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UNITED STATES v. CONN

January 30, 1995

UNITED STATES OF AMERICA
v.
DENNIS CONN and PATRICK WILLIAM SWINT



The opinion of the court was delivered by: RAMBO

 Defendants Conn and Swint have filed motions for judgment of acquittal or, in the alternative, a new trial pursuant to Federal Rules of Criminal Procedure 29(c) and 33. The issues have been briefed by both parties and the motion is ripe for disposition.

 Background

 The overwhelming majority of the evidence introduced at trial concerned a single sale of phenylacetic acid, a precursor chemical for the production of methamphetamine. The evidence included recordings of telephone conversations between Conn and an undercover government informant, and between Swint and the informant (who was Defendant Swint's brother), in which the parties arranged the details of the phenylacetic acid sale. The transfer from the informant to Patrick Swint of ten 500 gram bottles of the chemical took place in a furtive fashion, and was captured on police surveillance video. The delivery of the phenylacetic acid from Swint to Conn was observed by undercover government agents, who testified as to their observations at trial. Evidence was introduced suggesting that Conn paid Swint $ 5000 for the chemical, an exorbitant price as compared with the approximately $ 200 cost of the same quantity when purchased at a chemical supply store, where recording requirements apply. Furthermore, the taped telephone conversations revealed some communication between Defendant Conn and the informant contemplating another sale of phenylacetic acid at some point in the future. The government introduced no evidence attributing other chemicals or laboratory equipment necessary in the production of methamphetamine to either defendant.

 Defendants now attack their conviction on three independent grounds. First, they contend that their convictions were contrary to law because they were improperly charged under 21 U.S.C. §§ 841(a)(1) and 846. Second, Defendants maintain that their convictions were based on insufficient evidence. Finally, they argue that the court committed reversible error when it admitted into evidence certain tape recorded conversations in which Defendants participated. The court will address each of these issues in turn.

 Discussion

 I. Propriety Of Charging Defendants Under 21 U.S.C. §§ 841(a) and 846

 Defendants contend that their conviction is contrary to law because the government improperly charged them under 21 U.S.C. §§ 841(a) and 846. Section 841(a)(1) provides:

 
(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.

 21 U.S.C. § 841(a)(1). Section 846 further states:

 
Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

 21 U.S.C. § 846. Defendants argue that the prosecutor did not have the authority to proceed against them under §§ 841(a) and 846 because their crime is subsumed by § 841(d). Section 841(d) proscribes the conduct of:

 
(d) Any person who knowingly or intentionally--
 
(1) possesses a listed chemical with intent to manufacture a controlled substance except as ...

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