## Facts

- An undercover DEA agent arranged drug purchases with Ralph Horan, including methamphetamine and phenyl-2-propanone (P-2-P), a controlled substance used to manufacture methamphetamine.
- After Horan was arrested following a methamphetamine sale, he identified George Everett as his P-2-P source and agreed to cooperate with the DEA.
- In recorded calls, Horan and Everett arranged a sale of six pints of P-2-P for $1,250 per pint, with Everett agreeing to provide a sample for a supposed buyer’s testing.
- At Everett’s house, Everett provided Horan a pint of liquid as a sample; a field test suggested it was P-2-P, and agents arrested Everett shortly thereafter.
- Agents seized additional pints of the same liquid from Everett’s house; Everett told agents the substance was P-2-P and discussed his source chain.
- Laboratory testing later showed the liquid was not P-2-P and not any other controlled substance.
- Everett was charged in a superseding indictment with (1) conspiracy to distribute methamphetamine and (2) attempt to distribute P-2-P under 21 U.S.C. § 846.
- A jury acquitted Everett on conspiracy and convicted him on attempt.
- The district court entered a judgment of acquittal on the attempt count, reasoning it was legally impossible to attempt to distribute a controlled substance when the liquid was not controlled, despite evidence Everett believed it was P-2-P.
- The United States appealed.

## Issues

1. Whether impossibility is a defense to an attempted controlled-substance distribution charge under 21 U.S.C. § 846 when the defendant believes the substance is controlled but it is not.
2. Whether Congress, by enacting § 846, intended to permit legal or factual impossibility defenses in drug attempt and conspiracy prosecutions.

## Decision

- The Third Circuit reversed the judgment of acquittal.
- The court held that impossibility is not a defense to attempt (or conspiracy) under 21 U.S.C. § 846 when the defendant believes the transaction involves a controlled substance.
- The court remanded with instructions to reinstate the jury’s guilty verdict on the attempt count.

## Legal Principles

- Under 21 U.S.C. § 846, a defendant may be convicted of attempting to commit a drug offense based on culpable intent and conduct constituting a substantial step, even if completion was impossible under the actual facts.
- Impossibility labels (legal or factual) do not defeat § 846 attempt liability when the defendant’s purpose is to distribute a controlled substance and the defendant acts to bring that distribution about.
- Statutory interpretation of § 846 favors early intervention against drug trafficking conduct; excluding liability for “fake” or non-controlled substances would frustrate the statute’s preventive aim.
- Evidence supporting attempt includes negotiated quantity and price, arrangements for delivery, and providing a sample consistent with an intended controlled-substance transaction.

## Conclusion

The Third Circuit reinstated the jury’s attempt conviction, holding that § 846 reaches defendants who intend to distribute what they believe is a controlled substance and take substantial steps toward that goal, even when the substance is not actually controlled.


United States v. Everett, 700 F.2d 900 (3d Cir. 1983)