United States v. Kenneth David Touw, United States of America v. William Harry Anderson

Kenneth Touw and William Anderson were convicted of conspiracy to possess and attempted possession of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and 846. They appeal; we affirm their convictions, but we remand to the district court for resentencing.

FACTS

Agents of the Drug Enforcement Administration (DEA) acted as large-scale sellers of marijuana in a “reverse undercover” investigation. The investigation targeted only high-level violations; the agents therefore refused to discuss selling small amounts of marijuana with potential violators.

In August, 1983, David Farley and defendant Touw met with DEA agents and attempted to buy five pounds of marijuana. The agents refused to sell, asserting that the amount was too small. Both before and after this meeting, Farley received many telephone calls from DEA agents. In December, 1983, the DEA destroyed their tapes of the telephone conversations and closed the ease on Farley.

In March, 1984, defendant Touw called an undercover agent to find out if he still sold marijuana. When the agent told Touw that he was not interested in selling small amounts, Touw expressed interest in buying about…