Thabateh

MEMORANDUM **

1. There was no error in the district court’s instruction to the jury that pseudoephedrine is a “listed chemical.” Thabateh’s assertion that pseudoephedrine is only a “listed chemical” when possessed in certain quantities relies upon a statutory provision that is irrelevant to the crime established by 21 U.S.C. § 841 . The fact that the district court instructed the jury that pseudoephedrine is a “listed chemical” as a' matter of law did not remove the *394 mens rea requirement from the statute. The jury was instructed that the government had to prove beyond a reasonable doubt that Thabateh knew the substance was pseudoephedrine and was going to be used to manufacture methamphetamine.

2. The instructions did not amount to a constructive amendment or prejudicial variance to the indictment. Viewed as a whole, the court’s instructions — taken verbatim from the Ninth Circuit Model Jury Instructions — were not at variance with the offense charged in the indictment. In addition, the only evidence offered by the government was that the controlled substance at issue was methamphetamine, and there was no evidence presented by the defense that was defeated by the court’s…