[Edited Majority Opinion, continued] HATCHETT, CIRCUIT JUDGE:
Tobias complains that the record is devoid of any evidence indicating that he entertained the thought of making drugs prior to reading the government's advertisement for chemicals. He also argues that even after he sought to abandon his scheme to manufacture cocaine, the DEA agents suggested that he make a "cheaper and easier" drug and provided him with the necessary precursors, equipment, and
know-how. Thus, he argues that he was entrapped as a matter of law.
"[W]hen entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant." Thus, a defendant who wishes to assert an entrapment defense must initially come forward with evidence "that the Government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it." Once the defendant has carried this burden, the government must, if it is to prevail, prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged.
"A prosecution cannot be defeated merely because a government agent has provided the accused with the opportunity or facilities for the commission of the crime. It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play."
On this record, we cannot say that Tobias was entrapped. Even assuming Tobias produced sufficient evidence to raise the issue of entrapment, we are satisfied that the government carried its burden of proving, beyond a reasonable doubt, that Tobias was predisposed to commit the charged offenses. The government's proof showed that Tobias responded to a simple advertisement offering the
over-the-counter sale of chemicals which could be purchased without any difficulty in chemical houses in Mobile, Alabama. This advertisement served only to provide one so disposed the opportunity to obtain the necessary precursors and equipment to manufacture controlled substances. Tobias seized this opportunity by writing the supply company for "more information" and telephoning the supply company on many occasions to place and check on his order. The DEA did nothing else to solicit Tobias's business. A prosecution may not be defeated because the government provides the accused with the opportunity to commit the crimes charged.
Tobias also contends that agent Schabilion's suggestion that PCP would be "cheaper and easier" to manufacture implanted the criminal design in his mind at a time when he sought to cancel his order for chemicals necessary to manufacture cocaine.
The record simply does not bear out Tobias's contention. The record shows that although Tobias sought to cancel his original order, he indicated to agent Schabilion that he was not interested in manufacturing any particular drug but was only interested in making money. At that point, agent Schabilion suggested that amphetamines, including PCP, would be "cheaper and easier" to manufacture. Tobias then indicated that there might be a market for PCP in Mobile and asked Schabilion to send him the formula, equipment, and precursors necessary to manufacture PCP. This evidence shows that Tobias was predisposed to manufacture a controlled substance, although no one drug in particular.
If law enforcement agents are precluded from discussing the particulars of how a criminal enterprise is to be conducted, the undercover work that is essential to the investigation and prosecution of drug offenses becomes impossible. Suggestions regarding the particulars of manufacturing one drug or another did not vitiate the predisposition which is best shown by Tobias's continuance of the conversation.
Tobias next argues that if the government had not provided him with the formula, necessary precursors, and continuing advice during the manufacturing process, he would have been unable to manufacture PCP. Thus, he argues that the government's involvement in this scheme was so outrageous that due process principles bar his convictions. This presents a tougher question.
v Russell, the Supreme Court held that the defense of entrapment was foreclosed to one who was predisposed to commit a crime, regardless of the type and degree of government activity involved. The Court, however, expressed the possibility that due process principles might prohibit an excessive degree of government involvement, stating: "[We] may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. . ." While the Court pointed out that in certain situations the conduct of the government may bar prosecution, it emphasized that the defendant must show that the challenged government conduct violates
"that fundamental fairness, shocking to the universal sense of justice,' mandated by the due process clause of the fifth amendment."
In certain circumstances, the government's conduct may be so outrageous as to violate due process however, " [p]olice over involvement in crime would have to reach a demonstrable level of outrageousness before it could bar convictions."
In the case of United States v. Gray, this court was presented with the question whether the government's conduct was so outrageous as to require reversal of convictions for violation of due process. In Gray, two government agents suggested a smuggling scheme to defendants and provided them with repair services, an airstrip, and a crew. The court, although acknowledging that the government agents suggested the scheme and aided in arranging the air transportation, held that "the providing of essential services is not misconduct."
In United States v. Leja, the defendant approached a government informant and suggested that the two produce PCP in a laboratory. They entered into an agreement, which provided that the government informant would obtain the necessary chemicals and the other two defendants would supply glassware, money, and technical expertise. Not only did the government informant provide the chemicals necessary to produce PCP, but another government informant provided technical instructions concerning the manufacturing process when one of the defendants encountered difficulties. The Sixth Circuit, relying on the fact that the government agent neither solicited the defendants nor provided them with chemicals and information, which they could not have obtained elsewhere, held that the due process clause did not require reversal of their convictions.
In United States v. Twigg, however, the Third Circuit found the government's conduct so outrageous as to violate due process because the government agent suggested the establishment of a drug laboratory, provided the place, equipment, supplies and
know-how, and then ran the entire operation with only meager assistance from the defendants.
From these cases emerges the basic proposition that government infiltration of criminal activity is a "recognized and permissible means of investigation." "This proposition remains true even though the ... government agent ... supplies something of value to the criminal." This is necessary so that the agent "will ... be taken into the confidence of the illegal entrepreneurs." On the other end of the spectrum, however, the government may not instigate the criminal activity, provide the place, equipment, supplies and
know-how, and run the entire operation with only meager assistance from the defendants without violating fundamental fairness.
Although the DEA provided the formula and some of the chemicals for the manufacture of PCP, the chemicals were not difficult to obtain and, in fact, some were ordered from a chemical supply house in Mobile. DEA provided no financial aid for Tobias's operation. In sum, "[t]he law enforcement conduct here stops far short of violating that 'fundamental fairness, shocking to the universal sense of justice,' mandated by the due process clause of the fifth amendment."
The cases demonstrate that outrageous involvement turns upon the totality of the circumstances with no single factor controlling. Although a totality of the circumstances standard must be applied, it is beneficial to review the parts that make up the whole. The DEA, 'in this case, did not initiate contact with Tobias. May the government be held to have involve
itself in outrageous conduct by placing the ad in High
Times? Similarly, may the government be condemned for shipping the necessary chemicals, even at
cut-rate prices? Or, was it outrageous for DEA to deliver the chemicals to Tobias's home? We think not. The crucial factor in this total fact picture is the
step-by-step advice given by the DEA agents. This advice was given to Tobias or his wife on more than thirteen occasions. On each occasion, however, Tobias or his wife contacted the DEA. This would be a more difficult case if the DEA had pursued Tobias by repeated phone calls and encouragement. But here, the drug transaction would have stopped at any time that Tobias made no further calls. Instead of being a predisposed inactive participant in this scheme to manufacture and distribute PCP (a cheap mind bending drug) primarily sold to youngsters, Tobias was a predisposed active participant motivated solely by a desire to make money. It is this predisposition plus active and insistent participation that sets this case apart from cases finding a due process violation. We are mindful of the Supreme Court's admonition that due process can only be invoked in the rarest and most outrageous circumstances. Yet, this case does set the outer limits to which the government may go in the quest to ferret out and prosecute crimes in this circuit.