U.S. v. Prather

• Decision Date: 07 March 2000
• Docket Number: No. 98-9094,98-9094
• Citation: 205 F.3d 1265
• Parties: (11th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VERNON VICTOR PRATHER,JR., a.k.a. "Billy", Defendant-Appellant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1265

205 F.3d 1265 (11th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VERNON VICTOR PRATHER,JR., a.k.a. "Billy", Defendant-Appellant.

No. 98-9094

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

March 7, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia

Before CARNES, BARKETT, and MARCUS, Circuit Judges.

BARKETT, Circuit Judge:

Vernon Victor Prather appeals his conviction for conspiracy to distribute pseudoephedrine in violation of 21 U.S.C. §§ 861(d)(2) and 846, distribution of pseudoephedrine in violation of 21 U.S.C. § 841(d)(2) and 18 U.S.C. § 2, and money laundering in violation of 18 U.S.C. §§ 2 and 1957(a). Prather asks this Court to discharge him, vacating his conviction and sentence or, alternatively, to grant him a new trial. We affirm Prather's conviction and sentence, with the exception of the imposition of the special assessment.

BACKGROUND

Prather was president and sole stockholder of X-Pressive Looks, Inc. ("XLI"), a Florida-based mail-order corporation with offices in Florida, Georgia, and California. XLI distributed miscellaneous items, including over-the-counter pharmaceuticals. During 1994 and 1995, approximately 80% of XLI's business was derived from the distribution of pseudoephedrine, which is commonly marketed as a nasal decongestant. Pseudoephedrine is also a "listed chemical" under 21 U.S.C. §§ 802(33) and 802(34), and 21 C.F.R. § 1310.02(a)(11), because it can be used as an ingredient to manufacture methamphetamine, a controlled substance. XLI generally distributed pseudoephedrine in cases containing 75 bottles, each containing 1,000 tablets. Between April 1994 and August 1995, XLI distributed more than 830 million tablets of pseudoephedrine to 173 wholesale customers, including several "head shops" and numerous individuals. The vast majority of those customers lacked business licenses, and many had the pseudoephedrine shipped directly to their home addresses.

At trial, the government presented evidence that, beginning in September 1994, Prather knew from numerous sources that his product was being diverted from the legitimate market for the illegal manufacture of methamphetamine. In addition to other evidence, the jury heard testimony from Alberto Saa that in late 1994 or early 1995, he contacted Prather at XLI about purchasing 100 cases of pseudoephedrine per week, to be shipped to his home address. He testified that Prather informed him that such an arrangement "wasn't a good idea" because the "cops would be hot on" both Prather and Saa, and instructed Saa to buy from one of XLI's "head shop" customers instead.

The government also presented testimony that Prather specifically knew that in 1994 and 1995, several of his customers were investigated by law enforcement agencies and had pseudoephedrine shipments seized by authorities. Prather continued to sell shipments to these customers after the seizure. In May 1995, Prather obtained from a law firm an opinion letter advising Prather that selling millions of pseudoephedrine tablets to small outlets might be considered prima facie evidence of an intent to violate the law. On May 31, 1995, the DEA executed search warrants at XLI's Atlanta offices, seizing, among other items, more than 500 cases of pseudoephedrine. After the search, XLI significantly raised the price of its pseudoephedrine, and its customers continued to buy hundreds of cases. Finally, Prather's sales manager Daniel Matta, who was also indicted, pled guilty to the charges against him and testified against Prather at Prather's trial.

Prather was ultimately convicted of: 1) one count of violating 21 U.S.C. § 846 by conspiring to distribute pseudoephedrine, a listed chemical, knowing or having reasonable cause to believe that the chemical would be used to manufacture a controlled substance; 2) ten counts of violating 21 U.S.C. § 841(d)(2) by actually distributing pseudoephedrine, knowing or having reasonable cause to believe that it would be used to manufacture a controlled substance; and 3) five counts of violating 18 U.S.C. §§ 2 and 1957 by engaging in monetary transactions in criminally derived property in excess of $10,000. He was sentenced to a 14 year term of incarceration, followed by 3 years of supervised release. He was ordered to pay a fine of $175,000 and a special assessment of $100 for each of the sixteen counts on which he was convicted. Prather appeals his conviction and the imposition of the special assessment.

DISCUSSION

Prather's convictions for conspiracy and money laundering are predicated on his convictions under 18 U.S.C. § 241(d)(2) for distributing pseudoephedrine knowing or having reasonable cause to believe that the pseudoephedrine would be used to manufacture methamphetamine. Section 841(d) provides that:

Any person who knowingly or intentionally -- . . . (2) possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance . . . shall be fined . . . or imprisoned.

Prather challenges his conviction and sentence on several grounds. First, he contends that the government failed to prove that the listed chemicals he sold were actually used to manufacture a controlled substance, which he claims constitutes an element of the crime. Second, he contends that the district court judge's jury instructions were so erroneous as to justify overturning his conviction or granting a new trial. Third, he argues that the judge's refusal to allow the defense to play a previously recorded tape of a government witness during cross-examination violated the Confrontation Clause and the Federal Rules of Evidence. Finally, Prather argues that the trial judge violated the Federal Sentencing Guidelines and the Ex Post Facto Clause by imposing the special assessment as he did. We address each argument in turn.

I. Sufficiency of the Evidence to Prove a Violation of the Statute

The basis of Prather's argument that the evidence presented against him was insufficient to support a conviction is his contention that he cannot be convicted under Section 841(d)(2) until a controlled substance has been produced. Because the government failed to prove that any of the pseudoephedrine he distributed was actually used to manufacture methamphetamine, Prather contends that he should not have been convicted on the substantive distribution counts, and therefore on the conspiracy and money laundering counts.

In interpreting the meaning of a statute, it is axiomatic that a court must begin with the plain language of the statute. On its face, Section 841(d)(2) criminalizes the distribution of a listed chemical with knowledge that the chemical will be used to manufacture a controlled substance. The plain language of the statute requires only knowledge of the present intent to violate the law, not the actual accomplishment of the act. The plain meaning of these words indicates that, in enacting this statute, Congress did not intend to require proof that the controlled substance had actually been manufactured. Rather, the words themselves tell us that the controlled substance in question will not have been manufactured at the moment when the crime is complete. We have found no authority that supports any other reading of the plain language of Section 841(d)(2).

We note that all of our sister courts that have considered the issue have likewise construed Section 841(d)(2). In United States v. Green, the Seventh Circuit explicitly rejected, as we do here, a contention identical to Prather's, finding that it was unsupported by either the language of the statute, the statute's legislative history, or any caselaw. See 779 F.2d 1313, 1319 (7th Cir. 1985). That court instead found that "the plain language of the statute reveals that Congress intended to impose a broad prohibition against the manufacture of [methamphetamine] as well as the possession of [pseudoephedrine] when knowing or having reasonable cause to believe the [pseudoephedrine] would be used to manufacture [methamphetamine]." Id. The Fifth and Tenth Circuits have similarly upheld convictions under Section 841(d)(2) where the government has not proved that a controlled substance was actually manufactured from the listed chemical in question. See United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994) (holding that Section 841(d)(2) "does not require the possessor [of a listed chemical] to be either in the process of manufacturing the drug or presently able to do so to be guilty"); United States v. Washington, 858 F.2d 590, 594 (10th Cir. 1988) (upholding a conviction based on the government's "theory that the [listed chemical] . . . eventually would be used to arrive at [a controlled substance]").

Additional support for this reading of Section 841(d)(2) is provided by precedent from our own Circuit. In United State v. Hyde, a panel of this Court held that "[v]iolation of section 841(d)(2) presumes that the final product, the controlled substance, has not yet been manufactured." 977 F.2d 1436, 1439 (11th Cir. 1992). Although this language may not precisely answer the question before us, it leans decidedly in the direction of answering that question in the negative. The panel explained that "[t]o violate section 841(d)(2), possession of a precursor chemical must be coupled with the knowledge that it would be manufactured into a controlled substance." Id. There is no mention of the need to prove that it was in fact so converted. We conclude that Section 841(d)(2) does not require proof that a listed chemical was actually used to manufacture a controlled substance.

II. Jury Instructions

We review the legal correctness of a jury instruction de novo, see United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996), but defer on questions of phrasing absent an abuse of discretion, see United States v. Starke, 62 F.3d...