U.S. v. Young

• Citation: 862 F.2d 815
• Decision Date: 09 December 1988
• Docket Number: No. 87-1843,87-1843
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leslie Decker YOUNG, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 815

862 F.2d 815

UNITED STATES of America, Plaintiff-Appellee, v. Leslie Decker YOUNG, Defendant-Appellant.

No. 87-1843.

United States Court of Appeals, Tenth Circuit.

Dec. 9, 1988.

As Amended Jan. 26, 1989.

Rehearing Denied May 16, 1989.

Gregory C. Diamond, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant.

Before MOORE and BALDOCK, Circuit Judges, and BOHANON, Senior District Judge. ^*

BOHANON, District Judge.

Defendant-appellant Leslie Decker Young (Young) was convicted of possession of laboratory equipment, precursor elements, and methamphetamines, with intent to manufacture methamphetamines on or about February 4, 1987, in violation of 21 U.S.C. 841(a)(1). On appeal, Young challenges his conviction claiming that 1) the evidence is insufficient to support a conviction, 2) there was a fatal variance between the indictment and the evidence presented, 3) a lesser included offense instruction should have been given and 4) trial counsel was ineffective in rendering assistance. We affirm.

Young's indictment arose from a January 1987, Drug Enforcement Administration (DEA) investigation of various purchases of chemicals and laboratory equipment. In January 1987, Young made two purchases from Hi-Valley Chemical and Chemshop, a lab supply shop. He purchased some pH paper and strips and some lead acetate. On both occasions, Young smelled of phenylacetic acid. Store personnel notified the DEA. The DEA began surveillance.

Young was also present when an order was placed at the Intertech Trading Co. (ITT), another firm which sells chemicals and lab equipment. Items ordered included 10 pounds of phenylacetic acid, 50 pounds of lead acetate, other chemicals, boiling flasks, adapters, condensers, plastic tubing, filter paper and beakers. The order was placed in the name of the "Grant Co." Some of the items were backordered, but later that day, two men in a truck picked up the partially filled order. A DEA agent identified the defendant as resembling one of the men. After some intermediate stops, the truck backed up on the driveway of 657 South Washington St., and stayed for about fifteen minutes. Only one of the men left the residence in the truck.

In late January, the backordered items for the Grant Co. were picked up from ITT by another person claiming to be Dan, but who actually was identified as Terry Lee Loeser. Loeser said that he was there to pick up an order for Les. Thereafter, Loeser drove to 657 South Washington St. and the DEA agents saw Young come out of the residence to meet Loeser's car. Loeser and Young opened the trunk, moved several items, and Young took a small box into his residence. Young told Loeser to park down the street. A few minutes later, Young came out of the residence carrying a plastic garbage bag which he threw into a dumpster across the street. Loeser and Young then departed the residence. The DEA agents noticed that Young was conducting countersurveillance.

DEA agents later retrieved the plastic garbage bag and sent it and the contents for lab analysis. The DEA chemist testified that methamphetamine is the product of two separate reactions, phenylacetic acid processed into phenyl-2-propanone (P2P), and then P2P processed into methamphetamine. When opened, the plastic bag had a strong odor of phenylacetic acid. The DEA chemist testified that phenylacetic acid has a strong and persistent odor that is virtually absorbed into the skin, clothing and furnishings. ¹ Several wadded up filter papers had an odor of methamphetamine, and trace amounts of methamphetamine were confirmed by testing. Several of the filter papers were still moist. Also in the bag was aluminum foil with a grayish powder which was a byproduct of the manufacturing process. The powder probably contained methamphetamine at one time, but the substance had disappeared due to its volatility. Also in the bag was a plastic water jug with some obvious white powder which was methamphetamine. A dark brown, rather heavy, rocky substance was also found in the bag. This was primarily lead and lead dioxide, which represented the residue left after the production of P2P. As noted, P2P is a precursor element of methamphetamine. Some brown dirt also was in the bag. The chemist's analysis indicated that it too contained P2P. Finally, an empty bottle of lead acetate and a broken jar with a label from Intertech Trading were found.

On February 4, 1987, the Washington St. residence was searched and the defendant was arrested as he walked up. A few moments later, a small bundle of white powder was found where the defendant had been apprehended. It was 99% pure methamphetamine which had not been cut with sugar or any other substance. Upon entering the house, the DEA chemist "noticed the odors that [she] normally attached to a clandestine phenyl-2-propanone and methamphetamine laboratory." Rec. supp. vol. I at 162. These odors included phenylacetic acid overlaid with P2P. Although the chemist did not find evidence of production at that very moment, she testified that she noticed glassware, heating mantles, other manufacturing paraphernalia and lead acetate. She found brown oil droplets on a table which tested positive for the presence of methamphetamine and table sugar in an ashtray. Also found were a digital scale for weighing powders, a piece of paper with crystals containing methamphetamine, an oblong Pyrex dish with a byproduct which results from the manufacture of P2P, drawings which illustrate a P2P manufacturing process, a heating mantle, a resistance heater, several flasks, a condenser, a plastic funnel, tygon tubing, corks, a thermometer, and a card with an alternate formula for manufacturing P2P, a Merck index, beakers and finally sulfuric acid, commonly used in the cleanup stage of P2P manufacture.

In a challenge based upon the sufficiency of the evidence, we must affirm the judgment of conviction if there is record evidence which would allow a rational trier of fact to find the defendant guilty of the crime charged in the indictment beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979). Our review of the record in the light most favorable to the government convinces us that the record evidence in this case satisfies that test.

21 U.S.C. Sec. 841(a)(1) makes it a crime to possess with intent to manufacture a controlled substance. Methamphetamine in liquid form is a Schedule II controlled substance. 21 U.S.C. Sec. 812(a); 21 C.F.R. Sec. 1308.12(d)(2)(1987). Methamphetamine in powder form is now a Schedule II controlled substance. Id. As an immediate precursor of methamphetamine, P2P is a Schedule II controlled substance. The evidence established that the jury could find beyond a reasonable doubt that the defendant possessed all of these items in January and February of 1987.

The issue in this case is whether such possession was with the intent to manufacture methamphetamine. In these circumstances, the defendant's possession of trace amounts of P2P and methamphetamine contained in the garbage bag discarded on January 26, 1987, supports the inference that he had possessed these substances before and during their use in the production process. The jury could find beyond a reasonable doubt that the defendant intended for an entire quantity (of which the trace amounts were once a part) to be converted to methamphetamine in powder form. Stated another way, the jury could rationally view the residue as evidence of the manufacturing process at an earlier point. And at such an earlier point, the defendant intended the entire quantity (including what would become the residue and the evidence of the crime) to be manufactured into finished methamphetamine.

Likewise, the jury could find beyond a reasonable doubt that the liquid methamphetamine spilled on the table was once part of a larger quantity possessed by the defendant and destined to become finished methamphetamine. A rational jury could believe that before it was spilled, the defendant intended for the liquid methamphetamine to be further processed. At that point, the defendant would have possessed the methamphetamine intending its further manufacture. The jury also could have linked the defendant with the bag of 99% pure methamphetamine found where he was apprehended. It could have reasoned that he intended to further manufacture it by adding sugar to increase its bulk. This would be a reasonable inference given that sugar was found in an ashtray in the house and the DEA chemist's testimony about this common practice in the unlawful drug trade. Rec. supp. vol. II at 227-28.

Of course, this view of the evidence requires us to look at events occurring in the latter part of January and the first part of February. The date of the crime contained in the indictment is on or about February 4, 1987. We think the "on or about" language contained in the indictment is consistent with this view of the evidence. But even if the date allegation contained in the indictment is incorrect, it will not bar conviction. "Where time is not an essential element of the offense, it is sufficient to charge facts which show that the offense was committed within the statutory period of limitation and in such a case, even though there be a defect in the allegation as to time, it is one of form only." Butler v. United States, 197 F.2d 561, 562 (10th Cir.1952) (considering indictment which charged possession of an unregistered still with intent to manufacture liquor during April 24 to August 13, 1951); United States v. Arge, 418 F.2d 721, 724 (10th Cir.1969); Weatherby v. United States, 150 F.2d 465, 467 (10th Cir.1945); 1 C. Wright, Fed.Prac. & Proc. Sec. 125 (1982 2d ed.). It is abundantly clear that the indictment in ...