Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 91 CR 1012--Brian Barnett Duff, Judge.
Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.
Derrick Anderson challenges his conviction for possessing piperidine, knowing or having reasonable cause to believe that it would be used to manufacture phencyclidine in violation of 21 U.S.C. sec. 841(d)(2). He also challenges his sentence on the ground that the district court erred in ordering a two-point enhancement for possessing a firearm. We affirm.
From June 1989 until December 1991, Derrick Anderson ordered equipment and chemicals from two chemical supply companies, Fisher Scientific and Aldrich Chemical Co. On numerous occasions, Mr. Anderson ordered the chemical piperidine. He also obtained benzene, cyclohexanone, ether, potassium cyanide, phenyl magnesium bromide, storage containers, and a triple beam balance. Piperidine is a "listed precursor chemical" under the Chemical Trafficking and Diversion Act, 21 U.S.C. sec. 802(34)(J). When combined with hydrochloric acid, cyclohexanone, and a cyanide compound, piperidine produces 1-piperidinocyclohexane carbonitrile (PCC). PCC is a precursor, or essential building block, used to manufacture the controlled substance phencyclidine (PCP). PCC crystals are dried and dissolved in a solvent, such as ether or benzene. As the crystals dissolve, a "gringard reagent," such as phenyl magnesium bromide, and water are added to produce PCP.
In addition to their potential illicit use, many of the chemicals Mr. Anderson ordered are hazardous. To help ensure that the chemicals were being used safely and legitimately, the chemical suppliers asked Mr. Anderson to certify that the materials were for laboratory use only. Mr. Anderson's orders listed the buyer as "Chemical Testing Corporation," or "CTC." Mr. Anderson listed the company address as "152 Northwest Highway, Suite 1100, Department C-20." He claimed the company was located in an industrial park. He also submitted information that purported to be from a chemist at CTC who was qualified to handle the chemicals. Chemical Testing Corporation did not exist. Although Mr. Anderson operated a firm known as "CTC," its initials stood for "Chicago Travel Company." The shipping address Mr. Anderson provided corresponded to "Parcel Service Center," a private mail-box firm located in Palatine, Illinois.
The Drug Enforcement Administration became suspicious of CTC's activities. The DEA determined that the chemicals Mr. Anderson was acquiring could be used to manufacture only PCP. It also discovered that Chemical Testing Corporation did not exist. In December 1991, the DEA learned that Mr. Anderson had placed an order for phenyl magnesium bromide. Agents staked out the Parcel Service Center. In the early evening hours of December 12, 1991, a Chevy Blazer arrived at the scene. Mr. Anderson, who was a passenger in the vehicle, exited the Blazer, entered the building and returned with a package. He then removed the exterior packaging and climbed back into the Blazer. Agents followed the vehicle and eventually pulled it over. They arrested the driver, William Martin, Jr., as well as Mr. Anderson. Inside the Blazer, agents found bottles of phenyl magnesium bromide in the same compartment as a loaded .32 caliber revolver.
Mr. Anderson was tried and convicted on twenty counts of "knowingly or intentionally" possessing piperidine "knowing or having reasonable cause to believe" it would be used to manufacture a controlled substance. 21 U.S.C. sec. 841(d)(2). *fn1 He was sentenced September 10, 1993. The district court, without objection, used the 1992 version of the Sentencing Guidelines, which were in effect at that time. Pursuant to U.S.S.G. sec. 2D1.11(b)(1), the district court ordered Mr. Anderson's sentence enhanced two points because he possessed a firearm. Mr. Anderson contended that he owned neither the .32 caliber revolver nor the Chevy Blazer in which it was found. He emphasized that his fingerprints were not found on the gun. The district court rejected Mr. Anderson's arguments, reasoning that Mr. Anderson "couldn't have not known that that gun was in that compartment." R.107 at 20. Mr. Anderson's criminal history category of I and his base offense level of 30 generated a sentencing range of 97-121 months. He was sentenced to 120 months' imprisonment.
A. Challenges to the Conviction
Mr. Anderson raises several challenges to his conviction. First, he contends that there was insufficient evidence to support a conviction under 21 U.S.C. sec. 841(d)(2). Second, he claims that the grand jury proceedings were flawed because the prosecutor informed the grand jury that "in and of itself" it was illegal for Mr. Anderson "to have" piperidine. Mr. Anderson argues that this remark suggested that he could be indicted for simple possession. He also submits that his trial counsel rendered ineffective assistance by not raising this claim in the district court. Next, Mr. Anderson submits that the district court erred in allowing a government witness to testify generally about clandestine PCP laboratories. He additionally claims that his trial counsel rendered ineffective assistance by failing to request a limiting instruction and by failing to call expert witnesses in rebuttal. Finally, Mr. Anderson submits that the prosecutor's closing argument was improper. He adds a claim that his trial counsel rendered ineffective assistance in failing to object to the allegedly improper remark. We consider each of these arguments in turn.
1. Sufficiency of the Evidence
We turn first to Mr. Anderson's claim that there was insufficient evidence to convict him under 21 U.S.C. sec. 841(d)(2). A defendant who challenges a conviction on the ground of insufficient evidence bears a heavy burden. United States v. Hubbard, 22 F.3d 1410, 1414 (7th Cir. 1994), cert. denied, 115 S. Ct. 762 (1995). In reviewing for sufficiency of the evidence, we consider "the evidence and accompanying inferences in the light most favorable to the government. We shall not disturb the jury's finding unless the record is devoid of any evidence from which a jury could find guilt beyond a reasonable doubt." United States v. Sandoval-Curiel, 50 F.3d 1389, 1392 (7th Cir. 1995) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
Mr. Anderson argues that the government was required to present direct evidence either that a manufacturing facility existed or that Mr. Anderson "himself intended to manufacture PCP." Appellant's Br. at 16. However, the government was not required to prove that the piperidine Mr. Anderson possessed actually was used to manufacture PCP, United States v. Green, 779 F.2d 1313, 1319 (7th Cir. 1985), and was entitled to prove its case using circumstantial evidence, see United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994) (discussing means of establishing possession under section 841(d)(2)). *fn2 At trial, Mr. Anderson admitted that he possessed over 20 kg of piperidine, as well as the other chemicals and equipment. The government introduced evidence that Mr. Anderson submitted false certifications to two chemical supply companies in order to procure these materials; he claimed the chemicals would be used by a non-existent company and would be handled by a certified chemist. The evidence indicated that Mr. Anderson once reduced the amount of piperidine he had requested in a particular order to avoid having a report sent to the DEA. It also demonstrated that he had the chemicals shipped, not to an industrial park as he claimed, but to a private mail box firm located many miles from his residence. Melvin Schabilion, a group supervisor of the DEA's Clandestine Lab Enforcement Team, testified that PCP traffickers and manufacturers often order chemicals from multiple suppliers and route orders to fictitious addresses to avoid detection. Agent Schabilion also noted that approximately ninety-five percent of the items Anderson acquired could be used, in combination, to manufacture only PCP. DEA forensic chemist Terry Dal Cason identified nine distinct periods in which Mr. Anderson obtained nearly all the ingredients needed to manufacture PCP. He also explained that, although Anderson never ordered hydrochloric acid, this substance could be purchased at a local hardware store or even derived from toilet bowl cleaner. Rick Mitchem, a college friend of Mr. Anderson, testified that, on one occasion, third parties threatened to shoot Mr. Anderson's business associate because ...