Brief Fact Summary.
Defendant was indicted on two charges: (1) conspiracy to distribute methamphetamine and (2) knowingly and intentionally attempting to distribute phenyl-2-propanone in violation of 21 U.S.C. § 846. The jury acquitted Defendant of the first charge, but convicted him of the second. The trial judge, however, granted Defendant’s motion for acquittal.
Synopsis of Rule of Law.
The defense of impossibility is not available to a defendant who is charged with attempting or conspiring to commit an offense involving a controlled substance.
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 Defendant. Horan and Defendant planned to meet so Horan could buy six pints of P-2-P from Defendant. Horan told Defendant the client wanted a sample of the P-2-P before payment, which Defendant agreed to provide. Undercover agents were posed as the client outside Defendant’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 Defendant, who stated that he had obtained the substance from another person. Defendant 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. Defendant 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 Defendant on count I but convicted Defendant on count II. Defendant moved for acquittal, arguing that the fact that the sample was not P-2-P made Defendant’s attempt to distribute impossible. The trial judge held that, while there was sufficient evidence to support the jury’s conclusion that Defendant believed the liquid was P-2-P, there nonetheless could not be an attempt, because the substance distributed by Defendant was not P-2-P or any other controlled substance. The government appealed the judgment of acquittal.
Whether the defense of impossibility is available to a defendant who is charged with attempting or conspiring to commit an offense involving a controlled substance.
No. The case is remanded to the trial court to reinstate the jury verdict of guilty on count II. The defense of impossibility is not available to a defendant who is charged with attempting or conspiring to commit an offense involving a controlled substance.
Under federal law, impossibility is not a defense to the crimes of attempt or conspiracy to distribute a controlled substance. Congress aimed to abrogate the defense of impossibility by enacting § 846. At the time of the statute’s enactment, the doctrine of impossibility had become complicated by impracticable standards and was no longer recognized as part of the common-law offense of attempt. Therefore, a defendant’s distribution of a non-controlled substance that the defendant believes to be a controlled substance does constitute an attempt to distribute a controlled substance under § 846. However, while impossibility is not a defense, proving mens rea alone is insufficient for an attempt conviction. Besides intent, the government must also present some objective proof indicating the defendant’s conduct was criminal. Here, the government showed that Defendant did in fact believe that the sample was P-2-P and distributed the sample knowingly and intentionally. Also, Defendant’s objective actions were adequate to indicate criminal conduct. Defendant made a deal to sell the substance and transferred the substance to Horan. Defendant confessed upon arrest, identifying the substance and his sources.