U.S. v. Savage, 81-5270

• Decision Date: 09 March 1983
• Docket Number: No. 81-5270,81-5270
• Citation: 701 F.2d 867
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Nelson SAVAGE, Terry Peters, Dennis Lee Wagner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 867

701 F.2d 867

UNITED STATES of America, Plaintiff-Appellee, v. Robert Nelson SAVAGE, Terry Peters, Dennis Lee Wagner Defendants-Appellants.

No. 81-5270.

United States Court of Appeals Eleventh Circuit.

March 9, 1983.

Geoffrey C. Fleck, Miami, Fla., for Savage.

Philip Gerson, Miami, Fla., for Peters.

Kurt Marmar, Coral Gables, Fla., for Wagner.

Kenneth W. Lipman, Asst. U.S. Atty., Miami, Fla., Lurana Snow, Asst. U.S. Atty., Fort Lauderdale, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, KRAVITCH and HATCHETT, Circuit Judges.

TJOFLAT, Circuit Judge:

Appellants Savage, Wagner, and Peters were convicted in the district court of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846 (1976), and of possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1976) and 18 U.S.C. Sec. 2 (1976). Finding no error below, we affirm the convictions of each appellant.

I.

All three appellants urge that the district court erred in denying their motion to dismiss the indictment because of government overreaching in violation of their due process rights. The arrests and subsequent convictions of appellants arose out of a plan the Drug Enforcement Administration (DEA) conceived under which DEA agents posed as sellers of large quantities of marijuana; put the word out through undercover agents and confidential informants that marijuana was available for purchase; and arrested those persons who "purchased" marijuana once the "sale" was consummated. In furtherance of this plan, the DEA rented a warehouse and placed in the warehouse about 10,000 pounds of marijuana that it had seized in a separate operation. The execution of this plan resulted in numerous arrests and convictions, including those of the three appellants.

This circuit has recognized that a due process violation may result when the government's enforcement techniques reach a certain level of outrage. ¹ See United States v. Tobias, 662 F.2d 381 (5th Cir. Unit B 1981). ² The case law emphasizes the extreme circumstances that must exist before a due process violation will be found: law enforcement techniques will be deemed unconstitutional only if they violate that " 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973) (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 Justice Powell recognized in his concurring opinion in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976):

the cases, if any, in which proof of predisposition [of the defendant to commit the crime] is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses, which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic, ... which is one of the major contributing causes of escalating crime in our cities.... Enforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity.

425 U.S. at 495 n. 7, 96 S.Ct. at 1653 n. 7 (citations omitted).

Courts have kept the above principles in mind and have been extremely reluctant to strike down government law enforcement techniques as violative of due process. Although "the government may not instigate the criminal activity [by suggesting the establishment of an illegal drug laboratory], provide the place, equipment, supplies and know-how, and run the entire operation with only meager assistance from the defendants without violating fundamental fairness," United States v. Tobias, 662 F.2d 381, 386 (5th Cir. Unit B 1981) (citing United States v. Twigg, 588 F.2d 373 (3d Cir.1978)), cases in which the government's conduct has reached such a level are rare.

United States v. Tobias, 662 F.2d 381 (5th Cir. Unit B 1981), is a case in which the government's conduct "set the outer limits to which the government may go in the quest to ferret out and prosecute crimes," id. at 387, but yet did not rise to that extreme level of outrageousness sufficient to establish a due process violation. In Tobias the DEA established a chemical supply company and placed advertisements in High Times Magazine to sell various chemicals and equipment used in the manufacture of illegal drugs. Tobias requested and received more information from the company. Tobias then telephoned the company on numerous occasions to order supplies and to check on his orders. Within one month of placing his first order, Tobias called the company to cancel his orders because he had discovered he did not possess the knowledge or the equipment to manufacture cocaine. Before he could cancel his orders, however, a DEA agent asked him what he was trying to do. Tobias admitted his desire to manufacture cocaine and related his difficulties in trying to do so. The agent pretended to sympathize with Tobias, and stated that he too found cocaine difficult to manufacture. In response, Tobias stated that he was not interested in manufacturing cocaine per se, but that he just wanted to make some money. The agent then suggested that a number of drugs were easier to manufacture than cocaine, including amphetamines and phencyclidine (PCP). The agent explained that making PCP was as easy as "baking a cake" and offered to send Tobias everything he would need to make PCP for $500. Tobias agreed. After receiving the chemicals, Tobias called the company thirteen times for advice on how to make PCP. Tobias was later convicted of conspiring to manufacture and possess PCP with intent to distribute in violation of 21 U.S.C. Sec. 846 (1976), and of manufacturing, and possessing, PCP with intent to distribute, both in violation of 21 U.S.C. Sec. 841(a)(1) (1976).

The above facts arguably portrayed a complete novice who because of lack of ability never could have committed the crimes of which he was convicted without the government's constant guidance. Moreover, it appeared likely that Tobias had given up any intent to manufacture illegal drugs, concluding that it was too difficult, until the government suggested that some drugs could be easily manufactured. "Had the Government agents at any point ceased providing Tobias with assistance and encouragement, the record indicates that he would have been incapable of manufacturing the illicit drug. Thus, Government agents vicariously manufactured PCP through Tobias ...." Tobias, 662 F.2d at 392 (opinion of Johnson, Circuit Judge, dissenting). Tobias thus illustrates the extreme narrowness of the defense of government overreaching.

We believe the instant case falls far short of the extremely outrageous and shocking conduct necessary to establish a due process violation. The appellants argue that the government "created" the crimes in this case by soliciting citizens to participate in an illegal venture. The government in no sense created the crimes because it merely presented the appellants with an opportunity that was in no way unique, of which the appellants were more than willing to take advantage. For example, it is useful to contrast this case with United States v. Batres-Santolino, 521 F.Supp. 744 (N.D.Cal.1981). In that case, the government created the crimes for which the defendants were convicted because the government presented the defendants with a unique opportunity that otherwise would not have arisen: "As obvious novices, it is inconceivable that [the defendants] could have entered the secretive world of international drug smuggling on their own. Established drug exporters would have spotted them instantly as amateurs and dismissed their efforts as ludicrous ...." Id. at 751. The court concluded that "government agents 'manufactured' a crime that ... could not and would not have been committed if [the DEA informant] had not inveigled defendants into it and offered to provide them with an otherwise unavailable source of supply of the illegal drug they were to import." Id. Unlike the situation in Batres-Santolino, the government in this case merely provided the appellants with an opportunity not substantially different from that which they could have found elsewhere without undue difficulty. Moreover, the appellants do not, and cannot, contend that the government targeted them beforehand for arrest. Appellants were merely caught in the trap the government set for those who were willing to take the bait. We find nothing outrageous in the government's activity.

II.

Two of the three appellants, Savage and Peters, were arrested as they drove away from the marijuana warehouse in an automobile. Savage was the driver and Peters was a passenger in the back seat. After arresting Savage, Peters, and another occupant of the automobile, DEA agents drove the automobile to a "drop-off" point and conducted an inventory of its contents. This inventory revealed a gym bag in the trunk containing approximately $50,000. Savage and Peters moved to suppress this money, but the district court adopted the magistrate's recommendation to deny the motion and admitted the...