here you hear ye the united states court of appeals for the six circuit is now in session all persons having business before this honorable court draw near give attention and you shall be heard god save the united states and  good morning and welcome to the court of appeals for the sixth circuit before we begin i wish to assure you that the panel is prepared for your cases this morning we have read your briefs because we are prepared we would prefer if you please spend your time arguing the most important issues in the case we will assume that for issues that are not argued today that you rely upon the arguments contained in your groups finally if your counsel for the a reserves in time for rebuttal please so indicate to me and also to our court officers that you may call the first case case number one eight five zero nine nine usa versus donald meyers argument not to which is the initiation of meth manufacture that statute defines initiation and three ways first you can begin the extraction of a methamphetamine precursor secondly you could do active modification of a commercial product used in meth creation third you could either heat or combine any substance used in math creation it's our position that this statute is too broad to count as a controlled substance often it's and is a serious drug felony under federal law in particular eighteen united states code nine twenty four the government's position is that the initiation statute is an attempt and mr myers acknowledges that certainly attempts and coa offenses qualify as controlled substance offenses and certain circumstances is what could what could you do to violate statute with the requisite intent you know the intent has to be to produce but with impediment what could you do that wouldn't constitute an attempt i have several specific examples from tennessee case law that i would like to cite to the court and inciting these i would like to keep in mind the fundamental premise that in order to have an attempt under federal law you must have a substantial stat that unequivocally corroborate your criminal purpose so for example in state versus done you have a defendant who's cutting open a cold compression pack that alone was enough under tennessee law to qualify as an initiation but they've thrown other things with it in that case your honor i don't there are other cases and which they found other paraphernalia along with it but they found nothing that in our position unequivocally corroborates the criminal purpose so it's not the intended element it's that you can do less well why criminal appeals fall short of what's required for a federal attempt and i would point the court to state versus ralph which isn't a decision and which there were a number of materials used in mass manufacture found inside a home mr ralph was present inside the home and he had jeans that were stained with iodine so the court concluded that that on loan the fact that he was present at a location where these materials were found that he had iodine on his clothing was enough to qualify as initiation but i think it seems to me that you are merging two concepts one is cherry and one is what you need to find the person guilty so i don't think that the jury could have found him guilty of having iodine on his pants the question was whether there was enough evidence that he was involved in the manufacture so if the jury finds that he has iodine on his pants then it can infer that it got there because he was using it as part of a manufacturing process and why would that be insufficient well i would point the court i have several other cases all examples but i suppose what the court is concerned with is the fact that this statute is especially the use of the word involving as very broad but but the mckenney decision in particular from the first circuit says that while the term involving in the statute may be expansive it's not limitless so what that case cautions against is that the court cannot interpret any offense which bears any relationship to the manufacture distribution or possession with intent to manufacture distribute as a serious drug felony under aca and so i think that although inferences may be drawn under state court for these decisions it's not enough our position is that it runs too far afield of federal attempt it runs too far afield of what  probably don't qualify because there's only three three elements that you have to begin the extraction of the of the meth or you have to heat it or you have to begin the active modification i mean there's only three things that qualify as as an attempt and i would think this is narrower not broader than the common attempt do you do you disagree with or well i can certainly see the court's position with respect to that there are a finite list of element these are the elements and i don't know we look at the elements isn't that what we should do here yes we should look at the elements but i think that when you're looking at what qualifies as an attempt versus initiation the case of state versus banks which is a tennessee criminal  initiations so i understand the court's point that not every attempt as an it is an initiation and vice versa however i think i think every initiation would be an attempt because i think the initiation is or then attempt i think attempt would be a broader scope of activities and tennessee the initiation stature is much narrower so initiation would by definition include that's that's  the way i look at it yes your honor and i think that state versus banks viewed it somewhat differently and was what that is that we look at the tennessee supreme court cases for the interpretation i mean i know we could look at lower court decisions if there is not a supreme court decision yes but there are not dispositive for them i mean they're not and unfortunately this is an area of the law in which we examined every single tennessee decision from all of the courts that interpreted this particular statute and unfortunately there's not most most of the case law in this arena comes from the tennessee court of criminal appeals and that's where the banks decision originates from and that case it says that the crime of initiation does not include every attempt doesn't include what every attempt because it's an error or that attempt and so i think that you have situations where  you have crushed pseudoephedrine and that alone qualifies as an initiation when again i think that that would be too broad to qualify as one that worked with you know i've been here everything you said you have a situation where what there are several examples from again the tennessee court of criminal appeals state versus ferguson state versus tweetie and state versus mccullough that dealt with the presence of crushed pseudoephedrine alone essentially some of them had other paraphernalia along with it but essentially you have crush pseudoephedrine along with other materials that could be used in math manufacture and  those illustrate the fact that there's confusion among the tennessee courts as to what even constitutes an attempt versus an initiation versus a facilitation so for example and state versus ferguson the court ruled that if you ephedrine along with other meth making materials that constitutes a facilitation of initiation then just four years later you have crush pseudoephedrine along with paraphernalia and the court says that's initiation and the same holds true for the mccullough decision you have crushed pseudoephedrine tossed in a bag in a ditch and the court says that's enough for initiation so that that seems to highlight that there's some confusion even among the tennessee courts so as to where the line is drawn and what is a substantial step and you're saying that in the federal system the attempt to manufacture i certainly can see that what the case law says is that you if you have crush pseudoephedrine then that kid could qualify as under the tennessee statute as beginning or as an active modification of a commercial product because you don't have pseudoephedrine available and crushed for but our point is that it's still too broad to count as a federal attempt because it's not an unequivocal corroboration of a criminal purpose so it's not in the uk it's it doesn't qualify as a federal attack because a federal attempt requires under the pending men decision that you have an act that unequivocally corroborate a criminal purpose that's what you need for a substantial step and that's what you need for an attempt under federal law and i don't think that crush pseudoephedrine without more unequivocal corroborate a criminal purpose to manufacture methamphetamine but you're trying to find out will you conjecture on your part or whether there are cases in the federal system that say it's not enough to have a crush the cursor well there are the cases that we cited most of them are not in the context of aca unfortunately what we cited in our briefing involved the guidelines definition of a controlled substance which we recognize is near a war then the serious drug felony definition at issue here but intake and wall turman those decisions say that if you have and take for example possession of just and nothing more that cannot qualify as a controlled substance often it's and walter men from the eighth circuit they held that if you have just possession of lithium alone that cannot qualify as a controlled and it did not qualify as a career offender predicate and the focus there was on a separate issue which i can address in my rebuttal as to what is the definition of a controlled substance often it's ok and the further questions tennessee offense of initiating methamphetamine manufacture process is a hell of a serious drug offense under the arm for a criminal act i think the key word in that set your definition is the word involved for relevant our purposes here that statute defines a serious drug offense as any state offense involving manufacturing a controlled substance and tennessee's offense of initiating a methamphetamine manufacture process is an offense that involves the manufacture of the statute says that it's not a defense that the exact words that it's not a defense that it would not have left yes i don't think that's a problem because again this statute is getting at people who are trying to go down the process of creating meth whether they are actually successful or not in that is an offense that involves the manufacture manufacture of meth and it involves a meaning factor of methamphetamine in the same way that a failed attempt is right somebody who is trying to manufacture methamphetamine but fails in their intent because they collect the wrong chemicals right  they have the intent to manufacture meth but they just don't have the right knowledge of how you build a meth lab and so they put together their meth lab incorrectly and they fail in their attempt to create met that person is still prosecutable for attempting to not one of them is that it didn't so it's not complete or they didn't actually finish it this says that the process would not actually create it so i just i don't yes i could see how that's an attempt but i don't know how that involves the manufacture something that you couldn't possibly make i involves manufacturing methamphetamine in the same way that attempts to manufacture a conspiracy to manufacture meth involve the manufacturing of methamphetamine you can be engaged in a conspiracy to manufacture meth without taking any overt act in support of that conspiracy you simply agreed that you're going to manufacture met and you do absolutely nothing to then create math you can still be guilty of conspiracy and that would qualify as a serious drug offense under numerous court case law and i take it if the meth was not manufactured as part of the conspiracy you could still be convicted of conspiracy yes you could still be convicted of conspiracy if your conspiracy is unsuccessful in the same way that you can be convicted of attempted if your attempt is unsuccessful and i think that's all the potential legislature was doing in this subsection b is to say look it's not a defense to say i was an incompetent methamphetamine cook that's not going to be a defense if you are trying to collect this stuff and you are trying to engage in this process intending for it to create meth the fact that you mess up the process doesn't make your conduct any less harmful or less blameworthy or little evolves still involves manufacturing even if the manufacturing is not successful absolutely your honor ok and that's kind of what the statute says even if it would not result in the creation of methamphetamine so it involves manufacturing of the meth even if it's failed or yes off faulty manufacturing or defective manufacturing still involves manufacturing exactly involves it is a broad term it is meant to encompass those offenses that are related to or connect with the underlying offense of manufacture ok you start out by saying it's clear that this doesn't involve manufacture but there is no authority on this is there this is the there issue a first in practice is an issue of first impression in both a circuit in any other circuit as far as i'm aware this tennessee statute has never been considered by any other pedal sort of appeals no matter what our decision would be we probably should publish this decision so that would most likely be helpful for litigants in the future  there are there are lots of cases out there from other circuits with the union there is unanimous agreement among the circuits that the word involving in the series rather than seven is broad and encompasses lots of things in every circuit that is address it has agreed includes things like conspiracies attempts aiding and abetting offering to settle and i think it's noteworthy that in some of those cases they've applied this year short fence definition to conduct that is far less  serious than the conduct issue in tennessee statute in tennessee statute looks to me like it's unique and uses initiation or initiate rather than attempt is it unique or does any other state use this kind of thing as far as i'm aware this is a very unique statute and that they've history of this is that this was passed in two thousand and five as part of a comprehensive package of legislation where the state of tennessee was really trying to go after the methamphetamine problem is the tennessee initiation statute narrower than an attempt to would would attempts would any would do with the three elements or the three examples or whatever you call them of the tennessee statute always be an attempt i believe so at least they would i think looking into your question two parts i think under tennessee law they would all qualify as attempts and i think under federal law they would also all qualify as attempts and you agree that attempt does involve involving the manufacturer that that attempt to manufacture would involve manufacturing yet not only do i agree but this court has already agreed if you look at the thomas decision from two thousand and one an unpublished decision acknowledges not binding but this court has already noted look attempting to manufacture attempting to distribute a controlled substance also counts as a serious drug offense that cited in your brief i assume yes that is that is cited but there's numerous other circuits that have also said attempting to manufacture attempt qualifies and those are all cited in our brief would you agree that initiate initiating the process is a subset subset of attempt it would appear to be in the sense that any any initiation of methamphetamine manufacture process would count as an attempt but not every attempt to manufacture methamphetamine is going to fall under the terms of the statute so i agree it is narrower precisely the way you identify previously judge a unusual situation where we have tennessee has multiple statutes that are trying to get at the same criminal conduct he said you have different elements but the only question front of this court today is whether this statute with these elements is an offense that involves the manufacture of methamphetamine and in the clear answer to that question is yes and when you look at what this set you requires you require somebody to begin a process that they know is intended to create meth and that is precisely the kind of conduct that congress wanted to get at when it included this broad word involving in the arm for criminals as other circuits have noted what congress is trying to do is get at those individuals who have inserted themselves into this dangerous world of drug trafficking and somebody who intentionally goes in tries to create methamphetamine and initiates a process for doing so is persuasively that kind of individual simply because he cut open a cold compression pack there were other things in his vehicle that could have been used to make meth and the court in affirming that conviction specifically noted that the evidence was sufficient because it showed the defendant was the person who cut open the they found him guilty because he did so knowing he was initiating a process intended to result in the creation of meth that's why he was found guilty in that case the same in the ralph case the i think my colleagues  said that case is simply about somebody having iodine that's not how the tennessee criminal court of appeals looked at it this has a criminal reveals in affirming that conviction also specifically noted that the evidence was sufficient because it showed that the defendant made the use of a quantity  with the intention of creating methamphetamine the court found that important right this person wasn't convicted the statute doesn't criminalize just going out and having methamphetamine precursors and happening combine them together this statute criminalizes people who precursor from a commercial project i'm sorry product to begin active modification so what do you need to do if you cut something open enough it's just cutting something open by itself is not enough you need to do so knowing that you are initiating a process intended to result in the creation but i'm just trying to figure out what i understand the requisite intent what is enough of an to constitute beginning the extraction and what do you which cause did these various defendants violate was it beginning the extraction was to begin the act of modification i believe the i would believe that the dunn case likely involved the active modification of a commercial product although i don't recall of top of my head the precise portion of the initiation part that was involved in that case i don't just like brit briefly mention i think there was another case of banks case that was cited and that banks case unfortunate doesn't stand for the proposition that the council said it stands for that case didn't deal with that case was about whether you can have an attempt to initiate a method to mean manufacture process and that's what that case was about it wasn't about whether an initiation of methamphetamine proctor process is the same as attempt under ten i just wanted to clarify that for the court judge wait did i fully answer your question about the cases because you you are you might still be concerned i'm just still trying to find what you need to do begin what what constitutes beginning the active modification i mean i would think that you would need to do with and cut open a ba i would know that the tennessee supreme court has not actually can true construed the statute yet but the way that this statute has been applied it has been applied to people who are essentially are working on creating meth labs and that is you look at the tennessee cases that are out there i'm not aware of a single case where they have applied this to a person who was not knowingly trying to create meth and it may have been applied to some people who didn't fully know how to actually create meth and so were not being effective in the methamphetamine creation but people who really were trying to create that's how the statute has been applied and this is the kind of cover the statute is no different than conduct that other courts have said qualifies as a serious drug offense i mean i would note that other circuits have said look you can have a conspiracy where you don't even have to engage in any overt act in furtherance of the conspiracy and that still qualifies as a serious drug offense you could have an offer to sell or you don't actually have the drugs and have no intention of getting drugs terms involves the main factor of methamphetamine and for that reason we asked this court to find that it is a serious drug offense under the arc or criminal act and here are the questions right here on reb and the line of cases that go along with it you've got the intent to sell drugs but you don't have the ability you don't actually sell drugs you just represent i am going to sell you math but you don't have the math and you're not going to get it windows and says that's enough vicars is the furthest extension of that that's interpreting a texas statute where you have someone making an intentional offer to sell drugs you don't have the drugs you never intend to get them victor says that's enough this statute is distinguishable for two reasons first because of what justice white already noted the statute does not require that you ever actually create math that's a problem and windell ten and the other cases that are aligned with it because they say there is a limit to how far this should reach they use what's called the brooklyn bridge example if you offer to sell drugs and you're sitting in your basement and you have no money and no way of ever getting those drugs that you say you're going to sell for example hypothetically saying you're going to sell the brooklyn bridge that should not count as a serious drug felony that is going one step too far the only reason vickers pushed it even further was because of their concern that the arm career criminal act should encompass and penalize people who intentionally in t themselves into the dangerous world of drug distribution again the statute does not run afoul of that you can have someone in their home who is sitting there opening a cold compression pack pouring some coleman fuel on top of it never telling anyone what they're planning to do never telling anyone that they're going to sell methamphetamine never actually producing methamphetamine and they can still be guilty of this crime so it's running afoul of what wendell tim cautions against i eat this is too far afield there's no practical this is a practical impossibility for this person ever to possess drugs that shouldn't qualify as a serious drug felony and secondly it doesn't meet the vicar's concern which is do we have a situation where someone is putting themselves out there into this dangerous drug trafficking world no the statute doesn't require that so if you cut open a cold pack or you have pressed pseudoephedrine without actually starting any chemical process without ever actually creating math you are running too far afield of what the statute should encompass and that's the reason why we think that it should not a policy i as a serious drug felony or as an attempt under federal law and in my last fifteen seconds i'd just like to focus on the fact that there is a federal statute that defines what is a controlled substance oftentimes that's twenty one u s c eight o two the precursors and there are listed chemicals you can violate this tennessee statute without having a precursor and without having a list of chemical and that's an additional reason why we don't think this should qualify as a controlled substance of