                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0033p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                           No. 06-5878
          v.
                                                      ,
                                                       >
 JOSEPH SWAFFORD,                                     -
                             Defendant-Appellant. -
                                                     N
                       Appeal from the United States District Court
                  for the Eastern District of Tennessee of Chattanooga.
                No. 04-00138—Curtis Lynn Collier, Chief District Judge.
                                    Argued: December 7, 2007
                              Decided and Filed: January 17, 2008
                    Before: MERRITT, COLE, and GRIFFIN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Paul D. Cross, CLEMENTS & CROSS, Monteagle, Tennessee, for Appellant. Gregg
L. Sullivan, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
ON BRIEF: Paul D. Cross, CLEMENTS & CROSS, Monteagle, Tennessee, for Appellant. Perry
H. Piper, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
                                                  I.
        MERRITT, Circuit Judge. The defendant, Joseph Swafford, challenges his conviction for
selling iodine used in the production of methamphetamine, a controlled substance. We agree with
the defendant that his conviction on the two conspiracy counts suffers from an impermissible
variance because in each charge there were multiple conspiracies with different participants, and
therefore the conspiracy convictions must be overturned. Additionally, we find that the district court
erred by denying the defendant’s amended motion to strike or elect the substantive counts. The 38
substantive counts must therefore be merged into 19 counts. Accordingly, we reverse the district
court opinion in part and remand with instructions to resentence the defendant in accordance with
this opinion.




                                                  1
No. 06-5878               United States v. Swafford                                                            Page 2


                                                          II.
        On February 24, 2005, a federal grand jury returned a forty-count superceding indictment
charging Swafford with crimes related to the sale of iodine, a necessary ingredient in the production
of methamphetamine. Count 1 charged that from August 1, 2001, to October 15, 2004, the
defendant and co-defendant corporation, JES, Inc. – operating as Broadway Home and Garden
(“Broadway”) – conspired to aid and abet the manufacture of 500 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2.
Count 2 charged that for the same dates the defendants conspired to distribute iodine, having
reasonable cause to believe that it would be used to manufacture methamphetamine in violation of
21 U.S.C. §§ 846 and 841(c). Counts 3 through 21 charged that on various dates the defendants
possessed chemicals knowing and having reasonable cause to believe that they would be used to
manufacture methamphetamine, in violation of 21 U.S.C. § 843(a)(6). Finally, counts 22 through
40 charged that on various specific dates, the defendants unlawfully distributed iodine, knowing and
having reasonable cause to believe that the iodine would be used to manufacture methamphetamine
in violation of 21 U.S.C. § 841(c)(2).
        At trial, the government offered considerable testimony from approximately 20 former
Broadway customers and admitted methamphetamine “cooks,” each of whom testified that Swafford
had sold them iodine, many on a regular basis, over a number of years. The government attempted
to prove that such quantities clearly exceeded that necessary for a legal purpose (e.g. the treatment
of horses), thus precluding a potentially legitimate buyer-seller relationship. The government also
offered testimony tending to show that the defendant was aware that the iodine was destined for
methamphetamine production, including the following facts: the defendant only accepted cash for
the sales of iodine (but would allow credit cards for other sales), used trade language associated with
methamphetamine production, warned his iodine customers when federal agents were in the store,
advised his clients about different types of iodine available and enquired about the resulting product.
A jury found Swafford guilty on all forty counts and    the judge sentenced Swafford to 360 months,
the minimum recommended Guidelines sentence.1 Swafford filed a timely appeal and raises a total
of eight challenges to his conviction.
                                                         III.
       The defendant argues that the district court erred in granting the government’s motion to
disqualify his retained counsel. This Court’s standard of review of a district court’s decision
regarding the disqualification of counsel is a “generous one.” United States v. Mays, 69 F.3d 116,
121 (6th Cir. 1995). “The district court is to be given wide latitude” in making such determinations
and a decision will be upheld unless “arbitrary” or “without adequate reasons.” Id.
        The Sixth Amendment guarantees counsel for all defendants in criminal prosecutions and
recognizes a qualified right to choose that counsel. Wheat v. United States, 486 U.S. 153, 158-59
(1988). A defendant enjoys a presumption in favor of counsel of choice, but such a presumption
may be overcome because such a choice must be balanced with the “the court’s interest in the
integrity of the proceedings and the public’s interest in the proper administration of justice.” Mays,
69 F.3d at 121; see also Wheat, 486 U.S. at 164. In situations where a potential conflict of interest


         1
            The sentence corresponded with a criminal history category I (no criminal history) and a baseline sentencing
level of 38, plus two enhancements: a 2-point enhancement for obstruction of justice and a 2-point enhancement for his
role in the offense. The attendant sentencing guidelines range was 360 months to life. The baseline level of 38 resulted
from the court’s calculation that the total amount of iodine sold by the defendant for use in the manufacture of
methamphetamine resulted in the production of 424 kilograms of the drug. We leave it to the district court in the first
instance to determine upon remand whether it is appropriate to aggregate the underlying drug production without the
conspiracy charges and what the appropriate Guidelines range is for the defendant.
No. 06-5878            United States v. Swafford                                                     Page 3


may arise, the court’s interest in the integrity of the proceedings may trump the defendant’s choice.
Whether the client waives his right to conflict-free representation is not dispositive, as district courts
have the ability to prevent a conflict “not only in those rare cases where an actual conflict may be
demonstrated before trial, but in the more common cases where a potential for conflict exists which
may or may not burgeon into an actual conflict as the trial progresses.” Wheat, 486 U.S. at 163.
         The defendant claims that the district court erred in granting the motion to disqualify counsel
because he had waived his right to an “advice of counsel” defense. Originally, the defendant
intended to offer the partial defense of “advice of counsel,” which disproves the mens rea element
of the offense, by showing that he had spoken with a lawyer from the same firm representing him
at trial about the legality of his iodine sales. In describing the potential for this defense to result in
a conflict of interest, the district judge noted that the firm had refused to allow the defendant to call
the lawyer who allegedly provided the advice, that the government intended to call an attorney from
the firm if Swafford testified as to his conversation, and that defense counsel’s potential loyalty to
the firm might prevent him from adequately cross-examining a fellow partner. See United States
v. Swafford, 2005 U.S. Dist. LEXIS 26890, *26 (D. Tenn. 2005) (mem.) (citing Tenn. S.Ct. R. 8,
RPC 1.7(b)(2005)). The judge acknowledged that Swafford was prepared to waive this defense and
that his counsel did not believe that their representation would be adversely affected. Id. at *10-11.
Nevertheless, he granted the motion on the grounds that during the course of the trial, the
government might offer evidence leading the defendant to testify, which, in turn, might implicate
the conflict of interest within the firm. This potential, the court concluded, required resolution of
the issue before the trial because “the stakes are so high” (e.g. mistrial, replacing counsel). Id. at
*27.
        The district court appropriately recognized its obligation to balance the defendant’s right to
counsel of choice with the court’s independent obligation to serve justice. The district court quoted
the following language from Wheat, which is instructive as well for the reviewing court:
        Unfortunately for all concerned, a district court must pass on the issue whether or not
        to allow a waiver of a conflict of interest by a criminal defendant not with the
        wisdom of hindsight after the trial has taken place, but in the murkier pretrial context
        when relationships between parties are seen through a glass, darkly. The likelihood
        and dimensions of nascent conflicts of interest are notoriously hard to predict, even
        for those thoroughly familiar with criminal trials. It is a rare attorney who will be
        fortunate enough to learn the entire truth from his own client, much less be fully
        apprised before trial of what each of the Government's witnesses will say on the
        stand. A few bits of unforeseen testimony or a single previously unknown or
        unnoticed document may significantly shift the relationship between multiple
        defendants. These imponderables are difficult enough for a lawyer to assess, and
        even more difficult to convey by way of explanation to a criminal defendant
        untutored in the niceties of legal ethics. Nor is it amiss to observe that the willingness
        of an attorney to obtain such waivers from his clients may bear an inverse relation
        to the care with which he conveys all the necessary information to them.
Swafford, 2005 U.S. Dist. LEXIS 26890 at *23-24 (quoting Wheat, 486 U.S. at 162-163). Such
discretion is warranted, moreover, because of the “whipsaw” nature of waiver of conflict-free
representation: “If a trial court disqualifies counsel, defendant will argue . . . a violation of his Sixth
Amendment right to counsel of his choice. If a trial court refuses to disqualify an attorney, a
defendant may later attempt to raise an ineffective assistance of counsel claim based on conflict of
interest, asserting that his waiver was not knowingly or voluntarily made.” Serra v. Michigan Dep’t
of Corrections, 4 F.3d 1348, 1353-1354 (6th Cir. 1993) (citing Wheat, 486 U.S. at 161-62). We are
aware that such an argument – taken to its logical extreme – could allow a district court judge to
disqualify counsel every time the government files a motion, but believe that the district court
No. 06-5878              United States v. Swafford                                                           Page 4


appropriately found that this was not the case. See Swafford, 2005 U.S. Dist. LEXIS  26890 at *24-
25 (discussing that the possibility for the government to “manufacture” conflicts).2
         We have previously affirmed the disqualification of counsel in a case involving a potential
advice-of-counsel defense. See United States v. Timmer, 1995 U.S. App. LEXIS 37057 (6th Cir.
1995). In Timmer, a criminal defendant was charged with bankruptcy fraud and the same attorney
who represented him in the bankruptcy proceedings in which he was alleged to have committed
fraud represented him in the criminal proceedings. This Court affirmed the magistrate judge’s
decision to disqualify counsel, relying on Wheat, because the attorney was “likely to be called as
a witness” by the government even if he was not called by the defense. Id. at *4. Consequently, in
language quoted by the district court’s memorandum in the instant case, the magistrate judge in
Timmer concluded, “developments during the trial might well give rise to a need for [the attorney]
to testify even if the defense could not foresee those developments prior to trial.” Id. at *3-4;
Swafford, 2005 U.S. Dist. LEXIS 26890 at *26. The instant case does not present as strong a case
for disqualifying counsel, for the defendant waived the defense potentially giving rise to the conflict
of interest. Nevertheless, we believe that the district judge appropriately explained his decision –
i.e. that a conflict of interest might arise during trial – and that this decision was thus not arbitrary.

                                                        IV.
        The defendant argues that both the first and second counts of the indictment suffer from fatal
variances. In the first count, the government charged Swafford with a single conspiracy to aid and
abet the manufacture of methamphetamine. And in the second count, the government charged the
defendant with a single conspiracy to distribute iodine to be used to manufacture methamphetamine.
The defendant contends that the proof offered at trial failed to support the existence of a single
conspiracy for either count, but instead only tended to show the existence of multiple conspiracies.
         We review the question of whether a variance has occurred de novo. United States v. Caver,
470 F.3d 220, 235-37 (6th Cir. 2006). “A variance to the indictment occurs when the charging terms
of the indictment are unchanged, but the evidence at trial proves facts materially different from those
alleged in the indictment.” Id. at 236. In determining whether the evidence can reasonably support
only a finding of multiple conspiracies, we view the evidence “in the light most favorable to the
government.” Id. When a defendant first alleges a variance at trial, this Court will reverse a
conviction if “a variance occurred and that variance affected [the defendant’s] substantial rights.”
Id. at 235; see also Kotteakos v. United States, 328 U.S. 750, 765 (1946). But where the issue is first
raised on appeal, as here, we review for plain error, Caver, 470 F.3d at 235, which requires the
defendant to prove that the error affected the outcome of the district court proceedings. United
States v. Olano, 507 U.S. 725, 732-34 (1993).
         In the instant case, the evidence shows that the defendant was part of multiple conspiracies
and not a single conspiracy as charged in the indictment. None of the customers to whom Swafford
sold iodine for use in the production of methamphetamine directly interacted with one another
except Michelle Dixon and Becky McAllister. And “while a single conspiracy does not become
multiple conspiracies simply because each member of the conspiracy does not know every other
member,” it is necessary to show that each alleged member “agreed to participate in what he knew
to be a collective venture directed toward a common goal.” United States v. Warner, 690 F.2d 545,
549 (6th Cir. 1982); see also Jury Instructions, J. Apx. p. 625. We have found single conspiracies
even where the connections between the co-conspirators were minimal. See, e.g., United States v.

         2
           The district court denied the government’s motion to disqualify the firm from representing JES, Inc., a co-
defendant. This fact provides additional support that the district court exercised appropriate discretion and did not
arbitrarily disqualify counsel.
No. 06-5878               United States v. Swafford                                                            Page 5


Kelley, 849 F.2d 999, 1003 (6th Cir. 1988) (holding that a defendant who was involved only in
distributing drugs in San Francisco was part of a single conspiracy with a common distributor who
also operated in Washington and Los Angeles).
         Nevertheless, the evidence proved at this trial demonstrated the existence of multiple
conspiracies between the defendant and many of the Broadway customers who testified. Even
viewing the evidence in the light most favorable to the government, the government failed to prove
a common goal as between the customers, a necessary element of a single conspiracy charge. That
is, the government’s metaphorical argument that this was a “wheel conspiracy” (or “hub-and-spoke”
conspiracy) – wherein the defendant served as the hub connected to each of the customers          via a
spoke (i.e. provision of iodine) – fails because no common goal or enterprise existed.3 As the
Supreme Court described in Kotteakos, “without the rim of the wheel to enclose the spokes,” a
single, wheel conspiracy cannot exist but instead is a series of multiple conspiracies between the
common defendant and each of the other defendants. Kotteakos, 328 U.S. at 755. “A rimless wheel
conspiracy is one in which various defendants enter into separate agreements with a common
defendant, but where the defendants have no connection with one another, other than the common
defendant’s involvement in each transaction.” Dickson v. Microsoft Corp., 309 F.3d 193, 203 (4th
Cir. 2002); see also United States v. Chandler, 388 F.3d 796, 808 (11th Cir. 2004) (“for a wheel
conspiracy to exist, those people who form the wheel’s spokes must have been aware and must do
something in furtherance of some single, illicit enterprise”) (emphasis in original) (citation omitted).
Here, we have exactly this type of rimless conspiracy. The government failed to prove that the
methamphetamine cooks were acting in furtherance of a common goal or that there was any
significant interdependence among them. See Chandler, 388 F.3d at 811. Consequently, there is
a variance between the crime charged (a single conspiracy) and the crime proved (multiple
conspiracies).
        Finding a variance does not mandate a reversal; in order for the variance to constitute
reversible error, a defendant must at the very least show that this variance prejudiced him. See
Caver, 470 F.3d at 237 (a variance is not per se prejudicial). “Where the evidence demonstrates
only multiple conspiracies, a defendant is prejudiced if the error of trying multiple conspiracies
under a single indictment substantially influenced the outcome of the trial.” Id. (citing Kotteakos,
328 U.S. at 765) (emphasis in original).
        This case does not present the two most problematic forms of prejudice: (1) where the
defendant is unable to present his case and is “taken by surprise by the evidence offered at trial,”
United States v. Budd, 496 F.3d 517, 527 (6th Cir. 2007) (quoting Berger v. United States, 295 U.S.
78, 82 (1935)), or (2) where the defendant is “convicted for substantive offenses committed by
another.” United States v. Friesel, 224 F.3d 107, 115 (2d Cir. 2000). Swafford had notice of the
crimes charged against him and was not convicted for substantive crimes committed by another.
But this observation does not end the enquiry, for as the Second Circuit describes, prejudice may
also exist where “‘spillover’ [occurs] because of a large number of improperly joined defendants.”
Id. Indeed, “the possibility of prejudice resulting from a variance increases with the number of
defendants tried and the number of conspiracies proven.” United States v. Bertolotti, 529 F.2d 149,
156 (2d4Cir. 1975) (emphasis added) (citing Blumenthal v. United States, 332 U.S. 539, 559
(1947)). The sale of iodine to many unrelated customers is no different from the sale of birdseed

         3
           Defining the common enterprise as simply the illegal sale of drugs would render the conspiracy an essentially
limitless enterprise. Additional facts must connect the putative co-conspirators. Moreover, this is not a “chain
conspiracy” where the existence of a single conspiracy is proved by the fact that operators at different levels are
connected by a common scheme or enterprise.
         4
          In the instant case, the methamphetamine cooks were co-conspirators and not co-defendants. Nevertheless,
as discussed infra, we still believe that the same problem of prejudice exists.
No. 06-5878               United States v. Swafford                                                              Page 6


to many birdwatchers or the sale of other products at retail to many users who are unconnected to
each other. Where there is no connection between users of the same product but the factfinder
mistakenly believes there is a union of interest and criminal intent and an agreement to coordinate
activity, the harm to the public will appear to be greater and the participants more culpable. Here,
the appearance of coordinated criminal activity appears more culpable than individual sales,
implicating the Supreme Court’s long-standing admonition that “charges of conspiracy are not to
be made out by piling inference upon inference, thus fashioning . . . a dragnet to draw in all
substantive crimes.” Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943).
         In the instant case, the spillover problem is manifestly evident. More than 20 Broadway
customers testified about making iodine purchases, and while some of the methamphetamine cooks
testified to frequent purchases of large quantities of iodine, others testified to limited purchases of
small amounts. In the latter situation, a jury might have concluded that Swafford did not have the
requisite knowledge that the iodine was being used for methamphetamine production as opposed to
a legitimate purpose. Similarly, the other, extrinsic testimony as to Swafford’s knowledge of the
illicit use of iodine varied. Several witnesses testified that the defendant exhibited suspicious
behavior demonstrating such knowledge – for example, one witness testified that Swafford warned
him that federal agents were in the store – but the testimony regarding other transactions was
arguably indistinguishable from a legitimate buyer-seller relationship. Here, the variance created
the following problem: instead of having to prove each of the multiple conspiracies, which was
necessary due to the failure to demonstrate a single conspiracy, the government offered evidence
only as to the alleged single criminal enterprise. Consequently, the jury could simply seize upon the
most significant iodine sales and the most suspicious behavior exhibited by Swafford and then apply
that evidence against the defendant vis-à-vis each of the alleged co-conspirators. This distributive
application of evidence diminishes the level of proof necessary for convictions based on the multiple
conspiracy theory proven at trial. Under such circumstances, it is impossible to say that the variance
did not affect the outcome of the trial. A jury might have concluded that conspiracies existed
between the defendant and certain customers     but not others. The resulting guidelines sentence, in
turn, would perhaps have been lower.5 The jury instructions reflected this concern and informed
the jury that they could only convict the defendant if they found that he was a member of a single
conspiracy. J. Apx. p. 624. Because the jury could not have found the existence of a single
conspiracy, and because the proof offered as to the multiple   conspiracies prejudiced the defendant,
the convictions on counts 1 and 2 must be overturned.6
                                                           V.
         The defendant argues that the district court erred by denying a motion to strike or elect


         5
          The single conspiracy convictions allowed the government to attribute all of the defendant’s iodine sales to
the production of methamphetamine. This quantity, as discussed in footnote 1 supra, informed the applicable guidelines
sentencing range. Had the government been required to prove each of the multiple conspiracies, the amount of
iodine/methamphetamine – and the attendant guidelines range – may very well have been lower.
         6
           Our decision that there was a fatal variance in both counts 1 and 2 of the superceding indictment, which
requires a remand for resentencing, allows us to pretermit the following issues raised by the defendant: (1) that count
1 of the indictment failed to state an offense; (2) that the government offered insufficient testimony as to the existence
of either conspiracy; and (3) that the district court improperly calculated the statutory maximum under 21 U.S.C.
§ 841(c), which is ten years, not twenty.
          The defendant also raises two other issues. First, the defendant’s argument that the verdict form was flawed
is simply without merit. Second, the defendant’s argument that the district erred in denying his Rule 29 motion, in which
he contended that the indictment failed to state the time of the crimes with sufficient accuracy, is without merit. The
government is not required to prove the exact date of an offense if, as was the case here, the indictment includes the
language “on or about” and the date proved at trial is “reasonably near” the date alleged in the indictment. See United
States v. Ford, 872 F.2d 1231, 1236 (6th Cir. 1989).
No. 06-5878                 United States v. Swafford                                                                  Page 7


counts of multiplicity, thereby implicating the double jeopardy clause’s prohibition against multiple
punishments for the same crime. Whether an indictment suffers from a problem of duplicity or
multiplicity is a legal question that this Court reviews de novo. United States v. Campbell, 279 F.3d
392, 398 (6th Cir. 2002).
        “‘Multiplicity’ is charging a single offense in more than one count in an indictment.” United
States v. Lemons, 941 F.2d 309, 317 (5th Cir. 1991). Multiplicity may result in a defendant being
punished twice for the same crime, United States v. Brandon, 17 F.3d 409 (1st Cir. 1994), or may
unfairly suggest that more than one crime has been committed. United Stats v. Dixon, 921 F.2d 194
(8th Cir. 1990). To determine if multiplicity exists, a court must first look to “whether Congress
intended to punish each statutory violation separately.” Pandelli v. United States, 635 F.2d 533 (6th
Cir. 1980) (quoting Jeffers v. United States, 432 U.S. 137, 155 (1977)). Where this enquiry does
not resolve the issue, “the general test for compliance with the double jeopardy clause looks to
‘whether each provision requires proof of a fact which the other does not.’” United States v. Davis,
306 F.3d 398, 417 (6th Cir. 2002) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)
(emphasis added)). Using the same evidence to prove violations of two statutes does not violate
Blockburger. See United States v. Medina, 992 F.2d 573, 588 (6th Cir. 2003). But in examining
whether the elements overlap the Blockburger analysis does require us to “go further and look to the
legal theory of the case or the elements of the specific criminal cause of action for which the
defendant was convicted without examining the facts in detail.” Pandelli, 635 F.2d at 538.
        In the instant case, the defendant argues that Counts 3 through 21, which are based on 21
U.S.C. § 843(a)(6)7 8include the same elements as Count 22 through 40, which are based on 21
U.S.C. § 841 (c)(2). The government relies on United States v. Miller, 870 F.2d 1067 (6th Cir.
1989), for the proposition that Congress intended to punish the defendant under both statutes. This
case is not controlling, for in Miller, the defendant possessed marijuana with the intent to distribute
it and manufactured (i.e. grew) the marijuana. As the Miller Court described,
         The offense of possession with intent to distribute undoubtedly can be proved
         without any proof of manufacture of that substance. Furthermore, the offense of
         manufacturing, while likely involving proof of possession, does not require any proof
         regarding an intent to distribute the substance.
870 F.2d at 1071. In Miller, the manufacturing of marijuana, itself, constituted a violation of the
statute. The Miller court thus reasonably concluded that Congress sought to criminalize both the
manufacture of marijuana and its possession with the intent to distribute. In the instant case, it is
not obvious why Congress would twice want to criminalize iodine vis-à-vis its role in
methamphetamine production. Perhaps Congress sought to distinguish regular, unlisted chemicals
from listed chemicals, and to punish the latter more harshly. However, neither is inherently a crime,
unlike manufacturing or possessing marijuana; only when the possession or distribution of iodine
is tied to the manufacturing of a controlled substance (i.e. methamphetamine) does it become illegal.
Thus, we believe that § 843(a)(6) comprises a “catch-all” statute proscribing the possession of
certain items with the intent of assisting the manufacturing of illegal drugs, while § 841(c)(2)


         7
            21 U.S.C. § 843(a)(6) reads: “[T]o possess any three-neck round-bottom flask, tableting machine,
encapsulating machine, or gelatin capsule, or any equipment, chemical, product, or material which may be used to
manufacture a controlled substance or listed chemical, knowing, intending, or having reasonable cause to believe, that
it will be used to manufacture a controlled substance or listed chemical in violation of this title or title II.” The controlled
substance at issue in the case is methamphetamine.
         8
           21 U.S.C. § 841(c)(2) reads: “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 except as authorized by this title.”
(Emphasis added.) Again, the controlled substance is methamphetamine.
No. 06-5878           United States v. Swafford                                               Page 8


specifically addresses the use of listed chemicals to facilitate the same goal. The latter is thus a
more specific statute, one that specifically addresses the situation at hand.
         Under the Blockburger test, Counts 22 through 40 include an element that the government
was required to prove – distribution – that is not present in Counts 3 to 21. But in order to satisfy
Blockburger – and not be a lesser included offense – Counts 3 to 21 must similarly include an
element not present in the other. The government states in a conclusory fashion that possession and
distribution necessarily include elements not present in the other; however, distribution of iodine
presupposes that the defendant possessed iodine at some point. See Charge to the Jury, J. Apx. p.
624 (defining “distribute” as “to deliver or to transfer possession or control of something from one
person to another”). Consequently, the indictment fails to satisfy Blockburger on its face and the
indictment suffers from multiplicity. Furthermore, the “legal theory” of this case is the same under
both statutes – namely, that the defendant distributed iodine (whether described as a “chemical” or
a “listed chemical”) to facilitate the production of methamphetamine. See Pandelli, 635 F.2d at 538.
       Because multiplicity exists, the charges must be merged under § 841(c)(2) to satisfy the
prohibition against double jeopardy. See Pandelli, 635 F.2d at 539. In turn, the consecutive
sentences imposed must be vacated. On remand, the district court should sentence the defendant
according to the 19 substantive violations of § 841(c)(2).
                                                  VI.
    For the foregoing reasons, we AFFIRM the district court in part, REVERSE in part, and
REMAND for resentencing in accordance with this opinion.
