                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              AUG 7 2003
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 02-3059
                                                             (D. Kan.)
 JOHN W. AUTEM,                                   (D.Ct. No. 00-CR-40087-RDR)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


James A. Brown (Eric F. Melgren, United States Attorney, with him on the brief),
Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

Douglas M. Barlow, Beaumont, Texas, for Defendant-Appellant.


Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and
OBERDORFER, ** District Court Judge.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      **
          The Honorable Louis F. Oberdorfer, Senior United States District Judge for the
District of Columbia, sitting by designation.
      John Autem appeals his convictions for conspiracy to manufacture

methamphetamine, attempt to manufacture methamphetamine, and possession of

ephedrine and pseudoephedrine with intent to manufacture methamphetamine.

See 21 U.S.C. §§ 841(a), 841(b)(1)(A), 841(c), 846; 18 U.S.C. § 2. He argues

“the evidence is insufficient to support each of the convictions.” We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the convictions.



I. Facts

      Based on information from a confidential informant, the Labette County

Sheriff’s Department suspected there was a methamphetamine laboratory on Mr.

Autem’s property. Law enforcement officers searched Mr. Autem’s property on

two separate occasions and found numerous items associated with

methamphetamine manufacturing. The officers also found marijuana. Although

the officers initially arrested only Mr. Autem’s daughter, they soon after arrested

her boyfriend, Shane Beery. Mr. Beery indicated Mr. Autem was involved in the

methamphetamine manufacturing. Officers subsequently arrested Mr. Autem.



      Mr. Autem’s daughter entered into a plea agreement with the government

and pled guilty to possession of marijuana. Mr. Beery also entered into a plea

agreement and pled guilty to conspiracy to manufacture methamphetamine. In


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exchange for Mr. Beery’s testimony against Mr. Autem and other “substantial

assistance,” the government agreed to dismiss some of the charges against him, to

not bring any additional charges against him, and to recommend he receive a

lighter sentence. Mr. Autem denied any involvement in the methamphetamine

manufacturing and entered a not guilty plea.



      At trial, Mr. Beery testified he met Mr. Autem at Mr. Autem’s home and

discussed a “more efficient way of manufacturing” methamphetamine using

anhydrous ammonia. Mr. Autem wanted to learn this new method. Mr. Autem

therefore agreed to supply Mr. Beery with “anhydrous [ammonia] to make more

methamphetamines” in exchange for Mr. Beery’s instruction on “how to

manufacture methamphetamines with anhydrous ammonia.” Mr. Autem indicated

he could get the anhydrous ammonia “because he owned a farm.” He also

indicated he could get other supplies like pseudoephedrine from a veterinary

supply catalog.



      A few weeks later, Mr. Beery manufactured four quarts of

methamphetamine oil in a metal outbuilding behind Mr. Autem’s home, enough to

produce approximately two ounces of methamphetamine. He used materials both

he and Mr. Autem provided. Mr. Autem arrived home from work and was present


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during the crucial stages of the manufacturing process. Mr. Autem indicated he

wanted the methamphetamine left as oil because “[h]e knew how to do the last

process” of “powder[ing] it out.” Prior to Mr. Beery’s departure, he and Mr.

Autem split the methamphetamine oil between themselves, each taking two jars.

Mr. Beery left a propane tank in the outbuilding for Mr. Autem to fill with

anhydrous ammonia according to their agreement.



      The government introduced several items of physical evidence it found in

Mr. Autem’s outbuilding. The government found several precursors, reagents,

solvents, and other supplies used in methamphetamine manufacturing. One such

item was a propane tank that contained anhydrous ammonia. In addition, the

government found some items containing traces of methamphetamine, including a

jar of methamphetamine oil.



      The government also introduced as evidence items it found in Mr. Autem’s

home. The government found books describing how to manufacture

methamphetamine; veterinary supply catalogs selling substances used in

methamphetamine manufacturing; a catalog selling chemistry laboratory

equipment similar to items found in the outbuilding; a receipt for

pseudoephedrine from a veterinary supply company dated approximately two


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weeks before the alleged manufacturing; 1 and a list in Mr. Autem’s handwriting

of chemical names and equipment commonly used in methamphetamine

manufacturing.



      Finally, to “show knowledge, absence of mistake, et cetera,” the

government introduced evidence that Mr. Autem had a previous conviction for

possession of methamphetamine with intent to sell. During the investigation of

Mr. Autem at that time, the government found recipes for manufacturing

methamphetamine at his home.



      After a five-day trial, a jury convicted Mr. Autem of (1) conspiracy to

manufacture more than fifty grams of methamphetamine; (2) attempt to

manufacture more than fifty grams of methamphetamine; and (3) possession of

ephedrine and pseudoephedrine with intent to manufacture methamphetamine and

with reasonable cause to believe the chemicals will be used to manufacture

methamphetamine. Mr. Autem appeals.




      1
         The receipt was in Mr. Autem’s wife’s name, but she testified she did not place
the order.


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II. Discussion

      On appeal, Mr. Autem argues “the evidence was wholly insufficient to

support the convictions of each of the counts.” We review de novo the

sufficiency of the evidence supporting Mr. Autem’s convictions, viewing “the

evidence and all reasonable inferences therefrom in the light most favorable to the

jury verdicts.” United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir. 2002).

We will affirm the convictions “if a reasonable jury could find the defendant

guilty beyond a reasonable doubt” based on the evidence and the inferences drawn

therefrom. United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997) (quotation

marks and citation omitted).



      Mr. Autem first argues “the government relie[d] almost exclusively upon

the suspect and controverted testimony of [Mr.] Beery, [which] was insufficiently

corroborated to support the convictions.” He believes that “absent the testimony

of [Mr. Beery], there is absolutely no evidence that Mr. Autem participated in any

manner in a conspiracy to manufacture methamphetamine, any attempt to possess

or manufacture methamphetamine, or any possession of precursor materials with

the intent that they be used in the manufacture of methamphetamine.”



      We have repeatedly held a jury “may convict a defendant solely on the


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basis of the uncorroborated testimony of an accomplice.” United States v. Smith,

131 F.3d 1392, 1399 (10th Cir. 1997), cert. denied, 522 U.S. 1141 (1998). See,

e.g., United States v. Ivy, 83 F.3d 1266, 1284 (10th Cir.) (“We will not reverse a

conviction merely because the verdict was grounded on the uncorroborated

testimony of a coconspirator.”), cert denied, 519 U.S. 901 (1996). “Furthermore,

the credibility of witnesses is a matter for the jury, and on appeal we must resolve

credibility issues in the jury’s favor unless the testimony is ‘inherently

incredible.’” Smith, 131 F.3d at 1399 (quoting Tapia v. Tansy, 926 F.2d 1554,

1562 (10th Cir. 1991)). Witness testimony is inherently incredible only if it is

“‘unbelievable on its face, i.e., testimony as to facts that [the witness] physically

could not have possibly observed or events that could not have occurred under the

laws of nature.’” Tapia, 926 F.2d. at 1562 (quoting United States v. Garner, 581

F.2d 481, 485 (5th Cir. 1978)).



      Under these principles, we reject as a matter of law Mr. Autem’s argument

the evidence is insufficient to support his convictions because Mr. Beery’s

testimony was uncorroborated, unreliable, and “controverted.” See Smith, 131

F.3d at 1399. Mr. Autem has not suggested Mr. Beery’s testimony is “inherently

incredible.” And, after reviewing the record, we are satisfied his “testimony was

well within the range which a rational jury could believe.” Id. We therefore


                                          -7-
“resolve [the] credibility choices in favor of the jury’s verdict.” Id.



      Mr. Autem next argues the evidence is insufficient to support his

conspiracy conviction because “Mr. Autem’s relationship with [Mr.] Beery was

practically non-existent, and the relationship with his daughter is not a sufficient

link to establish a conspiracy through her.” He also claims this “one-time isolated

event” is insufficient to establish the existence of a conspiracy.



      Viewed in the light most favorable to the jury’s verdict, we conclude the

evidence is sufficient to support Mr. Autem’s conviction of conspiracy to

manufacture methamphetamine. While we agree with Mr. Autem that his “mere

presence at the scene of the crime or association with [his daughter or Mr. Beery]

is not enough to support a conspiracy conviction,” United States v. Espinosa, 771

F.2d 1382, 1392 (10th Cir. 1985), the evidence in the record demonstrates he

agreed with Mr. Beery to manufacture methamphetamine and actively participated

in achieving this objective.



      In addition, we do not believe it significant under the facts of this case that

the manufacturing may have been a “one-time isolated event.” The government

was not trying to link Mr. Autem’s conduct to a larger conspiracy, as in the cases


                                          -8-
Mr. Autem cites in support of his argument. See United States v. Evans, 970 F.2d

663 (10th Cir. 1992); United States v. McIntyre, 836 F.2d 467 (10th Cir. 1987).

Instead, the government merely alleged his conduct as evidence of a conspiracy to

manufacture methamphetamine on one particular occasion. The government did

not need to prove Mr. Autem engaged in further illegal conduct to support its

charge that Mr. Autem conspired to manufacture methamphetamine on this

particular occasion. See, e.g., United States v. Esparsen, 930 F.2d 1461, 1471

(10th Cir. 1991) (“The core of a conspiracy is an agreement to commit an

unlawful act.” (emphasis added).). After reviewing the record, we conclude there

is sufficient evidence to support Mr. Autem’s conspiracy conviction.



      Mr. Autem next argues the evidence is insufficient to support his

convictions for attempt to manufacture methamphetamine and possession of

precursor chemicals because Mr. Beery’s testimony raised only “a suspicion,

albeit a questionable one, of Mr. Autem’s involvement.” He also claims the

evidence is insufficient to show he had “the requisite intent” or “guilty mens rea.”

We reject these arguments. After reviewing the record in its entirety, some of

which we discussed above, we conclude “a reasonable jury could find [Mr.

Autem] guilty beyond a reasonable doubt” of attempt to manufacture

methamphetamine and possession of precursor chemicals. Wilson, 107 F.3d at


                                         -9-
778.



III. Conclusion

       In sum, we conclude there is sufficient evidence supporting Mr. Autem’s

convictions. We therefore AFFIRM all three convictions.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




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