                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                    FILED
                            __________________________         U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                                                     MAR 07 2000
                                    No. 98-9094
                                                                  THOMAS K. KAHN
                            __________________________                 CLERK

                        D.C. Docket No. 97-00171-1-CR-2-JOF

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

versus

VERNON VICTOR PRATHER,JR.,
a.k.a. “Billy”,

                                                                Defendant-Appellant.

                            __________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                          __________________________

                                   (March 7, 2000)

Before CARNES, BARKETT, and MARCUS, Circuit Judges.

BARKETT, Circuit Judge:

         Vernon Victor Prather appeals his conviction for conspiracy to distribute

pseudoephedrine in violation of 21 U.S.C. §§ 861(d)(2) and 846, distribution of
pseudoephedrine in violation of 21 U.S.C. § 841(d)(2) and 18 U.S.C. § 2, and

money laundering in violation of 18 U.S.C. §§ 2 and 1957(a). Prather asks this

Court to discharge him, vacating his conviction and sentence or, alternatively, to

grant him a new trial. We affirm Prather’s conviction and sentence, with the

exception of the imposition of the special assessment.

                                 BACKGROUND

      Prather was president and sole stockholder of X-Pressive Looks, Inc.

(“XLI”), a Florida-based mail-order corporation with offices in Florida, Georgia,

and California. XLI distributed miscellaneous items, including over-the-counter

pharmaceuticals. During 1994 and 1995, approximately 80% of XLI’s business

was derived from the distribution of pseudoephedrine, which is commonly

marketed as a nasal decongestant. Pseudoephedrine is also a “listed chemical”

under 21 U.S.C. §§ 802(33) and 802(34), and 21 C.F.R. § 1310.02(a)(11), because

it can be used as an ingredient to manufacture methamphetamine, a controlled

substance. XLI generally distributed pseudoephedrine in cases containing 75

bottles, each containing 1,000 tablets. Between April 1994 and August 1995, XLI

distributed more than 830 million tablets of pseudoephedrine to 173 wholesale

customers, including several “head shops” and numerous individuals. The vast




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majority of those customers lacked business licenses, and many had the

pseudoephedrine shipped directly to their home addresses.

      At trial, the government presented evidence that, beginning in September

1994, Prather knew from numerous sources that his product was being diverted

from the legitimate market for the illegal manufacture of methamphetamine. In

addition to other evidence, the jury heard testimony from Alberto Saa that in late

1994 or early 1995, he contacted Prather at XLI about purchasing 100 cases of

pseudoephedrine per week, to be shipped to his home address. He testified that

Prather informed him that such an arrangement “wasn’t a good idea” because the

“cops would be hot on” both Prather and Saa, and instructed Saa to buy from one

of XLI’s “head shop” customers instead.

      The government also presented testimony that Prather specifically knew that

in 1994 and 1995, several of his customers were investigated by law enforcement

agencies and had pseudoephedrine shipments seized by authorities. Prather

continued to sell shipments to these customers after the seizure. In May 1995,

Prather obtained from a law firm an opinion letter advising Prather that selling

millions of pseudoephedrine tablets to small outlets might be considered prima

facie evidence of an intent to violate the law. On May 31, 1995, the DEA executed

search warrants at XLI’s Atlanta offices, seizing, among other items, more than


                                          3
500 cases of pseudoephedrine. After the search, XLI significantly raised the price

of its pseudoephedrine, and its customers continued to buy hundreds of cases.

Finally, Prather’s sales manager Daniel Matta, who was also indicted, pled guilty

to the charges against him and testified against Prather at Prather’s trial.

      Prather was ultimately convicted of: 1) one count of violating 21 U.S.C. §

846 by conspiring to distribute pseudoephedrine, a listed chemical, knowing or

having reasonable cause to believe that the chemical would be used to manufacture

a controlled substance; 2) ten counts of violating 21 U.S.C. § 841(d)(2) by actually

distributing pseudoephedrine, knowing or having reasonable cause to believe that it

would be used to manufacture a controlled substance; and 3) five counts of

violating 18 U.S.C. §§ 2 and 1957 by engaging in monetary transactions in

criminally derived property in excess of $10,000. He was sentenced to a 14 year

term of incarceration, followed by 3 years of supervised release. He was ordered

to pay a fine of $175,000 and a special assessment of $100 for each of the sixteen

counts on which he was convicted. Prather appeals his conviction and the

imposition of the special assessment.

                                    DISCUSSION

      Prather’s convictions for conspiracy and money laundering are predicated on

his convictions under 18 U.S.C. § 241(d)(2) for distributing pseudoephedrine


                                           4
knowing or having reasonable cause to believe that the pseudoephedrine would be

used to manufacture methamphetamine. Section 841(d) provides that:

      Any person who knowingly or intentionally -- . . . (2) possesses or
      distributes a listed chemical knowing, or having reasonable cause to
      believe, that the listed chemical will be used to manufacture a
      controlled substance . . . shall be fined . . . or imprisoned.

      Prather challenges his conviction and sentence on several grounds. First, he

contends that the government failed to prove that the listed chemicals he sold were

actually used to manufacture a controlled substance, which he claims constitutes an

element of the crime. Second, he contends that the district court judge’s jury

instructions were so erroneous as to justify overturning his conviction or granting a

new trial. Third, he argues that the judge’s refusal to allow the defense to play a

previously recorded tape of a government witness during cross-examination

violated the Confrontation Clause and the Federal Rules of Evidence. Finally,

Prather argues that the trial judge violated the Federal Sentencing Guidelines and

the Ex Post Facto Clause by imposing the special assessment as he did. We

address each argument in turn.

I. Sufficiency of the Evidence to Prove a Violation of the Statute

      The basis of Prather’s argument that the evidence presented against him was

insufficient to support a conviction is his contention that he cannot be convicted

under Section 841(d)(2) until a controlled substance has been produced. Because

                                          5
the government failed to prove that any of the pseudoephedrine he distributed was

actually used to manufacture methamphetamine, Prather contends that he should

not have been convicted on the substantive distribution counts, and therefore on the

conspiracy and money laundering counts.

      In interpreting the meaning of a statute, it is axiomatic that a court must

begin with the plain language of the statute. On its face, Section 841(d)(2)

criminalizes the distribution of a listed chemical with knowledge that the chemical

will be used to manufacture a controlled substance. The plain language of the

statute requires only knowledge of the present intent to violate the law, not the

actual accomplishment of the act. The plain meaning of these words indicates that,

in enacting this statute, Congress did not intend to require proof that the controlled

substance had actually been manufactured. Rather, the words themselves tell us

that the controlled substance in question will not have been manufactured at the

moment when the crime is complete. We have found no authority that supports

any other reading of the plain language of Section 841(d)(2).

      We note that all of our sister courts that have considered the issue have

likewise construed Section 841(d)(2). In United States v. Green, the Seventh

Circuit explicitly rejected, as we do here, a contention identical to Prather’s,

finding that it was unsupported by either the language of the statute, the statute’s


                                           6
legislative history, or any caselaw. See 779 F.2d 1313, 1319 (7th Cir. 1985). That

court instead found that “the plain language of the statute reveals that Congress

intended to impose a broad prohibition against the manufacture of

[methamphetamine] as well as the possession of [pseudoephedrine] when knowing

or having reasonable cause to believe the [pseudoephedrine] would be used to

manufacture [methamphetamine].” Id. The Fifth and Tenth Circuits have similarly

upheld convictions under Section 841(d)(2) where the government has not proved

that a controlled substance was actually manufactured from the listed chemical in

question. See United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994) (holding

that Section 841(d)(2) “does not require the possessor [of a listed chemical] to be

either in the process of manufacturing the drug or presently able to do so to be

guilty”); United States v. Washington, 858 F.2d 590, 594 (10th Cir. 1988)

(upholding a conviction based on the government’s “theory that the [listed

chemical] . . . eventually would be used to arrive at [a controlled substance]”).

      Additional support for this reading of Section 841(d)(2) is provided by

precedent from our own Circuit. In United State v. Hyde, a panel of this Court

held that “[v]iolation of section 841(d)(2) presumes that the final product, the

controlled substance, has not yet been manufactured.” 977 F.2d 1436, 1439 (11th

Cir. 1992). Although this language may not precisely answer the question before


                                          7
us, it leans decidedly in the direction of answering that question in the negative.

The panel explained that “[t]o violate section 841(d)(2), possession of a precursor

chemical must be coupled with the knowledge that it would be manufactured into a

controlled substance.” Id. There is no mention of the need to prove that it was in

fact so converted. We conclude that Section 841(d)(2) does not require proof that

a listed chemical was actually used to manufacture a controlled substance.

II. Jury Instructions

      We review the legal correctness of a jury instruction de novo, see United

States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996), but defer on questions of

phrasing absent an abuse of discretion, see United States v. Starke, 62 F.3d 1374,

1380 (11th Cir. 1995). Generally, district courts “have broad discretion in

formulating jury instructions provided that the charge as a whole accurately

reflects the law and the facts,” and we will not reverse a conviction on the basis of

a jury charge unless “the issues of law were presented inaccurately, or the charge

improperly guided the jury in such a substantial way as to violate due process.”

United States v. Arias, 984 F.2d 1139, 1143 (11th Cir. 1993) (internal quotation

marks omitted). Where a party did not object to a jury instruction in the district

court, we review that instruction for plain error. Fed. R. Crim. P. 30, 52(b).




                                          8
      Section 841(d)(2) criminalizes the distribution of a listed chemical when the

distributor knows or has “reasonable cause to believe” that the chemical will be

used to manufacture a controlled substance. In order to find that Prather was guilty

under any of the twelve counts charging him with violating the statute, the jury

thus needed to find either that he knew the pseudoephedrine would be used to

manufacture methamphetamine or that he had reasonable cause to believe that it

would be. Accordingly, the trial judge instructed the jury on both knowledge and

“reasonable cause to believe.” Prather challenges both sets of instructions. When

the jury returned its verdict, it specified in a special verdict that it found Prather

guilty under nine counts because he knew that the pseudoephedrine would be used

to manufacture a controlled substance, and under one count because he had

reasonable cause to believe that it would be.

      A. Instructions Regarding Actual Knowledge

      Under both the statute and binding precedent in this Circuit, the knowledge

element of a violation of a criminal statute can be proved by demonstrating either

actual knowledge or deliberate ignorance. “This Court has consistently recognized

deliberate ignorance of criminal activity as the equivalent of knowledge.” Arias,

984 F.2d at 1143 (internal quotation marks omitted). “The deliberate ignorance

instruction is based on the alternative to the actual knowledge requirement at


                                            9
common law that if a party has his suspicions aroused but then deliberately omits

to make further enquiries, because he wishes to remain in ignorance, he is deemed

to have knowledge.” United States v. Rivera, 944 F.2d 1563, 1570 (11th Cir.

1991) (internal quotation marks omitted). Although we recognize that the delivery

of such an instruction is proper “only in those comparatively rare cases where . . .

there are facts that point in the direction of deliberate ignorance,” id., we are

satisfied that there was sufficient evidence in this case to warrant an instruction on

deliberate ignorance. We find no merit to Prather’s suggestion that Congress

intended to preclude an instruction on deliberate ignorance by adding “having

reasonable cause to believe” as an alternative element of guilt.1

      B. Jury Instruction Regarding Reasonable Cause to Believe

      The jury convicted Prather on Count Seven on the basis of its conclusion

that, as to this count, he had “reasonable cause to believe” that the

pseudoephedrine was going to be used for illegal purposes. Prather argues that his

conviction on this count must be reversed because the jury instructions explaining

“reasonable cause to believe” were erroneous. Specifically, he argues that the trial




      1
         We reject Prather’s argument that the ad hoc examples used by the trial judge
to illustrate his instructions on actual knowledge and deliberate ignorance constituted
reversible error in this case.
                                           10
court should have instructed the jury that, in order to find him guilty on this basis,

they must also find that he acted in bad faith.

      In its initial instruction to the jury on “reasonable cause to believe,” the trial

judge stated that:

      [T]he government must show that based on the facts known to the
      defendant – although not showing actual knowledge of the defendant
      – based on these facts, these facts would cause a reasonable person
      knowing those facts to reasonably conclude that the pseudoephedrine
      was being diverted to the illegal manufacture of a controlled
      substance. . . . [T]he question is what would a reasonable person
      reasonably have believed based on the evidence known to the
      defendant.


After deliberating for some time, the jury requested further instructions to clarify

the standards. In those instructions, the judge attempted to explicate further the

“reasonable cause to believe” standard by explaining:

      [W]hat it seems to me that it’s getting at is requiring people to
      exercise reasonable or ordinary care in the conduct of a business
      involving listed chemicals. Here the focus is not on what it is proven
      that he actually knew. Here the standard is[,] based on what he did
      know, would a reasonable person, an abstract reasonable person have
      cause to believe that the pseudoephedrine in the count would be
      diverted.

Prather urges this Court to find both that the initial instruction was faulty because it

failed to include a bad faith requirement, and that the supplemental instruction




                                           11
compounded this error by reducing the “reasonable cause to believe” standard to a

negligence standard.

       Because Prather failed to object to this instruction at trial, we review for

plain error. See Starke, 62 F.3d at 1380-81. A reversal based on plain error

requires that the challenged instruction be a plainly incorrect statement of the law

and:

       that it was probably responsible for an incorrect verdict, leading to
       substantial injustice. . . . If the instruction will mislead the jury or
       leave the jury to speculate as to an essential point of law, the error is
       sufficiently fundamental to warrant a new trial despite a party’s failure
       to state a proper objection.

Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir. 1999) (internal quotation

marks and citation omitted). Under the facts of this case, we cannot say that the

instructions would be “probably responsible for an incorrect verdict, leading to

substantial injustice.” Id. There was overwhelming evidence showing that Prather

had actual knowledge of the illegal purposes for which his product was used.

Indeed, the jury found him guilty on this basis with respect to nine counts of the

indictment. Based upon this record, and in light of the jury verdicts finding

knowledge during the time frame both before and after the conduct charged in

Count Seven, we find that there was no plain error in instructing the jury.

III. Exclusion of Taped Testimony


                                          12
      Finally, Prather contends that the district court erred in refusing to allow him

to use a tape-recorded conversation in his cross-examination of government

witness Matta either as impeachment evidence or to refresh Matta’s recollection.

The district court refused to admit the tape recording in evidence because Prather

had violated the Rule 16 pre-trial discovery order by neglecting to disclose the

existence of the tape to the prosecution. We note initially that Prather neither

sought an opportunity to permit Matta to review the recorded testimony privately

to refresh his recollection, nor made the trial judge aware that this was the nature of

his objection. Rather, he sought only to play the tape in question before the jury.

Based on this record, we conclude that the district court judge did not abuse his

discretion by excluding the tape recording as a sanction for failing to comply with

the discovery order. Moreover, even if the judge abused his discretion by failing to

allow the evidence for the purpose of refreshing Matta’s recollection, the error did

not affect Prather’s substantial rights or violate Prather’s Confrontation Clause

rights. “A defendant’s confrontation rights are satisfied when the cross-

examination permitted exposes the jury to the facts sufficient to evaluate the

credibility of the witnesses and enables defense counsel to establish a record from

which he can properly argue why the witness is less than reliable.” Mills v.

Singletary, 161 F.3d 1273, 1288 (11th Cir. 1998). Prather had ample opportunity,


                                          13
which he utilized, to impeach Matta’s credibility by, among other methods,

eliciting both testimony about Matta’s plea agreement with the government, and

admissions that Matta “may have” made statements to investigators and

government agents attesting to Prather’s law abiding nature. The jurors had

sufficient cross-examination testimony and evidence before them to enable them to

judge the credibility of Matta as a government witness.

IV. Special Assessment Amount

      Both parties agree that the district court erred in levying a special assessment

of $100 per count against Prather pursuant to 18 U.S.C. § 3013(a)(2)(A). The

statutory special assessment amount for the crimes of which Prather was convicted

was raised from $50 to $100 for offenses taking place on or after April 24, 1996.

Although Prather was convicted after that date, all of the offenses of which he was

convicted were committed prior to that date. Because the Ex Post Facto Clause of

the Constitution forbids retroactive application of criminal sanctions, we vacate the

special assessment and remand for recalculation at the rate of $50 per count.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED for

recalculation of the special assessment.




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