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United States v. Khattab

August 5, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MUHAMMAD KHATTAB, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 497-Matthew F. Kennelly, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED JUNE 5, 2008

Before POSNER, KANNE, and SYKES, Circuit Judges.

Muhammad Khattab was convicted after a bench trial on one count of attempting to possess or distribute pseudoephedrine with knowledge, or a reasonable cause to believe, that it would be used to manufacture methamphetamine. See 21 U.S.C. § 846; see also id. § 841(c)(2). Khattab claims that the evidence presented at trial was insufficient to sustain his conviction. We disagree, and affirm.

I. HISTORY

In early 2005, Muhammad Khattab began negotiating with Khalid Hassan for the purchase of a large quantity of pseudoephedrine. Unbeknownst to Khattab, Hassan was a confidential informant for the Drug Enforcement Agency (DEA), and recorded his telephone conversations with Khattab. On April 22, 2005, Khattab met in person with Hassan and another man at an auto-parts store. Hassan wore a recording device, which picked up a conversation in Arabic between the three men about the prospective sale. Khattab communicated with Hassan on several other occasions, all of which were monitored and recorded by the government. Over the course of these conversations, Hassan told Khattab that he had a contact who could sell Khattab 100 boxes of pseudoephedrine.

On May 31, 2005, Khattab and Hassan scheduled a meeting with DEA Agent James Jones, who posed as a deliveryman for Hassan's fictitious pseudoephedrine supplier. Khattab and Hassan drove to the site where they were supposed to meet Jones, but Khattab became nervous because of the potential presence of law enforcement officers in the area, and cancelled the meeting. Khattab and Hassan then drove around and rescheduled the meeting for a different location later that same day. The three men met on the South Side of Chicago in an alley behind a gas station, where Agent Jones opened the back of his van and showed Khattab 100 boxes of pseudoephedrine. Khattab gave Jones $3,000 in cash-double the price that Jones had paid a wholesale supplier for the drugs. Khattab began moving the pseudoephedrine from Jones's van to his own vehicle when other DEA agents, who had been conducting surveillance at the scene, emerged and identified themselves.

Khattab panicked and attempted to flee, but the agents apprehended him about 20 yards away.

Khattab was indicted on one count of attempting to knowingly or intentionally possess or distribute pseudoephedrine with knowledge, or a reasonable cause to believe, that it would be used to manufacture a substance containing detectable amounts of methamphetamine. See id. § 846; see also id. § 841(c)(2). Khattab waived his right to a jury trial, and in late January 2007 the case proceeded to a bench trial.

At trial, the government introduced testimony from DEA Special Agent Wilfred Taylor, who stated that pseudoephedrine is an over-the-counter drug that is legally used to relieve respiratory congestion. Taylor explained that pseudoephedrine can be converted into methamphetamine, an illicit narcotic that users ingest by sniffing the powder, smoking a mixture containing the powder, or injecting the drug intravenously. Taylor testified that because pseudoephedrine is the key ingredient in manufacturing methamphetamine, it has a high likelihood of being "diverted" for illegal purposes. The risk of diversion has led the DEA to impose many restrictions on the packaging, sale, and purchase of pseudoephedrine. For example, although pseudoephedrine was previously available for retail in bottles containing loose pills, the drug is now sold at the retail level only in "blister packs," with each pill individually wrapped. Taylor indicated that wholesalers still sell cases of pseudoephedrine in loose, bottle form-each case contains 144 bottles of 60 pills, or 8,640 pills per case-but the wholesalers need a DEA license to import, export, or distribute cases.

Taylor also testified about his knowledge of methamphetamine production. He explained that some recipes for manufacturing methamphetamine call for the use of bulk amounts of 60 milligram pseudoephedrine tablets, which leads methamphetamine producers to prefer bottles of loose pills over individually wrapped blister packs because the loose pills allow for more rapid processing. Taylor also noted that methamphetamine producers use the number "8,640" as a code word referring to a bulk amount of pseudoephedrine. And Taylor explained that Khattab was arrested while attempting to possess 57,600 tablets of pseudoephedrine-a bulk amount not intended for personal use that "[could] treat 2,000 people [for respiratory congestion] over a seven-day period."

Taylor testified that in his experience investigating the illicit uses of pseudoephedrine, he had never discovered any legitimate use for bulk quantities of pseudoephedrine that are sold outside of DEA licensing restrictions. Two other DEA witnesses elaborated that they were unaware of any illegal black-market uses of bulk amounts of pseudoephedrine, apart from the production of methamphetamine. The government then presented testimony from Agent Jones and two other DEA agents concerning the attempted drug sale that led to Khattab's arrest.

Additionally, the government introduced transcripts containing English translations of eleven recorded telephone conversations and the April 22 meeting. Agent Jones laid foundation for the admission of the transcripts by identifying the voice on the recordings as Khattab's voice. The government also called a linguist, Bassam Abbasi, who testified that the government transcripts reflected an accurate translation of the Arabic dialogue in the recordings. The transcripts were admitted into evidence.

The transcript of the April 22 meeting revealed several statements, made either by Khattab or in his presence, that referred to extracting something from pseudoephedrine to create a different substance: "they extract those substances"; "[d]o they extract the same amount from this substance, as from the other substance that they bring from . . . Canada?"; "they'll mix it with the baking soda"; "[t]hey dissolve the medicine, and they extract this substance from it, and they mix it up." The transcript attributed the last statement about dissolving the medicine to Khattab. The dialogue from the meeting also contained references to the resulting substance made from the extracted pseudoephedrine as a narcotic: "the narcotic substances"; "it's a narcotic"; "half and half with the . . . narcotic, uh, substance." In one exchange, Hassan and the unidentified man compared the resulting narcotic substance to ...


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