U.S. v. Mazzella, 84-1779

• Decision Date: 17 July 1985
• Docket Number: No. 84-1779,84-1779
• Citation: 768 F.2d 235
• Parties: UNITED STATES of America, Appellee, v. Carlo MAZZELLA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 235

768 F.2d 235

UNITED STATES of America, Appellee, v. Carlo MAZZELLA, Appellant.

No. 84-1779.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 15, 1985.

Decided July 17, 1985.

Gene Harrelson, Texarkana, Ark., for appellant.

Steven N. Snyder, Asst. U.S. Atty., Fort Smith, Ark., for appellee.

Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Carlo Mazzella appeals from a final judgment entered in the District Court ¹ 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. Sec. 846. The district court sentenced appellant to a term of eighteen months imprisonment. For reversal appellant argues that the district court erred in (1) denying his motion to dismiss on the grounds of outrageous government conduct and (2) denying his motion to dismiss 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 undercover 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 magazines oriented toward illicit drug usage. The advertisement 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-propanone, a Schedule II controlled substance. 21 U.S.C. Sec. 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 therefore not available from Universal but that Universal could "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 telephoned Universal and spoke with DEA agent Schabilion. Appellant stated that he wanted to place an order 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 appellant to arrange a C.O.D. delivery of five packages containing 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 packages 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 address. Appellant paid DEA agent Stepp $850 in cash and signed a receipt. Immediately after the delivery, 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 where DEA agents awaited his arrival. The DEA agents advised appellant of his constitutional rights and placed him under arrest for attempting to manufacture methamphetamine. 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 methamphetamine. 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 chemicals."

At trial defense counsel 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, appellant 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 presented was insufficient to establish that appellant's conduct constituted a "substantial step" toward the commission of the crime of attempting to manufacture methamphetamine.

Appellant does not argue that the district court erred in rejecting his entrapment defense. ² 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 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, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In that case an undercover narcotics agent approached the defendant 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 distributing 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 Circuit 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 enterprise." 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, 93 S.Ct. at 1644-45. The majority, however, recognized that a defense based on the government's overinvolvement 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." Id. at 431-32, 93 S.Ct. at 1642-43. 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, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). In that case the defendant was convicted of distributing heroin which had been 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. Id. at 490, 96 S.Ct. at 1650. 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 principles nor our supervisory power could support a bar to conviction in any case where the government is able to prove predisposition." Id. at 495, 96 S.Ct. at 1652. 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 outrageousness before it could bar conviction." Id. at 495 n. 7, 96 S.Ct. at 1653 n. 7. ³

The Supreme Court's analysis in Russell and Hampton has left unclear the types of government conduct considered 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, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982); United States v. Leja, 563 F.2d 244 (6th Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978); United States v. Twigg, 588 F.2d 373 (3d Cir.1978). A...