United States of America, Plaintiff-appellee, v. Clinton Tyler Wick, Defendant-appellant.united States of America, Plaintiff-appellee, v. Ricardo Bautista, Defendant-appellant, 948 F.2d 1293 (9th Cir. 1991)

MEMORANDUM^* 

Defendants were convicted of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a) (1). Defendants timely appeal the denial of their motion to dismiss the indictment based on outrageous government conduct. This court has jurisdiction under 28 U.S.C. § 1291. We affirm.

In June 1988, the Drug Enforcement Agency (DEA), in conjunction with the Bureau of Narcotic Enforcement (BNE) and the Bureau of Alcohol, Tobacco and Firearms (ATF), set up an operation investigating individuals who manufactured methamphetamine. The investigation involved the surveillance of Triple Neck Scientific Laboratory Supplies (TNS), a supplier and distributor of lab equipment and chemicals. TNS was opened and operated at the DEA's request by Cameron Charles Hill, a non-sworn undercover operative. BNE Special Agent Charles Potter, also acting in an undercover capacity, assisted Mr. Hill. The activities at TNS were electronically monitored by a closed circuit television camera, a video machine, and a recorder. Defendants Wick and Bautista purchased chemicals and equipment from TNS in October, 1988.

Wick heard of TNS through "word of mouth." In August, 1988, Wick visited TNS in order "to verify that there was a place that did sell all these needed chemicals and hardware." During the four or five weeks after this visit, Special Agent Potter called Wick's residence a few times, inquiring whether Wick needed any materials or had any methamphetamine to sell, and encouraging Wick to stop by TNS if he needed any materials.

After this first visit, Wick approached Bautista and suggested that they manufacture methamphetamine. Bautista lent Wick approximately $1,000 for the purchase of necessary glassware and chemicals. Wick had manufactured methamphetamine since sometime in 1987, but was forced to stop in early 1988 because his equipment and chemical supplier had been closed down and he could not find a replacement supplier. Wick testified that until he discovered TNS, he was unaware of any other supplier.

In October, Bautista visited TNS for the purpose of finding out whether "th [e] place was a legitimate chemical supply store." During this visit, Bautista purchased 15 pounds of hydrochloric acid, a chemical used to manufacture methamphetamine. Bautista told Agent Potter that he had some cooking set ups and that he wanted to get larger cooking flasks. According to Bautista, Hill taught Bautista how to use a device that he had designed and that would be useful in the production of methamphetamine. Bautista also testified that although he did not inquire, Hill claimed TNS had the ingredients to manufacture PCP.

Both defendants claimed that the employees at TNS offered them beer while they waited to ask questions or purchase materials. Wick said that he and Mr. Hill once snorted cocaine at TNS. When both defendants went to TNS together in October, they purchased most of the chemicals and hardware necessary to manufacture methamphetamine, except ephedrine. Ephedrine is an essential chemical in the production of methamphetamine.

Defendants admitted that they manufactured methamphetamine in order to make money and that the decision to manufacture the drug was their own. Defendants were convicted for distributing methamphetamine after selling the drug to Agent Potter. After trial but before sentencing, defendants moved to dismiss the indictment based on outrageous government conduct. The trial judge denied the motion, finding that defendants were involved in manufacturing methamphetamine before becoming involved with TNS, and that they were in the process of looking for a new supplier at the time they discovered TNS. Defendants now appeal the denial of their motion.

II

The district court's denial of a motion to dismiss the indictment based on outrageous government conduct is a question of law reviewed de novo. United States v. Bonanno, 852 F.2d 434, 437 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989). Factual findings are reviewed for clear error. Id.

A court may dismiss an indictment if the government's conduct is so outrageous as to violate due process. United States v. Luttrell, 889 F.2d 806, 811 (9th Cir. 1989). The test is whether the government's conduct was "so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Ramirez, 710 F.2d 535, 539 (9th Cir. 1983) (quotations omitted). In evaluating this defense, the court must focus on the government's behavior without regard to the defendant's predispositions. Luttrell, 889 F.2d at 811.

Law enforcement conduct is constitutionally unacceptable when the government "engineer [s] and direct [s] the criminal enterprise from start to finish," or when the conduct involves the "generation by police of new crimes merely for the sake of pressing criminal charges against the defendant." Ramirez, 710 F.2d at 539-40. Only two circuit courts have dismissed an indictment based on the defense of outrageous government conduct. Greene v. United States, 454 F.2d 783 (9th Cir. 1971); United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). In the Ninth Circuit, this due process defense is a very narrow one. United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976)..

The Ninth Circuit affirmed the dismissal of an indictment on this basis in Greene v. United States, 454 F.2d 783 (9th Cir. 1971). The court held that the combination of several factors required reversal of the convictions. Id. at 787. In that case, an undercover agent posed as a member of the "syndicate" in order to infiltrate an alleged bootlegging operation. After the defendants' arrest on former bootlegging charges, the agent reestablished contact in order to continue his investigation. Id. at 784. The agent's involvement in the bootlegging operation lasted approximately two and one-half years, and was extensive in nature. For example, he offered to provide a still, a still site, equipment, and an operator. He also provided two thousand pounds of sugar at wholesale. Finally, the agent pressured the defendants to continue their operation by threatening that his "boss" was on his back to continue production. Id. at 786-87.

The court found that the government "did not simply attach itself to an on-going bootlegging operation for the purpose of closing it down and prosecuting the operators." Id. at 787. By re-initiating contact with the defendants and providing substantial assistance over a long period of time, the agent had "helped ... to reestablish, and then to sustain, criminal operations which had ceased with the first convictions." Id. The court held that government may not "involve itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators." Id.

The government correctly distinguishes Greene from the instant case. First, defendants admit that the plan to manufacture methamphetamine did not originate with Agent Potter and Mr. Hill. In fact, defendants initiated contact with TNS in order to get materials to bring their plan into operation. Thus, the government did not "create" or "engineer" the criminal operation. See Bonanno, 852 F.2d at 438 (important that government informant did not "devise the plan" to create fraudulent purchase orders); Ramirez, 710 F.2d at 540 (fact that defendant and associates designed the crime suggested government conduct not outrageous).

Second, the criminal operation was in progress at the time TNS became involved. See Bonanno, 852 F.2d at 438 (important that defendants were involved in fraudulent scheme before government agent became involved); United States v. Stenberg, 803 F.2d 422 (9th Cir. 1986) (but for evidence that defendants were "actively engaged in other similar criminal activity" at time investigation began, court might have reached a different result). Wick had manufactured methamphetamine prior to learning of TNS' existence, and stopped primarily because he needed to find a new supplier. He went to TNS to see if they would be a good source. Although Bautista did not manufacture methamphetamine before this time, he was involved in planning and executing the operation. Like Wick, Bautista went to TNS to see if it would be a safe supplier of the necessary materials. Thus, this is not a case where the defendants were "lawfully and peacefully minding [their] own affairs." Twigg, 588 F.2d at 381.

Third, the government did not supply all essential materials to the defendants. In United States v. Phelps, 877 F.2d 28 (9th Cir. 1989), federal agents sold one pound of ephedrine to the defendants. The government approached the defendants after learning that the defendants needed this chemical in order to resume manufacturing methamphetamine. Id. at 29. While the government's actions made it possible to resume manufacturing, the court held that approaching the defendants and selling the essential chemical was not outrageous. Id. at 31. In the instant case, TNS provided the appellants with many chemicals and hardware, but it did not sell them an essential chemical, ephedrine. Unlike Phelps, the government's actions did not insure the success of the operation; the defendants were not able to proceed to the manufacturing stage by virtue of the government's involvement.

Fourth, the government was not defendants' only customer. See Stenberg, 803 F.2d at 430 (this fact is of "critical importance" in determining whether government's involvement amounted to creation and maintenance of criminal operation). Wick admitted that he asked whether Agent Potter knew of anyone else interested in buying a pound of methamphetamine and that he continued selling the drug for two months after selling to Agent Potter.

In United States v. Twigg, 588 F.2d 373 (3d Cir.), the DEA had a government informant contact the defendant, an acquaintance of twenty years, to discuss setting up a methamphetamine laboratory. The government supplied the informant with phenyl-2-propanone, the most difficult chemical to obtain. In addition, the government provided the informant with 20% of the glassware needed and rented a farmhouse to use as the laboratory. DEA officials contacted chemical supply houses and arranged for the purchase of additional chemicals. The laboratory operated for one week, and the informant was in charge of production. The defendants' assistance was minor and was done at the express direction of the informant. Id. at 380-81.

The Third Circuit reversed the district court, holding that the government conduct "generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own affairs." Id. at 381. The court found it particularly important that the defendants were not engaged in the manufacture of methamphetamine prior to contact with the government informant. Id. at 381-82. In addition, the fact that the government provided essential supplies, in conjunction with technical expertise, also persuaded the court that the government's conduct was outrageous. Id.

The government correctly asserts that Twigg does not control the decision in the instant case. While the government did facilitate the production process to some degree, it did not reach the level of assistance provided in Twigg. Also unlike Twigg, Agent Potter and Mr. Hill did not initiate the contact with defendants or design the ensuing scheme. Moreover, some of the materials provided by the government in Twigg were free, and this is not true in the present case. Finally, the government did not play nearly as integral a role in the actual manufacturing process as it did in Twigg. While Agent Potter and Mr. Hill may have demonstrated how to use a new device, their participation in the production process stopped there. They did not act as partners in the venture, but merely as suppliers and interested customers.

Given these factual dissimilarities, we hold that the government's conduct was not "so grossly shocking and so outrageous as to violate the universal sense of justice." Ramirez, 710 F.2d at 539. Agent Potter and Mr. Hill did not "engineer and direct the criminal enterprise from start to finish." Id. at 539. Instead, the government merely "attach [ed] itself to an on-going ... operation for the purpose of closing it down and prosecuting the operators." Greene, 454 F.2d at 787.

The district court's denial of defendants' motion to dismiss the indictment is AFFIRMED.