U.S. v. Campbell, 94-1546

• Decision Date: 03 May 1995
• Docket Number: No. 94-1546,94-1546
• Citation: 61 F.3d 976
• Parties: UNITED STATES of America, Appellee, v. Roderick A. CAMPBELL, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 976

61 F.3d 976

UNITED STATES of America, Appellee, v. Roderick A. CAMPBELL, Defendant, Appellant.

No. 94-1546.

United States Court of Appeals First Circuit.

Heard May 3, 1995.

Decided July 31, 1995.

Rehearing and Suggestions for Rehearing En Banc Denied Oct.

10, 1995.

Albert B. West, by appointment of the Court, Providence, RI, for appellant.

Roderick A. Campbell on brief, pro se.

Margaret E. Curran, Asst. U.S. Atty., with whom Sheldon Whitehouse, U.S. Atty., and Kenneth P. Madden, Asst. U.S. Atty., Providence, RI, were on brief, for appellee.

BOUDIN, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellant Roderick Campbell was convicted on six counts related to the manufacture and distribution of phenylacetone (P2P) and sentenced to a term of imprisonment of 288 months. He raises numerous issues concerning his trial and sentencing, none of which we find meritorious.

I. Factual and Procedural Background

We begin with a brief review of the facts, as the jury could have found them, providing more details later in the opinion as necessary to provide context for our discussion.

In early 1993, a special agent for the Drug Enforcement Agency working in an undercover role initiated a relationship with defendant Campbell. The agent, Kelly, claimed to be working for a New York organization that was looking for a steady source of P2P to be used in the manufacture of methamphetamine. Campbell agreed to set up a laboratory.

On February 10, 1993, Kelly met Campbell at a laboratory that had been set up in a home in Cranston, Rhode Island. Campbell delivered a small amount of a substance that was supposed to be P2P, but testing showed that it was not. Campbell indicated to Kelly that the negative results were due to his use of an alternative manufacturing method designed to avoid the distinctive odor associated with the traditional method of manufacturing P2P. A second sample delivered about two weeks later, manufactured by the traditional method, did contain P2P.

In March, Campbell moved the lab to a new location in Providence, and Kelly was introduced to Campbell's associate, Harold Farrell, who said that he would be responsible for delivering the P2P from that point on. Farrell indicated to Kelly that 100 gallons of P2P would be manufactured. During March and April, six separate deliveries of mixtures containing P2P were made to Kelly by either Farrell alone or by both Farrell and Campbell. An additional seven deliveries were determined not to contain any P2P.

Campbell, Farrell and two laboratory assistants were arrested on May 26, 1993. A DEA chemist testified that when he entered the laboratory that day he observed active chemical reactions consistent with the manufacture of P2P, and also found in the lab all of the chemicals necessary to produce P2P.

A federal grand jury originally charged Campbell and Farrell in an eighteen-count indictment. Seven distribution counts were dismissed after laboratory analysis showed that the mixtures involved in those deliveries tested negative for the presence of controlled substances. Farrell pleaded guilty to ten counts, and was sentenced to ten concurrent terms of 48 months' imprisonment.

A redacted indictment was filed at the outset of Campbell's trial, charging him with seven counts: conspiracy to manufacture, distribute and possess with intent to distribute P2P, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (count one); knowingly and intentionally manufacturing P2P, in violation of Sec. 841(a)(1), (b)(1)(C), and 18 U.S.C. Sec. 2 (count two); maintaining a place for the purpose of manufacturing P2P, in violation of Sec. 856 (count three); knowingly and intentionally distributing P2P on three dates in February, March and April 1993, in violation of Sec. 841(a)(1), (b)(1)(C), and 18 U.S.C. Sec. 2 (counts four through six); and conspiracy to manufacture methaqualone, in violation of Sec. 846 (count seven).

Campbell's defense was that he never intended to manufacture P2P, but instead sought to mislead his customer, Kelly, into purchasing lawful chemical substances. He testified that he hoped to finance legitimate business interests with money made from the sale of these substances. He claimed that the presence of P2P in some of the deliveries was inadvertent.

Following eight days of trial, the jury found Campbell guilty on counts one through six, the P2P counts, and not guilty on count seven, the methaqualone count. He was sentenced to concurrent 288-month terms of imprisonment on all but count three, and to a concurrent 240-month term (the statutory maximum) on that count. This appeal followed.

II. Challenges to Conviction

We address Campbell's several claims in turn.

(1) "Detectable" Quantity of P2P

Campbell makes several arguments that all reduce essentially to the claim that his conviction was unlawful because the amount of P2P confiscated was too small. As a starting point, we note that the statutes contain no language setting a minimum quantity as a prerequisite for prosecution. See 21 U.S.C. Sec. 841(a)(1) ("[I]t shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance...."). See also id. at Secs. 846, 856. ¹ Ample caselaw further establishes that no specific quantity needs to be proven for conviction. See United States v. Restrepo-Contreras, 942 F.2d 96, 99 n. 1 (1st Cir.1991); see also United States v. Bounds, 985 F.2d 188, 193-94 (5th Cir.1993); United States v. Kwong-Wah, 966 F.2d 682, 685 (D.C.Cir.1992) (citing other cases).

The amount of the controlled substance underlying a criminal indictment typically becomes relevant only at the penalty stage. See 21 U.S.C. Sec. 841(b); Kwong-Wah, 966 F.2d at 685. The Sentencing Guidelines set penalties based on weight, and state that the weights set forth in the Drug Quantity Table refer to "the entire weight of any mixture or substance containing a detectable amount of the controlled substance." U.S.S.G. Sec. 2D1.1 n.*. Thus, any "detectable amount" is sufficient to trigger a penalty.

Taking this scheme at face value, Campbell's conviction is rock solid since no one disputes that a "detectable" amount of P2P was obtained. Campbell, however, claims that the Constitution requires a different analysis when the controlled substance at issue is a precursor chemical like P2P, whose manufacture and possession is proscribed solely because of its relationship to another controlled substance (in the case of P2P, either amphetamine or methamphetamine). See 21 U.S.C. Sec. 811(e) (authorizing Attorney General to place an immediate precursor in the same schedule in which the controlled substance of which it is an immediate precursor is placed or in any higher schedule). Campbell maintains that a precursor must be found in sufficient quantity to be useable in making the controlled substance to which it owes its illegality. Prosecuting lesser amounts, he asserts, is outside the scope of Congress' intent in regulating controlled substances and an impermissibly vague application of federal drug laws.

Whatever the merits of such arguments in a case in which a totally unuseable amount of a controlled precursor chemical has been seized, see United States v. Ruff, 984 F.2d 635, 639 (5th Cir.1993), ² they are unavailing here. The defendant's own expert testified that the samples delivered in this case contained enough P2P to produce at least a small amount of methamphetamine. ³ Thus, the charged conduct fell directly within the statutory goal of controlling chemicals that may be used in the manufacture of a controlled substance. See 21 U.S.C. Sec. 802(23) (defining "immediate precursor"). We see no basis upon which to exclude small amounts of useable precursors from the statutory prohibition.

Consequently, we need not explore the boundaries of the Congressional grant of authority to criminalize the manufacture of precursor chemicals. The fact that Campbell did produce a useable amount of P2P also is fatal to his vagueness argument, which rests upon the assertion that he could not have known that unuseable amounts of P2P would subject him to prosecution. ⁴

(2) Reasonable Doubt Instruction

As part of its reasonable doubt instruction, the district court told the jury that "a reasonable doubt is sometimes described as a fair doubt based upon reason and common sense." Campbell contends that this phrase made the court's reasonable doubt instruction constitutionally defective, citing United States v. Campbell, 874 F.2d 838 (1st Cir.1989). We disagree. In Campbell, we rejected a defendant's attack upon reasonable doubt instructions given at his trial, but also said that courts should avoid equating reasonable doubt with fair doubt. Id. at 842-43. Here, the court spoke of a fair doubt "based upon reason and common sense." Since a reasonable doubt may be properly described as a doubt based on reason, Victor v. Nebraska, --- U.S. ----, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994), the concept of reasonable doubt was present in the very formulation under attack. We do not believe the jury would have understood use of the additional adjective "fair" to have altered the correct meaning.

Moreover, the court used the term "fair doubt" but once; it used the term "reasonable doubt" no fewer than fifteen times. For example, the court instructed the jury that the defendant "is presumed innocent unless and until the Government proves him guilty beyond a reasonable doubt" and that "in order to convict the Defendant of any of these charges, the Government has to prove all of the elements applicable to that charge beyond a reasonable doubt." Taking the instructions as a whole, we are convinced that the jury was properly advised of the very high degree of confidence in Campbell's guilt needed in order to convict. ⁵ We see no reasonable...