United States v. Everett (Third Circuit)

An undercover DEA agent bought methamphetamine and P-2-P from Ralph Horan, who then identified George Everett (defendant) as his supplier and agreed to help set up a follow-on P-2-P deal. Everett agreed to provide a sample before the sale, and agents posing as buyers received and tested the sample, initially finding it was P-2-P; later, more accurate testing revealed the sample was not actually a controlled substance at all. Everett was indicted for both conspiracy to distribute methamphetamine (acquitted) and attempting to distribute P-2-P under 21 U.S.C. Section 846 (convicted). The trial judge granted Everett's motion for acquittal on the attempt count, reasoning that since the substance was never actually P-2-P, there could be no attempt. The government appealed.