U.S. v. Tobias

• Citation: 662 F.2d 381
• Decision Date: 30 November 1981
• Docket Number: No. 80-7561,80-7561
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas C. TOBIAS, Defendant-Appellant. . Unit B *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 381

662 F.2d 381

UNITED STATES of America, Plaintiff-Appellee, v. Thomas C. TOBIAS, Defendant-Appellant.

No. 80-7561.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Nov. 30, 1981.

Augusta E. Wilson, Mobile, Ala. (Court-appointed), for defendant-appellant.

William A. Kimbrough, U. S. Atty., Ginny S. Granade, Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before FRANK M. JOHNSON, Jr. and HATCHETT, Circuit Judges, and SCOTT ^**, District Judge.

HATCHETT, Circuit Judge:

We again examine the extent to which the government may become involved in a criminal enterprise without being found guilty of entrapment or having its conduct declared so outrageous as to violate a criminal defendant's due process rights under the fifth amendment. Finding the government's conduct in this case to be within lawful bounds, we affirm, but remand for resentencing.

FACTS

In order to pursue undercover investigations of clandestine laboratory operators, the Drug Enforcement Administration (DEA), established a chemical supply company in a mid-western state which shall be known herein as the supply company. The supply company operated in the same way as any legitimate chemical supply company. It had a business location and received orders via telephone and mail for various chemicals which could be used in the manufacture of controlled substances.

In the April 1980 edition of High Times Magazine, the DEA supply company placed an advertisement offering over-the-counter sales of chemicals and laboratory equipment. On March 18, 1980, supply company received a letter from Thomas C. Tobias, the defendant, requesting "more information" and giving his name and address. A catalog was sent to Tobias in Mobile, Alabama. On March 26, 1980, Tobias telephoned the supply company and placed an order for various chemicals. On April 15, 16, 17, and 24, 1980, Tobias telephoned the supply company to check on his order and to order additional chemicals. During the April 24 telephone conversation, an agent told Tobias that the chemicals had been shipped. In fact, the chemicals had not been shipped.

On April 25, 1980, Tobias again called the supply company about his order. According to Tobias's testimony, he telephoned to cancel his order because he had discovered from reading drug literature that he could not manufacture cocaine without "more knowledge ... and a lot of equipment." Before Tobias could cancel his order, however, Special Agent Schabilion asked him what he was trying to do. Tobias admitted that he wanted to make cocaine but had encountered difficulties. Pretending to empathize with Tobias, Schabilion stated that he too found cocaine to be extremely difficult and expensive to manufacture. To this, Tobias said he was not necessarily interested in manufacturing cocaine, but "just wanted to make some money." Agent Schabilion advised Tobias that "almost anything would be cheaper and easier to manufacture than cocaine," including amphetamines. Schabilion then suggested that Tobias make Phencyclidene (PCP). Schabilion explained that making PCP was as easy as "baking a cake" and that for $500 he would The supply company shipped the formula and some of the chemicals needed to manufacture PCP to the DEA office in Mobile for delivery to Tobias. It is undisputed that the chemicals provided by the DEA were not difficult to obtain and could have been purchased at other chemical supply houses. After receiving the chemicals and formula from the DEA, Tobias telephoned the supply company thirteen times to discuss problems encountered in the manufacturing process and to obtain advice for overcoming them. On May 9, 1980, when DEA agents executed a search warrant on Tobias's residence in Mobile they found PCP in a liquid state.

send Tobias everything he needed to get set up. Stating that he might have a market for PCP in Mobile, Tobias agreed. He cancelled his order for the original chemicals and told Special Agent Schabilion to send him everything he needed to manufacture PCP.

Tobias was convicted in a non-jury trial of conspiracy to manufacture and possess Phencyclidine (PCP) with intent to distribute in violation of 21 U.S.C. § 846, ¹ manufacturing PCP, and possession with intent to distribute PCP, both in violation of 21 U.S.C. § 841(a)(1). ² Tobias received sentences totaling fifteen years in prison.

In this appeal, Tobias contends (1) that the district court erred in refusing to grant a judgment of acquittal based on his defense of entrapment, (2) that the government's involvement in this criminal enterprise was so outrageous as to violate the due process clause of the fifth amendment, and (3) that the absence of a finding in the record that Tobias's waiver of trial by jury was made intelligently and understandingly constitutes reversible error, and (4) that he was improperly sentenced.

I.

Tobias complains that the record is devoid of any evidence indicating that he entertained the thought of making drugs prior to reading the government's advertisement for chemicals. He also argues that even after he sought to abandon his scheme to manufacture cocaine, the DEA agents suggested that he make a "cheaper and easier" drug and provided him with the necessary precursors, equipment, and know-how. Thus, he argues that he was entrapped as a matter of law.

"(W)hen entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant." United States v. Webster, 649 F.2d 346 at 348 (5th Cir. 1981) (en banc ); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Reyes, 645 F.2d 285 (5th Cir. 1981). Thus, a defendant who wishes to assert an entrapment defense must initially come forward with evidence "that the Government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it." United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976) (quoting United States v. Mosley, 496 F.2d 1012, 1014 (5th Cir. 1974)). Once the defendant has carried this burden, the government must, if it is to prevail, prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. United States v. Dickens.

"A prosecution cannot be defeated merely because a government agent has provided the accused with the opportunity or facilities for the commission of the crime." United States v. Williams, 613 F.2d 560, 562 (5th Cir. 1980) (citing United States v. Dickens, 524 F.2d 441 (5th Cir. 1975), cert. denied On this record, we cannot say that Tobias was entrapped. Even assuming Tobias produced sufficient evidence to raise the issue of entrapment, we are satisfied that the government carried its burden of proving, beyond a reasonable doubt, that Tobias was predisposed to commit the charged offenses. The government's proof showed that Tobias responded to a simple advertisement offering the over-the-counter sale of chemicals which could be purchased without any difficulty in chemical houses in Mobile, Alabama. This advertisement served only to provide one so disposed the opportunity to obtain the necessary precursors and equipment to manufacture controlled substances. Tobias seized this opportunity by writing the supply company for "more information" and telephoning the supply company on many occasions to place and check on his order. The DEA did nothing else to solicit Tobias's business. A prosecution may not be defeated because the government provides the accused with the opportunity to commit the crimes charged. Williams, 613 F.2d at 562.

425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976)). "It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play." United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366 (1973).

Tobias also contends that agent Schabilion's suggestion that PCP would be "cheaper and easier" to manufacture implanted the criminal design in his mind at a time when he sought to cancel his order for chemicals necessary to manufacture cocaine.

The record simply does not bear out Tobias's contention. The record shows that although Tobias sought to cancel his original order, he indicated to agent Schabilion that he was not interested in manufacturing any particular drug but was only interested in making money. At that point, agent Schabilion suggested that amphetamines, including PCP, would be "cheaper and easier" to manufacture. Tobias then indicated that there might be a market for PCP in Mobile and asked Schabilion to send him the formula, equipment, and precursors necessary to manufacture PCP. This evidence shows that Tobias was predisposed to manufacture a controlled substance, although no one drug in particular.

If law enforcement agents are precluded from discussing the particulars of how a criminal enterprise is to be conducted, the undercover work that is essential to the investigation and prosecution of drug offenses becomes impossible. Suggestions regarding the particulars of manufacturing one drug or another did not vitiate the predisposition which is best shown by Tobias's continuance of the conversation.

II.

Tobias next argues that if the government had not provided him with the formula, necessary precursors, and continuing advice during the manufacturing process, he would have been unable to manufacture PCP. Thus, he argues that the government's involvement in this scheme was so outrageous that due process principles bar his convictions. This presents a tougher question.

Tobias's argument has its foundation in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Russell, the Supreme Court held that the defense of entrapment was foreclosed to one who was predisposed to commit a...