Not Really Heroin

The Defendant agreed to sell heroin to a buyer who was, unknown to him, an undercover agent. He negotiated a sale of about a pound of 'heroin' and handed over the substance, representing that it was heroin. A field test came back positive, but a later laboratory analysis showed the substance was not heroin at all — it was procaine, a legal, non-controlled substance. A search turned up two more pounds of the same procaine at the Defendant's home. So the Defendant had tried to sell what he called heroin, and may well have believed (or wanted the buyer to believe) it was heroin — but what he actually delivered was not a controlled substance, and selling it was no crime. He was charged not with distributing heroin, but with attempting to distribute it. The question was whether a defendant can be convicted of an attempted drug crime when the only thing making his conduct 'criminal' is his own statement of what he thought — or claimed — the substance was.