U.S. v. Beaulieu, 88-2568

Decision Date17 April 1990
Docket NumberNo. 88-2568,88-2568
Citation900 F.2d 1531
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronald Duane BEAULIEU, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Edward Y. Crandall, Midwest City, Okl., for defendant-appellant.

Robert G. McCampbell, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before TACHA and SETH, Circuit Judges, and BROWN, District Judge *.

SETH, Circuit Judge.

Ronald Duane Beaulieu, defendant-appellant, was convicted by a jury for conspiracy to manufacture amphetamines, 21 U.S.C. Sec. 846, and for the unlawful possession of amphetamine oil with an intent to manufacture one (1) ounce of amphetamine in violation of 21 U.S.C. Sec. 841(a)(1). The sentencing judge increased defendant's offense level under the United States Sentencing Commission Guidelines ("Guidelines") on the basis of a finding that defendant obstructed justice by testifying untruthfully. On appeal, defendant challenges both the sufficiency of evidence to support his conviction and the trial court's upward adjustment under Sec. 3C1.1 of the Guidelines.

Defendant's indictment stems from a Drug Enforcement Administration ("DEA") investigation which began after several individuals purchased chemicals used to process amphetamines from Mid-America Chemical Company in Oklahoma City, Oklahoma. As a result of this investigation, police officers executed a search warrant of defendant's residence. In the defendant's presence, officers searched his bedroom and found a single burner heating device, two bottles of brown liquid and glassware. Furthermore, the record reveals that the search produced defendant's telephone bill indicating two long distance calls made to Mid-America Chemical Company (Exhibit 115) and an empty Mid-America Chemical box (Exhibit 116). Record, Vol. 3, at 246-48. Subsequently, a superseding indictment was returned against defendant charging him in Counts I and IV with violating 21 U.S.C. Sec. 846 and 21 U.S.C. Sec. 841(a)(1), respectively. The indictment also charged defendant's brothers John and Darrell, and five others with conspiracy to manufacture amphetamine and other drug related crimes.

Defendant was tried jointly with his brother John Beaulieu. See United States v. John Beaulieu, 900 F.2d 1537, (10th Cir.); United States v. Darrell Beaulieu, 893 F.2d 1177 (10th Cir.). At trial, a chemist testified that one bottle seized from defendant's bedroom contained a solution of amphetamine dissolved in ether and that sufficient amphetamine existed to extract it from the ether. Record, Vol. 3, at 232-34. There was also testimony from several government witnesses which conflicted as to whether the defendant purchased chemicals or participated in the "cooks."

Mr. Schickedanz, a DEA special agent, provided the most damaging testimony to defendant. In his opinion, the physical evidence seized from defendant's bedroom was all that was necessary to manufacture amphetamine by the "powdering out" process. Record, Vol. 3, at 244-45. To "powder out" amphetamine, defendant could place a clear dish on the heating device along with a small amount of the amphetamine-ether solution. After the heating device evaporated the ether, the resulting white powdery substance would be unlawful amphetamine sulfate. Id. at 245. Moreover, manufacturers of amphetamines save only small amounts of amphetamine in order to extract as much amphetamine from the liquid as possible. Id. at 244. Finally, the record shows that Mr. Schickedanz identified Exhibit 50 as a receipt from Mid-America Chemical Company attributable to defendant for the purchase of known precursor chemicals to manufacture amphetamine. Id. at 241-43.

The defendant denied all involvement in the production of amphetamine. He testified that the heating device was in his room to heat coffee or hot chocolate and that the brown liquid was starter fluid. Record, Vol. 3, at 308-311. Defendant testified that the ether was used to work on his carburetors and he was unaware that it was contaminated. Id. at 316. Further, he explained that the woman he bought the precursor chemicals from at Mid-America "misled" him about the type of chemicals he bought because he thought he was buying chemicals for his gold and silver business. Id. at 312-313.

Defendant admits the evidence shows he possessed amphetamine, but argues the evidence is insufficient to sustain his conviction for intent to manufacture amphetamine under 21 U.S.C. Sec. 841(a)(1). In evaluating the defendant's sufficiency of evidence challenge, we note that he bears a heavy burden. We must review whether "[t]he evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. McKinnell, 888 F.2d 669, 673 (10th Cir.) (citing United States v. Brandon, 847 F.2d 625, 630 (10th Cir.)). The evidence supporting a conviction must be substantial, raising more than a mere suspicion of guilt. Id. (citing United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.)). After viewing the evidence in this light, we find ample evidence to support the jury's conviction.

21 U.S.C. Sec. 841(a)(1) makes it a crime to knowingly or intentionally possess a controlled substance with the intent to manufacture. Amphetamine in liquid and powder form is a Schedule II controlled substance. See 21 C.F.R. Sec. 1301.02(b)(7) (1988). Defendant urges that "[c]ommon sense dictates that larger quantities of amphetamine would be necessary to evince an intention to manufacture." Defendant-Appellant's Brief at 14. Defendant argues that the small amount of physical evidence seized combined with the absence of other physical evidence (precursor chemicals, chemical apparatus, drug paraphernalia and any natural chemical by-products) weighs in favor of mere personal possession.

Defendant's contention that larger quantities of amphetamine are "necessary to evince an intention to manufacture" is without merit. As support, defendant urges us to consider case law concerning possession with intent to distribute. It is well settled, however, that possession with intent to distribute and manufacture are distinct charges that require proof of different elements. See United States v. Zamora, 784 F.2d 1025, 1029 (10th Cir.). Although quantity is an important factor with respect to the charge of possession with intent to distribute, it simply is not essential to prove intent to manufacture. See United States v. Washington, 858 F.2d 590, 594 (10th Cir.) (defendant's possession of one pint of piperdine was a sufficient amount to support the charge of intent to manufacture PCP); United States v. Young, 862 F.2d 815, 818 (10th Cir.) (trace amounts of liquid methamphetamine was a sufficient amount, along with other evidence, to support the inference that the defendant intended to convert it to powder methamphetamine).

Moreover, the government is not required to prove the existence of all the physical evidence associated with the production process to sustain a conviction for intent to manufacture under 21 U.S.C. Sec. 841(a)(1). In Young this court found that evidence showing defendant's possession of liquid methamphetamine with the intent to convert it to finished powder methamphetamine was sufficient to support an intent to manufacture conviction under 21 U.S.C. Sec. 841(c)(1). In rejecting the argument that to sustain an intent to manufacture conviction the government must present physical evidence showing the capability of further manufacture and evidence of a precursor element we stated:

"The government is not required to present evidence from a currently operating laboratory in order to sustain a possession with intent to manufacture charge. Under these circumstances, the evidence of the residue and the byproducts of the manufacturing process was sufficient to prove the charge in the indictment."

Young, 862 F.2d at 819.

Similarly, in this case a reasonable jury could infer that the defendant manufactured amphetamine by using the "powdering out" process to extract amphetamine from ether to produce unlawful white powder amphetamine. Defendant's possession of the amphetamine-ether solution and heating device supports the inference that he intended to use the heating device to convert the solution to powder amphetamine. This is a reasonable inference given the testimony of Mr. Schickedanz that the defendant had all the necessary equipment to manufacture amphetamine, by converting the solution through the powdering out process to unlawful powder amphetamine. The jury considered evidence that if the defendant heated the solution, the ether would evaporate and the remaining substance would be powder amphetamine. The jury was free to reject defendant's hypothesis that the heating device was used to heat hot chocolate or coffee.

Furthermore, as in Young, the process of converting liquid amphetamine into a finished powder form is consistent with the term "manufacture" which is defined in 21 U.S.C. Sec. 802(15) as:

"the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container...."

In addition, the jury considered other evidence (the chemical box, the phone bill and receipt for the purchase of precursor chemicals) from which it could reasonably infer that defendant intended to manufacture amphetamine. Of further importance is the eyewitness testimony of Regina Chester who observed defendant carry some amphetamines from a place of processing and recalled...

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