U.S. v. Evans

• Decision Date: 28 June 1991
• Docket Number: No. 89-6107,89-6107
• Citation: 941 F.2d 267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy John EVANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 267

941 F.2d 267

UNITED STATES of America, Plaintiff-Appellee, v. Timothy John EVANS, Defendant-Appellant.

No. 89-6107.

United States Court of Appeals, Fifth Circuit.

June 28, 1991.

Sherri Saucer, Law Student, Prof. Henry Gabriel (Court-appointed), New Orleans, La., for defendant-appellant.

Robert L. Rawls, Debra A. Carr, Asst. U.S. Attys., Beaumont, Tex., Bob Worhtam, U.S. Atty., Tyler, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING and JONES, Circuit Judges. ^*

PER CURIAM:

Timothy John Evans (Evans) appeals his conviction and sentence for conspiring to manufacture methamphetamine, in violation of 21 U.S.C. § 846. On appeal, Evans contends that (1) the government engaged in outrageous conduct which violated due process; (2) the evidence presented at trial was insufficient to support defendant's conviction for conspiracy; (3) the absence of a government informant as a witness denied Evans a fair trial; and (4) his sentence was improper. Finding no basis for reversal, we affirm Evans's conviction and sentence.

I.

On July 6, 1988, Evans entered Scientific Chemicals, a public chemical supply store owned and operated by U.S. Drug Enforcement Administration (DEA) informant Ron Fernandez (Fernandez). While making a routine check of the store's records, DEA agent Norris Rogers (Rogers) noticed Evans examining various equipment and precursor chemicals that could be used in the manufacture of methamphetamine. Rogers initiated a conversation with Evans. According to Rogers, Evans claimed to be a distributor and to have experimented with a small drug laboratory in his home. The two discussed the manufacture of methamphetamine and Rogers told Evans that he "could help him" manufacture methamphetamine for a price.

Following a meeting on July 7, Evans phoned Rogers on July 14 and again at the end of July to discuss the drug venture. ¹ Rogers had no further contact with Evans until August 30, when Evans called Scientific Chemicals and left a message that he wanted to meet Rogers at the store. That evening, Evans and his co-defendant, Mike Lewis, met with Rogers and Fernandez. Evans gave Fernandez $1000 as a down payment for the equipment and supplies necessary to set up a "meth laboratory," and he gave Rogers $500 to rent a laboratory site.

On September 8, Evans and Lewis again met with Rogers at Scientific Chemicals. DEA agent Gene Lewis was also present at this meeting. Agents Rogers and Lewis assisted Evans in selecting chemicals and equipment. The four men then proceeded to a motel to set up a laboratory, where the defendants ultimately were arrested. ²

A grand jury returned an indictment charging Evans and Mike Lewis with conspiracy to manufacture methamphetamine, and for possession of a firearm during a drug trafficking crime. Prior to trial, Evans filed several motions including a motion to dismiss the indictment or, in the alternative, for a continuance, based on Evans's inability to subpoena Fernandez, the DEA informant. This motion was denied after the government argued that Fernandez's testimony was unnecessary because other persons were available who could testify regarding the events that Fernandez witnessed. After a three-day jury trial, both defendants were found guilty on all counts. Evans was sentenced to 123 months imprisonment and three years supervised release. Evans filed a timely notice of appeal.

II.

A.

Evans first argues that the government engaged in "outrageous conduct" that deprived him of due process of law. Evans argues that the DEA agents approached him and offered to help him manufacture drugs, phoned him to pursue the arrangement, supplied the expertise, sold Evans the equipment, and supplied the laboratory site.

The Supreme Court recognized the defense of outrageous conduct in United States v. Russell, stating that "we may some day be presented with a situation 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." 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973). This defense may be successfully invoked in only the rarest and most outrageous circumstances and a defendant's claim is reviewed as a legal matter based on the totality of the circumstances. United States v. Stanley, 765 F.2d 1224, 1231-32 (5th Cir.1985); United States v. Tobias, 662 F.2d 381, 387 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982).

To successfully invoke the outrageous government conduct defense, the defendant must show that the challenged government conduct violated "that 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960)). As this court has stated, "the outrageous-conduct defense requires not only government overinvolvement in the charged crime but a passive role by the defendant as well. A defendant who actively participates in the crime may not avail himself of the defense." United States v. Arteaga, 807 F.2d 424, 427 (5th Cir.1986).

In Tobias, the DEA placed an advertisement in a magazine offering over-the-counter sales of chemicals and laboratory equipment. The defendant responded to the ad, requesting "more information." After Tobias placed an order for chemicals, he telephoned to cancel his order because he discovered that he could not manufacture cocaine without more knowledge and equipment. The DEA agent suggested that the manufacture of Phencyclidene (PCP) would be easier. The agent sent Tobias information on the production of PCP and on thirteen occasions answered questions from Tobias and his wife regarding the PCP manufacturing process. When the DEA executed a search warrant on Tobias's house, they found liquid PCP. 662 F.2d at 383-84. This court rejected the defendant's outrageous conduct defense, but averred that "this case does set the outer limits to which the government may go in the quest to ferret out and prosecute crimes in this circuit." 662 F.2d at 387. In rejecting this defense, the court determined that Tobias was a "predisposed active participant," motivated solely by the desire to make money. We stated that "[t]his would be a more difficult case if the DEA had pursued Tobias by repeated phone calls and encouragement." Id. at 387.

In the present case, there is more than enough evidence to establish that Evans was a "predisposed active participant" based on his past drug activities, his investigation into the processes by which drugs are made, and his active participation in the scheme for which he was convicted. There is evidence in the record that Evans purchased the glassware and chemicals required for the manufacture and made diligent notes on the agent's manufacturing process instructions for future reference. Thus, we cannot say that he played a "passive role." ³

B.

Evans next argues that the government failed to establish that a conspiracy existed between Evans and Mike Lewis. Evans contends that there was insufficient evidence that Evans and Lewis knowingly and voluntarily agreed to participate in a conspiracy to manufacture methamphetamine. Rather, Evans contends that Lewis was merely present at the meetings between Evans and the agents for security and was not a "true conspirator."

In reviewing a challenge to the sufficiency of evidence to support a conviction, this court must affirm a conviction if any rational fact-finder could have found each of the essential elements of the crime beyond a reasonable doubt. United States v. Alvarado, 898 F.2d 987, 991 (5th Cir.1990). In doing so, we review the evidence in the light most favorable to the government, making all reasonable inferences and credibility choices in favor of the verdict. Id. To establish a violation of 21 U.S.C. § 846, "the government must 'prove beyond a reasonable doubt that a conspiracy existed, the accused knew of the conspiracy, and he knowingly and voluntarily joined it.' " United States v. Landry, 903 F.2d 334, 338 (5th Cir.1990) (quoting United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988)).

Although "mere presence" at the scene of a crime will not support an inference of participation in a conspiracy, it is a "significant factor to be considered within the context of the circumstances under which it occurs." United States v. Medina, 887 F.2d 528, 533 (5th Cir.1989). In the present case, Lewis was present at several meetings at which Evans and the agents discussed the manufacture of the methamphetamines, and Lewis knew of the existence of criminal activity at the laboratory site where he was arrested. During the actual production, Lewis assisted in several minor ways. In addition, there was testimony that Evans and Lewis had agreed to "split" the methamphetamine manufactured. Viewing this evidence in the light most favorable to the government, we hold that there was sufficient evidence for the jury to find that a conspiracy existed between Evans and Lewis.

C.

Evans next contends that he was denied a fair trial because the testimony of an allegedly material witness, Fernandez, was unavailable. Evans contends that Fernandez's absence was significantly prejudicial to Evans because Fernandez was a material witness regarding Evans's outrageous government conduct defense, his testimony would have been relevant to an entrapment defense, and Fernandez could further demonstrate the lack of a conspiracy.

In reviewing the government's obligation to disclose the identity and whereabouts of government informers, a court must "balanc[e] the public interest in protecting the flow of information against the individual's right to prepare his defenses." Roviaro v. United States, 353 U.S....