U.S. v. Schrock

• Decision Date: 24 August 1988
• Docket Number: No. 87-1495,87-1495
• Citation: 855 F.2d 327
• Parties: 26 Fed. R. Evid. Serv. 1017 UNITED STATES of America, Plaintiff-Appellee, v. Donald SCHROCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 327

855 F.2d 327

26 Fed. R. Evid. Serv. 1017

UNITED STATES of America, Plaintiff-Appellee, v. Donald SCHROCK, Defendant-Appellant.

No. 87-1495.

United States Court of Appeals, Sixth Circuit.

Submitted March 24, 1988.

Decided Aug. 24, 1988.

Philip R. Sturtz, Saginaw, Mich. (court-appointed), for defendant-appellant.

Michael J. Hluchaniuk, Asst. U.S. Atty., Bay City, Mich., for plaintiff-appellee.

Before MILBURN and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Defendant Donald Schrock appeals his jury conviction for conspiring to possess with intent to distribute and to distribute methamphetamine, a Schedule II controlled substance. See 21 U.S.C. Secs. 846, 841(a)(1) (1982). Schrock contends on appeal that he was improperly indicted and convicted for conspiring to distribute a Schedule II controlled substance because 21 U.S.C. Sec. 812(c) lists noninjectable methamphetamine under Schedule III, and that the district court erred in admitting into evidence testimony of allegedly illicit transactions of "speed" without scientific proof that those transactions involved methamphetamine as charged in the indictment. We conclude that Schrock was properly charged with conspiracy to distribute a Schedule II controlled substance, and that the district court did not err in admitting the challenged testimony. Accordingly, we affirm.

I.

Defendant Schrock hailed from Saginaw, Michigan, but at the times relevant to this case he resided in San Diego, California. In late April of 1985, Schrock drove from San Diego to Saginaw with Harry Cantos, who was Schrock's housemate. During the trip they experienced mechanical problems with Cantos' automobile, so upon arriving in Saginaw, Schrock telephoned Jerome Faughnan who Schrock knew as an experienced mechanic. According to Faughnan's testimony at trial, he initially declined to help, complaining that he was too tired. Schrock told Faughnan, however, that Cantos "would probably wake [Faughnan] up." Faughnan proceeded to the hotel where Schrock and Cantos were staying, and was introduced to Cantos by Schrock. Cantos laid out a "line" of white powder and described it as "speed." Faughnan ingested the line of white powder by inhaling it through his nose.

Faughnan testified to a long history of taking speed. He had had a prescription for ten years for a drug he identified as "Prelude," ¹ a synthetic amphetamine. Faughnan stated that when he could obtain it, he took dosages of the prescription in excess of the recommended amounts. Although Faughnan would not characterize himself as a "speed freak," he did directly admit that, "without a doubt," he was dependent upon speed and would use it whenever he could.

Faughnan testified that the speed he sampled at the hotel produced a reaction similar to the reaction induced by his prescription drug: "Increased my metabolism, woke me up and gave me ambition." ² Faughnan was additionally surprised by the speed's quality; he told Cantos that, except for his prescription, he had never used such good speed. Cantos asked Faughnan if he thought there would be a market for the speed in Saginaw, and Faughnan replied, "definitely, I'd buy some." Cantos had brought only a small quantity with him, however, so none was immediately available. Schrock and Cantos soon went back to California.

Schrock returned to Saginaw in late June or early July of 1985, this time without Cantos. During the two weeks Schrock was in Saginaw, Faughnan bought two quarter ounces of speed from Schrock at $250 each. The drug was in a white-powder form that appeared similar to the speed Faughnan had sampled at the hotel in April, and each quarter ounce was packaged in a plastic bag. Faughnan testified that this speed produced effects similar to those he had experienced upon sampling Cantos' speed at the hotel.

Although Faughnan purchased the speed primarily for his own consumption, he sold some of it to an acquaintance of his, John Reide, who was then president of a local motorcycle club, the Devil's Disciples. Reide wished to arrange for a steady supply of the speed, and Faughnan introduced Reide to Schrock to discuss this possibility. Reide, who also testified at Schrock's trial, stated that he attempted to raise the issue with Schrock at this meeting, but that Schrock refused to discuss it. No more speed was exchanged, and Schrock eventually returned to San Diego.

Schrock travelled to Saginaw for the third time around Labor Day, 1985. During Schrock's stay, Faughnan purchased two or three quarter ounces of speed for $250 per quarter ounce. Each quarter ounce was in the familiar white-powder form and was packaged in a plastic bag. Faughnan also arranged a second meeting between Schrock and Reide. Reide testified that once again Schrock would not discuss the possibility of Reide purchasing speed directly from Schrock. They did discuss, however, the possibility of Schrock buying a motorcycle from Reide, and they later agreed on a purchase price of $2,500 for a Harley-Davidson motorcycle. Instead of paying with cash, however, Schrock paid Reide with two and one-half ounces of "amphetamines," which were in white-powder form and packaged in plastic bags. Reide sold a portion of the speed and consumed the remainder. He testified that he had used illegal speed on prior occasions, and that the substance received from Schrock produced similar stimulating effects.

In the middle of September, Schrock left Saginaw for San Diego, but this time he was accompanied by Faughnan. According to Faughnan, he and Schrock "[w]orked on bikes, worked on cars, rode around, seen San Diego, did some speed, drank a lot of beer." Most of the speed was supplied by Schrock at no cost to Faughnan, but Faughnan did purchase a final quarter ounce of speed from Schrock during his stay. Faughnan returned to Saginaw in early October.

In late November, 1985, Faughnan made another trip to San Diego in search of more speed. Schrock did not have any speed, however, and did not expect to obtain any. Faughnan inquired how to make the speed, but Schrock repeatedly told Faughnan that he did not know. Schrock informed Faughnan, however, that two weeks earlier a San Diego newspaper had run an article that described how to make methamphetamine. Faughnan then acquired the article through independent efforts. Before returning to Michigan, Faughnan additionally traded his motorcycle to Schrock. In exchange, Faughnan received several hundred dollars and a brown vial partially filled with an oil-like substance that Schrock identified as "dirty methamphetamine." Schrock gave Faughnan some vague directions on how to clean the substance and told him that one ounce of speed might be derived from it. Faughnan left California and returned to Saginaw in early December.

Faughnan tried unsuccessfully to extract methamphetamine from the vial he had received from Schrock. On December 18, 1985, while Faughnan was conducting an experiment with the substance in the vial, federal and state authorities executed a search warrant on his house. Faughnan was arrested and many articles were seized from his house, including the vial he had received from Schrock, the article from the San Diego newspaper, and various chemicals and other paraphernalia associated with manufacturing methamphetamine.

A federal grand jury subsequently indicted Schrock and Faughnan in a three-count indictment. Faughnan, who was named in all three counts, pleaded guilty to one count and was sentenced to six months in prison and three years of probation. Schrock was named only in Count I, which alleged that between July and December of 1985, Schrock and Faughnan conspired "to possess with intent to distribute and to distribute various quantities of methamphetamine, a Schedule II Non-narcotic Controlled Substance." ³ Schrock pleaded not guilty, but after a trial he was convicted by a jury. The district court entered judgment on the jury's verdict and sentenced Schrock to three years in prison. This timely appeal ensued.

II.

Schrock first contends that his conviction is infirm because the government improperly indicted him for conspiring to distribute a Schedule II controlled substance. Under the statutory schedules enacted by Congress, methamphetamine is classified under Schedule II only when it is in an "injectable liquid" state. See 21 U.S.C. Sec. 812(c) (Schedule II)(c) (1982). The evidence adduced at Schrock's trial, however, does not suggest that he was involved in the distribution of injectable liquid methamphetamine. Under the statutory schedules, Schrock argues, the evidence supports only the charge that he conspired to distribute a Schedule III controlled substance, which Congress defined in part as "[a]ny substance (except an injectable liquid) which contains any quantity of methamphetamine." Id. Sec. 812(c) (Schedule III)(a)(3). We reject Schrock's contention, however, because we find that the initial schedules enacted by Congress are no longer in effect.

In enacting the statutory classifications of controlled substances, Congress expressly provided that its initial designation of the schedules would remain in effect "unless and until amended pursuant to section 811 of this title." Id. Sec. 812(c). Under section 811, Congress vested the Attorney General with the authority to add drugs to, remove drugs from, or transfer drugs between the five schedules. ⁴ The Attorney General may thus alter the statutory schedules, so long as the change is effected in conformity with the rulemaking procedures of the Administrative Procedure Act, 5 U.S.C. Secs. 551-559, and in accordance with the factual findings required under section 812(b). ⁵

Pursuant to the authority granted by Congress in section 811, and in conformity with the procedural requirements, the Attorney General in 1974 redesignated noninjectable methamphetamine as a Schedule II controlled substance:

Unless specifically excepted or unless listed in...