U.S. v. Berg, 98-2468

• Decision Date: 27 May 1999
• Docket Number: No. 98-2468,98-2468
• Citation: 178 F.3d 976
• Parties: , UNITED STATES of America, Appellee, v. Delaine F. BERG, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

178 F.3d 976 UNITED STATES of America, Appellee, v. Delaine F. BERG, Appellant.

No. 98-2468.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1999.

Filed May 27, 1999.

Edward Witt Chandler, Brunswick Tennessee, argued, for Appellant.

Paul W. Hahn, Cape Girardeau, Missouri, argued (Edward L. Dowd, Jr., United States Attorney, on the brief), for Appellee.

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

RICHARD S. ARNOLD, Circuit Judge.

A jury convicted Delaine Berg of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846. Berg received a 30-year (360-month) prison sentence to be followed by a five-year term of supervised release. Berg appeals the conviction and sentence, raising a number of issues. He argues that outrageous government conduct led to a violation of his right to due process. He also raises a similar but distinct entrapment argument; argues that his conviction should be set aside because the District Court refused to declare a witness as hostile; and, finally, makes a sentencing entrapment argument. We do not agree with Berg's arguments, and find no fault in the District Court's ² decisions. We therefore affirm both the conviction and the sentence.

I.

The events leading up to Berg's conviction began with the arrest of Billy Hart and Richard Kearbey. On July 29, 1996, Hart and Kearbey were arrested in Arizona while attempting to buy methamphetamine (Trial Tr. 4, 46, 111, 144). Hart and Kearbey both agreed to cooperate with the government (Trial Tr. 4, 111-12). In exchange for Hart's and Kearbey's cooperation, the government agreed to ask for reduced sentences for both Hart and Kearbey on the Arizona methamphetamine charge (Trial Tr. 4, 112). Hart and Kearbey then met with Herman Hogue, a Drug Enforcement Administration agent in southeastern Missouri (Trial Tr. 4, 113). Hogue learned that Hart knew John Clayton (Trial Tr. 196). Hogue was interested in Clayton, and Hart knew Clayton was involved in trafficking methamphetamine (Trial Tr. 113). Under Hogue's direction, Hart contacted Clayton to try to arrange a controlled buy of methamphetamine (Trial Tr. 196).

Hart and Kearbey first met with Clayton on August 29, 1996, at Clayton's home, and then again on September 5 and September 10 (Trial Tr. 5, 7, 114, 115). On September 5, Clayton sold Hart and Kearbey an ounce of methamphetamine and fronted them another ounce (Trial Tr. 7). On September 10, Hart and Kearbey paid for the ounce Clayton fronted them on September 5 (Trial Tr. 7). Clayton also fronted them a second ounce. Id. Hart testified that during the meeting on August 29, Clayton "showed interest in doing a meth cook" (Trial Tr. 114). It is not clear, however, who initially suggested manufacturing the methamphetamine. Kearbey testified that Clayton suggested manufacturing methamphetamine (Trial Tr. 15). Clayton, on the other hand, testified that the idea originated with Hart and Kearbey (Trial Tr. 398-401). Hart testified that at the meeting on September 10, Clayton indicated he knew someone who could cook the methamphetamine (Trial Tr. 116). Hart and Kearbey met with Clayton again on September 16 and September 24 (Trial Tr. 8, 10, 116-17). Delaine Berg, the defendant, was also present at the September 24 meeting, and, according to Hart, the four of them discussed doing "a large cook where everyone would make a lot of money" (Trial Tr. 117). Although Hart and Kearbey met Berg for the first time on September 24, Hart testified that he believed Clayton had already talked to Berg about cooking methamphetamine (Trial Tr. 117).

The meeting on September 24 was tape recorded by Kearbey (Trial Tr. 11). During the meeting Kearbey and Berg discussed the amount of methamphetamine to be cooked, as well as what Berg had cooked in the past:

Kearbey: "... Have you been making any quantities or just small?"

Berg: "... I make quarter pounds or something like that."

Kearbey: "That's why I like this, this ..."

Berg: "You take as much risk."

Kearbey: "Oh, yeah."

Berg: "and as much trouble doing that as what if you make, you know, ten,

twelve pounds. I mean I'd rather do it that way."

Kearbey: "Well that's what we figured out and it's. You know, we would rather

do the bigger deal. It's the same damn risk."

Berg: "Um huh."

(Government Ex. 2, p. 14.) On October 7, Clayton gave Hart a list of ingredients needed to manufacture the methamphetamine, telling them that the list came from Berg (Trial Tr. 18, 127-28). Hart and Kearbey obtained the items on the list (Trial Tr. 23). They supplied the flasks and glassware necessary to manufacture the methamphetamine and the location where the manufacturing would occur (Trial Tr. 22, 174-75). They also helped Clayton soak down pills, supplied by Clayton, for the ephedrine necessary to manufacture the methamphetamine (Trial Tr. 21-22).

Kearbey testified that on October 15, Clayton brought Berg to Kearbey's house (Trial Tr. 24). Hart, Kearbey, and Berg then went to the location secured by Kearbey to manufacture the methamphetamine (Trial Tr. 24-25, 130). According to Hogue's testimony, Hart and Kearbey notified Hogue that the cooking had started (Trial Tr. 206). Hogue obtained a search warrant and, on October 16, during the manufacturing process, Berg was arrested (Trial Tr. 207-08). Berg was subsequently indicted, tried, and found guilty of conspiracy to manufacture methamphetamine. Clayton pleaded guilty to the charge and was called as a witness by the defense. Berg now appeals his conviction, raising four separate issues. We will address each of those issues, but do not find that any of them warrants a reversal of Berg's conviction or a reduction in his sentence.

II.

Berg first argues that the government's extremely outrageous conduct led to a violation of his Fifth Amendment right to due process. The outrageous-conduct argument often arises in cases where the government has been involved in sting or reverse-sting operations. See United States v. Cannon, 88 F.3d 1495, 1506 (8th Cir.1996). The defense of outrageous conduct "focuses on the government's conduct." Id. (citing United States v. Kummer, 15 F.3d 1455, 1459 n. 9 (8th Cir.1994)). This defense is distinct from entrapment, which focuses on the defendant's predisposition to commit a crime, and which also often arises in cases involving a sting or reverse-sting operation. See id.

Participation by government agents or informants in the illegal manufacture or distribution of drugs is a recognized means for the government to obtain convictions in drug-related offenses. See United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). When government agents or informants "go too far in manufacturing a crime and inducing a defendant into it," however, their conduct may violate the defendant's right to due process. Gunderson v. Schlueter, 904 F.2d 407, 410 (8th Cir.1990) (citing Russell, 411 U.S. at 431-32, 93 S.Ct. 1637). The Supreme Court has recognized that "some day" a case might arise where the government's conduct is "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Russell, 411 U.S. at 431-32, 93 S.Ct. 1637. The Supreme Court has yet to see that day.

This Court has stated that "[t]he level of 'outrageousness' needed to prove such a due process violation ... is quite high." Gunderson, 904 F.2d at 410. And, like the Supreme Court, this Court has yet to see a case in which the government's conduct rose to the level of such outrageousness. We have said that the government agent's involvement "approached" a level of outrageousness that would bar a conviction, but that is as close as we have come. United States v. Lard, 734 F.2d 1290, 1296 (8th Cir.1984). See also Gunderson, 904 F.2d at 411. The government agent in Lard went to the defendant's house to see if he had any firearms for sale and, after rejecting the only thing the defendant had to offer (a detonator), asked the defendant to make a pipe bomb. Lard, 734 F.2d at 1292. The defendant had no prior criminal record and had never dealt in firearms or destructive devices. Id. at 1294. We found that the defendant had been entrapped as a matter of law. Id. We did not find, however, a violation of the defendant's due-process rights. Id. at 1297.

In support of his argument, Berg cites a Third Circuit case in which a panel of the court found outrageous conduct by the government. The defendants in that case were also convicted of charges resulting from the illegal manufacture of methamphetamine. See United States v. Twigg, 588 F.2d 373, 374 (3rd Cir.1978). The Third Circuit has declined to follow Twigg, and its position has been called into doubt. See, e.g., United States v. Beverly, 723 F.2d 11, 12 (3rd Cir.1983); United States v. LBS Bank-New York, Inc., 757 F.Supp. 496, 499 n. 3 (E.D.Pa.1990). Moreover, the facts in Twigg are different from those in the present case. The government informant in Twigg played an active role in the entire operation. He contacted one of the defendants to discuss setting up a methamphetamine laboratory and was completely in charge of the manufacturing process. See Twigg, 588 F.2d at 375-76. Production assistance from the two defendants was provided only at the informant's direction. Id. at 376. In this case, Hart and Kearbey played a less substantial role in the events leading up to Berg's, and Clayton's, arrest. They initially met with Clayton only to see if they could purchase methamphetamine from him (Trial Tr. 196). Additionally, Kearbey's and Clayton's testimony differs as to who originated the idea to manufacture methamphetamine (Trial Tr. 15, 401). Berg himself preferred to make a large quantity. The government's conduct in this case does not reach the same level as that in Twigg.

We recognize that the line between "covert investigative conduct ... that is within constitutional bounds" and conduct that is so...