United States v. McGehee

BRISCOE, Circuit Judge,

concurring.

I concur in the judgment, but write separately to focus on McGehee’s involvement with co-defendant Jason Sloan when assessing the sufficiency of the evidence to support McGehee’s conviction on Count 2 (attempted manufacture).

“Sufficiency of the evidence is a legal issue we review de novo.” United States v. Green, 435 F.3d 1265, 1272 (10th Cir.2006). In reviewing the sufficiency of the evidence, we “ask only whether taking the evidence ... together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id. (internal quotation marks omitted).

Count 2 of the indictment alleged that, “[b]eginning in about the summer of 2003 and continuing until on or about December 4, 2003, ... McGEHEE and ... SLOAN ... knowingly and intentionally attempted ... to manufacture 50 grams or more of methamphetamine” in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(vii). To convict McGehee on this count, the government was required to prove “two separate elements: (1) the defendant intended to manufacture methamphetamine; and (2) the defendant engaged in conduct constituting a substantial step toward the production of the drug.” United States v. Beltz, 385 F.3d 1158, 1162 (8th Cir.2004).

The evidence presented at trial was clearly sufficient to establish these two elements. With respect to the first element, Daniel Cox testified that, during the several-month period he worked for McGehee, McGehee was constantly in the process of manufacturing methamphetamine *829and, over that period of time, cooked approximately twenty to thirty batches of methamphetamine. Cox also testified that McGehee was interested in learning from Jason Sloan how to use the anhydrous ammonia method to produce methamphetamine. Together, this evidence was sufficient to establish that McGehee intended to manufacture methamphetamine. As for the second element, it is clear, based on much of the evidence described above in the majority’s discussion of the conspiracy conviction, that McGehee and Sloan had taken a substantial step towards producing methamphetamine at the time the search warrant was executed.