APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Crim. No. 77-111-2 and 77-111-1
Before Seitz, Chief Judge, and Adams and Rosenn, Circuit Judges.
These appeals are brought by Henry Neville and William Twigg from jury convictions on charges stemming from the illegal manufacture of methamphetamine hydrochloride ("speed"), a schedule II controlled substance. Specifically, defendant Neville was convicted of conspiracy to manufacture and possess with intent to distribute a controlled substance, 21 U.S.C. § 846, 18 U.S.C. § 2; manufacture of a controlled substance, 21 U.S.C. § 841(a)(1); nine counts of use of a telephone to facilitate in the manufacture of a controlled substance, 21 U.S.C. § 843(b), 18 U.S.C. § 2; possession of cocaine, 21 U.S.C. § 844(a); and possession of methamphetamine hydrochloride, 21 U.S.C. § 844(a). Twigg was convicted of: (1) conspiracy to manufacture and possess with intent to distribute a controlled substance and (2) manufacture of a controlled substance. He was acquitted of the substantive charge of possession of a controlled substance with intent to distribute. Both challenge their convictions on the ground that the extensive police involvement in the crime violated due process.*fn1 We reverse on all counts with the exception of Neville's conviction on possession of cocaine.
The odyssey of the defendants' entrepreneurial venture in the illegal manufacture of a controlled substance stems from the Drug Enforcement Administration's arrest of Robert Kubica in May 1976 for the illegal manufacture of methamphetamine hydrochloride. Kubica pleaded guilty to one felony count on the federal charge and the other two counts were dismissed. He subsequently received a four year sentence. This was not his first conviction Kubica had been convicted in state courts on similar charges on previous occasions. In connection with his guilty plea in this case, Kubica agreed to aid the Drug Enforcement Administration in apprehending illegal drug traffickers.
In October 1976, at the request of DEA officials, Kubica contacted an acquaintance of twenty years, Henry Neville, to discuss setting up a speed laboratory.*fn2 Neville expressed an interest and a discussion of the proposed operation ensued.*fn3 Over the next several months numerous discussions took place between the two parties as arrangements were made to set up the laboratory. Some of the telephone conversations were recorded by Kubica on equipment supplied by the DEA. The tapes, introduced as evidence at trial, indicate that Neville assumed primary responsibility for raising capital and arranging for distribution of the product, while Kubica undertook the acquisition of the necessary equipment, raw materials, and a production site.
The Government proved to be of considerable assistance to Kubica in carrying out his part of the operation. DEA agents supplied him with two and one-half gallons of phenyl-2-propanone a chemical essential to the manufacture of speed and the most difficult of the ingredients to obtain. The cost to the Government was $475.00, although the chemical could retail for twice as much. The DEA provided Kubica with about 20 percent of the glassware needed and a rented farmhouse in New Jersey in which to set up the laboratory.*fn4 In addition, the DEA officials made arrangements with chemical supply houses to facilitate the purchase of the balance of the materials by Kubica under the business name of "Chem Kleen." Kubica personally bought all of the supplies (with the exception of one separatory funnel) with approximately $1500.00 supplied by Neville.
On March 1, 1977, Neville introduced Kubica to William Twigg, who apparently got involved in the operation to repay a debt to Neville. Twigg accompanied Kubica on a trip to several chemical supply houses. Later that day, the laboratory was set up at the farmhouse. The laboratory operated for one week, producing approximately six pounds of methamphetamine hydrochloride. Kubica was completely in charge of the entire laboratory. Any production assistance provided by Neville and Twigg was minor and at the specific direction of Kubica. Twigg often ran errands for groceries or coffee, while Neville spent much of his time away from the farmhouse.
On March 7, Neville left the farmhouse with the drugs in a suitcase. Kubica notified the DEA agents, who arrested Neville driving down the road. A search of the car revealed, in addition to the suitcase containing six pounds of methamphetamine hydrochloride, a Lysol can containing cocaine and some more speed. Twigg was arrested at the farmhouse.
It should be made clear from the outset that our reversal is not based on the entrapment defense. The entrapment defense requires an absence of predisposition on the part of the defendant to commit the crime. See United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). Whether predisposition is present is a question of fact and was properly submitted to the jury in this case.*fn5 By convicting the defendants, the jury rejected the entrapment defense. On appeal, we must inquire: viewing the evidence most favorable to the Government, could a jury find predisposition? United States v. Townsend, 555 F.2d 152, 156 (7th Cir.), Cert. denied, 434 U.S. 897, 98 S. Ct. 277, 54 L. Ed. 2d 184 (1977); See Tzimopoulos v. United States, 554 F.2d 1216 (1st Cir.), Cert. denied, 434 U.S. 851, 98 S. Ct. 164, 54 L. Ed. 2d 120 (1977); United States v. Gurule, 522 F.2d 20, 23 (10th Cir. 1975), Cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).
The evidence of Neville's predisposition came from Kubica's testimony. Kubica testified to Neville's apparent willingness to participate in the manufacturing venture. No reluctance was expressed and no inducements were needed. Kubica also said that he and Neville had engaged in the manufacture of speed a few years earlier. Neville did not take the stand and no evidence was presented to contradict the evidence of predisposition. Thus, a sufficient basis exists for allowing a jury finding of predisposition to stand.
Twigg did not raise the issue of entrapment on appeal. The defense would not be available to him because he was brought into the criminal enterprise by Neville, not a government agent. See United States v. Garcia, 546 F.2d 613, 615 (5th Cir.), Cert. denied, 430 U.S. 958, 97 S. Ct. 1608, 51 L. Ed. 2d 810 (1977); United States v. Mayo, 162 U.S.App.D.C. 171, 498 F.2d 713 (1974).
The contention that defendants raise which we find persuasive is that the nature and extent of police involvement in this crime was so overreaching as to bar prosecution of the defendants as a matter of due process of law. Although no Supreme Court decision has reversed a conviction on this basis, the police conduct in this case went far beyond the behavior found permissible in previous cases.
In United States v. Russell, supra, the defendant was convicted of the illegal manufacture and sale of methamphetamine. The facts revealed that an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs went to the defendant's home on an assignment to locate a methamphetamine laboratory. He said that he represented an organization interested in purchasing large quantities of speed. He offered to supply the defendants with phenyl-2-propanone in exchange for one-half of the drug produced. The offer was accepted and one of the parties revealed that they had been operating a speed laboratory for seven months.
The agent visited the laboratory on two occasions and on both visits saw significant quantities of P-2-P not supplied by the Government. In fact, the agent only supplied the defendants with a single 100-gram bottle of the chemical. The extent of his participation in the manufacturing process was that on one occasion he picked up some aluminum foil that had fallen to the floor.
The Court of Appeals for the Ninth Circuit, in reversing the defendant's conviction, seemingly relied on two theories. United States v. Russell, 459 F.2d 671 (9th Cir. 1972), Rev'd, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). First, the government supply of P-2-P constituted entrapment as a matter of law regardless of predisposition. Second, the police conduct was so repugnant that due process principles barred prosecution.
The Supreme Court reversed as to both theories. The Court held that the absence of predisposition is the focal point of the entrapment defense. Since the defendant conceded predisposition, that defense could not be raised.
On the second theory, the Court explicitly left the defense available, but decided that it was not applicable on the facts of the case:
While 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 processes to obtain a conviction, . . . the instant case is distinctly not of that breed. (The agent's) contribution of propanone to the criminal enterprise Already in process was scarcely objectionable. . . . The law enforcement conduct here stops far short of violating that "fundamental fairness, shocking to the universal sense of justice," mandated by the Due Process Clause of the Fifth Amendment.
411 U.S. at 431-32, 93 S. Ct. at 1643 (emphasis supplied).
The Court went on to make an important point not present here that the defendant "was an active participant in an illegal drug manufacturing enterprise which began before the government agent appeared on the scene . . . ." Id. at 436, 93 S. Ct. at 1645.
The only other Supreme Court case to consider the fundamental fairness defense in this type of situation was Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976). Hampton was convicted of distributing heroin despite his contention that the heroin had been supplied by a government informer and sold by the defendant to an undercover agent. The trial court refused to instruct the jury that if those facts were believed then they must acquit, and the defendant appealed.
The Supreme Court affirmed the conviction, but wrote three separate opinions. Justice Rehnquist's plurality opinion, joined by Chief Justice Burger and Justice White, stated that predisposition, which the defendant conceded existed, should operate as a bar to the fundamental fairness defense as well as to the conventional entrapment defense. The opinion argued that the remedy of "the criminal defendant with respect to the acts of government agents . . . lies solely in the defense of entrapment." Id. at 490, 96 S. Ct. at 1650.
Justice Powell, joined by Justice Blackmun, concurred in the result but refused to foreclose reliance on the fundamental fairness defense even where predisposition is shown. Justice Powell would base the defense on due process principles or the Court's supervisory power. He warned, however, that instances where this defense would be successful will be rare. "Police overinvolvement in crime would have to reach a demonstrable level of ...