# Petition for Writ of Certiorari — Mazzella v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 1006

## Text

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0850%3A1. Public record. Not legal advice.