Petition for Writ of Certiorari — Mazzella v. United States

VU VS Vee ee

FILES

sep 16 190m

JOSEPH F. SPANIOL,

CLERK

ae

—

85-59

IN THE

Supreme Court of the United Sites

OCTOBER TERM, 1985

NO.

CARLO MAZZELLA,

Petitioner

Vv.

THE UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SHULTS, HETHERINGTON,

LINDER & TARICS

ROBERT A. SHULTS

1800 West Loop South

Suite 950

Houston, Texas 77027

(713) 961-1823

Counsel for Petitioner

TS TN STEER SIRT

Alpha Law Brief Co., Inc.—S606 Parkersburg—Houston, Texas 77036—223-3003

XS

I

QUESTIONS PRESENTED FOR REVIEW

1. The opinion of the Court of Appeals is in error

in failing to hold, as a matter of law, that the conduct

of the agents of the Drug Enforcement Administration

was so outrageous as to violate the due process clause

of the Fifth Amendment to the United States Constitution

and this Court should review the cases establishing this

due process right so as to set definitive guidelines for

lower courts and should likewise consider the conduct

of the federal agents in light of the inchoate nature of

the offense for which the Petitioner was convicted.

2. The Court of Appeals erred in holding that there

was sufficient evidence to establish that Petitioner’s con-

duct constituted a “substantial step” toward the com-

mission of the crime of attempting the manufacture of

a controlled substance and that Petitioner’s conduct went

beyond “mere preparation” for the alleged commission

of an offense.

II

TABLE OF CONTENTS

Page

Questions Presented For Review .............+eeseeees I

Balin ak MN ii 5k 5 58 ERK ik s HE ERS 1

Reference to Reports Below ................eeeeeeeees 1

Statement of Grounds of Jurisdiction .................. 2

Constitutional and Statutory Provisions Involved ........ 2

et Reeser eer Tree 3

Reasons for Granting the Writ ............... ceeeeees 6

oT re rr Me rire roo rrr er 14

pT PERT ye eee ee la

Ill

TABLE OF AUTHORITIES

CASES

Hampton v. United States, 425 US. 484, 96 S. Ct. 1646,

Se EE, BEE CUED pcb cucccccnncedescasesansce

People v. Orndorff, 261 Cal. App. 2d 212, 67 Cal. Rptr.

Se RUUD Sansa cesdesaerccdedceconecceseseccesss

People v. Rizzo, 246 N.Y. 334, 158 N.E. 888 (1927) ....

Rex v. Robinsom, 2 K.B. 342 (1915) ......ccccccceees

Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96

i re SUED. Noccc ax abeweeees se bceencecececes

United States v. Joyce, 693 F.2d 838 (8th Cir. 1982) ...

United States v. Leja, 563 F.2d 244 (6th Cir. 1977) ....

United States v. Manley, 632 F.2d 978 (2nd Cir. 1980),

eS iy TTT UPTTT eT ee

United States v. Monholland, 607 F.2d 1311 (10th Cir.

Et. é TL GUT edt khan hhh 4 w Obs bA808 £6 660a.c08008

United States v. Quinn, 543 F.2d 640 (8th Cir. 1976) ...

United States v. Rivera-Sola, 713 F.2d 866 (1st Cir. 1983)

United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36

Se er er er ey eer rere

United States v. So, 755 F.2d 1350 (9th Cir. 1985. ....

United States v. Stallworth, 543 F.2d 1038 (2nd Cir. 1976)

United States v. Tobias, 662 F.2d 381 (Sth Cir. 1982) ...

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

United States v. Yater, 756 F.2d 1058 (Sth Cir. 1985) ...

Williams v. United States, 449 U.S. 1112, 101 S. Ct. 922,

ee 4 sn ck G bbe cuca seb cbabuaces

STATUTES

EE hc Sci KA ds Gee shHARaneASASSRRWSKGOK 08

ES CLCoh Gicc eae aat<ubsnea. .ceeens cauceeve

ee NE ES Ga AAG as sabe wea Ska cid bd assavenccetcess

OTHER AUTHORITIES

American Law Institute’s Model Penal Code, Section 5.01

Rule 17, Revised Rules of the United States Supreme Court

a ee ha NGS pa tdGee tube kee Kkeb dnc ens

w & &

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1985

NO.

CARLO MAZZELLA,

Petitioner

Vv.

THE UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Petitioner, Carlo Mazzella, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit entered on July 17, 1985.

REFERENCE TO REPORTS BELOW

1. Petitioner was tried in the United States District

Court for the Western District of Arkansas. This

trial proceeding was not published, but the trial

record is available for review.

2

2. On July 17, 1985, the opinion of the United States

Court of Appeals for the Eighth Circuit was filed

affirming Petitioner’s conviction and that proceed-

ing bears No. 84-1779 in the Court of Appeals.

At the time of the preparation of this Petition, the

opinion of the Court of Appeals has not yet been

published, but a true and correct copy thereof is

attached in the Appendix of this Petition. It is in

regard to this judgment that the Petitioner seeks

a writ of certiorari.

STATEMENT OF GROUNDS OF JURISDICTION

1. Jurisdiction is conferred on this Court by the pro-

visions of 18 U.S.C. 3772 and Rule 17, Revised

Rules of the United States Supreme Court.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. “No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process

of law; nor shall private property be taken for

public use, without just compensation.” U.S. Const.

amend. V.

3

2. “Any person who attempts or conspires to commit

any Offense defined in this subchapter is punishable

by imprisonment or fine or both, which may not

exceed the maximum punishment prescribed for the

offense, the commission of which was the object of

the attempt or conspiracy.” 21 U.S.C. 846.

STATEMENT OF THE CASE

The Petitioner was charged with the offense of criminal

attempt alleging tat he attempted to manufacture meth-

amphetamine in violation of 21 U.S.C. 846. Petitioner’s

conviction followed a nonjury trial and a sentence of

eighteen (18) months imprisonment was imposed.

The facts indicate that the Drug Enforcement Ad-

ministration (DEA) established a storefront, undercover

chemical and supply company in Chicago, Illinois known

as Universal Solvents of America (Universal). The DEA

placed advertisements in several magazines including a

publication known as Easy Rider.

After seeing the advertisement, Petitioner corresponded

with Universal requesting a catalog. On August 28, 1982,

Petitioner telephoned Universal inquiring about the status

of his request that he be supplied with a catalog. A DEA

agent, indicating to the Petitioner that he was an em-

ployee of Universal, stated that the catalogs would be

unavailable in the near future and suggested that the

Petitioner correspond directly concerning the objects

which he wished to purchase. Universal received a letter

from Petitioner requesting price quotes on various items

including phenyl 2-propanone (propanone). On Septem-

ber 17, a government agent posing as a Universal

employee corresponded with Petitioner informing him

4

that propanone was a controlled substance and could

not be supplied directly. See, 21 U.S.C. 812. Propanone

is a substance necessary in the manufacture of meth-

amphetamine but is a precursor and therefore not an end

product in regard to the manufacture of methampheta-

mine. In the same correspondence, the government agent

indicated that Universal could “supply al! chemicals and

equipment necessary to produce (propane) without

restriction” and further suggested that Petitioner purchase

“our very popular kit for $700.00 which includes all

chemicals, equipment and glassware necessary” to manu-

facture propanone. This correspondence further specifi-

cally indicated to the Petitioner that “a qualified chemist

(is) available to answer questions.” The receipt of this

generous offer prompted an additional telephone call

from Petitioner to Universal and a resulting telephone

cali with the same government agent. Petitioner stated in

this call that he wished to place an order and requested

that the order be expedited. The agent then took Peti-

tioner’s order for the “kit” which the agent had suggested

that the Petitioner purchase.

On October 26, 1982, a DEA agent, disguised as an

employee of United Parcel Service, delivered to Peti-

tioner’s home in DeQueen, Arkansas, several cardboard

boxes allegedly containing various chemicals and other

items comprising the “kit” which had been ordered. The

C.O.D. price of the articles to be delivered was $1,023.00

which was requested by the agent/UPS driver. Petitioner

did not have these funds available and, upon the urging

of the government agent posing as the UPS driver, Peti-

tioner made a partial payment of $850.00 for delivery

of the materials with the further instructions from the

agent that UPS would accept the balance at a later date.

5

The Petitioner then took the boxes delivered by the

agent to a location away from his home and deposited them

under a tarpaulin in a nearby wooded area, Upon return

to his residence, Petitioner was arrested by DEA agents.

After receiving his constitutional warnings from the ar-

resting DEA agents, the Petitioner signed a written state-

ment setting out the basic facts involved in this prosecu-

tion.

After the recovery of the boxes delivered to the Peti-

tioner, it was determined that some of the boxes had been

opened but all of the containers inside the boxes remained

sealed. The DEA agents further recovered from Peti-

tioner’s residence a book entitled “Speed”. This book

describes, in very general terms, a process allegedly

usable to manufacture methamphetamine.

The chemist who testified at trial on behalf of the

government testified that it would be “very difficult” to

manufacture methamphetamine using the instructions

from the booklet confiscated from the Petitioner. Addi-

tionally, there is no showing of any type or any evidence

of any kind that the Petitioner had any prior involve-

ment in drug usage, drug manufacture or other similar

activity nor is there any showing that the Petitioner had

any training in chemistry, any knowledge save and except

the booklet retrieved as to how to manufacture meth-

amphetamine nor any other knowledge of any kind

relating to the manufacture or distmbution of controlled

substances generally and methamphetamine specifically.

6

REASONS FOR GRANTING THE WRIT

1. THE OPINION OF THE COURT OF APPEALS

ERRONEOUSLY CONCLUDES THAT THE AC-

TIVITY OF THE DEA IN SUPPLYING ALL OF

THE CHEMICALS, EQUIPMENT, AND OTHER

MATTERS ALLEGEDLY NECESSARY FOR THE

MANUFACTURE OF METHAMPHETAMINE

DOES NOT VIOLATE THE DUE PROCESS

RIGHTS OF THE PETITIONER SINCE SUCH

CONDUCT IS OUTRAGEOUS WHEN THE PE-

TITIONER IS LATER CHARGED WITH AN

INCHOATE OFFENSE TOTALLY BASED ON

THE POSSESSION OF THESE PRODUCTS

SUPPLIED TO THE PETITIONER BY GOV-

ERNMENT AGENTS.

Great confusion and diversity of interpretation has

surrounded the Supreme Court’s decisions in United

States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L.Ed.

366 (1973) and Hampton v. United States, 425 US.

484, 96 S. Ct. 1646, 48 L.Ed.2d 1113 (1976) as those

cases relate to due process claims regarding what has

come to be referred to as “outrageous government in-

volvement” or “outrageous government conduct” in crimi-

nal prosecutions. This is especially true in cases, such

as the one at bar, where there is no issue of entrapment

as that defense has classically been defined but which

involved purely due process claims under the Fifth

Amendment by reason of the pervasiveness of the gov-

ernmental activity in the commission of the alleged of-

fense. In part, this is due to confusion, even by the

drafters of the majority and plurslity opinions in Hampton

and Russell, in regard to concepts which apply separately

7

to due process claims and entrapment claims. Hence,

Justice Rehnquist writes in Russell that,

While we may some day be presented with a situa-

tion in which the conduct of law enforcement agents

is so outrageous that due process principles would

absolutely bar the government from invoking judicial

process to obtain a conviction . . . the instant case

is distinctly not of that breed. Russell, supra at 433-

434.

However, the same writer, when writing for the plurality

in Hampton, stated:

But in each case (Russell and Hampton) the Gov-

ernment agents were acting in concert with the

defendant, and in each case either the jury found

or the defendant conceded that he was predisposed

to commit the crime for which he was convicted.

The remedy of the criminal defendant with respect

to the acts of Government agents, which, far from

being resisted, are encouraged by him, lies solely

in the defense of entrapment. . . . The limitations

of the Due Process Clause of the Fifth Amendment

come into play only when the Government activity

in question violates some protected right of the

defendant.” Hampton, supra at 490-491. (emphasis

added).

Therefore, what was given in Russell, at least by im-

plication, was taken away in Hampton. While the above

quoted sections of Hampton represent only a plurality

opinion and while concurring opinions still refer to a

due process claim for outrageous government involve-

ment in the ailegedly criminal enterprise, lower courts

are left to speculate and guess as to what the limitations

and parameters are of permissible governmental activity

in the detection and/or instigation of criminal activity.

8

Clearly, there are certain types of governmental activity

in the area of the building of cases against suspects

which, while not clearly defined in the Constitution, are

of such outrageous magnitude that they violate the re-

quirements of due process. Rochin v. California, 342

US. 165, 72 S. Ct. 205, 96 L.Ed. 183 (1952). Just

as clearly, this is what was initially envisioned by the

majority opinion in Russell and subsequently referred

to by the concurring writers in Hampton.

While this Court should accept the case at bar for

no other reason other than to clarify the conflicting

signals sent by Russell and Hampton, another reason

exists for granting the writ in regard to a review of the

due process claims in this particular case. The significant

cases from the various Courts of Appeals struggling to

apply the holdings of Russei] and Hampton to cases in-

volving governmental activity approaching due process

parameters involve compieted criminal activity such as

the completed manufacture, sale, delivery or possession

of controlled substances or other criminal implements

or situations where the completed criminal instrument

is readily available. See, generally, United States v. Quinn,

543 F.2d 640 (8th Cir. 1976); United States v. Leja,

563 F.2d 244 (6th Cir. 1977); United States v. Twigg,

588 F.2d 373 (3rd Cir. 1978); United States v. Tobias,

662 F.2d 381 (Sth Cir. 1982); United States v. Yater,

756 F.2d 1058 (Sth Cir. 1985); United States v. So,

755 F.2d 1350 (9th Cir. 1985). A distinction should

be drawn and is mandated by due process considerations

between these cases where the government provided

encouragement, constituent elements for manufacture or

sale, premises or other help to admittedly predisposed

suspects who then utilized these aids in another step

9

indicating their completion of the criminal enterprise and

the case at bar where an admittedly predisposed suspect

was supplied with chemicals and equipment at least two

steps removed from the final product and then prosecuted

solely for the inchoate offense of criminal attempt based

upon his possession of the materials supplied to him by

government agents.

It is not intended that the due process claims advanced

in this section of the petition be confused with the error

brought forth in regard to the Court of Appeals holding

that there was a sufficient overt act on the part of the

Petitioner to go beyond the limits of mere preparation.

However, this distinct, due process claim relates to that

murky line inherent in the prosecution of inchoate of-

fenses. Since entrapment is not the issue in regaid to —

Petitioner’s due process claims, the predisposition of the

Petitioner is not controlling. That being the case, one

is left with a situation where the government supplies

chemicals, equipment and available technical expertise

for manufacturing a chemical which then must be used

separately and distinctly to manufacture the substance

alleged in the indictment, namely methamphetamine.

With no further activity than the receipt of these pre-

cursors that are several steps away from the completed

criminal offense which the Petitioner allegedly attempted,

he is prosecuted for criminal attempt. This fact, when

coupled with the fact that the government agents sup-

plied all of the materials which the Petitioner possessed

and which led to this charge and since the government’s

activity in supplying these constituent elements was so

pervasive, a distinct and distinguishable difference exists

between the nature of the due process review in this case

and in the other cases relating to Russell and Hampton

10

in which a completed manufacturing, sale or delivery

process, carried out by the suspects, flowed from the

governmental activity involved.

In the case at bar, the Court should review these facts

as they relate to the due process claims involving out-

rageous government involvement and thereby draw some

more clearly defined test for determining the permissible

limit of governmental involvement in soliciting, suggesting

and providing the total manner and means then used to

convict a criminal defendant of an inchoate offense where

the overt act involved is solely the receipt of the sum

total of these constituent elements from government

agents.

2. THE HOLDING OF THE COURT OF APPEALS

THAT THE EVIDENCE WAS SUFFICIENT TO

ESTABLISH THAT PETITIONER’S CONDUCT

CONSTITUTED A “SUBSTANTIAL STEP” TO-

WARD THE COMMISSION OF THE OFFENSE

OF CRIMINAL ATTEMPT WAS ERRONEOUS

AND SHOULD BE CORRECTED BY THE

GRANTING OF THE WRIT AND, FURTHER,

THIS COURT SHOULD CLARIFY THE CON-

GRESSIONAL INTENT IN THIS AREA OF

LAW AND UNIFY THE DISPARATE HOLD-

INGS OF THE VARIOUS COURTS AS TO THE

MANNER IN WHICH THE DEFINITION OF AT-

TEMPTS SHOULD BE APPLIED TO SPECIFIC

CASES.

In placing too much emphasis on the intent of the

Petitioner and undue emphasis upon the necessity of a

concomitant overt act amounting to more than mere

preparation to commit the offense, the Court of Appeals

11

fell into error in determining the sufficiency of the evi-

dence to support Petitioner’s conviction. This error is

exacerbated by the failure of the Court of Appeals to

draw a distinction between the factual situations in the

various reported cases dealing with attempts and the

factual situation in the instant case involving a charge

of attempt to manufacture when the last overt act is

several steps away from any possible completion of the

alleged criminal design.

There is no comprehensive statutory definition of the

inchoate offense of attempt in federal law. United States

v. Manley, 632 F.2d 978 (2nd Cir. 1980), cert. den.,

sub nom.; Williams v. United States, 449 U.S. 1112, 101

S. Ct. 922, 66 L.Ed.2d 841 (1981); United. States v.

Monholland, 607 F.2d 1311 (10th Cir. 1979). When

considering the proper, general standard to utilize in an

effort to define the offense of attempt, the courts have

generally utilized and adopted the standard found in

Section 5.01 of the American Law Institute’s Model Penal

Code (proposed official draft 1962). This formulation

generally sets out that the elements of an attempt are

(1) an intent to engage in criminal conduct, and (2)

conduct constituting a “substantial step” towards the

completion of the substantive offense which strongly

corroborates the actor’s criminal intent. United States

v. Joyce, 693 F.2d 838 (8th Cir. 1982). Mere intention

to commit a crime and acts constituting mere preparation

to carry out that intention can never amount to an

attempt. United States v. Rivera-Sola, 713 F.2d 866 (1st

Cir. 1983); United States v. Stallworth, 543 F.2d 1038

(2nd Cir. 1976).

The holdings of the Courts of Appeals, however, ave

so disparate in their application that the Court of Ap-

12

peals for the First Circuit has taken the unusual step

of indicating that the determination is so difficult and

perplexing that “. . . it is unwise to rely too heavily on

other cases from a different court.” United States v.

Rivera-Sola, supra at 871.

The writ should be granted to set forth a specific

rationale for lower courts to utilize in their attempts to

apply factual situations to the definition of attempt

which has been adopted by lower courts from the

Model Penal Code as much by default as rational

statutory interpretation by the Supreme Court. Addi-

tionally, as such formulation specifically relates to

the case at bar, the application by the Court of Appeals

of that Court’s prior holding in United States v. Joyce

fails to make a significant distinction.

In most of the other reported cases dealing with at-

tempts in the narcotics area, all of the cases related to

facts and circumstances surrounding a specific intent

with that intent being coupled with the immediate possi-

bility of the culmination of the intent by reason of the

fact that the defendants and the government were dealing

with a specific controlled substance which was immedi-

ately available for transfer, possession, or other illegal

use. In the instant case, the government chemist at trial

testified that the substances bought by the Petitioner,

all of which were legal to possess, purchase and transport,

were several steps away from the manufacture of meth-

amphetamine. Additionally, the chemist testified that it

would be difficult but not technically impossible to utilize

the formulations in the possession of the Petitioner to

eventually produce methamphetamine after the produc-

tion of the precursor materials. Lastly, there was no evi-

dence from the government at all of any prior trans-

13

actions on the part of the Petitioner, no technical ex-

pertise in the area of chemistry or the production of

methamphetamine on the part of the Petitioner, and no

evidence of the involvement of other persons who brought

such expertise to the alleged intended criminal enterprise.

While the law of attempt has been difficult in its

application, the facts in this case much more clearly fall

within the ambit of mere preparation than any substantial

step which would result in a situation where “. . . the

(attemptor’s act having) passed the preparation stage

so that if it is not interrupted extraneously, it will result

in a crime.” United States v. Monholland, supra at 1319.

The case at bar more closely follows several of the

classical formulations and applications of attempt law

which have held that mere preparation to carry out an

admittedly held intent fall short of a substantial step

toward the carrying out of that intent. Rex v. Robinson,

2 K.B. 342 (1915); People v. Rizzo, 246 N.Y. 334,

158 N.E. 888 (1927); People v. Orndorff, 261 Cal.

App. 2d 212, 67 Cal. Rptr. 824 (1968).

14

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Appeals

for the Eighth Circuit.

Respectfully submitted,

SHULTS, HETHERINGTON,

LINDER & TARICS

By:

ROBERT A. SHULTS

1800 West Loop South

Suite 950

Houston, Texas 77027

(713) 961-1823

Attorney for Petitioner

la

APPENDIX

Containing the following materials:

1. Qpinion of the United States Court of Appeals

for the Eighth Circuit from which review is sought.

2a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 84-1779

United States of America,

Appellee,

V.

Carlo Mazzella,

Appellant.

Appeal from the United States District Court

for the Western District of Arkansas

Submitted: January 15, 1985

Filed: July 17, 1985

Before HEANEY, ROSS and McMILLIAN, Circuit

Judges.

McMILLIAN, Circuit Judge

Carlo Mazzella appeals from a final judgment entered

in the District Court’ for the Western District of Arkansas

following a non-jury trial finding him guilty of attempting

to manufacture methamphetamine in violation of 21

U.S.C. § 846. The district court sentenced appellant to

1. The Honorable George Howard, Jr., United States District

Judge for the Eastern and Western Districts of Arkansas.

|

3a

a term of eighteen months imprisonment. For reversal

appellant argues that the district court erred in (1) deny-

ing his motion to dismiss on the grounds of outrageous

government conduct and (2) denying his motion to dis-

miss on the grounds that his conduct failed to constitute

an attempt. For the reasons discussed below, we affirm

the judgment of the district court.

The facts in this case are undisputed. In an attempt

to identify and prosecute manufacturers of illicit drugs,

the Drug Enforcement Administration (DEA) established

Universal Solvents of America (Universal) as an under-

cover chemical and supply company. In order to entice

business from individuals who were seeking to produce

illicit drugs, the DEA placed an advertisement in several

mevazines oriented toward illicit drug usage. The ad-

vertisement consisted of a copy of Universal’s business

card.

Upon reading the advertisement, appellant wrote a

letter to Universal requesting a catalogue. On August

28, 1982, appellant telephoned Universal inquiring about

the status of his request. A DEA agent, posing as a

Universal employee, informed appellant that catalogues

would be unavailable for a couple of weeks and suggested

that appellant mail Universal a list of items for a price

quote. On August 30, appellant mailed a letter requesting

price quotes on various items, including phenyl 2-pro-

panone, a Schedule II controlled substance. 21 U.S.C.

§ 812. On September 14, appellant telephoned Universal

inquiring about his letter requesting price information.

On September 17, DEA agent Mel Schabilion, posing

as Universal employee Mel Sanders, wrote appellant that

phenyl 2-propanone was a controlled substance and there-

fore not available from Universal but that Universal could

4a

“supply all chemicals and equipment necessary to produce

[phenyl 2-propanone] without restriction” and suggested

that appellant purchase “our very popular kit for $700

which includes all chemicals, equipment and glassware

necessary” to manufacture phenyl 2-propanone. The letter

additionally stated that “a qualified chemist [is] available

to answer questions.” On October 19, appellant tele-

phoned Universal and spoke with DEA agent Schabilion.

Appellant stated that he wanted to place an orderx for

some “stuff” and that he needed it quickly. DEA agent

Schabilion took appellant’s order for the “kit” described

in the September 17 letter and various other chemicals.

On October 21, Universal shipped appellant’s order

to the DEA’s regional office in Little Rock, Arkansas.

On October 26, DEA agent James Stepp, posing as a

United Parcel Service (UPS) driver, telephoned appel-

lant to arrange a C.O.D. delivery of five packages con-

taining appellant’s order, costing $1,023. Because he

only had $850 in cash and did not want to write a check,

appellant stated that he would pick up the packages at

the UPS storage unit the following morning. DEA agent

Stepp responded that he did not want to take the pack-

ages back and would be willing to accept the $850 as

a partial payment with the balance due at a later date.

At approximately 4:30 p.m. that same day, DEA

agent Stepp, disguised as a UPS driver, delivered the

packages to the address appellant had previously given

to DEA agent Schabilion. Appellant apparently resided

at this 2ddress. Appellant paid DEA agent Stepp $850

in cash and signed a receipt. Immediately after the de-

livery, appellant drove away with the chemicals and hid

them under a tarpaulin on the side of a dirt road. At

approximately 5:30 p.m., appellant returned to his home

Sa

where DEA agents awaited his arrival. The DEA agents

advised appellant of his constitutional rights and placed

him under arres* ‘or attempting to manufacture meth-

amphetamine. After unsuccessfully trying to secure legal

representation, appellant told the DEA agents that he

wanted to cooperate with them.

With appellant’s help, the DEA agents recovered the

five boxes appellant had hidden. Some of the boxes had

been opened, but all of the containers inside the boxes

remained sealed. Appellant then directed the DEA agents

to his home where he kept a book entitled “Speed.”

This book describes how to manufacture methampheta-

mine. After the physical evidence had been retrieved,

appellant, in response to a DEA agent’s request, wrote

and signed a statement reciting his version of how the

events transpired in connection with his arrest. Appellant

admitted in the statement that his “intentions [were]

to attempt to make speed from the aforementioned chemi-

cals.”

At trial defense covnsei argued that appellant had

been entrapped and also that his actions did not amount

to an attempt because he had not taken a “substantial

step” toward the commission of the crime. The district

court rejected appellant’s arguments, specifically finding

that appellant was predisposed to commit the crime

charged and that he had taken a “substantial step”

toward manufacturing an illicit drug.

Appellant makes two arguments on appeal. First, ap-

pellant argues that the conduct of the DEA agents was

so outrageous as to violate the principles of fundamental

fairness embodied in the due process clause of the fifth

amendment. Second, appellant argues that the evidence

6a

presented was insufficient to establish that appellant’s

conduct constituted a “substantial step” toward the com-

mission of the crime of attempting to manufacture meth-

amphetamine.

Appellant does not argue that the district court erred

in rejecting his entrapment defense.” Rather, he asserts

a distinctly separate but related due process defense.

“Recent cases have recognized . . : that apart from any

question of predisposition of a defendant to commit the

offense in question, governmental participation may be

so outrageous or fundamentally unfair as to deprive the

defendant of due process of law or move the courts in

the exercise of their supervisory jurisdiction of criminal

2. The Supreme Court first recognized and applied the entrapment

defense in Sorrells v. United States, 287 U.S. 435 (1932). Chief

Justice Hughes speaking for the Court held that the focus of analysis

of the entrapment defense must be on the defendant’s intention or

predisposition to commit the crime. Jd. at 451. The majority of

subsequent decisions continue to apply this standard. See, e.g.,

Hampton v. United States, 425 U.S. 484, 492 (1976) (Powell, J.,

concurring); United States v. Russell, 411 U.S. 423, 436 (1973);

United States v. Webster, 649 F.2d 346, 348 (Sth Cir. 1981).

Some federal courts have adopted the position taken by Justice

Roberts’ concurrence in Sorrells that analysis of an entrapment de-

fense should objectively focus on the degree of government involve-

ment in the crime. 287 U.S. at 459. See Greene v. United States,

454 F.2d 783, 786-87 (9th Cir. 1971); Smith v. United States, 118

U.S. App. D.C. 38, 44, 46, 331 F.2d 784, 790, 792 (1964) (banc).

The objective approach is favored by a majority of commentators,

see National Commission on Reform of Federal Laws, A Proposed

New Federal Criminal Code § 702(2) (1971); Model Penal Code

§ 2.13 (Proposed Official Draft, 1962); see also Dix, Undercover

Investigating and Police Rulemaking, 53 Tex. L. Rev. 203, 246-48

(1975); Mikell, The Doctrine of Entrapment in the Federal Courts,

90 U. Pa. L. Rev. 245, 250-52 (1942); Note, Entrapment: Sorrells

to Russell, 49 Notre Dame Law. 579 (1974); however, it has never

been adopted by a majority on the Supreme Court. See Hampton

v. United States, 425 U.S. at 488-89; United States v. Russell, 411

U.S. at 433-36; Sherman v. United States, 356 U.S. 369, 372 (1958).

Ta

justice” to bar the conviction. United States v. Quinn,

543 F.2d 640, 648 (8th Cir. 1976).

The outrageous conduct defense has its origins in

United States v. Russell, 411 U.S. 423 (1973). In that

case an undercover narcotics agent approached the de-

fendant and offered to give him a chemical essential to

the manufacture of methamphetamine in return for one

half of the methamphetamine the defendant produced.

The defendant went along with this “scheme” and was

subsequently prosecuted for manufacturing and distribut-

ing the illegal drug. After receiving a standard entrapment

instruction, the jury found the defendant guilty on all

counts. On appeal the defendant argued that the facts

showed entrapment as a matter of law. The Ninth Cir-

cuit agreed and held that as a matter of law “a defense

to a criminal charge may be founded upon an intolerable

degree of government participation in the criminal enter-

prise.” 459 F.2d 671, 673 (1972). The Supreme Court,

however, reversed, concluding that the government had

merely afforded the defendant an opportunity to commit

the offense. 411 U.S. at 435-36. The majority, however,

recognized that a defense based on the government’s over-

involvement in the criminal enterprise would be available

where “the conduct of law enforcement agents is so

outrageous that due process principles would absolutely

bar the government from invoking judicial process to

obtain a conviction.” Jd. at 431-32. The majority found

that the government agent’s conduct in Russell was not

so outrageous.

The only other Supreme Court case considering the

outrageous conduct defense was Hampton v. United

States, 425 U.S. 484 (1976). In that case the defendant

was convicted of distributing heroin which had been

8a

supplied by a government informant and sold to an

undercover agent. The plurality opinion, written by

Justice Rehnquist, stated that the remedy of the criminal

defendant with respect to the acts of government agents

lies solely in the defense of entrapment, and a defendant’s

predisposition to commit the crime should operate as a

bar to that defense. Jd. at 490. Justice Powell, joined

by Justice Blackmun, concurred in the result but was

“unwilling to join the plurality in concluding that, no

matter what the circumstances, neither due process prin-

ciples nor our supervisory power could support a bar

to conviction in any case where the government is able

to prove predisposition.” 7d. at 495. Justice Powell

emphasized that cases where the due process defense

will be successful are rare. “Police overinvolvement in

crime would have to reach a demonstrable level of out-

rageousness before it could bar conviction.” Id. at 495

n.7.°

The Supreme Court’s analysis in Russell and Hampton

has left unclear the types of government conduct con-

sidered to be outrageous. The majority of lower court

—decisions apply a totality of the circumstances approach

to assess the fairness of the government’s involvement in

crime-related activity. See United States v. Tobias, 662

F.2d 381 (5th Cir. 1981), cert. denied, 457 U.S. 1108

(1982); United States v. Leje, 563 F.2d 244 (6th Cir.

3. The dissent argued that analysis of the entrapment defense

should focus on the extent of the government agent’s involvement

in the crime. Hampton v. United States, 425 U.S. at 497. The dis-

senting justices also agreed with Justice Powell that due process

principles or the Court’s supervisory powers would act to bar con-

viction, even though the defendant might have been predisposed,

where the conduct of the law enforcement authorities is sufficiently

offensive. Jd. The dissent concluded that the government agents’

conduct in Hampton was sufficiently offensive to bar conviction. Jd.

9a

1977), cert. denied, 434 U.S. 1074 (1978); United

States v. Twigg, 588 F.2d 373 (3d Cir. 1978). A

thorough survey of these cases indicates that courts have

rarely characterized the government’s conduct as out-

rageous.*

Appellant contends that the involvement of the DEA

in placing the advertisement, sending the catalogue, pro-

viding assistance and technical knowledge, suggesting the

popular “kit,” and personally delivering the kit to his

home constiiutes conduct so outrageous as to violate the

due process clause of the fifth amendment. “Although

a totality of the circumstances standard must be applied,

it is beneficial to review the parts that make up the

whole.” United States v. Tobias, 662 F.2d at 387.

The DEA’s placement of the advertisement in a maga-

zine can in no way be considered to violate the principles

of fundamental fairness embodied in the due process

clause because the advertisement was neutral in character

and pertained to a legal enterprise. The DEA suggested

that appellant send Universal a list of chemicals for a

price quote. Appellant responded of his own volition

and asked for a price quote on several chemicals used

in the manufacture of methamphetamine, including phenyl

2-propanone, a controlled substance. The DEA sent ap-

pellant a letter stating that phenyl 2-propanone was a

controlled substance and could not be sold. The letter

then informed appellant that a “kit” was available to

make phenyl 2-propanone. Contrary to appellant’s state-

ment contained in his brief that “the DEA agents ‘sug-

4. For a compilation of drug-related cases where defendants

unsuccessfully argued outrageous government conduct, see United

States v. Tobias, 662 F.2d 381, 392 n.2 (Sth Cir. 1981), cert. denied,

457 US. 1108 (1982).

10a

gested’ that he order the ‘kit’ which contained the neces-

sary ingredients and apparatus with which to manufacture

methamphetamine,” (emphasis added), phenyl 2-propa-

none (methyl benzyl ketone) is not methamphetamine.

We do not believe that the DEA agents acted “out-

rageously” in offering to sell appellant a “kit” to manu-

facture a chemical which appellant had previously re-

quested in his letter of August 30, 1982. Appellant re-

sponded to the DEA’s letter of his own volition and

placed an order for the kit and several other chemicals,

including methylamine, hydrochloric acid, aluminum

turnings, and hydrobromic acid. The DEA became alerted

to appellant’s plan not because he ordered the “kit” but

because he ordered the kit in conjunction with these other

chemicals which, when properly combined, produce meth-

amphetamine.

The DEA never told appellant what chemicals were

needed to manufacture methamphetamine; appellant got

the “recipe” from a book entitled “Speed.” The DEA

offered assistance to appellant, but none was ever given.

The last stage of the DEA’s involvement came when a

DEA agent, disguised as a UPS employee, delivered the

order to the address appellant had previously given to

another DEA agent. Appellant took delivery of the

chemicals by signing a receipt and paying $850. It can

hardly be said that delivering the chemicals pursuant to

appellant’s request is outrageous conduct or unfair. As

the Fifth Circuit said in United States v. Tobias, 662

F.2d at 387, “[b]ut here, the drug transaction would

have stopped at any time that [the defendant] made no

further calls.” In the present case, appellant could have

ended his participation in the “scheme” at any time up

to and including the delivery of the chemicals. Consider-

lla

ing the government’s conduct as a whole, we cannot

say that it was so outrageous as to violate the due process

clause of the fifth amendment.

Appellant next argues that the evidence was insufficient

to establish that his conduct constituted an attempt to

manufacture methamphetamine. Appellant contends that

his ordering, receiving, and possessing the precursor

chemicals and equipment was “mere preparation.” While

admitting that he intended’ to manufacture methampheta-

mine, appellant denies that his conduct constituted a

“substantial step” toward the commission of the crime.

We do not agree.

Appellant was charged with and convicted of attempt-

ing to manufacture methamphetamine in violation of

21 US.C. § 846.

{T]he requisite elements of attempt are (1) an in-

tent to engage in criminal conduct, and (2) conduct

constituting a “svbstantial step” towards the com-

mission of the substantive offense which strongly

corroborates the actor’s crimina! intent. i

{Whether conduct represents a substantial step

toward the commission of the criminal design is

. . “a question of degree,” necessarily depending

on the factual circumstances p.culiar to each case.

United States v. Joyce, 693 F.2d 838, 841 (8th Cir.

1982).

”

5. As the Tenth Circuit stated in United States v. Monholland,

607 F.2d 1311, 1318 (10th Cir. 1979),

mere intention to commit a specified crime does not amount to

an attempt. It is essential that the defendant, with the intent

of committing the particular crime, do some overt act adapted

to, approximating, and which in the ordinary and likely course

of things will result in, the commission of the particular crime.

12a

A ‘substantial step must be something more than

mere preparation, yet may be less than the last act

necessary before the actual commisison of the sub-

stantive crime .. . . In order for behavior to be

punishable as an attempt, it need not be incompatible

with innocence, yet it must be necessary to the

consummation of the crime and be of such a nature

that a reasonable observer, viewing it in context

could conclude beyond a reasonable doubt that it

was undertaken in accordance with a design to

violate the statute.

United States v. Manley, 632 F.2d 978, 987-88 (2d Cir.

1980), cert. denied, 449 U.S. 1112 (1981).

Even having these formulations as guideposts, the

determination whether a defendant’s conduct amounts to

a “substantial step” is necessarily dependent on the par-

ticular factual circumstances in the case at hand. Ap-

pellant’s conduct consisted of ordering, receiving and

possessing tie chemicals and equipment necessary to

manufacture methamphetamine. Appellant argues that

because the cliemical containers remained unopened and

were in his possession for less than one hour, his conduct

never amounted to a substantial step. However, in con-

trast to possessory offenses, “physical participatory crimes

[such as manufacturing] . . . [require] a defendant... .

[to] engage in numerous preliminary steps which brand

the enterprise as criminal and are incompatible with

innocent purposes.” United States v. Rivera-Sola, 713

F.2d 866, 870 (1st Cir. 1983); see also Model Penal

Code § 5.01(2)(e),(f) (Proposed Official Draft 1962).

Appellant’s ordering and possession of the specific com-

bination of chemicals required to manufacture meth-

amphetamine can hardly be said to be an innocent co-

13a

incidence; rather the ordering and possession of the

particular combination of chemicals “brand the enter-

prise as criminal and [is] incompatible with innocent

purposes.” 713 F.2d at 870. Appellant does not suggest

that he ordered these chemicals for a purpose other than

to manufacture methamphetamine; on the contrary, ap-

pellant admits his illicit design for the chemicals. Ad-

ditionally, the appellant possessed a book entitled “Speed”

which described the manufacturing process for the illicit

drug. A government chemist testified that although it

would be difficult for someone without prior training

in chemistry to manufacture methamphetamine with the

aid of the book, it would not be impossible.

After carefully considering appellant’s conduct and the

surrounding circumstances, we conclude there was suf-

ficient evidence to warrant a finding that appellant’s

conduct constituted a “substantial step” toward the manu-

facture of methamphetamine. We note, however, that

appellant’s intent to manufacture methamphetamine was

clearly evidenced by his signed statement and corrobo-

rated by the fact that he ordered and possessed all of

the necessary chemicals which, when properly combined,

produce methamphetamine.

Accordingly, the judgment of the district court is

affirmed.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.