United States v. William Christopher Twigg, Iii, United States of America v. Henry Alfred Neville

588 F.2d 373
CourtCourt of Appeals for the Third Circuit
DecidedNovember 17, 1978
Docket78-1315, 78-1348
StatusPublished
Cited by350 cases

This text of 588 F.2d 373 (United States v. William Christopher Twigg, Iii, United States of America v. Henry Alfred Neville) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. William Christopher Twigg, Iii, United States of America v. Henry Alfred Neville, 588 F.2d 373 (3d Cir. 1978).

Opinions

OPINION OF THE COURT

ROSENN, Circuit Judge.

These appeals are brought by Henry Ne-ville 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 con[375]*375trolled 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.1 We reverse on all counts with the exception of Neville’s conviction on possession of cocaine.

I.

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.2 Neville expressed an interest and a discussion of the proposed operation ensued.3 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.4 In addi[376]*376tion, 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.

II.

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.5 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 sp'eed 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 Ne-ville, 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);

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Bluebook (online)
588 F.2d 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-christopher-twigg-iii-united-states-of-america-ca3-1978.