United States v. Unthank

107 F. App'x 625
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 24, 2004
DocketNos. 02-5310, 02-5449
StatusPublished
Cited by2 cases

This text of 107 F. App'x 625 (United States v. Unthank) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Unthank, 107 F. App'x 625 (6th Cir. 2004).

Opinion

BATCHELDER, Circuit Judge.

Defendant Eric Unthank appeals his conviction and Defendant David Averitt appeals his conviction and sentence after a jury trial on a multi-count indictment. Unthank was named only in Count 1 of the indictment, which charged both defendants with knowingly and intentionally attempting to manufacture methamphetamine, and aiding and abetting each other in that attempt, in violation of 21 U.S.C. §§ 846 and 18 U.S.C. § 2. Averitt was named in six additional counts, charging him with possession of methamphetamine in violation of 21 U.S.C. § 844; possession of a destructive device in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii); possession and brandishing of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and knowingly receiving and possessing an unregistered destructive device, in violation of 26 U.S.C. §§ 5861(d) and 5871. Each defendant was found guilty as charged. For the reasons stated below, we AFFIRM Unthank’s conviction and Averitt’s conviction and sentence.

Background

While visiting the local Wal-Mart, Unthank purchased three boxes of Equate cold medicine, while, at the same time but in another checkout line, Averitt attempted to purchase another three boxes of Equate Cold Medicine, sixteen bottles of automobile starter fluid, and two pairs of rubber gloves. When a suspicious checkout clerk undertook to report to her supervisor this collection of merchandise, Averitt hastily left the store without purchasing the items. The Wal-Mart employees were apparently aware that the chief active ingredient of Equate Cold Medicine is pseudoephedrine, which, in addition to its legitimate medicinal use, is also a primary ingredient of home-made methamphetamine. Outside the store, the Wal-Mart manager saw Averitt bend the license plate of a truck so that its number could not be read, and saw Averitt and Unthank leave the parking lot in that truck. The manager called the Kentucky State Police. Police officers followed the truck and attempted to pull it over, but the defendants tried to escape, running off the road and into a field, and eventually coming to a stop at a fence.

One of the troopers who had been following the truck approached the driver’s side of the truck and repeatedly ordered Unthank, the driver, to exit the vehicle with his hands in the air. Unthank finally complied. On the other side of the truck, Averitt, who had previously exited the truck, was standing with his back to the troopers and his hands out of sight. When ordered by a trooper to get down on the ground and to put his hands on his head, [627]*627Averitt silently refused to comply; after the order had been repeated several times, Averitt turned toward the trooper, who saw that Averitt was holding a 9 millimeter pistol in one hand, pointed directly at the trooper, and a hand grenade in the other. The trooper shot him, and Averitt fell to the ground; his hand grenade, its pin having been pulled, erupted in a flash and explosion that “rocked” the trooper but did no serious damage to any of the parties.

After securing Averitt and Unthank, the troopers discovered on Averitt’s person two fully loaded magazines for the 9 millimeter pistol, some methamphetamine and identification in two different names. The troopers arrested both defendants and, in the inventory search of the truck, discovered the pseudoephedrine Unthank had purchased at the Wal-Mart, as well as other drug-making paraphenalia. An explosives expert called to examine the grenade, which had failed to fragment, discovered that it was a training grenade that had been filled with black powder and ineptly fitted with a fuse not designed for a training grenade. The grenade had failed to fragment only because the fuse did not fit properly.

The district court tried the defendants together before a jury. At the close of evidence, the court denied each defendant’s motion for judgment of acquittal. The jury convicted each of the defendants on the count or counts in which he was charged, and the district court sentenced Unthank to 155 months of incarceration and Averitt to a total of 531 months of incarceration. Each defendant timely appealed.

Analysis

A. Unthank

Unthank argues only that there was insufficient evidence to support his conviction for attempting to manufacture and aiding and abetting an attempt to manufacture methamphetamine. Specifically, he claims that the evidence did not support a finding that he took any “substantial step” in furtherance of the attempted manufacture or that he intended to manufacture methamphetamine, and that, in fact, he withdrew from any such attempt. In response, the government argues that there is considerable evidence that Unthank both intended to manufacture methamphetamine and took a substantial step toward the manufacture of methamphetamine,

We are required to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) [internal quotations omitted]). Where the crime charged is an attempt crime, those elements are: first, that the defendant intended to commit the proscribed criminal conduct, and second, that the defendant committed an overt act that constituted a substantial step toward committing that proscribed conduct. United States v. Bilderbeck, 163 F.3d 971, 975 (6th Cir.1999).

The jury in this case heard evidence that: (1) Unthank purchased pseudoephedrine; (2) pseudoephedrine is the essential ingredient in methamphetamine; (3) Averitt contemporaneously attempted to purchase both pseudoephedrine and starter fluid; (4) starter fluid is a common solvent used for processing pseudoephedrine into methamphetamine; (5) defendants left the store with three boxes of pseudoephedrine; (6) Unthank drove the truck in which the defendants fled from the police; and (7) in [628]*628the truck in which the defendants attempted to escape, police discovered numerous items commonly utilized in the production of methamphetamine. We think this evidence is more than sufficient to support the jury’s verdict, and we therefore AFFIRM Unthank’s conviction.

B. Averitt

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Bluebook (online)
107 F. App'x 625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-unthank-ca6-2004.