Unpublished Disposition, 898 F.2d 157 (9th Cir. 1990)

MEMORANDUM^* 

Bruce Barber appeals from his conviction, following a bench trial, for manufacturing methamphetamine in violation of 21 U.S.C. § 841(a) (1), and for manufacturing a controlled substance within one thousand feet of a public elementary school, in violation of 21 U.S.C. § 845a(a). Barber contends that the indictment brought against him was defective because it charged methamphetamine in powder form under Schedule II of 21 U.S.C. § 821, rather than under Schedule III. Barber also maintains that the evidence adduced by the government at trial was insufficient to support the verdict. We affirm.

The Director of the Bureau of Narcotics and Dangerous Drugs (BNDD) rescheduled all forms of methamphetamine to Schedule II in 1971. See 36 Fed.Reg. 12734 (1971). Barber asserts that BNDD lacked authority at that time to reschedule controlled substances and did not make the required factual findings. Barber's challenge to the indictment is identical to one recently considered by this court in United States v. Kendall, 887 F.2d 240 (9th Cir. 1989) (per curiam). In United States v. Kendall, we held that the Attorney General had delegated his authority to reschedule controlled substances to BNDD and that the BNDD had properly rescheduled methamphetamine. Id. at 241. For the reasons stated in United States v. Kendall, we reject Barber's claim.

There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 473, 495 (9th Cir. 1988). The government may prove its case by circumstantial evidence and the inferences drawn from that evidence. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir. 1989).

The elements of the crimes for which Barber was charged are set out in Title 21. Section 841(a) (1) makes unlawful the knowing or intentional manufacture of a controlled substance by any person. 21 U.S.C. § 841(a) (1) (1988). Section 845(a) (a) makes unlawful the manufacture of a controlled substance within one thousand feet of a public elementary school. 21 U.S.C. § 845a(a) (1988).

The evidence established that methamphetamine was in the process of being manufactured in the trailer. The northwest room of the trailer contained all of the chemicals and equipment needed for the manufacture of methamphetamine, with the exception of ephedrine. The government's expert witness testified that the absence of ephedrine in an ephedrine-based methamphetamine laboratory was not unusual, as the chemical is used up in the manufacturing process. When the officers entered the room, a propane stove on the floor was lit and was being used to dry chemicals characteristic of an intermediate stage of methamphetamine production. Several jars of liquids representing intermediate stages of methamphetamine manufacturing were also found in the room. The officers who entered the room testified that they recognized smells emanating from the room as characteristic of methamphetamine production.

Barber argues that " [t]his case shares some characteristics with United States v. Chesher, 678 F.2d 1353 (9th Cir. 1982)." Appellant's Opening Brief at 10. Barber asserts that, in United States v. Chesher, "the conviction was reversed." Id. Barber's comment is misleading. We did not reverse in United States v. Chesher for insufficiency of the evidence to support a finding of guilt. We reversed and remanded for an evidentiary hearing to determine whether the evidence seized pursuant to a warrant should have been suppressed because of deliberate or reckless falsity in affidavit filed in support of a search warrant. Id. at 1360-1364. The majority in United States v. Chesher concluded, however, that the evidence was sufficient to sustain the finding of guilt. Id. at 1358.

The government presented a greater quantum of evidence connecting Barber to the methamphetamine laboratory than the stipulated facts found sufficient in United States v. Chesher to support a finding of guilt. The officers observed Barber working inside the room during a one and a half hour period. Barber's personal effects were found in the room. Barber's fingerprints were found on the jars containing methamphetamine precursors. Lists of chemical needed for the production of the substance and a diagram showing how to make a critical part of a methamphetamine hydrogenator were found in a notebook on the rear seat of a nearby car on which Barber had been observed working. Viewed in the light most favorable to the government, this evidence establishes that Barber was engaged in the production of methamphetamine in the trailer.

Barber does not dispute that the trailer was within one thousand feet of the Orangevale Elementary School. We therefore find the evidence sufficient to sustain Barber's conviction for violating 21 U.S.C. §§ 841(a) (1) and 845a(a).

The district court imposed a $100 penalty assessment on Barber pursuant to 18 U.S.C. § 3013. We declared Sec. 3013 unconstitutional in United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). Therefore, we vacate the special assessment imposed by the district court.

The judgment of conviction is AFFIRMED.

The special assessment is VACATED.