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United States v. Tobias

Is It Entrapment For An Undercover Officer To Tell The Defendant That Making PCP Is As "Easy As Baking A Cake"?

Discussion of Entrapment Principles

This is an edited version of the opinion appearing at 662 F2.d 381 (1981).

Entrapment & Due Process (Florida Law Review article)

FACTS: In order to pursue undercover investigations of clandestine laboratory operators, the Drug Enforcement Administration (DEA), established a chemical supply company in a Midwestern state, which shall be known herein as the supply company. The supply company operated in the same way as any legitimate chemical supply company. It had a business location and received orders via telephone and mail for various chemicals, which could be used in the manufacture of controlled substances.

In the April 1980 edition of High Times Magazine, the DEA supply company placed an advertisement offering over-the-counter sales of chemicals and laboratory equipment. On March 18, 1980, Supply Company received a letter from Thomas C. Tobias, the defendant, requesting "more information" and giving his name and address. A catalog was sent to Tobias in Mobile, Alabama. On March 26, 1980, Tobias telephoned the supply company and placed an order for various chemicals. On April 15, 16, 17, and 24, 1980, Tobias telephoned the supply company to check on his order and to order additional chemicals.

On April 25, 1980, Tobias again called the supply company about his order. According to Tobias's testimony, he telephoned to cancel his order because he had discovered from reading drug literature that he could not manufacture cocaine without "more knowledge ... and a lot of equipment." Before Tobias could cancel his order, however, Special Agent Schabilion asked him what he was trying to do. Tobias admitted that he wanted to make cocaine but had encountered difficulties. Pretending to empathize with Tobias, Schabilion stated that he too found cocaine to be extremely difficult and expensive to manufacture. To this, Tobias said he was not necessarily interested in manufacturing cocaine, but "just wanted to make some money." Agent Schabilion advised Tobias that "almost anything would be cheaper and easier to manufacture than cocaine," including amphetamines. Schabilion then suggested that Tobias make Phencyclidine (PCP). Schabilion explained that making PCP was as easy as "baking a cake" and that for $500 he would send Tobias everything he needed to get set up. Stating that he might have a market for PCP in Mobile, Tobias agreed. He cancelled his order for the original chemicals and told Special Agent Schabilion to send him everything he needed to manufacture PCP.

The supply company shipped the formula and some of the chemicals needed to manufacture PCP to the DEA office in Mobile for delivery to Tobias. It is undisputed that the chemicals provided by the DEA were not difficult to obtain and could have been purchased at other chemical supply houses. After receiving the chemicals and formula from the DEA, Tobias telephoned the supply company thirteen times to discuss problems encountered in the manufacturing process and to obtain advice for overcoming them. On May 9, 1980, when DEA agents executed a search warrant on Tobias's residence in Mobile they found PCP in a liquid state.

Tobias was convicted in a non-jury trial and received sentences totaling fifteen years in prison.

Rest of majority opinion (no entrapment)

Dissenting opinion (entrapment, no conviction)

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