United States Court of Appeals
For the First Circuit
No. 07-2164
UNITED STATES OF AMERICA,
Appellee,
v.
DIANA PIESAK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Besosa,* District Judge.
Jaclyn-Greenhalgh, with whom Peter L. Ettenberg was on
brief, for appellant.
David Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
March 26, 2008
*
Of the District of Puerto Rico, sitting by designation.
HOWARD, Circuit Judge. After a three-day trial, a jury
convicted Diana Piesak of attempting to manufacture ecstasy in
violation of 21 U.S.C. § 846. The district court sentenced Piesak
to 18 months' imprisonment and two years' supervised release. In
this appeal, Piesak argues that the evidence was not sufficient to
support a conviction. We disagree. Evidence presented at trial
showed that Piesak: (1) acquired ingredients necessary to
manufacture ecstacy; (2) researched, obtained, and actively studied
ecstasy recipes; and (3) acquired, assembled and tested equipment
used to manufacture ecstacy. This evidence was sufficient to
support the conviction.
I. Facts
This being a challenge to the sufficiency of the
evidence, we state the facts in the light most accommodating to the
jury's verdict. United States v. Pérez-González, 445 F.3d 39, 42
(1st Cir. 2006).
In late 2005, agents in the Drug Enforcement
Administration's ("DEA") Worcester, Massachusetts office learned
that a Canadian company was shipping chemicals used to make ecstasy
to individuals in the United States. One of the recipients was
Diana Piesak. Piesak, who resided with her family in Dudley,
Massachusetts, was a full-time student at the Massachusetts College
of Pharmacy.
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In the course of its investigation, the DEA applied for
and obtained a warrant to search Piesak's home. The search,
conducted in March 2006, yielded chemicals and equipment used to
manufacture ecstasy, in addition to written information about the
process of manufacturing ecstasy.
The items recovered included twelve bottles of sassafras
oil as well as a variety of chemicals including ammonium chloride,
and muriatic acid. At trial, a senior forensic chemist with the
DEA testified about these items. In summary, his testimony was
that: (1) all of the items were either necessary or useful for
making ecstasy according to the "Wacker Oxidation" method; (2) that
method is popular among makers of ecstasy because it enables them
to make MDP2P rather than purchasing it; (3) MDP2P, a chemical
needed to make ecstasy, is closely monitored by the DEA; (4)
sassafras oil, which is readily available, is an ingredient used in
making MDP2P; (5) Ammonium chloride and muriatic acid are chemicals
used to convert MDP2P into ecstasy; and (6) Piesak possessed enough
sassafras oil to make 800 to 1600 "hits" of ecstasy.
In the search, the DEA agents also recovered a three-ring
binder and Piesak's computer. The binder contained nearly 100
pages of information about the ecstasy synthesizing process that
had been downloaded from websites. The binder included: (1) a
fifteen-page document titled "The Main Precursors"; (2) a document
of more than twenty pages published in the Journal of Forensic
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Sciences titled "An Evaluation of the Potential for Clandestine
Manufacture of . . . [Ecstasy]1 Analogs and Homologs"; (3) a one
page document titled "Preparation of Sodium Cyanoborohydride"; (4)
a six-page document titled "Reductive Animation of MDP2P using
Sodium Cyanoborohydride. The discussion of the accessibility of
the latter chemical was underlined and circled.
Other documents in the binder specifically addressed the
synthesis of ecstasy: (5) a six-page document titled "Synthesis of
[Ecstasy]," which cross referenced another article about the
clandestine manufacture of certain chemicals, identified methods of
producing chemicals popular with clandestine chemists, and listed
"methylamine"2 as a monitored chemical that, if ordered, could
attract DEA attention. Several portions of this document were
highlighted; (6) a six-page document titled "MDA"; (7) a five-page
document titled "Ecstasy and Eve"; (8) a more than twenty page
document titled "Eleusis versus Uncle Fester,"; (9) a four-page
document titled "Chem 269 Crystallization Part 2"; (10) an eleven-
page document titled "A Working MDMA (Ecstasy) Synthesis"; and
finally, (11) a ten-page document titled "A Complete MDMA Synthesis
For the First Time Chemist." Within this document was a list
titled "What You Need." The document noted that the list was for
1
Many of the documents discuss the manufacture of "MDMA," or
"methylendedioxymethamphetamine," a scientific name of ecstasy.
2
"Methylamine" is a chemical precursor for making ecstasy.
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"the basics." The list included two headings: one titled
"Apparatus and Glass" and another titled "Chemicals." Check marks
had been handwritten next to certain equipment and chemicals. Some
of the items checked were not recovered during the search and some
of the items not checked had been ordered by Piesak through eBay.
An examination of Piesak's computer disclosed, among
other items, text fragments revealing a search for "sassafras oil,"
a document referencing ecstasy and color changes, and product
information on "sodium cyanoborohydride."
The senior forensic chemist testified that the amount of
information recovered suggested that Piesak had gone through "a
great deal of trouble . . . in terms of researching [the ecstasy
making] processes." He noted that making ecstasy is a matter of
following directions and that the documents in the binder were
consistent with the manufacture of ecstasy by the Wacker Oxidation
Method.
Inside the home, the agents also discovered equipment.
Included among this equipment was: (1) a glass beaker with a glass
conductor tube; (2) round bottom flasks; (3) a graduated cylinder;
(4) boiling chips; (5) rubber stoppers; (6) hose clamps; (7) vacuum
grease; (8) filter paper; (9) a digital thermometer; (10) pH test
paper; (11) a bi-weight digital scale; (12) a hydroaspirator water
pump; (13) a Corning hot plate; (14) a Thermolyne hot plate; and
(15) a bag of 250 gelatin capsules. At trial, the senior forensic
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chemist testified that this equipment could be used to manufacture
ecstasy.
Further investigation yielded more information about
equipment. An analysis of Piesak's computer showed that she had
searched for a "hot plate stirrer" and for information about pumps
and flasks. A document discussing aspirator pumps was also found.
A computer forensic examiner also discovered emails between Piesak
and an Alabama company discussing her purchase of a hotplate
stirrer. Piesak informed the company that the hotplate stirrer did
not heat "anything above 90 degrees," and thus was not performing
as the company had advertised. A representative responded offering
Piesak a refund or credit. Finally, Piesak admitted to agents that
she brought an aspirator she had acquired to a hardware store,
where it was affixed to a wood support so it could be connected to
a water pump.
Piesak was arrested during the search, and she ultimately
acknowledged that she intended to manufacture ecstasy. She
explained that she had tried the drug in November of 2005 and had
enjoyed it so much that she wanted to make her own. Although she
said that she had not attempted to make ecstasy, she also stated
that she had intended to make ecstasy in the room next to her
bedroom. When a DEA chemist asked Piesak where additional
chemicals -- including palladium, sodium cyanoborohydride,
formalene, and chloride -- were located, Piesak told him that she
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had placed the chemicals in trashbags and discarded them on a
roadside. She said she did so after the Webster, Massachusetts
Police Department called her to arrange a meeting regarding an
unrelated matter.
In November of 2006, a federal grand jury returned a one-
count indictment charging Piesak with attempted manufacture of
ecstasy in violation of 21 U.S.C. § 846. As noted above, at trial
a senior DEA forensic chemist testified that, at one point, Piesak
had the chemicals, recipes, and equipment needed to manufacture
ecstasy according to the Wacker Oxidation method. During the
trial, Piesak moved twice for a judgment of acquittal. See Fed. R.
Crim. P. 29. The court denied both motions. A jury found Piesak
guilty of attempted manufacture of ecstasy.
II. Discussion
The sole issue on appeal is whether sufficient evidence
supported the jury's verdict. Where, as here, a defendant
preserves a sufficiency challenge by a motion for judgment of
acquittal our review is de novo. United States v. Potter, 463 F.3d
9, 13 (1st Cir. 2006). We will affirm the conviction if, after
viewing the evidence in the light most favorable to the government
and taking all inferences in its favor, we conclude that a
reasonable jury could have found the government proved the elements
of the crime beyond a reasonable doubt. United States v. Dwinells,
508 F.3d 63, 72 (1st Cir. 2007); see also United States v.
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Woodward, 149 F.3d 46, 56 (1st Cir. 1998) (noting that defendant
who challenges the sufficiency of the evidence "bear[s] a heavy
burden" on appeal").
To establish criminal attempt, the government must prove
beyond a reasonable doubt that the defendant (i) intended to commit
the substantive offense, in this case the manufacture of ecstasy;
and (ii) took a substantial step towards its commission. United
States v. Turner, 501 F.3d 59, 68 (1st Cir. 2007). Because Piesak
concedes that she intended to manufacture ecstasy, our focus is on
the substantial step requirement. A "substantial step" is less
than what is necessary to complete the substantive crime, but more
than "mere preparation." United States v. Rodríguez, 215 F.3d 110,
116 (1st Cir. 2000).3
Four features of the factual record in this case convince
us that sufficient evidence supported the jury's verdict. First,
Piesak placed orders for, and at one point possessed, all of the
chemicals necessary to make ecstasy by the Wacker Oxidation
method.4 Spencer, 439 F.3d at 916 (evidence sufficient to support
3
We have further provided, "[I]n order to constitute a
substantial step leading to attempt liability, an actor's behavior
must be 'of such a nature that a reasonable observer, viewing it in
context could conclude beyond a reasonable doubt that it was
undertaken in accordance with a design to violate the statute."
United States v. Rivera-Solà, 713 F.2d 866, 870 (1st Cir. 1983)
(citation omitted).
4
Piesak argues that she did not take a substantial step in part
because she had discarded some of the chemicals necessary to
manufacture ecstasy prior to the DEA's execution of the search
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defendant's conviction for attempted manufacture of methamphetamine
where, in addition to possessing necessary equipment, defendant
"had ordered, received, and possessed chemicals necessary to
manufacture [the drug]"). Second, she conducted significant
research regarding the ecstasy manufacturing process, and printed
and actively studied documents that explained how to make the drug.
See United States v. Jessup, 305 F.3d 300, 304 (5th Cir. 2002)
(holding defendant took substantial step toward manufacturing drug
where, in addition to stating an intent to manufacture drug and
possessing useful ingredients, defendant possessed a recipe for
making drug).
Third, Piesak sought information about, acquired
significant amounts of, and tested and assembled laboratory
equipment. See United States v. Felix, 867 F.2d 1068, 1071 (8th
Cir. 1989) (defendant took a substantial step toward manufacture of
warrant. The record reveals, however, that she said that she
discarded these chemicals after the Webster Police Department
contacted her to arrange an interview. In any event, she did not
need to possess all of the chemicals necessary to manufacture
ecstasy at the time of the search in order for there to be
sufficient evidence underlying the jury's verdict. United States
v. Spencer, 439 F.3d 905, 916 (8th Cir. 2006) (affirming
defendant's conviction for attempted manufacture of methamphetamine
despite fact that defendant did not possess all the necessary
supplies to manufacture drug at the time of the seizure); United
States v. Becker, 230 F.3d 1224, 1234 (10th Cir. 2000) (noting that
where defendant possessed some, but not all, of the chemicals
required to make methamphetamine, "a rational jury could conclude
that [defendant] took a substantial step towards manufacturing
drug"). It is also worth noting that Piesak never requested a
renunciation charge at trial.
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illicit drug where he, in addition to ordering necessary chemicals,
possessed equipment useful to the manufacturing process).
Finally, in addition to possessing the chemicals,
recipes, and equipment needed to make ecstasy, Piesak admitted to
the DEA that she intended to make the drug in her house. This is
a textbook scenario under the Model Penal Code's treatment of
conduct illustrative of a substantial step. Mode Penal Code §
5.01(2). Under the heading, "Conduct That May Be Held Substantial
Step Under Subsection 1(c)" the Code lists types of conduct that
suffice "if strongly corroborative of the actor's criminal
purpose." Id. Included in this list is:
(f) possession, collection or fabrication of
materials to be employed in the commission of
the crime, at or near the place contemplated
for its commission, if such possession,
collection or fabrication serves no lawful
purpose of the actor under the circumstances.
Id. Here, Piesak admitted that she intended to use the acquired
materials to manufacture ecstasy. She had assembled voluminous
instructions and recipes for illicit manufacture. And she
identified no lawful purpose for the chemicals and equipment.
Piesak argues that her actions constitute mere
preparation and did not rise to the level of attempt. In
particular, she notes that the chemicals' plastic seals had not
been removed and that she had not constructed a working ecstasy
laboratory.
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In the past we have noted that "[while] 'mere
preparation' does not constitute a substantial step, a defendant
'does not have to get very far along the line toward ultimate
commission of the object crime in order to commit the attempt
offense.'" United States v. Turner, 501 F.3d 59, 68 (1st Cir.
2007) (citation omitted).
Here, in light of the evidence recounted above, the jury
was entitled to conclude that Piesak had gone far enough. Not only
did she acquire all of the chemicals necessary to make ecstasy but
she researched, obtained, and actively studied ecstasy recipes and
assembled, tested and customized equipment used to manufacture
ecstasy. While Piesak may not have yet removed the plastic seals
from the chemicals nor fully assembled a working ecstasy
laboratory, the evidence on the whole easily supports the jury's
conclusion that she had moved past the preparation threshold to an
attempt. See Rivera-Solá, 713 F.2d at 866 ("A substantial step .
. . may be less than the last act necessary before the actual
commission of the substantive crime, and thus the finder of fact
may give weight to that which has already been done as well as that
which remains to be accomplished before commission of the
substantive crime.") (quoting United States v. Manley, 632 F.2d
978, 987-88 (2d Cir. 1980)); United States v. Mazzella, 768 F.2d
235, 240 (8th Cir. 1985) (concluding sufficient evidence supported
defendant's conviction for attempted manufacture of methamphetamine
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where defendant acknowledged ordering, receiving, and possessing
chemicals and equipment necessary to make methamphetamine but where
chemical containers remained unopened); see also United States v.
Smith, 264 F.3d 1012, 1016-17 (10th Cir. 2001) (noting that
evidence may be sufficient to support conviction for attempted
manufacture of methamphetamine even though defendant did not have
a full "working lab" or all the necessary "precursor chemicals").
III. Conclusion
For the reasons discussed above, we affirm.
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