Tuesday, November 21, 2006

Motion to Extend Appeal Deadline Functioned as Notice of Appeal; Questionable Meth Convictions Affirmed

United States v. Cantwell, No. 05-41027 (5th Cir. Nov. 20, 2006) (Barksdale, Benavides, Owen)

A, B, and C steal some meth ingredients. They plan to take those ingredients to a meth cook, and trade the ingredients for some finished meth. Are they guilty of conspiring to manufacture meth and of aiding and abetting the manufacture of meth, both of which require an intent to manufacture meth? On the facts here the court says "yes." But the court's cursory analysis doesn't confront what seems to be the critical issue: can the form of payment in a drug transaction convert an intent to purchase into an intent to manufacture?

Cantwell, Rice, and Reagan were pulled over for speeding between Victoria and Corpus Christi, Texas. The officer arrested them when he found nearly 1,300 Actifed (pseduoephedrine) tablets and some lithium batteries in the car. The three of them had gone to Corpus Christi earlier that day and stolen the batteries and Actifed, and were on their way back to Victoria when they got pulled over. According to Rice's testimony at trial, their plan was to rebundle the Actifed and batteries, and for Reagan to take the ingredients to a meth cook to trade for some finished meth.

Cantwell was convicted at trial of one count of conspiracy to manufacture methamphetamine and one count of aiding and abetting the possession of pseudoephedrine with the intent to manufacture methamphetamine. On appeal she argued that the evidence at trial was insufficient to support her convictions.

In a cursory and conclusory analysis, the court of appeals holds otherwise. As to the conspiracy charge, the court holds that there was sufficient evidence to support a finding that Rice and Reagan had been engaged in a conspiracy to manufacture meth (their ongoing bartering arrangement with meth cooks), and that Cantwell joined that conspiracy on this occasion. As to the aiding and abetting charge, the court held that "[e]ven if Cantwell did not intend to manufacture drugs herself, evidence that she knew of and intended 'to further the goals of a manufacturing operation' is sufficient for a conviction under 21 U.S.C. ยง 841(c)(1)." Slip op. at 7.

It looks like there's sufficient evidence that, at a minimum, Cantwell and the others intended to possess meth and conspired to do so. But do the facts here prove BRD that Cantwell intended to manufacture meth? I don't think so.

What if Cantwell, Rice, and Reagan had pooled their cash and headed out to buy some meth? Is there evidence of an intent to manufacture in that case? No, it just looks like a simple plan to buy meth. Why is it any different when instead of paying money they barter some raw material for some finished meth? Now if they had gone to the meth cook and said, "Please use our ingredients to make a batch of meth for us, and for your trouble we'll let you have half the batch," then that looks a lot more like they intend to manufacture meth and are enlisting a cook in their conspiracy. But what if the cook already has a batch of finished meth and will sell it for cash or some raw materials or a combination of cash and raw materials? In that case the ingredients that Cantwell and the others possess aren't actually being cooked into meth for them; the ingredients are just an alternate form of payment.

Consider this analogy . . . your car's alternator fails and you go to the auto parts store to pick up a replacement. Brand-new parts can be pretty expensive, so you decide to get a remanufactured alternator. Paying for a remanufactured part usually involves both a payment and an exchange: you pay $X for the remanufactured alternator, and you also bring in the old alternator as a "core" exchange. (That core will then be remanufactured and sold to someone else. If you don't bring in a core, you'll have to pay an additional "core charge.") Now when you do that, do you intend to help remanufacture the dead alternator that you brought in? No. You just want a working alternator and part of paying for the new part is exchanging the old one.

That seems more analogous to what was going on in this case. Unfortunately, the court doesn't explore the question of exactly what Cantwell intended in any detail.

By the way, there's a procedural matter worth mentioning. Cantwell didn't file her notice of appeal until more than 40 days after the entry of judgment. The Government argued it was untimely. However, Cantwell had filed a motion to extend the appeal deadline within the initial 10-day window provided by Fed. R. App. P. 4(b)(1)(A). As the court notes, "such a filing can serve as the functional equivalent of a notice of appeal." Slip op. at 2 (citing Smith v. Barry, 502 U.S. 244, 248-49 (1992)). "To act as the functional equivalent of a notice of appeal, the motion must set forth (1) the party taking the appeal, (2) the judgment being appealed from, and (3) the court to which the party is appealing." Id. (citing Fed. R. App. P. 3(c)(1)). Cantwell's motion met that standard.


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