United States v. John Bewig ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2080EM
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United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the Eastern District
* of Missouri.
John P. Bewig, *
*
Appellant. *
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Submitted: November 17, 2003
Filed: December 24, 2003
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Before RILEY, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
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RICHARD S. ARNOLD, Circuit Judge.
John P. Bewig appeals from his conviction for conspiring to distribute a list I
chemical, pseudoephedrine, having reasonable cause to believe the listed chemical
would be used to manufacture a controlled substance, in violation of 21 U.S.C.
§§ 846 and 841(c)(2). He raises numerous arguments, including insufficiency of
evidence, improper admission of evidence, and that the statute is unconstitutionally
vague. Alternatively, he argues that should his conviction stand, he was improperly
sentenced.
For the reasons stated below, we affirm the conviction and the sentence
imposed.
I.
Beginning July 30, 2002, the Drug Enforcement Agency (DEA) began
investigating the One Stop/Citgo gas station owned and managed by Mr. Bewig. The
investigation began after Pam Hart, an employee of Wease Distributing, alerted the
DEA that Mr. Bewig was ordering large amounts of generic pseudoephedrine. Ms.
Hart had previously notified Mr. Bewig that his station ordered much greater
quantities of pseudoephedrine than the average station. She alerted Mr. Bewig to the
use of pseudoephedrine in the production of methamphetamine and advised him that
retail sales of products containing pseudoephedrine should be limited to three units
per customer.
The DEA investigation uncovered the following facts. First, Mr. Bewig, as
owner and manager of the station, was solely responsible for ordering
pseudoephedrine from the distributor. Second, although Mr. Bewig nominally
imposed a three-unit limit on the sale of pseudoephedrine products, that rule was
often disregarded. Third, Veronica Heise, a clerk at the station and co-conspirator,
sold pseudoephedrine to co-conspirator David Combs1 in excess of the three-unit
maximum on numerous occasions. Fourth, Mr. Bewig told investigators he knew
pseudoephedrine was used in the production of methamphetamines. Fifth, at the
request of a patron, Kimberly Hill, Mr. Bewig sold case amounts2 of
pseudoephedrine, far in excess of the three-unit limit. Sixth, Mr. Bewig knew that he
ordered and sold substantially more pseudoephedrine than other gas stations.
1
Ms. Heise and Mr. Combs were indicted along with Mr. Bewig. Both pleaded
guilty and testified against Mr. Bewig at trial.
2
A case contains ten units.
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Mr. Bewig was indicted on October 31, 2002, for knowingly and intentionally
conspiring with parties known and unknown to distribute pseudoephedrine having
reasonable cause to believe that the chemical would be used to manufacture a
controlled substance. He was found guilty on January 23, 2003, and given a twenty
year prison sentence on April 18, 2003. This appeal followed.
II.
Mr. Bewig's appeal for insufficient evidence raises an interesting question of
law. Essentially, he argues that a seller can never be a member of a conspiracy when
his relationship to the alleged conspiracy is only that of a seller, and that a second
agreement, beyond the sales transaction, is needed to support a conspiracy conviction.
He relies on United States v. Falcone, 311 U.S. 205 (1940), for support. We agree
with his argument but find that a second agreement had been reached.
In Falcone, the Supreme Court held: "[t]hose having no knowledge of [a]
conspiracy are not conspirators . . . and one who without more furnishes supplies to
an illicit dealer is not guilty of conspiracy even though his sale may have furthered
the object of a conspiracy to which the [illicit dealer] was a party but of which the
supplier had no knowledge." Id. at 210-11. The Court later clarified its holding,
explaining: "that one does not become a party to a conspiracy by aiding and abetting
it, through sales of supplies or otherwise, unless he knows of the conspiracy; and the
inference of such knowledge cannot be drawn merely from knowledge the buyer will
use the goods illegally." Direct Sales Co. v. United States, 319 U.S. 703, 709 (1943).
Our Circuit requires that there "be some understanding 'beyond' [a sales agreement]
before the evidence can support a conviction for a conspiracy." United States v.
West, 15 F.3d 119, 121 (8th Cir. 1994). For example, the sale of drugs from one drug
dealer to another, even on repeat occasions, does not, standing alone, constitute
participation in a larger drug conspiracy. Ibid. There must be some evidence that
drugs were purchased to be resold. Ibid.-3-
In searching the evidence presented at trial for a second, illicit agreement, it is
important to understand that while the language used in Falcone, Direct Sales, and
West suggests a subjective analysis, we actually apply an objective standard. To meet
its burdens of production and persuasion in charging a defendant with conspiracy, the
government is not required to prove an express understanding between the
conspirators. United States v. Cabrera, 116 F.3d 1243, 1245 (8th Cir. 1997). Instead,
"the government need only establish a tacit understanding between the parties, and
this may be shown wholly through the circumstantial evidence of [the defendant's]
actions." United States v. Fregoso, 60 F.3d 1314, 1325 (8th Cir. 1995). Borrowing
from one of our recent contract-law cases, we look "to the parties' objective
manifestations of intent and interpret those manifestations as a reasonable person
would." Visiting Nurses Ass'n, St. Louis v. VNAHealthcare, Inc., 347 F.3d 1052,
1054 (8th Cir. 2003). Thus, while a mere sales transaction, standing alone, cannot
support a conspiracy conviction, a sales transaction placed in context can, if a
reasonable person would impute a second conspiratorial agreement to the parties'
actions and the circumstances surrounding the sales transaction.
We believe a reasonable jury could have concluded that Mr. Bewig entered into
a conspiratorial agreement with parties known and unknown to distribute
pseudoephedrine for the purposes of making illegal narcotics. Our analysis is not
driven by a search for a smoking gun, but instead our conclusion is reached by an
objective analysis of certain key facts.
First, it is of consequence to us that pseudoephedrine has limited legal uses.
The Supreme Court has instructed that the type of good sold should have some effect
on the conspiratorial calculus. Direct Sales, 319 U.S. at 710. This is true because
"not [all articles of commerce] have inherently the same susceptibility to harmful and
illegal use." Ibid. Pseudoephedrine is an over-the-counter decongestant. Unlike
sugar, if you do not have a cold, a headache, or sinus problems there are remarkably
few things you can do with pseudoephedrine except make illegal narcotics. Sales of
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such a limited product to routine customers, and in bulk, suggest that Mr. Bewig was
acting merely as the "legitimate" front to an organized drug scheme.
Second, Mr. Bewig knew that pseudoephedrine was used to make
methamphetamine. While knowledge of a potential use is not in and of itself
dispositive, it can be dispositive when combined with other facts. Id. at 709.
Third, Mr. Bewig's distributor informed him that he was ordering
pseudoephedrine at a disproportionately high rate. Thus, unlike single transactions
for staple goods, or goods susceptible to multiple legal uses, Mr. Bewig's
disproportionately high sales of pseudoephedrine suggest agreement in the illegal
endeavor. In the words of Learned Hand, a would be conspirator "must in some sense
promote [the] venture himself, make it his own, have a stake in its outcome." United
States v. Falcone, 109 F.2d 579, 581 (2d Cir.), aff'd, 311 U.S. 211 (1940). By making
pseudoephedrine available in large amounts after gaining knowledge of its likely end,
Mr. Bewig did just that. He knowingly made the supplying of a necessary ingredient
to illegal drug production a continuing part of his business; he became part of the
venture.
Fourth, the nature of the sales transactions suggests an illegal goal. Mr. Bewig
had in the past sold pseudoephedrine in case amounts. While he nominally had a
three-unit limit, pseudoephedrine was continually sold in larger than three-unit
amounts, or to the same patron over a period of a day in multiple three-unit sales. Cf.
United States v. Prieskorn, 658 F.2d 631, 634-35 (8th Cir. 1981) (between dealers,
a presumption of participation in a larger drug conspiracy can arise from amount of
drugs sold). While there was some dispute as to Mr. Bewig's knowledge of these
transactions, a reasonable jury could have imputed the knowledge to him, as he was
solely responsible for reordering the pseudoephedrine once the station's supply was
exhausted.
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In short, we cannot say as a matter of law that there was insufficient evidence
to support the conviction. A reasonable jury could have concluded that Mr. Bewig
not only sold pseudoephedrine with the knowledge that it would be made into
methamphetamine but agreed to become part of that illegal end. A man cannot defeat
his conviction by hiding behind an unreasonable veil of ignorance.
III.
Mr. Bewig also argues that the District Court3 erred in admitting the testimony
of Kimberly Hill. Before the date the indictment alleges the conspiracy began, Ms.
Hill purchased from Mr. Bewig case quantities of pseudoephedrine. Mr. Bewig
argues that because the substance of Ms. Hill's testimony spoke merely to his
knowledge that sales were taking place, her testimony did not bear on any issues in
the case. We disagree.
Evidence of prior acts is admissible if it is relevant to a material issue. United
States v. Jones, 255 F.3d 916, 919 (8th Cir. 2001). Mr. Bewig's argument
misconstrues the implications of knowledge evidence. In essence, he argues that
because the government must show more than mere knowledge, evidence of
knowledge is immaterial. As discussed above, however, knowledge, placed in
context, and with other evidence, can speak to agreement. Thus, evidence of
knowledge is material to the ultimate issue of conspiratorial agreement.
Since we find that Ms. Hill's testimony spoke to a material issue, and its
prejudicial effect did not outweigh its probative value, we cannot say that the District
Court's admission of the evidence was in error.
3
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
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IV.
As a last attempt to reverse his conviction, Mr. Bewig contends that 21 U.S.C.
§ 841(c)(2)4 does not provide objective criteria by which individuals may know what
is illegal, and is thus unconstitutionally vague. Further, he argues that the statute
places an unconstitutional burden on defendants to read the purchaser's minds and
predict the future. We disagree.
As a general matter, "the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited . . .." Kolender v. Lawson, 461 U.S. 352,
357 (1983). We find that Section 841(c)(2) satisfies this standard. The section
requires a person to possess or to distribute certain identified chemicals knowing, or
having reason to know, that the chemicals will be used in the production of illegal
narcotics. The section does not punish the inadvertent sale of a listed chemical to an
illegal drug manufacturer, but instead punishes only those sales where the seller
understands, or should reasonably understand, that the chemical will be used illegally.
Thus, we find Mr. Bewig's argument without merit. The statute does not require a
4
21 U.S.C. § 841(c):
Any person who knowingly or intentionally –
...
(2) possesses or distributes a listed chemical knowing, or having
reasonable cause to believe, that the listed chemical will be used
to manufacture a controlled substance . . .
shall be fined in accordance with Title 18 or imprisoned for not
more than 20 years in the case of a violation of paragraph (1) or
(2) involving a list I chemical . . ..
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defendant to read a purchaser's mind. Instead, it instills punishment only when a
defendant knows or should know beforehand the illegal end his sale will produce.
Cf. Posters 'n' Things, Ltd. v. United States, 511 U.S. 513, 524 (1994) ("It is sufficient
that the defendant be aware that customers in general are likely to use the
merchandise with drugs."). A reasonable person would understand what conduct is
prohibited by this standard, and could discern what activities to forgo so as to comply
with the law. The statutory section is not unconstitutionally vague.
V.
We turn to Mr. Bewig's appeal from the District Court's sentence.
He first argues that the District Court erred in determining that he illegally
distributed three kilograms or more of pseudoephedrine. He claims that because it
is impossible to know which of his sales were legal and which were part of the
conspiracy, there is no way of knowing what quantity of pseudoephedrine was
ultimately used in the production of methamphetamine. Therefore, he argues, the
District Court erroneously assigned him 38 as a base offense level. See U.S.
Sentencing Guidelines Manual § 2D1.11(d) (2003) (the base offense level for three
kilograms or more of pseudoephedrine is 38). We disagree.
In sentencing a defendant on a drug charge where no drugs were seized, the
Sentencing Guidelines direct the district court to approximate the quantity of drugs
attributable to the defendant. U.S. Sentencing Guidelines Manual § 2D1.1 n.12
(2003). "We review the district court's determination of drug quantities attributable
to [the defendant] for clear error," United States v. Granados, 202 F.3d 1025, 1028
(8th Cir. 2000), and we will reverse "only if the entire record definitely and firmly
convinces us that a mistake has been made." United States v. Sales, 25 F.3d 709, 711
(8th Cir. 1994).
-8-
Between January and July 2002, a period covered in the charged conspiracy,
Mr. Bewig ordered 3,362 units of generic pseudoephedrine from the distributor. Each
unit contains 24 pills. Each pill contains 60 milligrams of pseudoephedrine. Thus,
during part of the charged conspiracy, Mr. Bewig ordered 4.841 kilograms of
pseudoephedrine – more than five times the amount the distributor sold to any other
company. Assuming that we treat all the sales of pseudoephedrine to the distributor's
second leading purchaser as legal, and discount the purchases made by Mr. Bewig by
that amount, reducing the total amount he ordered by one-fifth, we still end up with
over 3.78 kilograms of pseudoephedrine – an amount in excess of the three-kilogram
requirement of U.S. Sentencing Guidelines Manual § 2D1.11(d) for the base
sentencing level of 38. Consequently, we cannot say that the District Court's
approximation and assignment of offense level was clearly erroneous.
The defendant next argues that the District Court erred in imposing a two-level
enhancement pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c) for Mr.
Bewig's leadership role in the charged conspiracy. We again disagree.
To justify the leadership enhancement, a defendant need only have managed
or supervised at least one other participant in the criminal conspiracy. United States
v. Barrett, 173 F.3d 682, 684 (8th Cir. 1999). "[T]he enhancement may apply even
if the management activity was limited to a single transaction." United States v.
Garrison, 168 F.3d 1089, 1096 (8th Cir. 1999). The evidence presented at trial
showed that Mr. Bewig was solely responsible for ordering pseudoephedrine from the
distributor – a management activity. Further, on at least one occasion a station
cashier sought and received permission from Mr. Bewig to sell pseudoephedrine to
co-conspirator Mr. Combs and his wife in excess of the nominal three-unit limit – an
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act of supervision. Therefore, we can not say that the District Court erred in imposing
a two-level enhancement for a leadership role in the charged conspiracy.
Affirmed.
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