U.S. v. Everett, 81-2644

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation700 F.2d 900
Docket NumberNo. 81-2644,81-2644
PartiesUNITED STATES of America, Appellant, v. EVERETT, George, Appellee. . Submitted Under Rule 12(6) on
Decision Date28 October 1982

Peter F. Vaira, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief, Appellate Section, Judy L. Goldstein, Asst. U.S. Atty., Philadelphia, Pa., for appellant.

Before ADAMS, GARTH, Circuit Judges, and GERRY, * District Judge.


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. Sec. 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.


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. Sec. 812(c) 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. 1 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. Sec. 841(a) (1976). 2 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. Sec. 846 (1976). 3 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. 4

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. Sec. 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, 95 S.Ct. 1013, 1026-27, 43 L.Ed.2d 232 (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). 5


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. Sec. 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. Sec. 1791 (1976); 28 C.F.R. Sec. 6.1 (1981). 6 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.

Congressional Intent

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. Sec. 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. 7

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. Sec. 846 (1976). We cannot rest on Berrigan's interpretation of what Congress meant by the word "attempts" when it enacted 18 U.S.C. Sec. 1791 (1976). Instead we must examine legislative intent anew. If Congress chose in enacting 21 U.S.C. Sec. 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, 72 S.Ct. 240, 249, 96 L.Ed. 288 (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, 100 S.Ct. 624, 632, 62 L.Ed.2d 575 (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, 77 S.Ct. 397, 399-400, 1 L.Ed.2d 430 (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, 72 S.Ct. at 255. 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, 100 S.Ct. at 633.

We are convinced that Congress intended to eliminate the defense of impossibility when it enacted section 846. 8 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...

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