U.S. v. Ching Tang Lo, 03-50608.

• Decision Date: 19 May 2006
• Docket Number: No. 04-50223.,No. 03-50608.,03-50608.,04-50223.
• Citation: 447 F.3d 1212
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. CHING TANG LO, aka Jeff Lo, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Ching Tang Lo, aka Jeff Lo, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

447 F.3d 1212

UNITED STATES of America, Plaintiff-Appellant, v. CHING TANG LO, aka Jeff Lo, Defendant-Appellee.

United States of America, Plaintiff-Appellee, v. Ching Tang Lo, aka Jeff Lo, Defendant-Appellant.

No. 03-50608.

No. 04-50223.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 16, 2005.

Filed May 19, 2006.

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Michael J. Raphael, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellant/cross-appellee.

Benjamin L. Coleman, San Diego, CA, for the defendant-appellee/cross-appellant.

Appeal from the United States District Court for the Central District of California; Edward Rafeedie, District Judge, Presiding. D.C. Nos. CR-02-00419-ER, CR-00419-ER-1.

Before: HUG, and WARDLAW, Circuit Judges, and SINGLETON,^* District Judge.

HUG, Circuit Judge:

The Government appeals the district court's order granting defendant Ching Tang Lo's motion for acquittals on a charge of possessing ephedrine, a listed chemical used to manufacture methamphetamine, and a related money laundering charge. Lo contends that this court does not have jurisdiction to consider this appeal and that there was insufficient evidence to support the verdicts. We hold that we do have jurisdiction to consider the Government's appeal and that there was sufficient evidence to support the jury's verdicts. We therefore reverse the district court's order granting the acquittals.

Lo cross-appeals the district court's denial of his motion for a judgment of acquittal on the charge of conspiracy. He contends that the district court erred by denying the motion because the jury acquitted Leslie Kuan, the only other charged co-conspirator, and because there was no evidence that he conspired with anyone besides government agents. We hold that there was sufficient evidence that Lo conspired with Kuan to achieve all four of the charged objects of the conspiracy and that Lo's conviction may be based on this evidence even though the jury acquitted Kuan of conspiracy.

We also reject Lo's claim that the district court committed plain error by giving incorrect jury instructions regarding the mens rea required for violation of 21 U.S.C. § 841(c)(2) and by failing to provide complete jury instructions for the aiding and abetting objects of the conspiracy charge.

Finally, Lo appeals his sentence. He argues that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) overruled United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc), and that it was therefore error for him to be subject to the mandatory minimum sentences contained in 21 U.S.C. § 841(b). We reject this argument and hold that Lo is subject to those mandatory minimum sentences. We conclude, however, that Lo is entitled to a limited remand for sentencing purposes pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

I. Factual and Procedural Background

A. The Offense

This case concerns two listed chemicals. One listed chemical, 3,4-methylenedioxyphenyl-2-propanone ("MDP-2-P") is used to manufacture the controlled substance 3,4-methylenedioxymethamphetamine ("MDMA" or "Ecstacy"). Ma huang is a plant that is also known as ephedra. Ma huang contains ephedrine, a listed chemical used in the manufacture of methamphetamine, a controlled substance.

In December 2001, an informant told a government agent that Lo previously had sold him precursor chemicals used to manufacture a variety of controlled substances. Lo had sold the informant very large quantities of ephedrine pills, iodine products, and an oil base for Ecstasy. The informant purchased these chemicals and resold them for the purpose of manufacturing illegal drugs such as Ecstasy, speed, and "ice."

This information prompted government agents to initiate a series of meetings with Lo, which the agents monitored. On January 7, 2002, Lo gave price quotes to the informant for bags of iodine and ephedrine barrels or bags. Lo said that he was having trouble bringing the ephedrine into the United States from Mexico. On January 15, 2002, Lo provided the informant with a sample containing MDP-2-P, which the informant then gave to government agents.

On February 16, 2002, the informant introduced Lo to an undercover officer who was posing as a methamphetamine manufacturer. At that meeting, Lo asked the officer to manufacture one million tabs of Ecstasy for him. In addition, at that meeting, and again at a later meeting, Lo agreed to provide the chemicals for the manufacture of Ecstasy as well as ephedrine for the manufacture of methamphetamine. On March 13, 2002, Lo provided the informant with a box containing MDP-2-P. On April 4, 2002, Lo, with his ex-wife Leslie Kuan, met with a government agent to discuss the status of the manufacturing process for the Ecstasy and to discuss the estimated delivery date for the Ecstasy.

Lo obtained barrels of ma huang extract from a company called Essential Pharmaceuticals. The ma huang extract was obtained from the ma huang plant and contained approximately eight percent ephedrine, a higher concentration of ephedrine than the unprocessed ma huang plant contains. A company employee testified that he delivered barrels of ma huang extract to both Lo and Kuan. He also testified that he saw Kuan and Lo remove labels from the barrels of ma huang extract with a knife or blade. On April 11, 2002, officers observed Lo and Kuan unloading barrels and large trash bags of ma huang extract into a storage locker. The following day, officers observed Lo and Kuan loading barrels of ma huang extract into a van outside of the Essential Pharmaceuticals company. On that same day, officers executed a search warrant on Lo's storage locker and found 230 barrels of ma huang extract, which a field test showed tested positive for ephedrine. Officers found an additional 40 barrels of the ma huang extract at the defendant's home. Agents later found 297 more barrels of ma huang extract at another storage locker registered to Kuan and Lo. Invoices showed that a pharmaceutical company delivered 32,675 kilograms (1,307 barrels) of ma huang extract to Lo and Kuan at a total supplier's cost of $272,367.50.

B. The Indictment

In the first amended superseding indictment, Count One charged Lo and Kuan and others known and unknown with conspiring to commit the following offenses: 1) To distribute ephedrine, a listed chemical, knowing and¹ having reasonable cause to believe that the ephedrine would be used to manufacture a controlled substance, methamphetamine, in violation of 21 U.S.C. § 841(c)(2); 2) To aid and abet the manufacture of more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; 3) To distribute MDP-2-P, a listed chemical, knowing and having reasonable cause to believe that the MDP-2-P would be used to manufacture Ecstasy, a controlled substance, in violation of 21 U.S.C. § 841(c)(2); and 4) To aid and abet the manufacture of Ecstasy, a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Count Two charged Lo with violating 21 U.S.C. § 841(c)(2) by knowingly and intentionally distributing MDP-2-P, a listed chemical, knowing and having reasonable cause to believe that the MDP-2-P would be used to manufacture MDMA, a controlled substance.

Count Three charged Lo and Kuan with violating 21 U.S.C. § 841(c)(2) by knowingly and intentionally possessing MDP-2-P, a listed chemical, knowing and having reasonable cause to believe that the MDP-2-P would be used to manufacture Ecstasy, a controlled substance.

Count Four charged Lo and Kuan with violating 21 U.S.C. § 841(c)(2) by knowingly and intentionally possessing ephedrine, a listed chemical, knowing and having reasonable cause to believe that the ephedrine would be used to manufacture methamphetamine, a controlled substance.

Count Five charged Lo with violating 18 U.S.C. § 1957 by using money obtained from the unlawful distribution of ephedrine to buy a Lexus coupe.

Lo also was charged and acquitted of other counts not relevant to this appeal.

C. District Court Proceedings

Lo and Kuan were tried beginning on July 15, 2003. At trial, the defendants and the Government both presented expert testimony regarding the contents of the ma huang extract, the extraction of ephedrine from ma huang, and the use of ephedrine in the manufacture of methamphetamine.

Lo testified at trial. He admitted that he provided the informant with 5 gallons of "oil" (MDP-2-P) on March 13, 2002, and that he told the informant that the oil was worth $200,000. He also admitted that he had called the informant to ask when the Ecstasy pills were going to be ready because he was under a lot of pressure. In addition, he admitted that he agreed to provide the agents with ephedrine as part of his payment for the Ecstasy.

Lo claimed that he never intended to get involved in making Ecstasy and that he was only trying to swindle buyers rather than enabling them to make drugs. He testified that he never intended for the ephedrine to be extracted from the ma huang extract and made into methamphetamine. Instead, he claimed, he wanted to cheat people by selling them ma huang instead of ephedrine.

On July 25, 2003, the jury returned its verdicts, convicting Lo on counts One through Five of the indictment and acquitting Kuan on all counts. Pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, Lo then moved for a judgment of acquittal notwithstanding the verdict on Count One, which charged him with conspiracy, and Counts Four and Five, which charged him with possession of ephedrine and related money laundering. The court denied the motion for Count One, but granted the motion for Counts Four and Five. Both parties moved for reconsideration. The judge denied both motions.

On April 20, 2004, the district court sentenced Lo...