The opinion of the court was delivered by: Savage, J.
Contending that there was insufficient evidence to support the jury's finding that he intended to manufacture at least 500 grams of methamphetamine, defendant, John Herron, has moved for judgment of acquittal. Specifically, he maintains that no reasonable jury could find that he could have manufactured 500 grams or more of methamphetamine from the amount of the precursor chemical he was using. In short, he argues that the evidence was insufficient to sustain a conviction for violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and he is entitled to a judgment of acquittal on the count charging that offense. The government counters that the testimony of a chemist establishes otherwise.
According to the government's expert, Ephedrine produces a nearly 1:1 yield ratio to methamphetamine. Thus, the government argues that because its undercover informant provided Herron with what was supposed to be one kilogram of substitute Ephedrine, a rational trier of fact could conclude that he intended to produce as much as 900 grams of methamphetamine.
Herron agrees that pure Ephedrine can produce an almost 1:1 yield ratio to methamphetamine. But, he contends, the government failed to provide any evidence, direct or indirect, that he believed the substitute chemical was pure Ephedrine. According to Herron, the evidence establishes that he believed he was receiving crushed Sudafed pills which, according to Patrick's testimony, contain only three percent Ephedrine. Because one kilogram of Sudafed contains under 50 grams of Ephedrine, Herron could not have expected to produce more than 50 grams of methamphetamine.
At trial, the government presented the testimony of Peter Sarris, the police officer who directed the confidential informant and gave him the fake precursor chemical necessary to produce the methamphetamine; Anthony Marzullo, the informant whose conversations with Herron regarding their plan to manufacture methamphetamine were recorded; and, Rebecca Patrick and Diana Sanchez, two forensic chemists who explained how methamphetamine is made and what ingredients are necessary. The Marzullo-Herron conversations were played for the jury.
The government's plan was to dupe Herron into thinking that he was receiving enough Ephedrine to produce almost one kilogram of methamphetamine. Implementation of the plan fell short of the government's expectations. Instead of making it clear that he was supplying Herron with Ephedrine, Marzullo referred to the precursor as Sudafed. The difference between these two chemicals is critical because each produces substantially different amounts of methamphetamine.
Following a two day trial, the jury found Herron not guilty of knowing and intentional possession of a List I chemical, methylamine, with intent to manufacture methamphetamine*fn1 ; and guilty of attempt to manufacture methamphetamine.*fn2 As part of its verdict, the jury responded affirmatively to a special interrogatory asking whether the government had proven beyond a reasonable doubt that the amount that the defendant attempted to manufacture was 500 grams or more.
After viewing the evidence in the light most favorable to the government, we conclude that there was insufficient evidence from which the jury could have concluded beyond a reasonable doubt that Herron intended to manufacture 500 grams or more of methamphetamine. However, there was sufficient evidence to support a conviction for the lesser included offense of attempt to manufacture an unspecified quantity of a controlled substance, methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Therefore, we shall grant the motion to the extent it requests a judgment of acquittal on the aggravating weight element and deny it to the extent it seeks outright acquittal.
Under Fed. R. Crim. P. 29, the Court must "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). The standard is whether there is sufficient evidence in the record, viewed in the light most favorable to the prosecution, from which a "rational trier of fact could have found the defendant guilty beyond a reasonable doubt and if the verdict is supported by substantial evidence." United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006) (citing United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)). Only "where the prosecution's failure is clear" can a court grant a motion for acquittal. United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)). In viewing the evidence in the context of Rule 29, we may not weigh the credibility of witnesses and the evidence. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005).
Because the quantity of the controlled substance at issue under § 841 determines the potential sentencing range according to a schedule of escalating penalties, it must be proven beyond a reasonable doubt as if it were a statutory element of the offense. See United States v. Lacy, 446 F.3d 448, 453 (3d Cir. 2006) ("[D]rug quantity . . . must be treated as [an] element of a section 841 possession with intent to distribute offense."). Thus, the government had to prove beyond a reasonable doubt the quantity of methamphetamine Herron intended to make. United States v. Barbosa, 271 F.3d 438, 452-53 (3d Cir. 2001).
The issue here is whether the government presented sufficient evidence from which the jury could have concluded that Herron had the requisite intent to produce 500 grams or more of methamphetamine. The government's argument that it did rests on the testimony of Sarris that he provided Marzullo one kilogram of fake Ephedrine; the testimony of Patrick that one kilogram of Ephedrine will yield 500 to 900 grams of methamphetamine; and excerpts of recorded conversations between Herron and Marzullo discussing their plan to make methamphetamine from the ingredients Marzullo was providing. On the basis of this evidence, the government contends that it proved that Herron intended to produce at least 500 grams of methamphetamine from the substitute precursor chemical he received from Marzullo. This contention is based on the premise that Herron believed he was receiving Ephedrine, rather than Sudafed, from Marzullo. Thus, the critical question is whether there was sufficient evidence from which the jury could have concluded that Herron understood he was getting one kilogram of Ephedrine.
Herron contends that the record is devoid of any evidence that he believed the substitute chemical was pure Ephedrine. He argues, to the contrary, that it showed he believed Marzullo gave him crushed Sudafed pills. Relying on Patrick's testimony, he contends that he could not have produced 500 grams or more of methamphetamine from the Sudafed. Herron points to the chemist's testimony where she explained that a 1:1 yield ratio assumes using pure Ephedrine. According to Patrick, where the Ephedrine is extracted from Sudafed, the yield ratio drops to .03 kilograms (30 grams) of methamphetamine from one kilogram of Sudafed. Therefore, according to Herron, the government failed to prove an essential element of the offense, that is, he knowingly or intentionally attempted to manufacture 500 grams or more of methamphetamine.
The only evidence regarding what Herron believed he was using - pure Ephedrine or Sudafed - as a precursor to manufacturing methamphetamine comes from the conversations recorded between Marzullo and Herron. These conversations are summarized, in relevant part, as follows:
CW (Marzullo): He's gonna get the pills.
HERRON: What's the inactives? You know . . . you don't know?
CW: Supposed to be just the two inactive ingredients.
CW: It's the hydrochloride . . . it's the ephedrine.
HERRON: REDACTED CW: Huh?
HERRON: REDACTED CW: Well, these are supposed to be the Sudafed pills that we need.
HERRON: The white ones huh?
HERRON: They got provadone in it?
CW: No . . . Just the two . . .
CW: Yeah, just the two inactive ingredients.
HERRON: I mean, they're right, right?
HERRON: If they're right, then there's no problem.
CW: Yeah, they are. Whoever it is that's givin' them to him knows what we need. He knows what we need. Whatever the price . . . not ...