               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0092n.06
                          Filed: February 6, 2007

                                         No. 05-6179

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
JOHNNY E. PINGLETON,                           )   EASTERN DISTRICT OF KENTUCKY
                                               )
       Defendant-Appellant.                    )




       Before: DAUGHTREY and COOK, Circuit Judges; WEBER, District Judge.*


       COOK, Circuit Judge. Johnny Pingleton challenges his various drug-related convictions.

We affirm.


                                               I


       In late 2003, Pingleton and Tim Harding began to conspire to manufacture

methamphetamine: Harding allowed Pingleton to use his barn as a drug laboratory in exchange for

a share of the drugs produced. In early 2004, Kentucky police caught Pingleton in possession of

methamphetamine, and Pingleton admitted to the police that he had recently manufactured



       *
        The Honorable Herman J. Weber, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 05-6179
United States v. Pingleton


methamphetamine with Harding at Harding’s residence. The police released Pingleton in exchange

for his promise to notify them when Harding next manufactured drugs. Soon thereafter, the police

visited Harding’s residence to serve a summons and found a methamphetamine lab, chemical

precursors of the drug, and finished product. During this visit, they arrested Lisa Witt and

interviewed Harding’s minor son, who told police that Pingleton had paid him to remove

pseudoephedrine pills from blister packs to make methamphetamine. Harding was not present, but

Kentucky police arrested him days later. And about a month later, Ohio police arrested Harding

(having been released by Kentucky), Witt, Satica Vance, and John Rodefer, who were returning from

Indiana, where they had bought materials to manufacture methamphetamine.


       A grand jury initially indicted Harding, Witt, and Rodefer (but not Pingleton) for conspiring

to manufacture methamphetamine (among other offenses). Harding and Witt pleaded guilty and

agreed to cooperate, and the government filed a Superseding Indictment charging, in relevant part,

that “Johnny E. Pingleton and John E. Rodefer did conspire” to manufacture methamphetamine. The

government then filed a Second Superseding Indictment charging the conspiracy between Pingleton

and Rodefer in the same language (Count I), and also charging Pingleton with several substantive

violations of the federal drug laws (Counts II, III, IV). During discovery, the government provided

Pingleton with Witt’s statement implicating Pingleton in a conspiracy involving Harding and also

stated its intent to rely on Pingleton’s statement to Kentucky police that he had manufactured

methamphetamine with Harding. A jury convicted Pingleton on the conspiracy count and the

substantive counts, but acquitted Rodefer on the conspiracy count.

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United States v. Pingleton


                                                   II


       Count IV of the Second Superseding Indictment charged Pingleton with “possess[ing] a

measurable quantity of pseudoephedrine, a List I chemical, knowing and having reasonable cause

to believe that the pseudoephedrine would be used to manufacture a controlled substance,” in

violation of 21 U.S.C. § 841(c)(2).1 Pingleton unsuccessfully moved for acquittal, arguing that the

government failed to prove that pseudoephedrine is a “list I chemical” (which Pingleton asserts is

an essential element of the offense) because it offered no proof on the issue and the district court did

not take judicial notice of it. When reviewing the denial of a motion for acquittal, the question is

“whether the evidence was sufficient to submit the case to the jury at the completion of the evidence

for the United States.” United States v. Nabors, 901 F.2d 1351, 1357 (6th Cir. 1990). We hold that

the district court properly denied the motion for acquittal: federal law defines pseudoephedrine as

a “list I chemical,” so no evidence was necessary to prove this point.


       Pingleton’s claim is squarely governed by United States v. Wynn, 987 F.2d 354 (6th Cir.

1993). In Wynn, the defendant was charged with using an interstate commerce facility to solicit

murder, in violation of 18 U.S.C. § 1958. 987 F.2d at 355. Section 1958 requires “intent that a

murder be committed in violation of the laws of any State or the United States.” At Wynn’s trial,

the government “did not present any evidence which showed that murder violates the laws of the


        1
        A “list I chemical” is a chemical used in and important to the manufacture of a controlled
substance. 21 U.S.C. § 802(34). Pseudoephedrine is a “list I chemical,” id. § 802(34)(K), that is
used to make methamphetamine.

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United States v. Pingleton


State of Tennessee.” Wynn, 987 F.2d at 356. But this court upheld the district court’s denial of

Wynn’s motion for acquittal, reasoning that “[o]ur judicial system requires the prosecution to prove

facts, not laws.” Id. at 358. The prosecution thus did not need to prove that murder was against the

laws of Tennessee, even though it is a component of the federal crime. Id. Pingleton’s case is

analogous. That pseudoephedrine is a “list I chemical” is surely a component of the charge under

21 U.S.C. § 841(c)(2), but it is a legal component, not a factual component. Pseudoephedrine is a

“list I chemical” because federal law defines it as such, not because the jury so finds it on a case-by-

case basis. See 21 U.S.C. § 802(34)(K). Therefore, the government did not need to offer any

evidence that pseudoephedrine is a “list I chemical,” and we reject Pingleton’s challenge.2


                                                  III


       Count I of the indictment charged that “Johnny E. Pingleton and John E. Rodefer did

conspire to knowingly and intentionally manufacture fifty grams or more of methamphetamine.” In

Pingleton’s view, this language alleges that he and Rodefer conspired with each other—and no one

else—such that when the district court allowed the government to introduce evidence of a conspiracy

involving other persons, this was an impermissible “constructive amendment” of the indictment.

Applying de novo review, see United States v. Flowal, 163 F.3d 956, 962 (6th Cir. 1998), we discern

no constructive amendment to the indictment.


       2
         We note also that nothing was improper in the district court’s failure to take judicial notice
that pseudoephedrine is a “list I chemical.” See Wynn, 987 F.2d at 358 (“[T]he phrase ‘judicial
notice’ applies to facts, not laws.”).

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United States v. Pingleton


       To establish a constructive amendment, Pingleton must show that both the evidence offered

at trial and the jury instructions “effectively alter[ed] the terms of the indictment and modifie[d] the

essential elements of the charged offense . . . .” United States v. Hynes, 467 F.3d 951, 962 (6th Cir.

2006). Since both the government’s proof and the jury instructions referred to a conspiracy

involving two or more persons, this case turns on whether the Second Superseding Indictment

charged a conspiracy involving two or more persons.


       Count I charged that “Johnny E. Pingleton and John E. Rodefer did conspire to knowingly

and intentionally manufacture fifty grams or more of methamphetamine.” Typical conspiracy

indictments, however, add restrictive language such as “with each other” or expansive language such

as “with others known and unknown.” Like the district court, we are troubled by the atypical

wording the government employed here and do not sanction the future use of similarly phrased

indictments. Nonetheless, under the particular circumstances of this case, we conclude the

indictment charges a conspiracy involving two or more persons.


       On one hand, as a linguistic matter, we agree with the government that the words “did

conspire” need not be read restrictively to exclude other actors from the conspiracy.3 On the other



       3
         Pingleton argues (unpersuasively) that as a linguistic matter, the words “did conspire”
necessarily limit the charged conspiracy to two people. Neither of the cases cited in his brief support
this position because in both, the indictment contains language limiting the verb that describes the
illegal action. See United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1991) (defendants “did
combine, conspire, agree and have a tacit understanding with one another”); United States v. Salinas,
654 F.2d 319, 323 n.7 (5th Cir. Unit A Aug. 1981) (defendants aided and abetted “each other”).

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United States v. Pingleton


hand, some confusion arises in this case because the indictment lists two (and only two) actors,

Pingleton and Rodefer. Expressio unis est exclusio alterius, Pingleton might argue. But under the

circumstances of this case, we conclude that the indictment should be read to charge a conspiracy

involving two or more persons. First, the government provided Pingleton with discovery evidence

indicating that the charged conspiracy was not limited to him and Rodefer. The government stated

its intent to rely on Pingleton’s own statement to police that he had manufactured methamphetamine

with Harding and also provided Pingleton with Witt’s statement that Pingleton had conspired with

Harding. This clarifies any linguistic ambiguity in the indictment and forecloses any argument that

Pingleton lacked notice that the charged conspiracy included co-conspirators beyond Rodefer.

Second, not to construe this indictment to charge a conspiracy involving two or more persons might

create tension with the general rule that the prosecution need not furnish co-conspirators’ names as

long as the defendant has notice of the conspiracy with which he is charged. See United States v.

Rey, 923 F.2d 1217, 1222 (6th Cir. 1991) (citing United States v. Piccolo, 723 F.2d 1234, 1239 (6th

Cir. 1983)); United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004) (citing Rey). Here,

Pingleton had adequate notice that the conspiracy was not limited to him and Rodefer. For these

reasons and under these particular circumstances, we hold that the indictment charged a conspiracy

involving two or more persons, and thus there was no constructive amendment.4




       4
          Although it does not, strictly speaking, inform our construction of the indictment, we note
that the trial court twice asked whether Pingleton had requested a bill of particulars. Pingleton never
did, which diminishes the force of any argument that he lacked notice of the charges against him.

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United States v. Pingleton


                                                 IV


       Pingleton also complains generally about his trial. He cites no legal authority and struggles

to articulate a theory, and we discern no claim on which he could prevail.


       First, Pingleton complains that the government’s witnesses were not credible. This could be

viewed as a challenge to the sufficiency of the evidence, but if so, it fails. In reviewing the

sufficiency of the evidence, an appellate court “may not consider the credibility of witnesses.”

United States v. Jamieson, 427 F.3d 394, 402 (6th Cir. 2005). Pingleton argues that the fact that the

government did not file a substantial-assistance motion under Sentencing Guidelines § 5K1.1 on

behalf of Tim Harding suggests that Harding was not credible. Plausible as that may sound, this

court still cannot review Harding’s credibility when assessing the sufficiency of the evidence against

Pingleton.


       Second, Pingleton complains that he was convicted while Rodefer was acquitted, which

could be viewed as a complaint of “inconsistent verdicts.” But upon closer inspection, Pingleton

does not complain that Rodefer’s conspiracy acquittal is inconsistent with his conspiracy conviction;

instead, he complains only of prejudice “as to Counts II, III, and IV.” There is nothing logically

inconsistent in the conclusion that Pingleton committed several substantive offenses but Rodefer did

not criminally conspire with anyone.


       Third, Pingleton complains that the introduction of evidence on the conspiracy count (Count


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No. 05-6179
United States v. Pingleton


I) somehow prejudiced him as to the substantive counts (Counts II, III, IV). If he means to argue

there was insufficient evidence to convict on the substantive counts, but the jury convicted him

anyway on the basis of evidence admitted on the conspiracy count, this claim fails. “We presume,

unless the defendant carries a strong burden of showing to the contrary, that the jury is ‘capable of

sorting out evidence and considering each count and each defendant separately.’” United States v.

Rugiero, 20 F.3d 1387, 1391 (6th Cir. 1994) (quoting United States v. Swift, 809 F.2d 320, 323 (6th

Cir. 1987)). Record testimony supports Pingleton’s conviction on the substantive counts, and his

only attempt to meet the heavy burden of Rugiero is by attacking the credibility of the witnesses who

gave this testimony. As stated above, this court “may not consider the credibility of witnesses” when

reviewing the sufficiency of the evidence. Jamieson, 427 F.3d at 402. If he means to argue (as

suggested at oral argument) that if we reverse the conspiracy conviction, we must also reverse the

convictions on the substantive counts as tainted by evidence admitted on the conspiracy count,

Pingleton fares no better because we affirm the conspiracy conviction.


                                                 V


       For these reasons, we affirm Pingleton’s conviction.




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