Appeal from the United States District Court for the Eastern District of Pennsylvania.
Adams, Garth, Circuit Judges, and Gerry,*fn* 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 ...