Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

No. 89-10318.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and DAVID R. THOMPSON, Circuit Judges, and C.A. MUECKE,^**  Senior District Judge.

John Berry appeals his conviction for conspiracy to manufacture methamphetamine, his sentence, the admission of one piece of evidence, and the district judge's refusal to instruct the jury on possession as a lesser included offense to manufacture of methamphetamine. We affirm.

I. The evidence was sufficient to convict on the conspiracy count.

We review the evidence, including circumstantial evidence and inferences therefrom, in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Talbert, 710 F.2d 528, 532 (9th Cir. 1983), cert. denied, 464 U.S. 1052 (1984). A rational trier of fact could find beyond a reasonable doubt that there was sufficient involvement and participation by third parties for an agreement to be found to support a conspiracy conviction. Cf. United States v. Bailey, 607 F.2d 237, 243 (9th Cir. 1979), cert. denied, 455 U.S. 934 (1982). That the identity of the other conspirator(s) was not known does not invalidate the conviction. See United States v. Valles-Valencia, 823 F.2d 381, 382 (9th Cir. 1987).

II. The admission into evidence of a passage from the pamphlet "P-2-P Synthesis" was not error.

The admitted passage was not objected to at trial and was not plain error to admit, see United States v. Rogers, 769 F.2d 1418, 1425 (9th Cir. 1985). The booklet, of which Berry admits possession may properly be deemed relevant in its subject matter of "how to" manufacture P-2-P, a main ingredient in methamphetamine; possession of the book can be considered by the tier of fact as probative on the question of whether Berry was engaged in the charged conduct. See Fed.R.Evid. 401.

III. The district judge did not err by refusing to instruct the jury on possession as a lesser included offense to the manufacturing count.

The district judge did not abuse his discretion, see United States v. Linn, 880 F.2d 209, 217 (9th Cir. 1989), in not giving Berry's requested jury instruction that possession is a lesser included offense to manufacture. If the lesser offense requires an element not required of the greater offense, it is not a lesser included offense. See Schmuck v. United States, 109 S. Ct. 1443, 1450 (1989). The elements required to show manufacturing or attempt to manufacture are that the defendant knowingly and intentionally manufactured or attempted to manufacture the controlled substance. See United States v. Owens, 904 F.2d 411, 413 (8th Cir. 1990). Possession requires a showing that the defendant knowingly or intentionally possessed a controlled substance. See 21 U.S.C. § 844.

We have considered defendant's contention that there cannot be manufacture without possession. The difficulty with his argument is that the elements of possession are not directly required for a conviction for manufacture. Furthermore, under the facts of this case no rational jury could find Berry guilty of the lesser offense and acquit him of the greater offense. See Keebler v. United States, 412 U.S. 205, 208 (1973).

IV. Use of Berry's capacity for production was a proper application of the sentencing guidelines.

United States v. Putney, No. 89-10504, slip op. 6567 (9th Cir. June 29, 1990), establishes the validity of using the capacity of a defendant's laboratory in determining the sentencing guidelines' base offense level. The determination of that capacity is a factual question to be determined by a preponderance of the evidence. See United States v. Wilson, 900 F.2d 1350, 1353-55 (9th Cir. 1990). We review for clear error. Id. The district judge did not clearly err in this factual determination.

We recognize that Berry did not have all the materials on hand to produce twenty-eight pounds of methamphetamine, the amount that formed the basis for his sentence. The district judge found that the materials lacking were insubstantial and not difficult to get. He was persuaded because Berry had on hand more than enough of the difficult-to-obtain materials to produce the twenty-eight pounds of methamphetamine. The court drew a reasonable inference from the evidence. It was reasonable to find that Berry would in fact obtain those materials. It was not unreasonable to find that the harder to obtain materials would form the upper limit on the amount that would be produced; if Berry had not planned to produce the twenty-eight pounds, he would not have purchased the large quantities in the first place.

AFFIRMED.