charge of attempted distribution of a controlled substance under 21 U.S.C. § 846 (1976).*fn18
The Government's Proof
The distribution of a noncontrolled substance believed to be a controlled substance thus constitutes an attempt to distribute a controlled substance under section 846. In this case the government established that Everett believed that the substance he distributed was P-2-P. It also proved that Everett distributed the substance knowingly and intentionally.
Of course, the crime of attempt is not established by proving "mens rea simpliciter." Berrigan, 482 F.2d at 189 n.39. The offense of attempt "consists primarily in the intention with which the preparations were made." United States v. Quincy, 31 U.S. (6 Pet.) 445, 466, 8 L. Ed. 458 (1832); see United States v. Bailey, 444 U.S. 394, 405, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980). Intent, however, is not "the sole criterion to be considered in determining criminal responsibility," Berrigan, 482 F.2d at 188, because of the difficulties of proof.
While mens rea is certainly within one's control it is not subject to direct proof; it is proved by circumstantial evidence only. More important, it is not subject to direct refutation. It is the subject of inference and speculation.
Id. at 189 n.39. To prevent mistaken convictions the government must introduce some measure of objective evidence corroborating the attempted distribution of a controlled substance.
The Fifth Circuit has suggested the proper standard of proof to be required of the government in this case. That circuit shared our concern that the crime of attempt not be used to "punish one's thoughts, desires, or motives, through indirect evidence, without reference to any objective fact." United States v. Oviedo, 525 F.2d 881, 884 (5th Cir. 1976) (citing Berrigan, 482 F.2d at 189 n.39); see United States v. Brooklier, 459 F. Supp. 476, 481 (C.D.Cal. 1978). To avoid "baseless jury speculation where defendant's objective acts are equivocal," United States v. Hough, 561 F.2d 594, 596 (5th Cir. 1977), the Fifth Circuit required that
the objective acts performed [by the defendant], without any reliance on the accompanying mens rea, mark the defendant's conduct as criminal in nature. The acts should be unique rather than so commonplace that they are engaged in by persons not in violation of the law.
Oviedo, 525 F.2d at 885; Hough, 561 F.2d at 595; United States v. Korn, 557 F.2d 1089, 1091 (5th Cir. 1977); accord United States v. Innella, 690 F.2d 834, 835 (11th Cir. 1982); United States v. Deangelis, 430 F. Supp. 327, 331 (D.P.R. 1976); see People v. Siu, 126 Cal. App. 2d 41, 271 P.2d 575, 576 (1954).
In the instant case the government has met that strict burden. It has proven objective acts performed by Everett which are sufficient to mark his conduct as criminal without reliance on mens rea. The government established not only that Everett promised to sell a controlled substance and that he transferred the substance furtively, but also that immediately after arrest and proper Miranda warnings Everett confessed, identifying the substance he had distributed as P-2-P and revealing that he had gotten his P-2-P from Joseph Jackson who had obtained it from Frank. This statement unequivocably marked his conduct as an attempt to distribute P-2-P. As the prosecutor argued to the jury in this case,
Think about that, ladies and gentlemen, and ask yourselves if you would say that to federal agents, or if you knew that it weren't P-2-P, at that point you wouldn't say so.
Trial Transcript of May 22, 1981, at 15.*fn19
The government has established that Everett committed the crime of attempted distribution of a controlled substance in violation of 21 U.S.C. § 846 (1976). We will reverse the order of the district court granting Everett's motion for judgment of acquittal and will remand to the district court with the direction that the jury verdict of guilty on Count II of the indictment be reinstated, and for such other proceedings as are required.