McCaleb

FACTS AND PROCEDURAL HISTORY

In November 2004, a federal grand jury returned an indict- ment against McCaleb and other individuals. Count One of the indictment charged McCaleb and other defendants with conspiracy to manufacture, to aid and abet the manufacture of, to distribute, and to possess with intent to distribute, phen- cyclidine (“PCP”), in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). Count Two of the indictment charged McCaleb and two other defendants with possession of ethyl ether, a precursor chemical, knowing and having reasonable cause to believe that it would be used to manufacture PCP, in violation of 21 U.S.C. § 841(c)(2). UNITED STATES v. MCCALEB 497 McCaleb and a codefendant’s trial began in March 2005. At trial, McCaleb conceded guilt on the lesser-included offense in Count One, conspiracy to possess ethyl ether, and Count Two. In April 2005, the jury returned guilty verdicts on Counts One and Two. Ambiguously, the jury also found McCaleb guilty of Count One’s lesser-included offense. After the clerk read the verdict in open court, the district court cal- led counsel to sidebar and stated the following:

According to our…