U.S. v. Hunt, 98-3232

• Citation: 171 F.3d 1192
• Decision Date: 10 May 1999
• Docket Number: No. 98-3232,98-3232
• Parties: UNITED STATES of America, Appellee, v. Joseph Vincent HUNT, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1192

171 F.3d 1192

UNITED STATES of America, Appellee, v. Joseph Vincent HUNT, Appellant.

No. 98-3232.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 9, 1999.

Decided March 30, 1999.

Rehearing and Rehearing En Banc Denied May 10, 1999.

Edward Witt Chandler, Mountain Home, Arkansas, argued, for appellant.

Paul W. Hahn, Cape Girardeau, Missouri, argued, for appellee.

Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

WOLLMAN, Circuit Judge.

Joseph Hunt appeals his conviction and sentence for conspiracy to manufacture methamphetamine. We affirm.

I.

Beginning in 1996, Hunt and co-conspirator Donald Benefield agreed to manufacture methamphetamine. The two maintained a methamphetamine laboratory in Hunt's cabin in a rural area of Ripley County, Missouri. They manufactured eight to twelve grams of methamphetamine on seven occasions. On one occasion, they attempted to make 100 grams, but were unsuccessful.

In April of 1997, Hunt and Benefield invited Richard Kearbey, Hunt's brother-in-law, to assist them in the manufacturing process. Kearbey agreed to provide phosphorous and ephedrine, and Hunt agreed to provide all of the other necessary chemicals and equipment. Unbeknownst to Hunt or Benefield, Kearbey was assisting federal authorities pursuant to a cooperation agreement stemming from a prior arrest. Kearbey informed Herman Hogue, a Drug Enforcement Administration agent, about Hunt and Benefield's plans. Based on this information, Hogue obtained a search warrant for Hunt's property.

On April 24, 1997, Kearbey delivered to Hunt's cabin 2,088 grams of ephedrine, which had been crushed and soaked by government agents. Hunt, Benefield, and Kearbey measured out the necessary quantities of iodine, ephedrine, and phosphorous. Hunt and Benefield then mixed the chemicals in a flask and thereafter performed all the tasks necessary for methamphetamine production.

Later the same day, government agents executed the search warrant and arrested Hunt and Benefield. Benefield pleaded guilty before trial and testified against Hunt pursuant to a cooperation agreement.

The district court ¹ denied Hunt's motions for dismissal of the indictment based on outrageous government conduct. Following two days of testimony, a jury convicted Hunt of conspiring to manufacture methamphetamine. See 21 U.S.C. § 846. At sentencing, the district court found Hunt responsible for at least 100 grams but less than 300 grams of actual methamphetamine. The district court also enhanced Hunt's base offense level pursuant to section 3C1.1 of the United States Sentencing Guidelines, finding that Hunt had committed perjury during trial. The district court then sentenced Hunt to a term of 200 months' imprisonment and five years' supervised release.

On appeal, Hunt raises several challenges to his conviction and sentence. He first argues that his conviction should be set aside and the indictment quashed because the government engaged in outrageous conduct in violation of the Due Process clause of the Fifth Amendment. We review a claim of outrageous government conduct de novo. See United States v. Cannon, 88 F.3d 1495, 1506 (8th Cir.1996).

The defense of outrageous government conduct is similar to, although different from, the defense of entrapment. Whereas the defense of entrapment focuses on the predisposition of the defendant to commit the crime, the defense of outrageous government conduct focuses on the government's actions. See id.

Our cases recognize the defense of outrageous government conduct, see United States v. Pardue, 983 F.2d 835, 841 (8th Cir.1993); United States v. Huff, 959 F.2d 731, 734 (8th Cir.1992); United States v. Mazzella, 768 F.2d 235, 238 (8th Cir.1985), but only in cases involving " 'the most intolerable government conduct.' " United States v. Musslyn, 865 F.2d 945, 947 (8th Cir.1989) (quoting United States v. Esch, 832 F.2d 531, 538 (10th Cir.1987)). Government conduct which is "so outrageous and shocking that it exceed[s] the bounds of fundamental fairness," United States v. Johnson, 767 F.2d 1259, 1275 (8th Cir.1985), may violate the Due Process clause and bar a subsequent prosecution. See United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). "The level of outrageousness needed to prove a due process violation is 'quite high,' and the government's conduct must 'shock the conscience of the court.' " Pardue, 983 F.2d at 847 (quoting United States v. Jacobson, 916 F.2d 467, 469 (8th Cir.1990)). We recognize that government agents "may go a long way in concert with the individual in question without being deemed to have acted so outrageously as to violate due process." United States v. Kummer, 15 F.3d 1455, 1460 (8th Cir.1994) (quoting United States v. Quinn, 543 F.2d 640, 648 (8th Cir.1976)).

Hunt asserts that the government crossed the line of fundamental fairness when Kearbey provided 2,088 grams of ephedrine, a chemical necessary for the production of methamphetamine. We disagree. As a general rule the government may supply some item of value that the drug ring requires. See Russell, 411 U.S. at 432, 93 S.Ct. 1637. In order to infiltrate the underworld of drug production federal agents often must participate in the illegal enterprise. Id. In the instant case, it was Hunt who invited Kearbey to participate in an ongoing scheme to manufacture methamphetamine. Having been so invited, it was not unreasonable for Kearbey to contribute something of value to the conspiracy in order to continue the investigation. Accordingly, we cannot say that, based on these facts, the government's conduct violated "fundamental fairness" or shocked "the universal sense of justice." Id. (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960)).

Hunt next argues that the district court erroneously admitted testimony of governmental witnesses who testified pursuant to cooperation agreements, contending that any promise made by the government to a witness in exchange for testimony violates 18 U.S.C. § 201(c)(2). We recently rejected a similar argument in United States v. Johnson, 169 F.3d 1092, 1098 (8th Cir.1999). See also United States v. Singleton, 165 F.3d 1297 (10th Cir.1999) (en banc); United States v. Haese, 162 F.3d 359 (5th Cir.1998); United States v. Ware, 161 F.3d 414 (6th Cir.1998). In Johnson, we concluded that "the statute does not sweep so broadly as to prevent prosecutors from offering leniency to an individual in exchange for truthful testimony." Johnson, 169 F.3d at 1098. The district court therefore did not err in admitting the testimony of the cooperating witnesses.

Hunt argues that the district court erred in calculating his base offense level under the sentencing guidelines. See U.S.S.G. § 2D1.1. He challenges the district court's findings regarding the quantity of methamphetamine attributed to him. Hunt also argues that the district court erred when it enhanced his base offense level for obstruction of justice. See U.S.S.G. § 3C1.1. We review the district court's factual findings for clear error, and its application of the sentencing guidelines de novo. See United States v. Williams, 109 F.3d 502, 509 (8th Cir.1997).

The district court held Hunt responsible for at least 100 grams but less than 300 grams of actual methamphetamine, resulting in a base offense level of 32. Hunt argues that he was responsible for only 60 to 70 grams. In determining the base offense level, the district court may consider the "size or capability of any laboratory involved." U.S.S.G. § 2D1.1, comment. (n. 12). To determine the manufacturing capability of the laboratory, it is...