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88.9 Drugs, Controlled Substances: Manufacturing

    88.9.3 Manufacturing: Defenses And Defense Theories

    88.9.3.1 Drugs, Controlled Substances Manufacturing: Defense Theory That Assembly Or Creation Process Had Not Begun
    88.9.3.2 Drugs, Controlled Substances Manufacturing: False Statements Insufficient To Support Missing Elements
    88.9.3.3 Drugs, Controlled Substances Manufacturing/Possession With Intent To Manufacture: Lack Of Knowledge As Defense Theory
    88.9.3.4 Drugs, Controlled Substances: Manufacturing: Additional Defenses And Defense Theories
    88.9.3.5 Manufacture Of Controlled Substance: Adding Cutting Agent Is Not "Production" Of A Controlled Substance

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RATIONALE: Without an explanatory instruction the jury may improperly assume that possession of equipment and/or raw chemicals is sufficient to convict of manufacturing.

POINTS AND AUTHORITIES: In California, the drug manufacturing statute imposes criminal liability upon a person "who manufactures, compounds, converts, produces, derives, processes or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance ..." Hence, the evil sought to be eradicated by this section is the process of making the drug. Once that process has begun the defendant may be convicted even though a "finished product" was never produced. (See People v. Jackson (CA 1990) 218 CA3d 1493, 1500-04 [267 CR 841].) "The on-going and progressive making, assembly or creation of PCP ... may, but does not necessarily ... include the culmination of the manufacturing process, the finished PCP ..." [¶] ... [T]he conduct proscribed by Health & Safety Code § 11379.6 encompasses the initial and intermediate steps carried out to manufacture, produce or process PCP. [The section] is violated if the manufacturing, producing or processing of PCP is 'occurring,' 'taking place,' and in the course of its progress." (Id. at 1503-04; [emphasis added]; see also Hunt v. State (OK 1989) 773 P2d 375 [evidence establishing overt act was insufficient to support a conviction for attempted unlawful manufacture of a controlled dangerous substance where evidence showed defendant prepared to manufacture methamphetamine by purchasing and bringing together certain laboratory equipment and chemicals, but evidence did not show that defendant assembled laboratory equipment and initiated process of making illegal drug]; State v. Roby (VT 1976) 360 A2d 572 [conviction reversed where necessary catalyst ingredient was missing, even though there were extensive preparations for drug manufacture].

    Accordingly, mere possession of the raw materials necessary to manufacture the drug is insufficient to convict even if the defendant fully intended to convert the raw materials into the finished product.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

NOTES: This issue was addressed in People v. Rowe DEPUBLISHED (CA 1990) 219 CA3d 1589 [269 CR 64].) In Rowe, the defendant was in possession of the chemicals necessary to make methamphetamine but had not begun the process of converting the chemicals to the finished product. The Rowe court held that the evidence was insufficient to support a conviction for manufacturing under California Health & Safety Code § 11379.6.

OPINION AVAILABLE: To read the Rowe opinion, click here. [Opinion Bank # O-150].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See FORECITE National™ 88.9.1.2 [Drugs, Controlled Substances: Manufacturing -- Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION:

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    88.9.3.2    Drugs, Controlled Substances Manufacturing: False Statements Insufficient To Support Missing Elements

PRACTICE NOTE: In People v. Jenkins (CA 1979) 91 CA3d 579 [154 CR 309], a possession-with-intent-to-manufacture-controlled substances case, the court held the evidence was insufficient to sustain the convictions. The fingerprint evidence furnished no evidence of possession, actual or constructive, knowledge of intent to manufacture, and the defendant's falsehoods, even if admissible as indicating a consciousness of guilt, were insufficient to support the missing elements. Even though the falsehoods were admissible as indicating a consciousness of guilt, there were many other plausible reasons why a defendant may utter falsehoods. "Technically, the probative force of the falsehood is diluted by the fact that there is really no showing at all that defendant was even aware of the specific elements of the fairly uncommon offenses with which he was charged." (Jenkins at 586; see also People v. Blakeslee (CA 1969) 2 CA3d 831, 839 [82 CR 839]; more generally, see U.S. v. Howard (9th Cir. 1971) 445 F2d 821, 823.)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See FORECITE National™ 88.9.1.2 [Drugs, Controlled Substances: Manufacturing -- Federal Circuit Model Instructions And Notes].

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RATIONALE: Knowledge is required for possession, transportation, sale and distribution of controlled substances. For the same reasons, drug manufacturing should also require knowledge and the jury should be so instructed.

POINTS AND AUTHORITIES: The United States Supreme Court has emphasized that felony offenses which bear harsh punishment are not the type of "public welfare" offenses for which courts will readily dispense with the mens rea requirement when construing a statute. (Staples v. United States (1994) 511 US 600, 616-19 [114 SCt 1793; 128 LEd2d 608]; People v. Simon (CA 1995) 9 C4th 493, 520 [37 CR2d 278].) In the absence of express legislative language to the contrary, for crimes which impose severe punishment, "the usual presumption [regarding legislative intent] that a defendant must know the facts that make his conduct illegal should apply." (Staples v. U.S., supra, 511 US at 619; United States v. United States Gypsum Co. (1978) 438 US 422, 442 fn 18 [98 SCt 2864; 57 LEd2d 854].)

    Hence, absent express statutory language to the contrary, a drug manufacturing statute should be construed to include a knowledge element. (See People v. Casey (CA 1995) 41 CA4th Supp. 1, 6-7 [49 CR2d 372]; State v. Withrow (MO 1999) 8 SW3d 75, 80 [sustaining conviction for attempting to manufacture methamphetamine requires some evidence defendant knew of the presence of the manufacturing process, and that the materials or the manufacturing process were under his control]; FORECITE National™ 56.2.13 [Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband].) For example, in People v. Coria (CA 1999) 21 C4th 868 [89 CR2d 650] the California Supreme Court held that "it would be anomalous to permit [the defendant] to be convicted of manufacturing methamphetamine if he did not know methamphetamine was being manufactured, when, absent knowledge of the character of the substance, he could not be convicted of possessing the contraband resulting from the manufacturing process." (Coria, 21 C4th at 874.)

    See also generally, FORECITE National™ Chapter 56 [Possession].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See FORECITE National™ 88.9.1.2 [Drugs, Controlled Substances: Manufacturing -- Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

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PRACTICE NOTE:  With respect to statutes which define manufacturing of controlled substance in terms of a "chemical synthesis" the diluting of a controlled substance with a cutting agent does not involve "chemical synthesis" so as to fall within the legislature’s view of manufacturing. (See Grant v. State (MD 2001) 786 A2d 34, 47.)