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United States v. Lendmann

March 20, 1985


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 CR 407-1 -- HON. THOMAS McMILLEN, Judge.

Cudahy, Posner, and Flaum, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge.

James Lendmann was convicted in the United States District Court for the Northern District of Illinois of manufacturing, and attempting to manufacture, methamphetamine. Lendmann now appeals. We affirm.

On September 22, 1982, agents of the Drug Enforcement Administration (DEA) and local police executed a search warrant at a commercial building in Villa Park, Illinois. The warrant authorized a search for a methamphetamine laboratory operation. A small chemical laboratory was found from which were seized various pieces of laboratory equipment, chemicals and a box containing textbooks, articles and notes on methods of making methamphetamine and related drugs. As a result, James Lendmann was charged in a three-count federal indictment. Counts I and II, respectively, charged that Lendmann manufactured, and possessed with intent to distribute, 3.59 grams of a methamphetamine mixture, a Schedule II controlled substance. 21 U.S.C. § 841(a)(1). Count III charged a violation of 21 U.S.C. §§ 841(a)(1) and 846, attempting to manufacture an additional quantity of methamphetamine. At trial, a DEA chemist testified that among the chemical samples seized was 3.59 grams of methamphetamine. The chemist further testified that there were enough chemicals to manufacture approximately one kilogram of methamphetamine. Testifying in his own defense, Lendmann admitted control of the laboratory and ownership of the equipment, chemicals and papers seized. He also admitted to the manufacture and possession of methamphetamine and testified that he knew methamphetamine was an illegal drug. However, Lendmann claimed that he had not compounded the methamphetamine for drug use or distribution but rather as an intermediate step in the extraction of platinum from the used catalytic converters of automobiles. In the process, Lendmann asserted, the methamphetamine would ultimately be completely destroyed. In rebuttal, a DEA agent testified that at the time of execution of the search warrant he had a conversation with Lendmann in which Lendmann told him that he planned to sell the methamphetamine he made to another person. The jury returned verdicts of guilty on Counts I and III and not guilty on Count II, and Lendmann was subsequently sentenced to concurrent terms of five years imprisonment on Counts I and III and to a two-year special parole to follow his sentence on Count I. However, execution of sentence was suspended, and Lendmann was placed on five years probation conditioned upon a six month term at the Metropolitan Correctional Center on a work release program. Lendmann was also fined $5,000. On appeal Lendmann raises one issue. He argues that his conduct was not within the scope of conduct Congress sought to criminalize when it enacted §§ 841(a)(1) and 846. We disagree.

As a necessary premise to his argument, Lendmann initially claims that his acquittal on Count II can only mean that the jury credited "Lendmann's own explanation ... that he made methamphetamine only as an intermediate step in a process which contemplated destruction of all the methamphetamine by the time the process would be completed." Otherwise, Lendmann argues, the guilty verdicts on Counts I and III are inconsistent with his acquittal on Count II. First of all, we not that it is note the court's function "to reassess a jury's credibility determinations." United States v. McComb, 744 F.2d 555, 556 (7th Cir. 1984). Even so, we find Lendmann's argument illusory. In many circumstances "intent to distribute" is established by circumstantial evidence, including evidence as to the quantity of drugs seized. See United States v. Hill, 589 F.2d 1344, 1350 (8th Cir. 1979); United States v. Marchildon, 519 F.2d 337, 345 (8th Cir. 1975). However, just as it is permissible to draw an inference of intent to distribute from the possession of a large quantity of a controlled substance, United States v. Brischetto, 538 F.2d 208, 210 (8th Cir. 1976), a jury is equally free not to make such an inference. Id. An inference of a lack of intent to distribute is even more compelling, with nothing more, from a small quantity. As Lendmann argued at trial, the amount of methamphetamine seized by DEA agents was very small, weighing, he said, only about as much as a U.S. penny. The jury may well have concluded that the amount charged in Count II (3.59 grams) was too small to be intended for distribution, and, consistent with its guilty verdicts on Counts I and III, still have chosen not to credit Lendmann's theory of defense.*fn1

We were to assume, however, the veracity of Lendmann's testimony, the issue for review, as Lendmann argues, resolves itself into the question whether a person who concededly manufactures, or attempts to manufacture, a controlled substance without the intent to distribute but solely to use as an intermediate step in a chemical process which contemplates destruction of all the illicit substance upon completion of the process falls within the criminal prohibitions of 21 U.S.C. §§ 841 and 846. Lendmann candidly admits hat his conduct is violative of the broad language of §§ 841 and 846. Contrary to Lendmann's argument, however, Congress intended to make such conduct punishable as a crime.

In pertinent part, 21 U.S.C. § 841 reads:

(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally --

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ....*fn2

Section 822(b) of Title 21, United States Code, specifies those activities authorized by the subchapter and by implication fleshes out the "except as authorized by this subchapter" phrase of § 841:

Persons registered by the Attorney General under this subchapter to manufacture, distribute, or dispense controlled substances are authorized to possess, manufacture, distribute, or dispense such substances (including any such activity in the conduct of research) to the extent authorized by their registration ....

Under a plain reading of these statutes, any person who is not registered by the Attorney General for a given substance is not authorized to manufacture it, and thus is not exempt from prosecution under § 841 (or § 846). See United States v. Blanton, 730 F.2d 1425, 1429 (11th Cir. 1984) (conviction under § 841(a)(1) of physician not registered to dispense methaqualone, a controlled substance, upheld).*fn3

Lendmann attempts to avoid this conclusion by arguing that §§ 841 and 846 were designed to punish drug trafficking rather than providing a technical basis upon which convictions of persons not involved in such trafficking may be obtained. In support of this argument, Lendmann relies on the testimony of Dr. Sarah Miles Woods, a professor of chemistry at Roosevelt University. According to Dr. Woods, inevitably, a scientist engaged in legitimate experimentation can never be certain that a process designed to synthesize a compound might not as an intermediate step yield a controlled substance. Citing no authority to support his position, Lendmann argues it was not the intent of Congress to make conduct involving legitimate research punishable as manufacturing offenses under 21 U.S.C. §§ 841(a)(1) and 846. Lendmann errs, however, in his interpretation of Congress' intent in the passage of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. In enacting the Controlled Substances Act, "Congress was particularly concerned with the diversion of drugs from legitimate channels to illegitimate channels." United States v. Moore, 423 U.S. 122, 135, 46 L. Ed. 2d 333, 96 S. Ct. 335 (1975). The Act, therefore, was an attempt to limit this diversion by strict registration requirements for all persons who are authorized to legitimately work with controlled substances in order to closely monitor the flow of controlled substances from manufacturer to consumer. United States v. Blanton, 730 F.2d at 1427-1428. Indeed, Congress was not so naive as to fail to recognize that registrants, who invariably have the greatest access to controlled substances and therefor the greatest opportunity for diversion, were responsible for a large part of the illegal drug traffic. United States v. Moore, 423 U.S. at 135. Registration, then, was meant to circumscribe the authority to manufacture controlled substances and was acknowledged as perhaps the only means of ascertaining all those individuals who work with such substances. 116 Con. Rec. 1664 (1970) (remarks of Sen. Hruska). It seems eminently clear that Congress meant to ...

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