Let’s cook: When is it a federal crime to sell a lawful product that is also used for making meth?

I’m sure I will have something to say later about Super Tuesday III and the presidential campaign.  But it’s hard to know what more to say at this point.  So, on to other programming.  Like this question: is it a federal crime for a legitimate business owner to sell a product with legitimate, lawful uses, where that product is also used by some people to manufacture a controlled substance?  Yes, if the seller knows, or has reasonable cause to believe, the product is being used to make the controlled substance.  See 21 U.S.C. 841(c)(2) (requiring that the chemical be a listed chemical), 843(a)(6) (chemical need not be listed).  So, how do you prove the seller’s knowledge or belief, especially if he has a “don’t-ask-don’t-tell” policy about the product in question?

Terry Honeycutt worked in sales at his brother’s Army Store in Chattanooga.  The store sold Polar Pure, a water purifier that contains iodine.  This product (widely available on the Internet, at sites like Amazon) is often used by hikers, backpackers, the military, and others who may find themselves in need of a way to purify local water.  But it is also used to make methamphetamine (like the red phosphorous form, which requires iodine).  Noticing that Polar Pure was being purchased by “edgy-looking folks,” Honeycutt asked the local police if the iodine in Polar Pure could be used to make meth.  Yes, he was told by the meth task force director, it is being used locally to make meth, and do not sell it if you feel uncomfortable about it.  Naturally, the task force director told the local police department and the DEA that Honeycutt was selling Polar Pure.  It turns out that this store was the only local store selling it.

So, the DEA conducted an investigation, and eventually executed a search warrant.  The DEA found that Polar Pure was the highest-grossing item at the store (nearly $269,000 in profits), that the brothers had a “don’t-ask-don’t-tell” policy, and that the store had 307 bottles in its inventory, which was always kept behind the counter and out of sight.  After the store closed, the DEA found that red phosphorous-based meth labs practically disappeared from the region.

Could the Government prove that Honeycutt violated, or conspired to violate (with his brother), federal drug laws?  Yes, said the United States Court of Appeals for the Sixth Circuit in United States v. Honeycutt.  One could imagine a set of facts that would make the Government’s case much harder to prove here.  After all, there are legitimate uses for Polar Pure, and given Chattanooga’s location and topography, it would not be unreasonable to think that the Honeycutts wanted to sell the product to hikers and the like.  Compare this to, say, a pharmacy that sells pseudoephedrine, or a hardware store that sells acetone.

But, the court said, there were sufficient facts here to prove knowledge or at least reasonable cause to believe for purposes of both the drug conspiracy statute and the core offense statutes.  The Honeycutts were warned that meth cooks were using Polar Pure; they kept the Polar Pure out of sight and behind the counter; they had a “don’t-ask-don’t-tell” policy, indicating some awareness that their product might be used by meth cooks; the store sold more than 20,000 bottles, in increasing quantities and in amounts that regularly exceeded their asserted limit on iodine sales; and Terry Honeycutt became nervous when he was showed photos of people suspected of buying meth from the store.  To say nothing of the fact that Honeycutt called the police to tell them he was selling Polar Pure, then actually kept selling it – and in higher quantities.

The convictions were therefore affirmed, but the court ordered resentencing on the 843(a)(6) conviction.

Often, in conspiracy and complicity prosecutions where the prosecution must prove a specific intent that the underlying crime be committed, it is a contested issue as to whether mere knowledge is sufficient for intent.  That issue did not arise here, however, because neither the drug conspiracy statute nor the substantive drug offense statutes require such specific intent – knowledge, or reasonable cause to believe, are sufficient.



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