United States v. Delaine F. Berg

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 98-2468EM

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United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the Eastern District

* of Missouri.

Delaine F. Berg, *

*

Appellant. *

___________

Submitted: January 12, 1999

Filed: May 27, 1999

___________

Before RICHARD S. ARNOLD, BRIGHT, and WOLLMAN,1 Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

A jury convicted Delaine Berg of conspiracy to manufacture methamphetamine

in violation of 21 U.S.C. § 846. Berg received a 30-year (360-month) prison sentence

to be followed by a five-year term of supervised release. Berg appeals the conviction

and sentence, raising a number of issues. He argues that outrageous government

conduct led to a violation of his right to due process. He also raises a similar but

1

The Hon. Roger L. Wollman became Chief Judge of this Court on April 24,

1999.

distinct entrapment argument; argues that his conviction should be set aside because

the District Court refused to declare a witness as hostile; and, finally, makes a

sentencing entrapment argument. We do not agree with Berg’s arguments, and find no

fault in the District Court’s2 decisions. We therefore affirm both the conviction and the

sentence.

I.

The events leading up to Berg’s conviction began with the arrest of Billy Hart

and Richard Kearbey. On July 29, 1996, Hart and Kearbey were arrested in Arizona

while attempting to buy methamphetamine (Trial Tr. 4, 46, 111, 144). Hart and

Kearbey both agreed to cooperate with the government (Trial Tr. 4, 111-12). In

exchange for Hart’s and Kearbey’s cooperation, the government agreed to ask for

reduced sentences for both Hart and Kearbey on the Arizona methamphetamine charge

(Trial Tr. 4, 112). Hart and Kearbey then met with Herman Hogue, a Drug

Enforcement Administration agent in southeastern Missouri (Trial Tr. 4, 113). Hogue

learned that Hart knew John Clayton (Trial Tr. 196). Hogue was interested in Clayton,

and Hart knew Clayton was involved in trafficking methamphetamine (Trial Tr. 113).

Under Hogue’s direction, Hart contacted Clayton to try to arrange a controlled buy of

methamphetamine (Trial Tr. 196).

Hart and Kearbey first met with Clayton on August 29, 1996, at Clayton’s home,

and then again on September 5 and September 10 (Trial Tr. 5, 7, 114, 115). On

September 5, Clayton sold Hart and Kearbey an ounce of methamphetamine and

fronted them another ounce (Trial Tr. 7). On September 10, Hart and Kearbey paid

for the ounce Clayton fronted them on September 5 (Trial Tr. 7). Clayton also fronted

them a second ounce. Id. Hart testified that during the meeting on August 29, Clayton

2

The Hon. E. Richard Webber, United States District Judge for the Eastern

District of Missouri.

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“showed interest in doing a meth cook” (Trial Tr. 114). It is not clear, however, who

initially suggested manufacturing the methamphetamine. Kearbey testified that Clayton

suggested manufacturing methamphetamine (Trial Tr. 15). Clayton, on the other hand,

testified that the idea originated with Hart and Kearbey (Trial Tr. 398-401). Hart

testified that at the meeting on September 10, Clayton indicated he knew someone who

could cook the methamphetamine (Trial Tr. 116). Hart and Kearbey met with Clayton

again on September 16 and September 24 (Trial Tr. 8, 10, 116-17). Delaine Berg, the

defendant, was also present at the September 24 meeting, and, according to Hart, the

four of them discussed doing “a large cook where everyone would make a lot of

money” (Trial Tr. 117). Although Hart and Kearbey met Berg for the first time on

September 24, Hart testified that he believed Clayton had already talked to Berg about

cooking methamphetamine (Trial Tr. 117).

The meeting on September 24 was tape recorded by Kearbey (Trial Tr. 11).

During the meeting Kearbey and Berg discussed the amount of methamphetamine to

be cooked, as well as what Berg had cooked in the past:

Kearbey: “. . . Have you been making any quantities or just

small?”

Berg: “. . . I make quarter pounds or something like

that.”

Kearbey: “That’s why I like this, this . . .”

Berg: “You take as much risk.”

Kearbey: “Oh, yeah.”

Berg: “and as much trouble doing that as what if you

make, you know, ten, twelve pounds. I mean I’d

rather do it that way.”

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Kearbey: “Well that’s what we figured out and it’s. You

know, we would rather do the bigger deal. It’s

the same damn risk.”

Berg: “Um huh.”

(Government Ex. 2, p. 14.) On October 7, Clayton gave Hart a list of ingredients

needed to manufacture the methamphetamine, telling them that the list came from Berg

(Trial Tr. 18, 127-28). Hart and Kearbey obtained the items on the list (Trial Tr. 23).

They supplied the flasks and glassware necessary to manufacture the methamphetamine

and the location where the manufacturing would occur (Trial Tr. 22, 174-75). They

also helped Clayton soak down pills, supplied by Clayton, for the ephedrine necessary

to manufacture the methamphetamine (Trial Tr. 21-22).

Kearbey testified that on October 15, Clayton brought Berg to Kearbey’s house

(Trial Tr. 24). Hart, Kearbey, and Berg then went to the location secured by Kearbey

to manufacture the methamphetamine (Trial Tr. 24-25, 130). According to Hogue's

testimony, Hart and Kearbey notified Hogue that the cooking had started (Trial Tr.

206). Hogue obtained a search warrant and, on October 16, during the manufacturing

process, Berg was arrested (Trial Tr. 207-08). Berg was subsequently indicted, tried,

and found guilty of conspiracy to manufacture methamphetamine. Clayton pleaded

guilty to the charge and was called as a witness by the defense. Berg now appeals his

conviction, raising four separate issues. We will address each of those issues, but do

not find that any of them warrants a reversal of Berg’s conviction or a reduction in his

sentence.

II.

Berg first argues that the government’s extremely outrageous conduct led to a

violation of his Fifth Amendment right to due process. The outrageous-conduct

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argument often arises in cases where the government has been involved in sting or

reverse-sting operations. See United States v. Cannon, 88 F.3d 1495, 1506 (8th Cir.

1996). The defense of outrageous conduct “focuses on the government’s conduct.”

Id. (citing United States v. Kummer, 15 F.3d 1455, 1459 n.9 (8th Cir. 1994)). This

defense is distinct from entrapment, which focuses on the defendant’s predisposition

to commit a crime, and which also often arises in cases involving a sting or reverse-

sting operation. See id.

Participation by government agents or informants in the illegal manufacture or

distribution of drugs is a recognized means for the government to obtain convictions

in drug-related offenses. See United States v. Russell, 411 U.S. 423, 432 (1973).

When government agents or informants “go too far in manufacturing a crime and

inducing a defendant into it,” however, their conduct may violate the defendant’s right

to due process. Gunderson v. Schlueter, 904 F.2d 407, 410 (8th Cir. 1990) (citing

Russell, 411 U.S. at 431-32). The Supreme Court has recognized that “some day” a

case might arise where the government’s conduct is “so outrageous that due process

principles would absolutely bar the government from invoking judicial processes to

obtain a conviction.” Russell, 411 U.S. at 431-32. The Supreme Court has yet to see

that day.

This Court has stated that “[t]he level of ‘outrageousness’ needed to prove such

a due process violation . . . is quite high.” Gunderson, 904 F.2d at 410. And, like the

Supreme Court, this Court has yet to see a case in which the government’s conduct rose

to the level of such outrageousness. We have said that the government agent’s

involvement “approached” a level of outrageousness that would bar a conviction, but

that is as close as we have come. United States v. Lard, 734 F.2d 1290, 1296 (8th Cir.

1984). See also Gunderson, 904 F.2d at 411. The government agent in Lard went to

the defendant’s house to see if he had any firearms for sale and, after rejecting the only

thing the defendant had to offer (a detonator), asked the defendant to make a pipe

bomb. Lard, 734 F.2d at 1292. The defendant had no prior criminal record and had

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never dealt in firearms or destructive devices. Id. at 1294. We found that the

defendant had been entrapped as a matter of law. Id. We did not find, however, a

violation of the defendant’s due-process rights. Id. at 1297.

In support of his argument, Berg cites a Third Circuit case in which a panel of

the court found outrageous conduct by the government. The defendants in that case

were also convicted of charges resulting from the illegal manufacture of

methamphetamine. See United States v. Twigg, 588 F.2d 373, 374 (3rd Cir. 1978).

The Third Circuit has declined to follow Twigg, and its position has been called into

doubt. See, e.g., United States v. Beverly, 723 F.2d 11, 12 (3rd Cir. 1983); United

States v. LBS Bank -- New York, Inc., 757 F. Supp. 496, 499 n.3 (E.D. Pa. 1990).

Moreover, the facts in Twigg are different from those in the present case. The

government informant in Twigg played an active role in the entire operation. He

contacted one of the defendants to discuss setting up a methamphetamine laboratory

and was completely in charge of the manufacturing process. See Twigg, 588 F.2d at

375-76. Production assistance from the two defendants was provided only at the

informant’s direction. Id. at 376. In this case, Hart and Kearbey played a less

substantial role in the events leading up to Berg’s, and Clayton’s, arrest. They initially

met with Clayton only to see if they could purchase methamphetamine from him (Trial

Tr. 196). Additionally, Kearbey's and Clayton's testimony differs as to who originated

the idea to manufacture methamphetamine (Trial Tr. 15, 401). Berg himself preferred

to make a large quantity. The government’s conduct in this case does not reach the

same level as that in Twigg.

We recognize that the line between “covert investigative conduct . . . that is

within constitutional bounds” and conduct that is so outrageous as to shock the

conscience of the court may sometimes be hard to draw. Cannon, 88 F.3d at 1506.

The conduct of the government in this case, however, was not so outrageous as to

violate Berg’s constitutional rights. We therefore deny Berg’s request to set aside his

conviction on these grounds.

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III.

Berg’s second argument is about entrapment. He argues that the District Court

erred by refusing to instruct the jury on the entrapment defense. Unlike the defense of

outrageous conduct, which focuses on the government’s conduct, the entrapment

defense focuses on the defendant’s predisposition to commit the crime in question.

Cannon, 88 F. 3d at 1506. The defendant must show that the government induced the

defendant to commit the crime. See id. at 1504. The prosecution then has the burden

to prove that “the defendant was predisposed to commit the crime, apart from the

government’s inducement.” Id. at 1504 (citing Jacobson v. United States, 503 U.S.

540, 553-54 (1992)). If the defendant exhibits any predisposition to engage in the

criminal conduct, the district court need not instruct the jury on entrapment. See United

States v. Neal, 990 F.2d 355, 358 (8th Cir. 1993). “[I]f predisposition exists, then there

is not sufficient evidence from which a reasonable jury could find entrapment.” Id.

(citations omitted).

Berg first met with Hart and Kearbey on September 24 (Trial Tr. 9, 117). Before

that meeting, Berg and Clayton (who was not working with the government) privately

discussed working with Hart and Kearbey to manufacture methamphetamine (Trial Tr.

117-18). Although Berg’s prior experience with manufacturing methamphetamine may

have involved only small amounts of the drug, Berg readily agreed to manufacture the

larger, twelve-pound amount (Government Ex. 2, p. 14). He indicated, in fact, that

he’d “rather do it that way.” Id. Berg has not shown that he was induced by the

government, through its informants, to commit the crime.

Even were we to agree with Berg that he was induced to manufacture

methamphetamine, Berg did have a predisposition to commit the crime. His never

having “cooked” such a large batch need not necessarily mean he was not predisposed

to do so. “Predisposition . . . focuses upon whether the defendant was an ‘unwary

innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the

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opportunity to perpetrate the crime.” Mathews v. United States, 485 U.S. 58, 63

(1988) (citations omitted). Berg had specialized knowledge in manufacturing

methamphetamine. We do not believe Berg was an “unwary innocent” in this case.

When the defendant has a predisposition to commit the crime for which he is charged,

he cannot successfully argue that he was entrapped. The District Court, therefore, did

not have to instruct the jury on entrapment.

IV.

Berg also argues that his conviction should be set aside because the District

Court limited his examination of John Clayton. Prior to Berg’s trial, Clayton pleaded

guilty to conspiracy to manufacture methamphetamine in exchange for the

prosecution’s agreement to tell the Court that he had cooperated (Trial Tr. 421-23).

The prosecution did not call Clayton as a witness during Berg’s trial. Berg, however,

did. During re-direct examination, Berg sought to examine Clayton as a hostile

witness, and to be allowed to ask Clayton leading questions. The Court refused Berg’s

request (Trial Tr. 447-48). Although Berg may have had difficulty seeking some of the

information he wanted from Clayton, the record does not indicate that Clayton was a

hostile witness. Berg argues that the Court’s refusal to declare Clayton a hostile

witness led to a violation of his right to confront a witness against him. We find no

merit in this argument. The decision to declare a witness hostile is generally within the

discretion of the trial court and the Court did not abuse that discretion in this case.

Berg was allowed to examine Clayton fully. We do not know what additional

information Berg could have gotten out of Clayton if leading questions had been

allowed.

V.

Finally, Berg makes a sentencing-entrapment argument. We have recognized

that sentencing entrapment can occur. See United States v. Lenfesty, 923 F.2d 1295,

1300 (8th Cir. 1991). Sentencing entrapment occurs when official conduct leads a

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defendant predisposed to deal only in small quantities of drugs to deal in larger

quantities, leading to an increased sentence. See United States v. Barth, 990 F.2d 422,

424 (8th Cir. 1993). Most of our previous cases involving sentencing-entrapment

arguments involved defendants who sold drugs to informants or undercover agents.

See, e.g., Barth, 990 F.2d at 423; Lenfesty, 923 F.2d at 1295. In all of those cases the

Court declined to find sentencing entrapment, and no downward departure in

sentencing was permitted.

Berg argues that Hart and Kearbey induced him to participate in a crime he was

not otherwise predisposed to commit. Berg admits that he had manufactured

methamphetamine prior to working with Clayton, Hart, and Kearbey, but states that he

had never manufactured a batch as large as twelve pounds. He therefore seeks a

downward departure in sentencing based on the idea that if he were convicted of

manufacturing a lesser amount of methamphetamine – such as the quarter-pound

batches he had previously manufactured – he would receive a shorter sentence under

the sentencing guidelines. Berg argues that, as informants, Hart and Kearbey would

benefit under their cooperation agreement with the government if they induced Berg to

commit a crime with a greater sentence. In order to help themselves, in other words,

Hart and Kearbey wanted Berg to manufacture twelve pounds of methamphetamine.

We agree with Berg that the amount of drugs involved in sting and reverse-sting

operations can be easily manipulated by the government and, as Berg also notes, courts

have begun to question the government’s power to control sentencing. “[W]e continue

to be deeply concerned about the proclivity of reverse-sting operations . . . to raise

questions of sentencing entrapment.” United States v. Stavig, 80 F.3d 1241, 1247 (8th

Cir. 1996). Although Berg legitimately raises the question here, we do not agree with

Berg’s construction of Hart’s and Kearbey’s conduct. There is no indication that they

set Berg up to manufacture a greater amount of methamphetamine simply to enhance

Berg’s sentence. Additionally, it appears that Berg preferred to manufacture the greater

quantity. In any case, no great amount of persuasion was required.

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VI.

For the reasons discussed, we affirm both the conviction and the sentence

imposed by the District Court.

BRIGHT, Circuit Judge, dissenting.

Because the district court erred in two respects, I dissent. First, on these facts,

Berg's request for a jury instruction on entrapment should have been granted. Second,

importantly, the district court erred in refusing Berg's request for a downward departure

based on the government's manipulation of his sentence.

I. Instruction on Entrapment

Entrapment is generally a question for the jury to determine, see United States

v. Pfeffer, 901 F.2d 654, 656 (8th Cir. 1990), and when it is raised by the defendant as

an affirmative defense "the government must prove the absence of entrapment beyond

a reasonable doubt." United States v. Eldeeb, 20 F.3d 841, 843 (8th Cir. 1994) (citing

Jacobson v. United States, 503 U.S. 540, 548 (1992)). Although a trial judge may

refuse to give an instruction on entrapment in the complete absence of any evidence to

support it, a defendant is "entitled to an instruction on entrapment, . . . if there was

evidence that '(1) government agents implanted the criminal design in his mind, and (2)

government agents induced him to commit the offense.'" Eldeeb, 20 F.3d at 843

(quoting United States v. Huff, 959 F.2d 731, 737 (8th Cir. 1992)).

Moreover, in order to prove the affirmative defense of entrapment, as a legal

matter, the defendant must first demonstrate that the government induced him to

commit the crime. See United States v. Cannon, 88 F.3d 1495, 1504 (8th Cir. 1996).

When inducement is so shown, the prosecution then has the burden to show that the

defendant was in fact predisposed to perpetrate the crime. See id.

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Under the foregoing standards, the evidence presented at Berg's trial was

sufficient to allow a reasonable jury to find entrapment. See Eldeeb, 20 F.3d at 843.

Thus, the entrapment defense ought to have been submitted to the jury for its due

consideration.

While the record is somewhat ambiguous on the question of whether the idea to

manufacture methamphetamine originated with the government or with Mr. Clayton,

Mr. Berg's sole alleged co-conspirator, there was certainly credible evidence to suggest

that the government "implanted" the idea for this enterprise. (Trial Tr. 153, 401).

Although one of the government's cooperating individuals did testify to the contrary,

the resolution of such differences in testimony is within the province of the jury.

Moreover, there is ample evidence in the record to suggest that the government

induced Berg to commit this crime. Prior to September 24, 1996, according to the

testimony of Mr. Clayton, Mr. Berg had not agreed to manufacture methamphetamine.

(Trial Tr. at 406). At the tape-recorded meeting of September 24, 1996, however, the

government's agents made a variety of specific inducements designed to lure Berg into

such an agreement. They offered him a safe location for the operation and assured him

that it was in an area free from law enforcement activity. (Government Ex. 2 at 9).

They offered him an overall plan to profit without any financial investment of his own.

(Government Ex. 2). They promised to provide the most significant and helpful

physical apparatus needed to "cook" a large batch of methamphetamine (namely, an

enormous twenty-two-liter, triple-necked, chemical flask). (Government Ex. 2 at 9).

In addition, they also offered to provide a regulated chemical precursor (hydriodic acid)

which Berg otherwise could not obtain. (Government Ex. 2 at 4, 5, 7). All of these

offers and provisions made on the part of the government were transparently designed

to induce Berg to enter a conspiracy and ultimately to commit the crime.3

3

The majority suggests that Berg was not induced by the government because he

"readily agreed" to make methamphetamine and, when discussing the relative merits

of making larger batches, indicated that he would "rather do it that way." Maj. Op. at

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In counterbalance, the prosecution presented no direct evidence of Berg's

predisposition to manufacture methamphetamine. Although it is true that the

prosecution claimed that it possessed such evidence and considered introducing it, the

prosecutor opted not to do so for purely strategic reasons. (Trial Tr. at 338, 391). The

majority opinion rests its determination that Berg was not an "unwary innocent" on the

fact that Berg "had specialized knowledge in manufacturing methamphetamine." (Maj.

Op. at 7). It is clear, of course, that Berg did have knowledge of the chemical reactions

necessary to cook methamphetamine. But mere knowledge of the requisite chemical

processes does not, as a matter of law, create a predisposition in an individual. If it did,

any chemist with sophisticated knowledge on the subject would be "predisposed" to

manufacture methamphetamine no matter how unwilling to do so in fact.

A proper inquiry into a defendant's predisposition "requires examination of the

defendant's personal background to see where he sits on the continuum between the

7 (citing Government Ex. 2, p. 14). My response to that is two-fold.

First, the affirmative defense of entrapment, at least in the context of a

conspiracy crime, presumes that the defendant agreed to commit the offense. The fact

that the defendant ultimately agreed, readily or not, simply does not inform the question

of whether he was induced to agree. The court's focus when weighing the propriety of

an entrapment instruction must, at the first step, be on what inducements were made

and not on the agreement itself. The majority opinion does not address the specific

inducements detailed in this dissenting opinion.

Second, Berg's preference to make larger rather than smaller batches does

nothing to deflate the inducements made by the government. Berg's comment that he'd

"rather do it that way" came near the end of the tape-recorded conversation. It was

earlier in this same conversation that the government's agents made the very

inducements which suggest entrapment and which appear to have persuaded Berg to

enter the conspiracy. Berg's preference after the fact in no way impairs the coercive

power of inducements made prior in time because, by the time he expressed his

preference, he was already in the trap.

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naive first offender and the streetwise habitue." United States v. Kummer, 15 F.3d

1455, 1459 (8th Cir. 1994) (internal quotation omitted). No such examination was

conducted here.

Thus, Berg adequately showed that government inducements led him to commit

this crime while the government failed to carry its corresponding burden to show Berg's

predisposition. As a result, Berg was entitled to have an instruction to allow the jury

to consider entrapment as a defense. I would reverse Berg's conviction on that basis

and remand the case for a new trial.

II. Sentencing Entrapment and Manipulation

Alternatively, in considering Berg's attack on his sentence, many of the same

factors which led to the conclusion that an entrapment instruction was warranted in this

case support, with even greater force, a sentencing reduction for Berg on the basis of

sentencing entrapment and manipulation.

In United States v. Barth, 990 F.2d 422 (8th Cir. 1993), this court recognized that

the sentencing guidelines contain the "terrifying capacity for escalation of a defendant's

sentence" as a result of government misconduct. Id. at 424 (quotation omitted). Due

to the structure of the guidelines -- a structure which ties various illicit drugs to specific

sentencing ranges based primarily upon the sheer weight or quantity of drugs present

in a given offense -- relatively modest differences in the amount of drugs seized from

or manufactured by a defendant may dramatically alter his or her time in prison. Yet

at the same time, in many drug enforcement actions including this one, it is the

government and not the defendant which maintains ultimate control over how much of

a drug is bought, sold or otherwise swept into the offense. For this reason, "we [held]

that sentencing entrapment may be legally relied upon to depart under the sentencing

guidelines . . . ." Id. at 424-25.

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In addition to sentencing entrapment, this court has also recognized and

distinguished the theory of "sentence manipulation." United States v. Shephard, 4 F.3d

647, 649 (8th Cir. 1993) (citing United States v. Connell, 960 F.2d 191, 194 (1st Cir.

1992)). While sentencing entrapment focuses on the defendant's predisposition to

commit only minor crimes, see United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.

1991) (defining sentencing entrapment as "outrageous official conduct [which]

overcomes the will of an individual predisposed only to dealing in small quantities" for

the purpose of increasing the amount of drugs and the resulting sentence) (emphasis

added), sentencing manipulation instead requires the court to focus on whether the

government tailored its "investigation merely to increase the sentence [defendant]

would receive." Shephard, 4 F.3d at 649. In order to prevent law enforcement agents

from vindictively ratcheting up a defendant's sentence, "[w]hen an accusation of

sentencing factor manipulation surfaces, the judicial gaze should, in the usual case,

focus primarily -- though not necessarily exclusively -- on the government's conduct

and motives." United States v. Gibbens, 25 F.3d 28, 31 (1st Cir. 1994) (emphasis

added). A defendant may argue theories of sentencing entrapment or manipulation in

mitigation of sentence even if the affirmative defenses of entrapment or outrageous

misconduct failed at trial. See United States v. Hulett, 22 F.3d 779 (8th Cir. 1994).

We properly test fact patterns for sentencing manipulation by examining the

government conduct at issue to determine whether it served some legitimate law

enforcement objective, or whether it was outrageous and aimed only at increasing the

defendant's sentence. See United States v. Calva, 979 F.2d 119, 122-23 (8th Cir.1992);

Barth 990 F.2d at 425. If it is the former, then the defendant should receive no relief

from his sentence because the government may legitimately elicit additional offense

conduct in order to further establish guilt, probe the depth and extent of a criminal

enterprise, determine whether co-conspirators exist, or trace the chain of a criminal

hierarchy. See id. If it is the latter, however, sentencing manipulation has occurred and

a reduction is clearly justified and required.

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In this case, Berg argues that he received a thirty-year sentence -- instead of a

much shorter sentence -- because the government manipulated the quantity of

methamphetamine produced by the conspiracy. Insofar as the evidence conclusively

establishes that the DEA supplied a vital precursor chemical in an amount carefully

calibrated to trigger the maximum penalty allowed by the sentencing guidelines,4 I

agree. In order to better understand why I believe Berg's sentence was improperly

manipulated, it is important to explain a little bit about how methamphetamine is

produced.

Methamphetamine may be manufactured by either of two methods. Although

the precise reactions are complex, one method relies on a combination of ephedrine,

red phosphorous, and iodine crystals. A second method relies primarily on ephedrine

and hydriodic acid.5 At Berg's trial, the DEA's chemist testified that he could produce

a high quality methamphetamine yield, using either method, if the reactions were

conducted under laboratory conditions. (Trial Tr. at 388-89). However, in the real

world, "meth cooks" are not conducted under such controlled circumstances. On the

street, apparently, it is understood among those who participate in the illicit

manufacture and trade of methamphetamine that production by the hydriodic acid

method is a big advantage. (Trial Tr. at 91, 405). This is true for at least two reasons.

4

The sentencing guidelines establish the base offense level for conspiracy to

manufacture actual methamphetamine -- in a quantity greater than three kilograms (6.6

pounds) -- at 38. Thirty-eight is the highest base offense level provided for any pure

drug crime. See U.S.S.G. § 2D1.1 (a)(3)(1998). Assuming that an offender has no

significant prior criminal history (Criminal History Category I) and assuming that no

enhancements are made to the base offense level, an offense level of 38 will yield a

sentencing range of 235 to 293 months (in other words, between 19 years, 7 months

and 24 years, 5 months). See id. at Ch. 5, Pt. A.

5

Although hydriodic acid substitutes for the combination of red phosphorus and

iodine in the main body of the reaction, red phosphorus and iodine are apparently still

used in smaller amounts to bolster the reaction.

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First, the hydriodic acid method is safer because, although these chemical reactions

remain highly volatile, the hydriodic acid method is relatively less likely to explode

during production than is its phosphorus-iodine counterpart. (Trial Tr. at 388).

Second, under the sub-optimal manufacturing conditions in the field, the hydriodic acid

method apparently produces a whiter, more desirable product containing fewer

impurities. (Trial Tr. at 416).

Despite the obvious advantages of hydriodic acid, it is rarely used, as a practical

matter, because the government has placed it on the "watch list" in order to discourage

its use in making methamphetamine. (Trial Tr. at 387). Purchasers must present

identification and sign assorted documents before they can obtain hydriodic acid. (Trial

Tr. at 389). In other words, the process of buying hydriodic acid creates a paper trail

that gives the DEA and local law enforcement a ready mechanism to spot potential drug

manufacturers. As a result, only the foolish will risk detection by brazenly purchasing

hydriodic acid for illicit use in the open market.

In this case, however, the DEA authorized Kearbey (its cooperating criminal) to

make a deal with Clayton (the known methamphetamine trafficker) under which the

DEA would requisition and supply the conspiracy with hydriodic acid. (Trial Tr. at

201, 276). This was unusual -- the authorizing agent had never previously done so. Id.

As mentioned in Section I, Kearbey's access to hydriodic acid surprised Berg and even

induced him to join the conspiracy because Berg could not get hydriodic acid on his

own. (Government Ex. 2 at 5, 7). In addition to serving as an inducement, however,

the hydriodic acid supplied by the DEA also functioned to control the ultimate amount

of drug produced in the conspiracy because, as with any chemical reaction, the quantity

of limiting input determines the quantity of yield. In turn, by controlling the amount of

methamphetamine produced, the DEA controlled the range under which Berg would

be sentenced.

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When the government shut down the manufacturing operation in this case, 2.9

kilograms of methamphetamine were seized -- just under the threshold amount of 3.0

kilograms necessary to trigger the maximum sentencing range. (Trial Tr. at 375).

When the district court concluded that "the intention [of the conspiracy] was to

manufacture the maximum amount of methamphetamine consistent with all precursors

and equipment present, which would be an amount greater than three kilograms"

(Sentencing Tr. at 19) (emphasis added), it used the excess, unreacted hydriodic acid

and the twenty-two-liter flask (both supplied by the DEA or its agents) to push the drug

quantity for the offense above the maximum sentence threshold amount. In other

words, the DEA and its agents knew precisely how much precursor hydriodic acid they

needed to supply in order to manipulate this sting to produce the maximum possible

penalty for Mr. Berg. Indeed, the DEA's prime investigator in this case, the man who

personally authorized the use of hydriodic acid in this sting, also testified that he was

personally aware that sentencing calculations would be made under the guidelines.

(Trial Tr. at 228-29). In short, the evidence demonstrates that the DEA intentionally

arranged the amount of precursor chemical supplied to this conspiracy and, thereby,

ensured that Berg would face the maximum possible consequences.

Unlike the circumstances in Barth, 990 F.2d at 424-25 (law enforcement justified

in purchasing additional drugs to ascertain source), or Calva, 979 F.2d at 123

(additional purchases justified, inter alia, by need to "probe the extent of the

distribution ring"), no legitimate law enforcement objectives were served by the

government's actions in this case. Additional hydriodic acid did not further establish

guilt because guilt in the conspiracy was fully established as soon as Berg agreed to

make methamphetamine and took a substantial step in furtherance of that agreement.

Additional hydriodic acid did not help to probe the depth or extent of the criminal

enterprise. Nor did it help to identify unknown co-conspirators or trace the chain of a

criminal hierarchy because the government knew full well that -- in a crime it created

out of whole cloth -- only Clayton, Berg and two government catalysts participated.

Instead, the government's aim when it supplied Berg with such large quantities of drug

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precursor was, figuratively, to put Berg in jail and throw away the key -- regardless of

Berg's actual criminal intent. Thus, because Berg's sentence range was so obviously

manipulated, he is entitled to a downward departure to a level which fairly reflects his

culpability.

But even if I am wrong about the contours of "sentencing manipulation" per se,

this court has also noted recently that "where the government's conduct directly results

in prejudice to a defendant, which is significant enough to take the case out of the

heartland of the guidelines, the district court has the discretion to impose a downward

departure." United States v. Jones, 160 F.3d 473, 484 (8th Cir. 1998). At a minimum

the district court ought to have employed its discretion under this principle to depart

downward. The type of sentencing manipulation on display in this case is an insidious

evil. Even if we give law enforcement wide berth, Berg was clearly and significantly

prejudiced by the government's conduct. This type of government-created,

government-manipulated crime is simply "outside the heartland" encompassed by the

provisions of the sentencing guidelines because the Sentencing Commission simply did

not contemplate, nor would it countenance, maximal sentencing as a law enforcement

objective.

III. Residual Issues of Policy and Fairness

I would also like to take this opportunity to add several other comments about

the sentencing of Mr. Berg individually and others like him more generally.

First, the government created a criminal enterprise in this case which set up a

small-time methamphetamine cooker. No doubt a jury could find Berg guilty and a

sentencing judge could send him to prison for his conduct. But the magnified sentence

imposed upon Berg, a sentence which will keep him in prison until his old age, is a

direct result of the government's participation in Berg's criminal activity. The words

of Justice Brandeis in Olmstead v. United States come to mind.

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To declare that in the administration of the 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. Against that pernicious doctrine this court should resolutely

set its face.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). The

government may conduct sting operations. But for it to engage in conduct that for the

citizen would be criminal and thereby authorize the imposition of the harshest sentence

on an obviously small-time lawbreaker represents government conduct at its worst, not

its best. This court should set its face against such activity.

Next, while Berg is now but 33, he will emerge from the penitentiary an old man

-- if he doesn't die there first. In the intervening years, the cost of his incarceration for

the American taxpayer will total well over $660,000, not including the expense incurred

to construct the institutions in which he and others like him will be housed.6 As a

matter of national policy, such costs can scarcely be justified as rational even when

they are imposed by a discerning legislature. Such costs are made intolerable however

where, as here, they are the product of prosecutorial zeal and law enforcement

manipulation. I previously discussed the problem of what I believe to be costly and

excessive sentences in United States v. Hiveley, 61 F.3d 1363 (8th Cir. 1995) (Bright,

J., concurring), and I refer the reader to that case. I wrote in Hiveley and I repeat here:

[U]nwise sentencing policies which put men and women in prison for

years, not only ruin lives . . . but also drain the American taxpayers . . . .

[It is] time to call a halt to the unnecessary and expensive cost of putting

people in prison for a long time based on the mistaken notion that such an

effort will win "The War on Drugs."

6

See, United States v. Hiveley, 61 F.3d 1363 (8th Cir. 1995) (Bright, J.,

concurring) (estimating the per prisoner cost of incarceration, excluding prison

construction, for fiscal year 1995 at $21,995).

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....

The public needs to know that unnecessary, harsh and unreasonable drug

sentences serve to waste billions of dollars without doing much good for

society. We have an unreasonable system.

Id. at 1363, 1365.

Finally, although Berg makes no direct argument with respect to disproportionate

sentencing, the result in this case is worth noting. The chain of events which

culminated in Berg's arrest began in Arizona when Kearbey and Hart were arrested

while trying to purchase fifty pounds (22.7 kilograms) of methamphetamine from an

agent of the DEA and faced the possibility of maximum sentences, even life in prison.

(Trial Tr. at 47, 149). Both Kearbey and Hart were long-time drug dealers who made

hundreds of thousands of dollars in the process. (Trial Tr. at 49, 145). After they

agreed to "cooperate" with the government, Kearbey and Hart created several sting

operations for the DEA by fingering low-level acquaintances (such as Clayton) and

relatives (Kearbey's brother-in -law, for example) (see United States v. Hunt, 171 F.3d

1192 (8th Cir. 1999)). After the stings were conducted, Kearbey was sentenced to two

years of supervised release with time served; meaning Kearbey -- the ringleader of a

fairly large methamphetamine distribution network -- was punished for his crimes with

a total of seven days in jail. (Trial Tr. at 51). Hart, for his assistance, was sentenced

to three years of supervised release with time served; meaning Hart -- for his

participation in a crime involving 22.7 kilograms of methamphetamine -- was punished

with a total of three days in jail. (Trial Tr. at 155). In stark contrast, note Mr. Berg --

the smallest fish in the kettle, a man who had no one else to snitch on -- suffers

punishment for his crime with ten thousand, nine hundred and fifty days in prison.

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What a sad kettle of fish!7

IV. Conclusion

In summary, I would set aside Berg's conviction for the trial court's failure to

give an entrapment instruction. In the alternative, I would vacate the sentence of

imprisonment and remand to the district court to reduce Berg's sentence to one

appropriate for his usual practice or capability in manufacturing methamphetamine.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

7

The line originates in the Gilbert and Sullivan opera Iolanthe [1882], Act II.

The play dialogue reads: "Here's a pretty kettle of fish!"

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