United States v. Tobias Essay

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Entrapment is a defense to criminal charges that can be raised when a law enforcement  officer entices a citizen into committing a crime that the citizen would not otherwise have committed. Law enforcement officers, particularly those who work undercover, regularly face the ethical question of how far they should become enmeshed in criminal activity in order to ensure that a criminal is arrested and convicted. In United States v. Tobias (1981), the Fifth Circuit U.S. Court of Appeals faced this question.

Thomas Tobias was reading High Times magazine when he came across an advertisement for a chemical company. The company was offering over-the-counter sales of chemicals and lab equipment. Tobias sent an inquiry and the company immediately responded by shipping him a catalog. He was unaware that the company was created and staffed by agents from the Drug Enforcement Administration (DEA). The DEA was using the company as part of an undercover operation to catch drug manufacturers.

Tobias ordered the chemicals he thought might be necessary for manufacturing cocaine, but he proved to be an inept drug manufacturer. Based on his order, the DEA agents could not immediately determine what he was trying to manufacture. Tobias quickly realized he did not have the materials or expertise to manufacture cocaine, so he called the company to cancel his order. During this phone call, Tobias admitted to a DEA agent that he was trying to make cocaine. Tobias also stated that he was really just interested in making some money. The agent agreed that cocaine was difficult to manufacture and suggested that phencyclidine (PCP) would be much easier. The agent said that  for $500,  the company  would send Tobias everything he needed to manufacture PCP. Thinking there might be a market for PCP, Tobias agreed. The DEA delivered the materials, but Tobias only paid approximately $100. Tobias struggled with the manufacturing process and called the company 13 times for guidance. In these phone  calls, DEA agents walked him through the process.

The DEA executed a search warrant for Tobias’s house and found significant quantities of PCP. Tobias was charged with conspiracy to manufacture and possess a controlled substance with the intent to distribute. He was convicted and sentenced to 15 years in prison. Tobias appealed his conviction to the Fifth Circuit Court of Appeals.

The question before the court was whether the DEA went too far in its attempts to engage Tobias in drug manufacturing. Tobias  argued  that  he was entrapped and that the DEA’s actions were so outrageous that they were fundamentally unfair, and therefore violated the due process clause of the Fifth Amendment  to the U.S. Constitution. Tobias lost his appeal, but the court’s decision provided good insight into the question of how far law enforcement may legally go to obtain a conviction.


Under the law, entrapment only occurs when law enforcement officers actually put the idea of committing the crime into the suspect’s head. When a defendant raises an entrapment defense, he or she must show that the government’s actions created a substantial risk that somebody who was not disposed to commit the crime would nevertheless do so. If the defendant brings forward this type of evidence, then the government must show beyond a reasonable doubt  that the defendant was predisposed to commit the crime. If the government proves predisposition, the entrapment defense fails.

Due Process

The due process clause of the Fifth Amendment requires that whenever the government interferes with a citizen’s life, liberty, or property, the process (or means) that the government uses must be fundamentally fair. According to this principle, the U.S. Supreme Court has held that when law enforcement  agents’ conduct  is so outrageous that it shocks the community’s sense of justice, the government should be barred from obtaining a conviction (United States v. Russell, 1973). To determine whether the government’s conduct is “outrageous,” the court must look at all of the circumstances of the case.

The appellate court held that Tobias was not entrapped and that the government’s actions were not so outrageous as to violate due process. The court noted that the only action the DEA took to entice Tobias was to place the ad. Tobias initiated repeated contact with the company. According to the court, this was evidence of his predisposition to manufacture a drug. When Tobias admitted that his primary goal was to make money, this was further evidence of his predisposition to manufacture drugs.

With regard to the due process claim, the court held that this case set the “outer limits” of how far the government could go in enticing a citizen into criminal activity. However, Tobias’s predisposition to manufacture drugs plus his active participation in the crime were sufficient to defeat his claim.

Ethical Implications

United States v. Tobias raises important ethical questions regarding the nature and scope of permissible law enforcement activity. The courts and society readily acknowledge the difficulty of ferreting out crime and criminals. This is particularly true when it comes to crimes like drug trafficking, which often require undercover operations. Earning a suspect’s trust may require officers to lie or to provide a suspect with the means and/or the opportunity to engage in criminal activity. It also requires officers to at least appear to engage in criminal activity. The end of catching a criminal is laudable, but the means raise ethical concerns. When the government engages in illegal behavior or becomes a catalyst for a citizen’s criminal behavior, it is making a determination that unethical or illegal means are justified because of the good end of arresting a criminal.

In Tobias, the dissenting justice pointed  out that  Tobias  was  an  inept  drug  manufacturer who  would  never  have  succeeded  in making PCP were it not for the continuing guidance and encouragement from government officers. A drug manufacturer was arrested and convicted, but according to the dissent, the cost may have been too dear.


  1. Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992).
  2. Lassiter, G. D., ed. Interrogations, Confessions, and Entrapment. New York: Kluwer Academic, 2004.
  3. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).
  4. United States v. Tobias, 663 F.2d 381 (1981).

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