recognizing that the infiltration of drug rings is “a recognized and permissible means of investigation,” that “an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them,” and that “there are circumstances when the use of deceit is the only practicable law enforcement technique available”
How later courts described this case
- recognizing that the infiltration of drug rings is “a recognized and permissible means of investigation,” that “an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them,” and that “there are circumstances when the use of deceit is the only practicable law enforcement technique available”
- holding that where law enforcement agents provided the defendant with ingredients for illegal manufacture of drugs, the agents' participation was not unfair or shocking to any sense of justice because it related to criminal activity already in progress
- stating that a court may dismiss an indictment on due process grounds when “the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction”
- holding that supplying the ingredients for drug-manufacturing would be a “permissible means of investigation” that “stops far short of violating that fundamental fairness, shocking to the universal sense of justice” (quotation simplified)
Written by the judges who cited it.
The opinion
Mr. Justice Douglas,
with whom Mr. Justice Brennan concurs,
dissenting.
A federal agent supplied the accused with one chemical ingredient of the drug known as methamphetamine (“speed”) which the accused manufactured and for which act he was sentenced to prison. His defense was entrapment, which the Court of Appeals sustained and which the Court today disallows. Since I have an opposed view of entrapment, I dissent.
My view is that of Mr. Justice Brandeis expressed in Casey v. United States, 276 U. S. 413, 421 (dissent), that of Mr. Justice Frankfurter stated in Sherman v. United States, 356 U. S. 369, 378 (concurring in result), and that of Mr. Justice Roberts contained in Sorrells v. United States, 287 U. S. 435, 453 (concurrence).
*437 In my view, the fact that the chemical ingredient supplied by the federal agent might have been obtained from other sources is quite irrelevant. Supplying the chemical ingredient used in the manufacture of this batch of “speed” made the United States an active participant in the unlawful activity. As stated by Mr. Justice Brandeis, dissenting in Casey v. United States, supra, at 423:
“I am aware that courts — mistaking relative social values and forgetting that a desirable end cannot justify foul means — have, in their zeal to punish, sanctioned the use of evidence obtained through criminal violation of property and personal rights or by other practices of detectives even more revolting. But the objection here is of a different nature. It does not rest merely upon the character of the evidence or upon the fact that the evidence was illegally obtained. The obstacle to the prosecution lies in the fact that the alleged crime was instigated by officers of the Government; that the act for which the Government seeks to punish the defendant is the fruit of their criminal conspiracy to induce its commission. The Government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature.”
Mr. Justice Frankfurter stated the same philosophy in Sherman v. United States, supra, at 382-383: “No matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society.” And he added: “The power of government is abused and directed to an end for which it was *438 not constituted when employed to promote rather than detect crime . . . .” Id., at 384.
Mr. Justice Roberts in Sorrells put the idea in the following words:
“The applicable principle is that courts must be closed to the trial of a crime instigated by the government’s own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.” 287 U. S., at 459 .
May the federal agent supply the counterfeiter with the kind of paper or ink that he needs in order to get a quick and easy arrest? The Court of Appeals in Greene v. United States, 454 F. 2d 783 , speaking through Judges Hamley and Hufstedler, said “no” in a case where the federal agent treated the suspects “as partners” with him, offered to supply them with a still, a still site, still equipment, and an operator and supplied them with sugar. Id., at 786 .
The Court of Appeals in United States v. Bueno, 447 F. 2d 903 , speaking through Judges Roney, Coleman, and Simpson, held that where an informer purchased heroin for the accused who in turn sold it to a federal agent, there was entrapment because the sale was made “through the creative activity of the government.” Id., at 906 .
In United States v. Chisum, 312 F. Supp. 1307 , the federal agent supplied the accused with the counterfeit money, the receipt of which was the charge against him. Judge Ferguson sustained the defense of entrapment saying, “When the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it.” Id., at 1312 .
*439 The Court of Appeals in the instant case relied upon this line of decisions in sustaining the defense of entrapment, 459 F. 2d 671 . In doing so it took the view that the “prostitution of the criminal law,” as Mr. Justice Roberts described it in Sorrells, 287 U. S., at 457 , was the evil at which the defense of entrapment is aimed.
Federal agents play a debased role when they become the instigators of the crime, or partners in its commission, or the creative brain behind the illegal scheme. That is what the federal agent did here when he furnished the accused with one of the chemical ingredients needed to manufacture the unlawful drug.