The Courts, the DEA, and Drugs
Dec 30, 1994
alt.drugs
With all of the furor about the DEA online recently, I decided to
compile a short but interesting group of Federal Circuit Court of
Appeals & US Supreme Court decisions addressing the topic of how
the DEA runs operations. The following material contains excerpts
from various court opinions. The actual final legal disposition of
most of these cases as well as the substantive and procedural legal
attacks brought have been edited out. I would also like to point
out that the law changes frequently and may be interpreted
differently by different Federal Circuits and different judges, and
the following material does not necessarily reflect the current law
or the majority concensus. However, for what it's worth, it is
interesting to see how the DEA operates.
-RBrennan
"And you thought we had rights in this country!"
(Cite as: 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299)
Thomas J. HENDERSON, Scott O. Thornton and Ruth Freedman,
Petitioners
v.
UNITED STATES.
No. 84-1744.
Argued April 1, 1986.
Decided May 19, 1986.
**1873 POWELL, J., delivered the opinion of the Court, in
which BURGER, C.J., and REHNQUIST, STEVENS, and O'CONNOR, JJ.,
joined. WHITE, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and BLACKMUN, JJ., joined, post, p. ---.
I
A jury convicted petitioners of charges arising out of
manufacture, possession, and distribution of controlled
substances.S *323 [FN1] The evidence at trial showed that in
February and April 1980 petitioner Henderson, under the alias
"Richard Martin," placed orders with a scientific supply company in
Ohio for chemicals that could be used in the manufacture of illegal
drugs. The orders attracted the attention of the Drug Enforcement
Agency. Agents obtained a warrant from a United States Magistrate,
authorizing installation of an electronic transmitter in one of the
chemical containers. Henderson drove from California to Ohio,
picked up the second order of chemicals on June 24, and headed
west. Agents lost the tracking signal despite their following by
both car and plane, only to receive it later in July from
petitioner Freedman's house near Watsonville, California. A search
pursuant to warrant on July 17 revealed an illicit drug factory.
The last of the codefendants, Peter Bell, was arraigned on
September 3, 1980.
FN1. The jury convicted all three petitioners of conspiracy to
manufacture and possess with intent to distribute methamphetamine
and phenyl-2- propanone, see 21 U.S.C. s 846; petitioners Thornton
and Freedman of manufacture and possession with intent to
distribute of methamphetamine, see s 842(a)(1); and petitioner
Henderson of traveling interstate with intent to promote the
manufacture and possession of methamphetamine, see 18 U.S.C. s
1952(a)(3).
(Cite as: 27 F.3d 1035)
UNITED STATES of America, Plaintiff-Appellee,
v.
Melvin Glenn NEAL, Ricky Clyde Duncan, Leslie Raymond Jones,
Clifford P.Sutherland, James Glen Pace, Evelyn Austin Graham,
Timothy Wade Green, Jacky Ronald Pace, Gilbert D. Smith, Jimmy
Wayne Joyce, Defendants-Appellants.
No. 90-1957.
United States Court of Appeals,
Fifth Circuit.
July 21, 1994.
Rehearing Denied Sept. 22, 1994.
Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
Defendants Jacky Ronald Pace, James Glen Pace, Melvin Glenn
Neal, Ricky Clyde Duncan, Leslie Raymond Jones, Clifford P.
Sutherland, Evelyn Austin Graham, Timothy Wade Green, Gilbert D.
Smith, and Jimmy Wayne Joyce ("the Defendants") were jointly tried
and convicted of various offenses stemming from a conspiracy to
manufacture, possess, and distribute amphetamine. All ten
defendants were convicted of conspiring to manufacture, distribute,
or possess with intent to distribute a controlled substance, in
violation of 21 U.S.C. ss 841(a)(1) and 846 (1988). [FN1] All ten
defendants now appeal their *1041 convictions. We affirm in part,
vacate in part, and remand in part.
FN1. Additionally, the jury found Jacky Pace guilty of one
count of aiding and abetting the manufacture of amphetamine, in
violation of 21 U.S.C. ss 841(a)(1) and (2); one count of engaging
in a continuing criminal enterprise, in violation of 21 U.S.C. s
848; multiple counts of investing income derived from a drug
conspiracy, in violation of 21 U.S.C. s 854; one count of aiding
and abetting interstate travel in furtherance of a drug conspiracy,
in violation of 18 U.S.C. ss 1952 and 2; and one count of
conspiring to impede the Internal Revenue Service, in violation of
18 U.S.C. s 371. James Glen Pace was convicted of multiple counts
of investing income derived from a drug conspiracy, one count of
conspiring to impede the Internal Revenue Service, and one count of
using a communication facility to facilitate the conspiracy to
manufacture amphetamine, in violation of 21 U.S.C. s 843(b). Neal
was found guilty of engaging in a continuing criminal enterprise,
multiple counts of investing income derived from a drug conspiracy,
and conspiring to impede the Internal Revenue Service. The jury
convicted Duncan of engaging in a continuing criminal enterprise,
investing income derived from a drug conspiracy, aiding and
abetting interstate travel in furtherance of a drug conspiracy, and
conspiring to impede the Internal Revenue Service. Smith was found
guilty of five counts of investing income derived from a drug
conspiracy and one count of aiding and abetting interstate travel
in furtherance of a drug conspiracy.
I
In 1984 and 1985, Jacky Pace operated an extensive conspiracy
to distribute amphetamine. At varying points throughout the
conspiracy's existence, Pace recruited the other Defendants into
his organization. Pace also established a network of phony
corporations ("the JRP group") to purchase the chemicals and
equipment necessary to manufacture amphetamine and to launder the
money he received from his amphetamine operations. Agents of the
Drug Enforcement Administration ("DEA") and the Texas Department of
Public Safety ("TDPS") apparently learned of Pace's involvement in
the amphetamine trade through surveillance of Metroplex Chemicals,
a Dallas business that supplied chemicals and glassware to
amphetamine manufacturers.
In June 1987, the government brought a forty-three count
indictment charging thirty-one persons with various offenses
arising out of their participation in Pace's amphetamine
distribution ring. The case proceeded to trial in May 1989, but
the district court declared a mistrial because of excessive
publicity. In October 1989, the case again proceeded to trial, and
the jury returned with its guilty verdicts in September 1990.
Cite as: 16 F.3d 1223
UNITED STATES of America, Plaintiff-Appellant,
v.
Bud RIGGINS and Donald McVean, Defendants-Appellees.
Nos. 93-5075, 93-5076.
United States Court of Appeals, Sixth Circuit.
Before: GUY and SILER, Circuit Judges; and CHURCHILL, Senior
District Judge. [FN*]
PER CURIAM.
**1 After a jury trial, defendants were convicted of
conspiracy and attempt to manufacture a controlled substance, in
violation of 21 U.S.C. s 846, as well as possession of triple-neck
round-bottom flasks with intent to manufacture a controlled
substance, in violation of 21 U.S.C. s 843(a)(6). Defendants filed
a post-trial Rule 29 motion for judgment of acquittal, which the
district court granted. The government now challenges the court's
decision. Finding that a reasonable jury could have concluded that
defendants' conduct satisfied, beyond a reasonable doubt, the
elements of the charged offenses, we reverse and remand.
I.
In May 1991, Bud Riggins placed an order for ten kilograms of
isosafrole and twenty liters of methanol with Eastman Fine
Chemicals ("Eastman") of Rochester, New York. For numerous
reasons, Riggins's isosafrole order aroused the suspicion of
Richard Hapeman, Eastman's manager of quality assurance. For
instance, isosafrole was, at the time, a chemical found on the
DEA's " 'watch list,' an informal list of chemicals often used
illegally which is published to suppliers." [FN1] In addition, the
order was far larger than standard orders, which typically do not
exceed one kilogram. Hapeman also noted that Riggins did not
appear to be using a business address, and that the business
Riggins had listed, Logan Ag Lab & Supply, had never before placed
an order with Eastman. Furthermore, Riggins initially informed
Hapeman that he wanted the chemicals shipped COD, a request that
Hapeman could not honor given company policy. That Riggins would
decide to initiate dealings with Eastman at that point seemed
particularly strange to Hapeman, especially since, as Hapeman
surmised, Riggins could have sought out other suppliers that were
not only geographically closer to him, but also could offer a
better price.
Dubious as to Riggins's intentions, Hapeman sought and
obtained Riggins's written assurance that the chemicals would not
be used in any food or drug or in a residential setting. Hapeman
also contacted the DEA, notifying the agency as to his suspicions.
The case was then referred to the DEA office in Louisville,
Kentucky. Louisville DEA agents contacted the DEA laboratory in
Chicago and were informed that isosafrole is a precursor to the
manufacture of 3, 4-methylenedioxyamphetamine ("MDA"), a schedule
I hallucinogen under 21 U.S.C. s 812.
After getting confirmation from Eastman that Riggins had
indeed placed the order in question, Louisville DEA Agent Gary
Tennant decided to make a controlled delivery of the chemicals.
Although a perusal of the local phone book did not reveal a phone
number for either Riggins or the Logan Ag Lab & Supply Company,
Tennant did manage to find a number to call by consulting various
shipping documents. The individual who answered the call, "Don,"
instructed that the delivery be made to an airplane hanger on
Riggins's farm in Logan County, Kentucky.
After the isosafrole package had been equipped with a beeper
transmitting device, a delivery for the full amount under Riggins's
order took place on June 10, 1991. A person identifying himself as
Clarence Gamble [FN2] accepted the delivery. As the delivery was
being made, Tennant noticed a "distinctive chemical smell," which
he associated with acetic anhydride, a substance used in the
production of amphetamines. The DEA continued their surveillance
of the area for nearly 40 hours.
**2 On June 11, 1991, the DEA, accompanied by state and local
police, executed a search of the hanger and the surrounding area.
As the investigators arrived on the scene, Riggins remarked:
"[Y]ou are here about them chemicals ain't you." (App. 234.) He
then informed the agents that he had removed the isosafrole and
methanol from the hanger to a residence on the property. At the
time, the residence, though owned by Riggins, was occupied by
Donald McVean, a friend and business associate of Riggins. During
the search of the hanger, DEA Agent Arnold Fitzgerald, much as
Tennant had done the day before, noticed the smell of acetic
anhydride. [FN3] The search did, in fact, uncover acetic anhydride
as well as hydrobromic acid and 11 marijuana plants. Perhaps as
revealing as what the agents did find was what they did not find:
"There was no evidence found indicating the existence of a
legitimate chemical business. "There was no evidence of the
presence of fire safety equipment or use of safety storage
principles."
The agents also searched Riggins's pick-up truck, which was
parked outside the hanger. In the back seat, they found a book
entitled "Drug Manufacturing for Fun and Profit." While the book
did not include a recipe for MDA, it did devote a chapter to the
manufacture of dimethyltryptomine, or "DMT," a controlled substance
manufactured in much the same way as MDA.
The most plentiful source of evidence turned out to be
Riggins's residence, located in a large clearing at a "considerable
distance from any other building" on the farm. While the agents
left the premises to secure a search warrant for the residence,
McVean was permitted to remain inside unattended for approximately
30 to 40 minutes. When the agents returned, [FN4] and immediately
upon entering the residence, Tennant and Fitzgerald detected "a
very pungent and strong smell of ether." [FN5]
A thorough search ensued after the agents ventilated the
residence. In the living room, the agents noted the following
"scattered about" items: Isosafrole--(10) 1 kilogram bottles--full;
(2) 500 milliliter bottles--full and 1/2 full Methanol--(1) 20
liter metal can--full Ethyl Alcohol--(2) 4 liter bottles--full and
1/2 full Sulfuric Acid--(1) 6 1/2 liter bottle--full and (1) 2 1/2
liter bottle-- 1/2 full Hydrogen Peroxide 30%--(5) 500 milliliter
bottles--full; (1) 4 liter glass bottle-- 1/2 full Ethyl Ether
(EM)--(10) 1 liter bottles--(9) full; (1) 1/2 full Ethyl Ether
(Fischer)--(1) 4 liter bottle-- 1/2 full Alumina Activated--(1) 2
1/2 liter bottle--full Toluene--(1) 4 liter bottle--full Formic
Acid 88%--(4) 4 liter plastic bottles--3 1/4 full Formic Acid--(2)
2/5 liter plastic bottles--full Aluminum Metal--(2) 500 milligram
plastic bottles--full Isopropyl 70%--(12) 1 pint bottles--full
(Wal-Mart brand) Isatoic Anhydride--(1) 500 gram bottles--full
Muriatic Acid--(1) 1 gallon plastic bottle--full **3 Chromium
Trioxide--(1) 1 liter bottle--full Sodium Acetate--(1) 25 pound
plastic bottle The agents also discovered (3) 3,000 milliliter
single neck flasks; (1) 1,000 milliliter single neck flask; and
(1) hot plate.
In addition to a Lyman 500 scale, an Ohaus GT 8000 scale and
(2) lab thermometers, a search of the kitchen yielded: Acetone
[FN6] Phosphoric Acid--(1) 2 1/2 liter bottle-- 3/4 full
Raney-Nickel [FN7]--(5) 100 gram metal containers--full (stored in
refrigerator) Chromium Trioxide--(1) 500 gram bottle-- 1/2 full
Inositol [FN8] Empty Gelatine Capsules [FN9]--(2) plastic zip lock
bags containing approximately 420
In a first floor bedroom, the agents found a computer that was
in the process of printing out documents. These documents, Riggins
and McVean contend, were catalogs that they had intended to send to
companies in the chemical supply industry. A search of another
bedroom netted the agents a loaded .38 caliber Smith & Wesson
revolver. The revolver was found on a night stand beside a bed.
McVean apparently had been using the room as his sleeping area.
The agents also searched the attic. The items found there
were particularly noteworthy because they had been concealed behind
a sheet of plywood. Once McVean found out that the hiding place
had been discovered, he said: "[O]h, shit." [FN10] The attic is
where the agents located Riggins's and McVean's most sizable cache:
Hydrochloric Acid--(1) 2 1/2 liter bottle-- 3/4 full Potassium
Dichromate Merk--(1) 1 pound container--full Ethyl Alcohol--(1) 4
liter bottle-- 1/10 full Acetic Acid, Glacial--(1) 2 1/2 liter
bottle--full Ethyl Acetate--(1) 4 liter bottle-- 3/4 full
Formamide--(1) 1 quart bottle--full Diethyl Malonate--(1) 2
kilogram bottle-- 1/2 full Phenylacetaldehyde--(2) 250 gram
bottles-- 3/4 full each 1-Bromoethyl Benzene--(1) 100 gram bottle--
1/2 full N-Butyl Chloride--(1) 4 liter bottle--full Nitric
Acid--(2) 2 1/2 liter bottles--full Titrant Standard Potassium
Hydroxide Alcoholic--(2) 500 ML bottle--full Isosafrole--(3) 250
gram bottles--full Isonitrosoproprophenone--(4) 1/2 quart
bottles--full Magnesium metal--(6) 500 gram bottles--full Unknown
liquid--(1) 4 liter bottle-- 1/4 full Potassium Permanganate--(2)
500 gram bottles--full Pyridine--(1) 1 one liter bottle-- 1/4 full
Phenylacetyl--(4) 100 gram bottles-- 3/4 full Toluidine--(1) 500
gram bottle--full Acetyl Acetone--(2) 500 milliliter bottles--full
Carbon Tetrachloride--(1) 500 milliliter bottle--full
Phenylacetonitrile--(1) 1 kilogram bottle--full Methyl Iodide--(1)
100 milliliter bottle--full Chromium Trioxide--(1) 500 gram
bottle--full The attic also produced the following paraphernalia:
[FN11] (3) 5,000 milliliter triple neck flasks, (3) 3,000
milliliter triple neck flasks, (4) 4,000 milliliter Pyrex beakers,
(1) heating mantel (100 ml.), [FN12] separatory funnels, graduated
cylinders, and condensers.
**4 In March 1992, on the strength of the evidence obtained as
a result of the searches detailed above, a federal grand jury
returned a seven-count indictment naming Riggins and McVean as
defendants. Specifically, the indictment listed several counts
relating directly to the defendants' alleged MDA operation,
including: conspiracy [FN13] (Count 1) and attempt [FN14] (Count
2) to manufacture MDA, in violation of 21 U.S.C. s 846; and
possession of triple-neck round-bottom flasks with intent to
manufacture MDA, in violation of 21 U.S.C. s 843(a)(6) [FN15]
(Count 5). The indictment also contained two firearm charges: the
use and carrying of a firearm, in violation of 18 U.S.C. s 924(c)
(Count 3); and possession of a firearm by a convicted felon,
[FN16] in violation of 18 U.S.C. s 922(g)(1) & (2) (Count 4).
Finally, the indictment charged Riggins with two other drug-related
offenses: manufacturing marijuana, in violation of 21 U.S.C. s 841
(Count 6); and possession with intent to distribute marijuana, in
violation of 21 U.S.C. s 841(a)(1) (Count 7).
At trial, defendants attempted to portray their operation as
a legitimate chemical supply and produce business, not an illicit
drug manufacturing center. Testimony given during the trial
established that the government tested samples of 10 out of the 41
substances found as a result of the search. The government's
chemist, Odest Washington, opined that Riggins's farm provided an
ideal setting for a clandestine laboratory because it was well
hidden by trees. As to the chemicals found on the farm, Washington
testified that eight of them could have been used to manufacture
MDA: isosafrole, formamide, formic acid, sulfuric acid,
hydrochloric acid, hydrogen peroxide, toluidine, acetone, and
methanol.
Although virtually all of the ingredients to make MDA were
thus present, Washington noted that several pieces of laboratory
equipment vital to the manufacturing process were not. For
instance, the government's search of Riggins's farm did not turn up
a rheostat, a device for regulating temperature. In addition, the
agents could not locate ring stands, clamps, or other apparatus
designed to hold the equipment during synthesis. Finally,
Washington observed that the heating mantle found in the attic of
Riggins's residence would not have fit the 3,000 or 5,000
millimeter flasks that were also found in the attic.
At the close of the government's case and again, at the close
of all the proof, defendants moved for a judgment of acquittal
pursuant Fed.R.Crim.P. 29. On both occasions, the district court
denied defendants' motions. Subsequently, the jury returned a not
guilty verdict against Riggins on Counts 4, 6, and 7. The jury
did, however, convict both defendants on Counts 1, 2, and 5, and
McVean on Count 4. [FN17]
(Cite as 8 F.3d 316)
UNITED STATES of America, Plaintiff-Appellee,
v.
Karl HOFSTATTER (92-1836) and Michael Griffor (92-1805),
Defendants-Appellants.
Nos. 92-1805/1836.
United States Court of Appeals,
Sixth Circuit.
Argued June 17, 1993.
Decided Sept. 28, 1993 [FN1].
I
In May of 1989 the Drug Enforcement Administration received
information from a chemical company in Connecticut that a
suspicious order had been received from "JAH Company," of Ann
Arbor, Michigan, for the chemical phenylpropanolamine.
The DEA subsequently monitored numerous purchases of precursor
chemicals by defendants Hofstatter and Griffor, ostensibly acting
on behalf of JAH or "Robert Kaye and Company." On one occasion
defendant Griffor was found to have used the name "Michael Edwards"
in picking up a shipment of ephedrine.
On June 20, 1991, agents of the DEA executed a warrant to search
the premises at 712 and 715 East Kingsley, in Ann Arbor, *320 where
the defendants had gone after one of their pickups of chemicals.
At 712 East Kingsley the agents found laboratory equipment and
supplies, including vacuum flasks and a turkey baster, along with
written records of experiments involving the manufacture of
methylcathinone, an analogue of the controlled substance
methamphetamine. In a box with chemicals and equipment was a
notebook detailing the experiments. One entry in the notebook read
as follows: "let some sit for 3 days (less smell) closer to
amphed." Another read "took first sample at 8:00 pm--quality:
(all est. from - 1--+ 10) euphoria (7), speed (6), conversation
(8), smell (2) [FN*] taste (1), jones (4) (one being no jones)."
Taped to the inside covers of the notebook were photographs of Mr.
Griffor and his dogs. Also seized were personal papers of Mr.
Hofstatter and address books containing names of chemical supply
companies and various chemical formulae. In a kitchen freezer
agents found more than a kilogram of phenylpropanolamine solution.
Elsewhere in the house they found chemicals needed for the
manufacture of methylcathinone, cathinone, 4-methylaminorex, and
n-methyl-4-methylaminorex.
There was no toluene (a solvent widely used in making such
substances), but, as noted above, there was evidence that toluene
had been used.
FN* A note connected to the rating for "smell" read as
follows: "smells as if we did not get all of toluene out but K
insists that we did. I am going to reclean some and find out."
Mr. Griffor's automobile, which had been used the day before to
pick up ephedrine, was parked in the driveway of 715 East Kingsley.
The automobile was also searched. Inside the car were found two
bags containing personal papers, notebooks, and envelopes in the
name of Mr. Hofstatter. The documents described "khat" (an East
African plant containing cathinone) and methylaminorex (a drug also
known as "rex" or "U4euh," a homophone of euphoria). Formulae for
the manufacture of methylcathinone were found in the car, as was a
Federal Register notice indicating that methylaminorex was to be
scheduled as a controlled substance by the DEA.
The defendants were indicted on charges of conspiracy to possess
listed chemicals with intent to manufacture controlled substances
and controlled substance analogues (count one); possession of
listed chemicals with intent to manufacture controlled substance
analogues and controlled substances (counts two as to Griffor,
three as to Hofstatter, and four, five, and six); conspiracy to
open or maintain a place for the purpose of manufacturing
controlled substance analogues and controlled substances (count
seven), and endangering human life while attempting to manufacture
a controlled substance illegally (count eight as to Hofstatter).
DEA chemist Terry Dal Cason determined that the seized documents
contained 23 iterations of the formula for manufacturing
methylcathinone. Cason testified at trial that the defendants had
the chemicals and the know-how necessary to manufacture
methylcathinone, cathinone, 4-methylaminorex, and
n-methyl-4-methylaminorex. Cason also testified that
methylcathinone has a chemical structure substantially similar to
that of the controlled substance methamphetamine; that cathinone
has a chemical structure substantially similar to that of
amphetamine, which is likewise a controlled substance; that 4-
methylaminorex is a controlled substance; and that
-methyl-4-methylaminorex has a chemical structure substantially
similar to that of 4-methylaminorex.
DEA Agent Mary Sandy testified that while posing as a chemical
supply store employee she had twice sold listed precursor chemicals
to Mr. Hofstatter. She went on to tell the jury that after the
ephedrine purchase on June 19, 1991, agents followed Messrs.
Hofstatter and Griffor to 715 Kingsley in Ann Arbor, where Mr.
Hofstatter removed items from Mr. Griffor's car while it was parked
in the driveway. Through the car window Agent Sandy was able to
see a computer and other items.
The government also introduced evidence that in May of 1987 local
authorities had discovered chemicals, laboratory equipment,
formulae, and small quantities of 4-methylaminorex in a trailer
rented by Mr. Hofstatter in Pasco County, Florida. It would be
fair to infer from this evidence that the trailer had been used as
a site for illicit manufacture of a controlled substance.
The jury found Mr. Hofstatter guilty on all counts in which he
was charged except counts seven and eight. Mr. Griffor was
convicted on all of the counts in which he was charged except
counts two and seven. Mr. Hofstatter was sentenced to concurrent
terms of imprisonment for 96 months. The sentence reflected a
two-level enhancement in Mr. Hofstatter's guideline offense level
because of his having played a leadership role. Mr. Griffor was
sentenced to concurrent sentences of 36 months. Both defendants
perfected timely appeals.
(Cite as: 955 F.2d 630)
UNITED STATES of America, Plaintiff-Appellee,
v.
Wayne Richard ALLEN, Jr., Defendant-Appellant.
No. 90-50666.
United States Court of Appeals,
Ninth Circuit.
Submitted Jan. 8, 1992 [FN*].
Before FARRIS, NOONAN and TROTT, Circuit Judges.
PER CURIAM:
Wayne Richard Allen appeals the district court's denial of his
motion to dismiss the indictment against him on the ground of
outrageous government misconduct. We affirm.
In 1985, one Charles Hill organized Triple Neck Scientific, a
chemical supply house patronized by Allen and the source of
information that Allen was involved in the manufacture of
methamphetamine. At about the same time, Hill contacted the *631
local Drug Enforcement Agency office and agreed to supply them with
information regarding customers purchasing chemicals and equipment
used to manufacture methamphetamine. This arrangement enabled the
DEA to initiate an operation spanning some four years to identify
methamphetamine manufacturers in southern California. During that
time, the DEA undertook a variety of actions, including (1) the
purchase of advertising to assist Hill in generating business, (2)
camera surveillance of Triple Neck premises and (3) the use of a
law enforcement officer as an undercover employee of Triple Neck.
The DEA was aware that substantial amounts of precursor chemicals
were being sold during the operation, and it permitted Hill to
retain all funds he received through Triple Neck.
[1] Allen contends that government involvement in the
oversight and manning of Triple Neck Scientific amounted to
outrageous misconduct. We will dismiss an indictment if government
misconduct has been so outrageous that it results in a violation of
due process. United States v. Luttrell, 889 F.2d 806, 811 (9th
Cir.1989), modified, 923 F.2d 764 (9th Cir.1991) (en banc). We
have pointed out that the channel for relief opened by this defense
is a most narrow one. United States v. Simpson, 813 F.2d 1462,
1465 (9th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98
L.Ed.2d 192 (1987).
In reviewing Allen's motion to dismiss, we must determine
initially whether the government's conduct was " 'so grossly
shocking and so outrageous as to violate the universal sense of
justice.' " Id. at 1464 (quoting United States v. Ramirez, 710
F.2d 535, 539 (9th Cir.1983)). It was not.
Unsavory conduct alone will not cause the dismissal of an
indictment. United States v. Smith, 924 F.2d 889, 897 (9th
Cir.1991); Simpson, 813 F.2d at 1464.
[2] The government's consent to and participation in the
operation of a facility for the supply of chemicals used in the
manufacture of methamphetamine does not offend the universal sense
of justice. We must view the question "in light of the limited
range of law enforcement techniques available for investigating
drug manufacturing enterprises." United States v. Smith, 538 F.2d
1359, 1361 (9th Cir.1976); see also United States v. Russell, 411
U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973)
(considering "practicable means of detection" of illicit drug
manufacture and concluding that infiltration and supply of drug
manufacturing rings are "recognized and permissible means of
investigation" that do not offend a universal sense of justice).
Manufacturers of methamphetamine might resort to hundreds of supply
houses in the area to obtain the required materials. Closing any
one of them would have little effect on a manufacturer's access to
others like them.