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March 9, 1981

Irving Ronald KATZ, Albert Charles Hamilton, Warren Smith, Defendants

The opinion of the court was delivered by: NEAHER


The defendant Irving Katz and two co-defendants were charged with conspiracy to manufacture phenyl-2-propanone ("P2P") and to possess it with intent to manufacture methamphetamine and with the manufacture of P2P. *fn1" Contending that the involvement of a government agent and an informant in the commission of the acts for which he was indicted was so extensive as to deny him due process of law and thereby constitute a bar to further prosecution, defendant Katz has moved to dismiss the indictment. For the purposes of this motion only, the court will accept as true the allegations in defendant's motion papers.

 Defendant alleges that in May or June of 1980 he noticed the following advertisement in "High Times" magazine:

"CHEMISTS GET THE DEA'S "Watched List of Chemicals Used to Produce Controlled Substances.' Avoid suspicion by ordering any of 93 chemicals from acetic anhydride to urea. Our new chemical catalog is included with many interesting items. Send $ 10 to: BUCKEYE SCIENTIFIC CO., P.O. Box 27176A, Columbus, OH 43227" (Exh. 1 to Levy Aff., February 11, 1981.)

 He further alleges:

"I responded to this advertisement in order to purchase some chemicals, and I received a telephone number for Richard Hall, purportedly the President of Buckeye Chemical. I called Mr. Hall on the telephone and told him I was interested in purchasing P2P. Mr. Hall said that he did not sell this product but there were other ways of getting it and he urged me to come out to Columbus, Ohio to meet him to discuss this in person." (Katz Aff., February 11, 1981; emphasis supplied.)

 Defendant flew to Ohio where Hall gave him a formula for the manufacture of P2P and sold defendant the necessary chemical ingredients. Defendant also received a catalogue that contained a preface in the form of a letter from Hall as president of Buckeye. This letter gave advice to potential customers who would seek to avoid the attentions of law enforcement officials. The letter also appeared to imply that Hall's company, unlike some other chemical supply houses, did not notify the Drug Enforcement Administration ("DEA") of requests for or purchases of "DEA Watched Substances."

 Upon defendant's failure successfully to manufacture P2P in New York, he returned to Ohio at Hall's suggestion to visit the Ohio State University Chemistry Library with Hall to ascertain the correct formula. Defendant made further purchases of chemicals from Hall and returned again to New York. After defendant's second failure and yet another trip to Ohio, Hall introduced defendant to a man he identified as a friend and chemist who could advise defendant on the manufacture of P2P. Both Hall and the chemist told defendant that P2P "was a controlled substance and was, therefore, illegal."

 Defendant and the chemist returned to New York and later travelled to a supply company in New Jersey where the latter advised defendant regarding the purchase of equipment needed for the production of P2P. The chemist gave defendant and a co-defendant "explicit instructions" with regard to the manufacture of P2P and later repeated these by telephone to the co-defendant who allegedly had begun the experiment to produce the controlled substance. It appears from the complaint in this case that defendant was arrested soon after the success of this final experiment was announced by the co-defendant.

 Defendant alleges that Hall, who has since died, was in fact a paid informant who regularly reported Buckeye sales and shipments of certain chemicals to the DEA. In addition, it is alleged that the chemist was actually a DEA undercover agent. It is defendant's position on this motion that although he is

"not raising any defense of entrapment, acknowledging a predisposition on the part of the defendant to commit the crime," (Defendant's Memo. at 5-6)

 nonetheless the activities of Hall and the DEA chemist were

"so inexorably linked and intertwined with the commission of this crime and became a moving force in it to the extent that their conduct constituted serious over-reaching by the government and requires a dismissal of the indictment." (Levy Aff. at 2.)

 Accepting defendant's allegations as stated, the court is of opinion that even if they were proved true, they would not suffice to constitute a denial of due process sufficient to require dismissal of the indictment. ...

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