United States v. Tobias
Is It Entrapment For An Undercover Officer To Tell The Defendant That Making
PCP Is As "Easy As Baking A Cake"?
662 F2.d 381 (1981)
Edited version of FRANK M. JOHNSON, JR., CIRCUIT JUDGE, DISSENTING:
Because I conclude that the Drug Enforcement Agency's (DEA) "over involvement" in the commission of the crime for which defendant was convicted precludes prosecution, I am unable to agree with the majority's opinion and therefore respectfully dissent.
Tobias is a 21 or 22 year-old married man employed as a house painter. With the exception of a minor exchange of fisticuffs, he has no prior record of any kind and had never been convicted of a drug related offense. In early 1980 Tobias responded to an advertisement in
High Times, an over-the-counter drug culture periodical, and sought information concerning the purchase of chemicals necessary to
make cocaine. Defendant requested a catalogue from the chemical supply company and eventually ordered what he thought were chemicals needed to manufacture cocaine. Unbeknownst to Tobias, the chemical supply company, located in a
mid-western state, was owned and operated by the (DEA). On April 2 5, 1980, Tobias called the company to cancel his order and spoke to DEA Agent Schabilion. He advised Schabilion that he intended to use the chemicals to manufacture cocaine but had concluded that he lacked the requisite knowledge and equipment necessary to make the drug.
Indeed, the record reflects that Tobias was ineptly suited to
make cocaine. His education extended only as far as high school, whereas manufacturing cocaine requires a "sophisticated chemical background." Further, it appears that Tobias never had even a basic understanding of what was needed to manufacture the drug, both in terms of the necessary chemicals and in terms of the necessary knowledge of
chemistry. [NOTE 1] During the course of the conversation, Schabilion emphasized the difficulty and expense involved in manufacturing cocaine and suggested a number of "cheaper" and "easier" alternatives. "I advised him [Tobias] that almost anything would be cheaper and easier to manufacture than cocaine, and suggested that any of the amphetamines, speed or PCP would be easier." Until that statement, nothing in the record reveals any intent or disposition on the part of Tobias to attempt the manufacture of any drug other than cocaine. Tobias admitted to Schabilion that there might be a market for PCP in the Mobile area but expressed reservations about making the drug, stating that he had no background in chemistry. At that point in the conversation Agent Schabilion explained that manufacturing PCP was as easy as "baking a cake." The agent, according to defendant, also told him that selling the drug would be profitable. Without any discussion as to particular chemicals or quantities, Schabilion promised to supply Tobias with everything necessary to make
PCP, including the formula, at a total cost of $500. Tobias then agreed to purchase the chemicals and delivery was made in Mobile, Alabama, by a
DEA agent acting as an employee of a fictitious delivery company. The defendant received two separate deliveries on the same day and paid $101 for the chemicals, the total amount requested by the DEA. The DEA supplied Tobias with all of the necessary ingredients of PCP except diethyl ether, which Tobias obtained at a local chemical supply store.
|NOTE 1 Tobias originally ordered four chemicals from the supply company and later added two more. According to counsel for the Government. DEA officials did not ship the chemicals because they were unable to tell from the order what Tobias was trying to manufacture. Apparently Tobias' list of chemicals was either incomplete or inaccurate, indicating that he did not know the proper ingredients. Further, it was Agent Schabilion during the April 25 phone call who had to explain to Tobias about the chemicals, precursors, expense and technical knowledge necessary to make cocaine.
Utilizing the chemicals provided by the DEA and the formula provided by the DEA, Tobias attempted to manufacture a drug suggested by the DEA. However, the agency's encouragement, pervasive influence, and active participation did not end there. Still uncertain about how to actually make the drug, from April 29 through May 9 Tobias telephoned the supply company 13 times and his wife called on three other occasions to obtain information and additional advice concerning the procedure at each stage of the manufacturing process. It is undisputed that Tobias did not know how to make PCP and that during those phone calls the DEA agents instructed him as to each step in the process. Agents for the Government, therefore, guided the defendant in every stage of the process, from inception to termination. Tobias was ultimately arrested and, despite his status as a
first-time drug offender, his youthful age and his family situation, was cumulatively sentenced to fifteen years' incarceration and ten years' special parole.
Government involvement and assistance in the criminal activities of others are sometimes necessary to enforce the laws. The degree of Government involvement is not, however, boundless. The Supreme Court observed that, when involvement by federal agents in the commission of a crime is so outrageous as to shock the conscience, either due process or the Court's supervisory powers will preclude prosecution. These decisions make clear that as a general rule infiltration and "limited involvement" by Government agents in a drug related enterprise do not run afoul of the due process clause and in fact constitute a legitimate method of apprehending offenders. The Supreme Court also admonished that due process is not meant to provide federal courts with a "chancellor's foot" veto over investigatory techniques that lack judicial approbation. The two cases read in tandem demonstrate that only extreme and outrageous Government involvement in the commission of a crime will justify reversing for that reason a conviction under the due process clause.
Although providing a rudimentary framework for analysis, neither Russell nor
Hampton delineated with clarity the point at which Government involvement becomes shocking and outrageous. However, some lower court decisions have found the requisite level of outrageous involvement and provide useful guidance. In
Greene v. United States, a case cited by the Supreme Court in Hampton, the defendants contacted a Government agent concerning the possibility of manufacturing and selling bootleg whiskey. The agent represented himself to be a member of the "syndicate" and agreed to both provide financial assistance and buy all of the whiskey produced. Extensive communications transpired between the parties, with the agent providing the defendants with substantial assistance. He helped search for an appropriate site for the still, agreed to provide equipment and an operator for the still, and made available two thousand pounds of sugar at wholesale prices. The agent also tried to prompt the defendants by intimating that he was receiving pressure for the whiskey from his syndicate boss. On appeal, the court noted that the defendants evinced a predisposition to commit the crime and could not, therefore, invoke the "usual entrapment defense." However, because of the extensive and aggressive over involvement by the agent in the crime, the conviction was reversed.
"When the Government permits itself to become enmeshed in criminal activity, from beginning to end, to the extent which appears here, the same underlying objections which render entrapment repugnant to American criminal justice are operative."
Similarly in United States v. Twigg, DEA agents initiated contact with the defendants and suggested that they construct a laboratory for manufacturing amphetamines. The DEA agents supplied the defendants with the necessary chemicals at a discount price, supplied a portion of glassware to be used, and provided a barn as the situs for the laboratory. The agents facilitated defendants' ability to purchase chemicals from other supply companies and made available the necessary funds to make the purchases. A DEA agent also supervised the entire manufacturing process, with the defendants providing only minor production assistance. The Third Circuit rejected the defense of
entrapment, finding evidence of predisposition. However, the court reversed the conviction and held that "the nature and extent of police involvement in this crime was so overreaching as to bar prosecution of the defendants as a matter of law."
The cases demonstrate that outrageous involvement turns upon the totality of the circumstances with no single factor controlling. Under such a standard, it is my judgment that the DEA's over involvement in this case requires reversal of the conviction. The DEA agents placed the advertisement for the chemicals in
Magazine. The majority justifies this conduct by observing that it was for the purpose of pursuing "undercover investigations of clandestine laboratory operators. . .". While that may have been the purpose of the operation of the chemical supply house, in this case the advertisement constituted the initial contact with a young man that had up until then indicated no predisposition to manufacture drugs. When it became apparent that Tobias was completely stymied in his predisposition to manufacture cocaine, the agents advanced the idea of manufacturing an "easier" and "cheaper" drug. Tobias was provided with almost all of the necessary chemicals at apparently
cut-rate prices, was provided with the formula for manufacturing the PCP and was persuaded to make PCP in part by the statement that the process was no more difficult than "baking a cake." The DEA agents personally delivered the chemicals to his home and gave technical advice concerning the amount and sequence of combining each separate ingredient at every step of the manufacturing process. Admittedly, the agents did not other than the advertisement initiate contact with Tobias, but that fact is not
dispositive. [NOTE 2]
|NOTE 2 The majority indicates that the DEA's failure to provide Tobias with "financial aid" distinguishes the case from prior decisions dealing with Government over involvement. The record indicates, however, that the Government did provide Tobias with "financial assistance." Tobias was originally informed that the chemicals would cost $500. Nonetheless, when the DEA agent delivered the chemicals, he charged Tobias only $101. Moreover, the DEA agent made a second delivery on the same day and did not charge Tobias anything for the additional chemicals. Thus, although the record is not totally clear, the Government appears to have provided "financial assistance" to Tobias in the form of reduced prices for the chemicals used to manufacture the PCP.
This case does not merely involve law enforcement officers supplying Tobias with an "item of value" necessary to make the prohibited drug. Such a practice is universally recognized as an acceptable investigative technique. Here, Tobias amounted to little more than a conduit. Had the Government agents at any point ceased providing Tobias with assistance and encouragement, the record indicates that he would have been incapable of manufacturing the illicit drug. Thus Government agents vicariously manufactured PCP through Tobias in order to gather evidence to justify his prosecution. The instant case therefore involves that rare degree of Government involvement in the commission of a crime that
and Hampton intended to prevent. I do not, of course, propose that federal courts be accorded a "chancellor's foot" veto over law enforcement techniques that are disapproved.
I do suggest, however, that the majority goes too far by holding, in effect, that no matter how egregious and shocking the degree of Government involvement in the commission of a crime, neither the due process clause nor the court's supervisory powers will ever be invoked to preclude prosecution.
Courts are rightfully loathe to overturn convictions on the basis of Governmental over involvement in the commission of a crime, recognizing that law enforcement officials need wide latitude in devising appropriate methods and tactics for apprehending violators. However, judicial tolerance of Governmental involvement in criminal activity should not constitute a cane blanche; there is still a point beyond which law enforcement officials cannot go.
As justice Brandeis observed, "[t]o declare that in the administration of criminal law the end justifies the
means- to declare that the Government may commit crimes in order to secure the conviction of a private
criminal would bring terrible retribution." The direct, continual involvement by Government agents in the creation, maintenance and commission of a crime, to the extent reflected in this case, goes beyond the perimeter of permissible conduct and should not be countenanced by this Court.