Opinion
Case No. 00-40082-01-RDR.
August 7, 2001.
MEMORANDUM AND ORDER
This case is before the court upon defendant's motion for judgment of acquittal with regard to two counts of conviction and upon defendant's motion to dismiss Count 4 of the indictment for reasons of vagueness. Following a trial, a jury found defendant guilty of: manufacturing methamphetamine (Count 2); possessing ephedrine and pseudoephedrine with the intent to manufacture methamphetamine (Counts 3 7); creating a substantial risk of harm to human life while manufacturing or attempting to manufacture methamphetamine (Count 4); and attempting to manufacture methamphetamine (Count 6). Counts 2, 3 and 4 involved conduct on or about August 12, 2000. Counts 6 and 7 involved conduct on or about October 16, 2000. With regard to Count 6, the jury specifically found that defendant attempted to manufacture 50 grams or more of methamphetamine.
Count 4
Count 4 alleges a violation of 21 U.S.C. § 858. This statute provides in part:
Whoever, while manufacturing a controlled substance in violation of this subchapter, or attempting to do so, or transporting or causing to be transported materials, including chemicals, to do so, creates a substantial risk of harm to human life shall . . . [be guilty of an offense against the United States].
Defendant has moved the court to dismiss Count 4 on the grounds that § 858 is unconstitutionally vague.
The void for vagueness doctrine requires that a criminal statute define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. U.S. v. Saffo, 227 F.3d 1260, 1270 (10th Cir. 2000) cert. denied, 121 S.Ct. 1608 (2001). Vagueness challenges outside the context of the First Amendment are to be examined in light of the facts of the case, on an as-applied basis. U.S. v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994) quoting, U.S. v. McElroy, 910 F.2d 1016, 1021 (2nd Cir. 1990).
The court by its rulings and instructions in the trial limited the application of § 858 to a risk originating from "the process of manufacturing methamphetamine or the storage, transportation or mixing of chemicals to manufacture methamphetamine." "Substantial" was defined as "real and significantly large." "Harm" was defined as referring to physical damage. The instructions also stated that the risk must be experienced by a person other than the defendant.
In light of these instructions and the commonly understood meaning of the terms within the statute, the court does not believe the conduct proscribed by the statute could be easily confused by people or that the statute could be arbitrarily enforced by the government. See Panther v. Hames, 991 F.2d 576 (9th Cir. 1993) (negligent homicide statute using term "substantial risk" is not unconstitutionally vague).
Defendant emphasizes the absence of a mens rea element in the statute. The court acknowledges that the statute contains no expressly stated mens rea element. Nor did the court list such an element in the instructions regarding Count 4, which were not objected to by counsel. The court further acknowledges that the presence of a mens rea element is considered a factor which militates against vagueness. Saffo, 227 F.3d at 1270 n. 8. In this instance, however, we do not believe the Constitution requires that defendant know he was causing a substantial risk of human life to be found in violation of § 858. We compare this case with U.S. v. Holland, 810 F.2d 1215 (D.C. Cir.) cert. denied, 481 U.S. 1057 (1987) where the circuit court found that it was not necessary in a prosecution under 21 U.S.C. § 845a (now § 860) to prove that the defendant knew he was within 1000 feet of a school when he distributed drugs. The court stated:
It is easily concluded here that Congress' heightened interest in protecting children from both the indirect and direct perils of drug traffic amply supports its decision not to require a showing of mens rea of the proximity of a school. A reasonable person would know that drug trafficking is subject to stringent public regulation because it can seriously threaten the community's health and safety, particularly as it relates to the community's heightened concern for the health, safety and welfare of its children.810 F.2d at 1223-24. See also, U.S. v. Pruitt, 763 F.2d 1256, 1261-62 (11th Cir. 1985) cert. denied, 474 U.S. 1084 (1986) (knowledge of minor's age is not an element of violation of 21 U.S.C. § 845 — now § 859 — prohibiting distribution of drugs to persons under the age of 21, citing analogous statutes). Here, defendant knew manufacturing or attempting to manufacture methamphetamine was illegal. It does not offend due process if Congress's regulation of this antisocial conduct does not require proof that defendant knew his illegal activity created a substantial risk of harm to human life. See U.S. v. Pitts, 908 F.2d 458, 461 (9th Cir. 1990) (quoting, U.S. v. Falu, 776 F.2d 46, 50 (2nd Cir. 1985)); see also, U.S. v. Cook, 76 F.3d 596, 602 (4th Cir.) cert. denied, 519 U.S. 939 (1996) (interpreting 21 U.S.C. § 861(a)(3) and finding presumption of a knowledge element is not applicable where statute criminalizes conduct that is not otherwise innocent); U.S. v. Chin, 981 F.2d 1275, 1279-81 (D.C. Cir. 1992) cert. denied, 508 U.S. 923 (1993) (same).
If there is a knowledge element to § 858, then that further removes any vagueness problem. But, of course, then error was committed in the court's instructions regarding Count 4. This omission, to which defendant did not object, does not require reversal of the defendant's conviction in our opinion. Whether the knowledge element (assuming one exists) is objective or subjective, there can be no reasonable dispute on this record that defendant knew his making of methamphetamine in a small home where his wife and three young children lived created a substantial risk of harm to human life. Therefore, any error did not affect defendant's substantial rights. See United States v. Schleibaum, 130 F.3d 947, 949 (10th Cir. 1997).
Counts 6 and 7
Defendant has filed a motion for judgment of acquittal addressing his conviction upon Counts 6 and 7. Defendant's first argument in the motion is that the government did not establish that the crimes alleged in Counts 6 and 7 occurred in the District of Kansas.
In considering the sufficiency of the evidence, the court can reverse the verdict of the jury only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. U.S. v. Wilson, 244 F.3d 1208, 1219 (10th Cir. 2001). Our review of the evidence must draw all reasonable inferences in the light most favorable to the government; we cannot consider the credibility of witnesses or weigh the trial evidence. Id.
"[U]nlike other substantive elements of the offense charged, the government need only prove venue by a preponderance of the evidence." United States v. Byrne, 171 F.3d 1231, 1234 (10th Cir. 1999). "Proper venue may be established by either direct or circumstantial evidence." U.S. v. Chandler, 66 F.3d 1460, 1470 (8th Cir. 1995).
The evidence in this case established that defendant made methamphetamine in his house in Cherokee County, Kansas on or about August 12, 2000. Cherokee County law enforcement officers participated in a search of defendant's residence and defendant's arrest in August. The evidence further established that Cherokee County law enforcement officers and an agent of the Kansas Bureau of Investigation arrested defendant and searched his property again on or about October 16, 2000 at a different location. There was no evidence that law enforcement officials from any other state investigated the charges in this case. In October, the officers found more methamphetamine related materials in a trailer in which defendant appeared to be living. They also found defendant's Kansas driver's license. The government has represented, without rebuttal, that the materials which were sent away for lab analysis were marked with stickers indicating "cherokee county, Ks." and notations relating to this case. The lab analyses for all the suspected drug materials that were collected were referred back to an agent of the Kansas Bureau of Investigation. For the above-stated reasons, we believe a juror could reasonably infer from the whole of the evidence, including the actions and involvement of the Kansas law enforcement officers in October (when the events charged in Counts 6 and 7 occurred), that the crimes occurred in the District of Kansas.
We acknowledge defense counsel's reference to one or more Walmart receipts from a store outside of Kansas. This is not particularly probative to the venue issue and certainly does not outweigh the preponderance of the evidence which clearly supports the jury's decision is this case that the crimes charged in Counts 6 and 7 occurred in the District of Kansas.
Next, defendant contends that the evidence was insufficient for the jury to find beyond a reasonable doubt that defendant attempted to manufacture 50 grams or more of methamphetamine on or about October 16, 2000. Defendant does not dispute his conviction for attempting to manufacture methamphetamine. He contests the sufficiency of the evidence to support the quantity finding. The jury made the quantity finding in response to a special interrogatory on the verdict form.
Again, we view the evidence as a whole in a light most favorable to the government when considering a challenge to the sufficiency of the evidence. U.S. v. Whitney, 229 F.3d 1296, 1300 (10th Cir. 2000). The standard to be applied is whether any rational trier of fact could have found beyond a reasonable doubt that defendant attempted to manufacture 50 grams or more of methamphetamine. Id.
Defendant notes that the only evidence of yield in this case was that defendant produced a half ounce of methamphetamine, about 14 grams, and that he used an ounce of ephedrine as a precursor. This was an estimate which defendant reportedly made when he was questioned by law enforcement officers. The estimated yield of 50% generally comports with the "Iowa study" introduced by the defense, in which laboratory scientists attempted to make methamphetamine using lithium-ammonia reduction "recipes" obtained from clandestine lab operators. There, yields of 15% to 63% were recorded. See Exhibit 401, Nila Bremer and Robin J. Woolery, The Yield of Methamphetamine, Unreacted Precursor and Birth By-Product with the Lithium-Ammonia Reduction method as Employed in Clandestine Laboratories, MAFS NEWSLETTER, Fall 1999, at 15. Defendant further notes that only 59 grams of pseudoephedrine was found among defendant's property on October 16, 2000.
In response to this argument, the government argues that three lines of evidence support the jury's quantity finding. First, the government cites the testimony from KBI chemist Jim Schieferecke that enough lithium could be taken from the batteries found at defendant's trailer on October 16, 2000 to produce as much as 101 grams of methamphetamine. Second, the government relies on testimony that defendant was a good methamphetamine cook. Third, and finally, the government notes that some methamphetamine found during the searches of defendant's property had purity levels of 85%, 74%, 83% and 99%.
We believe the evidence was insufficient for any reasonable juror to conclude beyond a reasonable doubt that defendant attempted to manufacture 50 grams or more of methamphetamine. There was no credible evidence supporting a yield percentage beyond 50 or 60% in relation to the amount of ephedrine or pseudoephedrine. Testimony that defendant was a good or excellent cook, which was the deduction of a witness based on the purity calculations from some samples of finished methamphetamine, does not demonstrate an ability to obtain yield percentages exceeding 50 or 60%. A purity calculation is different from yield. This distinction was drawn in the testimony of DEA chemist Frederica Laux as well as the "Iowa study." Ms. Laux also stated at one point that she could not tell if defendant was a good cook.
The lithium analysis was a theoretical yield analysis assuming a 100% conversion rate of pseudoephedrine to methamphetamine. More importantly, the lithium analysis was not based upon defendant's recipe for methamphetamine; it did not consider the amount of lithium defendant normally used when he cooked methamphetamine. Ms. Laux admitted that different amounts could be used, which is why her agency does not make yield projections on the basis of lithium quantities. Mr. Schieferecke stated that there was a tendency among methamphetamine cooks to use more lithium than was needed. KBI Agent Holsinger also testified that sometimes too much lithium was used.
It is clear that defendant could not make 50 grams or more of methamphetamine with only 59 grams of pseudoephedrine if there was only a 50 or 60% yield or conversion percentage of pseudoephedrine to methamphetamine. Moreover, it is undisputed that numerous factors including humidity and the shape of reaction vessels could affect yield percentages; factors which were not considered in a theoretical yield analysis.
In U.S. v. Eschman, 227 F.3d 886, 890-91 (7th Cir. 2000), the court held that when a sentencing court was deciding a drug quantity question under the Sentencing Guidelines, where the government's burden of proof was only a preponderance of evidence, a theoretical yield analysis of 100% would not reasonably support such a calculation.
Criminal defendants . . . have a due process right to be sentenced on the basis of reliable information . . . and district courts cannot quantify yield figures without regard for a particular defendant's capabilities when viewed in light of the drug laboratory involved.Id.; see also, U.S. v. Havens, 910 F.2d 703, 706 (10th Cir. 1990) cert. denied, 498 U.S. 1030 (1991) (the factual question, again in a sentencing context, "is what each specific defendant could have actually produced, not the theoretical maximum amount produceable from the chemicals involved"); U.S. v. Mahaffey, 53 F.3d 128, 133 (6th Cir. 1995) (holding, again in a sentencing context, "we have never approved a finding on the quantity of drugs attributable to a defendant when the record contains no evidence concerning the manner in which a precursor was converted to a controlled substance or the details of the laboratories involved").
Here, the burden of proof is beyond a reasonable doubt, not merely a preponderance of the evidence. Furthermore, the issue is not the "size or capability of any laboratory involved" (see U.S.S.G. § 2D1.1, Application Note 12, (emphasis added)), but what actual amount of methamphetamine defendant was attempting to make on or about October 16, 2000. So, the conclusion of the Eschman court should be given even more weight in the context of this case.
Viewing the record as a whole in a light most favorable to the government, we do not believe a reasonable juror could conclude beyond a reasonable doubt that defendant was attempting to make 50 grams or more of methamphetamine when: there was no evidence of what defendant's recipe was; how much lithium he used; what yield defendant obtained vis-a-vis the quantity of lithium; no evidence that defendant had acquired or intended to acquire enough pseudoephedrine to make 50 grams or more of methamphetamine given his past performance; and no evidence that defendant normally produced or distributed 50 grams or more of methamphetamine. Indeed, the evidence, as the court recalls the cross-examination of KBI Agent Holsinger, is that he did not discuss quantity with defendant, but that defendant told him that defendant used one ounce of ephedrine. This would produce approximately 14 grams of methamphetamine if there was a 50% yield.
Accordingly, while defendant remains guilty of the charge of attempting to manufacture methamphetamine, the court shall nullify the jury's finding that defendant attempted to manufacture 50 grams or more of methamphetamine.
As an alternative grounds for overturning the jury's quantity determination, defendant has renewed his Daubert challenge to the maximum theoretical yield testimony that was admitted in this case. The court rejects this argument. While this testimony by itself is insufficient to support the quantity determination of the jury, it was relevant and reliable evidence which was properly admitted at trial.
In conclusion, for the above-stated reasons, the court shall deny defendant's motion to dismiss the charge made in Count 4; the court shall deny the motion to acquit defendant of the charges made in Counts 6 and 7; but the court shall overturn the jury's quantity determination in connection with Count 6.