U.S. v. Washington, 87-2294

• Decision Date: 28 September 1988
• Docket Number: No. 87-2294,87-2294
• Citation: 858 F.2d 590
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 590

858 F.2d 590

UNITED STATES of America, Plaintiff-Appellee, v. Edward WASHINGTON, Defendant-Appellant.

No. 87-2294.

United States Court of Appeals, Tenth Circuit.

Sept. 28, 1988.

Clark O. Brewster (David A. Mullon, Jr., Michael F. Kuzow, and Jennifer L. Moncrief of Brewster Shallcross & Rizley with him on the brief), Tulsa, Okl., for defendant-appellant.

John S. Morgan, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., and Susan W. Pennington, Asst. U.S. Atty. N.D. Okl., were on the brief), Tulsa, Okl., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and BRORBY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Edward Washington, the appellant, and Larry Lee Cole, who is not an appellant, were jointly charged in a nine-count superseding indictment with various drug related offenses. In count 1 Washington and Cole were charged with conspiring with each other and "with others both known and unknown to the Grand Jury" to manufacture phencyclidine (PCP) in violation of 21 U.S.C. Secs. 841(a)(1) and 846.

In count 2 Washington alone was charged with the knowing and intentional possession of piperidine with an intent to manufacture PCP "and/or having reasonable cause to believe that the piperidine would be used to manufacture PCP" in violation of 21 U.S.C. Sec. 841(d)(1) and (2).

In count 3 Cole alone was charged with aiding, assisting and causing the furnishing of false and fraudulent material information in a report or document required to be made and kept under Subchapter I or II, Chapter 13, of the Drug Abuse Prevention and Control Act of 1970, as amended, in violation of 21 U.S.C. Sec. 843(a)(4)(A) and 18 U.S.C. Sec. 2.

In counts 4, 5, and 6 Cole alone was charged with using a telephone in furtherance of the commission of a drug felony, including but not limited to a conspiracy to manufacture PCP, in violation of 21 U.S.C. Sec. 843(b). Each count was based on a different use of the telephone.

In counts 7, 8, and 9 Washington alone was charged with using a telephone in furtherance of the commission of a drug felony, including but not limited to a conspiracy to manufacture PCP, in violation of 21 U.S.C. Sec. 843(b). Again, each of these counts was based on a separate use of the telephone.

During the course of a joint trial, the government dismissed counts 4, 5, and 6 which involved only Cole. The jury found Washington and Cole guilty on the conspiracy charge in count 1. Washington was also found guilty on counts 2, 7, 8, and 9. Cole was found not guilty on count 3.

At the close of the government's case, at the close of all the evidence, and immediately after the reading of the verdict, Washington's counsel moved for a judgment of acquittal on the ground that the evidence was legally insufficient. Fed.R.Crim.P. 29. Argument on the motion made at the close of the government's case was deferred until the sole defense witness was called. ¹ At the close of all the evidence the motion was argued at length and denied. The motion made after the return of the jury's verdict was denied by the district judge in a five-page order wherein he detailed his reasons for rejecting Washington's insufficiency of the evidence argument.

Washington was thereafter sentenced to three years imprisonment on count 2, and to four years probation on counts 1, 7, 8, and 9, to commence upon completion of the three-year sentence imposed on count 2. Washington appeals his convictions and the sentences imposed thereon. Cole has not appealed.

PCP is a controlled substance. Piperidine is not a controlled substance, although a prospective purchaser must disclose certain information, which is ultimately reported to the Drug Enforcement Agency (DEA) before acquiring piperidine. 21 U.S.C. Sec. 830; 21 C.F.R. Sec. 1310 (1988). The fact that piperidine is not a controlled substance is at the heart of Washington's appeal. Counsel's primary argument is that the evidence is legally insufficient to show that Washington conspired with anyone to manufacture PCP, and that the evidence only shows that Washington conspired with Cole and others to possess piperidine, which is not itself a criminal offense.

Piperidine is a colorless liquid which has various industrial uses, but is also a "precursor" for making PCP. One method for manufacturing PCP, called the "bucket method," involves several intermediate steps. First, sodium bisulfate and water are mixed in one container while sodium cyanide and piperidine are mixed in another. The two mixtures are then combined and allowed to set, resulting in the formation of a crystal known as piperidinocyclohexane carbonitrile (PCC). The PCC is then dried by mixing it with a solvent such as Coleman fuel. The dried PCC is then mixed with a substance called Grignard reagent, which is prepared from several easily obtained, nonscheduled chemicals. Mixing the PCC with the Grignard reagent causes a chemical reaction resulting in the formation of a PCP/cyanide complex. This "complex" is then treated with a hydrochloric acid which removes the cyanide molecule from the PCP, leaving only the final product, PCP, a controlled substance.

In December, 1986, Cole and Carl Dyer, the latter an unindicted co-conspirator, agreed that Dyer would buy a 55-gallon drum of piperidine from Tulsa Scientific Chemical Supply in Tulsa, Oklahoma, and that they would then sell the piperidine to one who would convert it to PCP. ² It was estimated that their initial investment would yield a profit of between $40,000 to $50,000. Dyer placed an order with Tulsa Scientific Chemical Supply for the drum of piperidine and paid as a down payment the sum of $500. Prior to obtaining the piperidine, Cole introduced Washington, the appellant, to Dyer. Cole informed Dyer that Washington was "involved in the deal" and that Washington "knew where he could get rid of the stuff at."

On January 8, 1987, Dyer traveled from his residence in Bristow, Oklahoma to Tulsa Chemical in Tulsa to pick up the 55-gallon drum of piperidine. Dyer was told that the cost of the piperidine would be $14,000. Dyer then left without the piperidine and drove to Cole's residence to pick up Cole's and Washington's share of the purchase money. Washington and Cole together gave Dyer $8,000. Dyer contributed the remaining $6,000 of the purchase price. Dyer then returned to Tulsa Chemical and, using the $8,000 given him by Cole and Washington, he paid Tulsa Chemical $14,000 in cash. ³ In return, Dyer got a 55-gallon drum containing what he believed was piperidine, but was in reality water and ammonia!

After Dyer placed the order with Tulsa Chemical for the piperidine, Tulsa Chemical contacted the Drug Enforcement Administration and informed that agency of Dyer's order. Consequently, when Dyer picked up the drum on January 8, 1987, DEA officials were monitoring Dyer's actions with hidden audio and video equipment.

Dyer loaded the drum on his truck but was stopped a short distance from Tulsa Chemical and placed under arrest. A day or so later, Dyer agreed to cooperate with the DEA in exchange for a promise that he would be only charged with a misdemeanor. Pursuant to this understanding, Dyer over the next few days placed several telephone calls to both Cole and Washington and taped the conversation. Six of the calls made to Washington were taped, and transcripts of the conversations were introduced at trial.

Additionally, on January 13, 1987, Dyer met with Washington in a parking lot in Tulsa, Oklahoma, and gave Washington a one-pint sample of piperidine. On...