9th Circuit on Ma Huang and Ephedrine

A man who sold ma huang extract to government agents was appropriately convicted by a jury of possessing ephedrine because the ephedrine could be extracted from the ma huang and used to make methamphetamine, the Ninth Circuit held Friday in U.S. v. Tang, (No. 03-50608). The district judge in the case had actually granted the defendant an acquittal on the ephedrine charge because the defendant "possessed ma huang, not ephedrine, and . . . the defendant’s expert showed that extracting ephedrine from ma huang extract required a laborious process."

The Ninth Circuit considered whether a given substance should be considered a "listed chemical" under the criminal statute when it is commingled with other legal substances and said:

in order for a chemical that is commingled with other substances to be considered a listed chemical for purposes of section 841(c), the chemical must: 1) maintain its distinct chemical identity within the combination rather than changing into a different chemical; and 2) must maintain its utility in the manufacture of a controlled substance.