# United States v. Michael Leja and John M. Cody

> Court of Appeals for the Sixth Circuit · October 3, 1977 · 563 F.2d 244

URL: https://www.frixlaw.com/law-library/cases/9464185

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Michael LEJA and John M. Cody, Defendants-Appellants
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 3, 1977
- **Citations:** 563 F.2d 244; 1977 U.S. App. LEXIS 11309
- **Precedential status:** Published
- **Opinion:** Dissent by Rubin
- **Judges:** Phillips, Engel, Rubin
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CARL B. RUBIN, District Judge
(dissenting).
I must respectfully dissent. While I do agree that the question is “whether the governmental activity described above so offends our concepts of fundamental fairness as to justify the extraordinary employment of judicial power to curb it,” 1 1 do not agree with the majority’s answer thereto.
It is clear 1 from the concurrence and dissent in Hampton v. United States, 425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 (1976), that a majority of the Justices of the Supreme Court recognize that there may be a level of egregious governmental participation in criminal activity that is proscribed, no matter how worthy the objective or how deceitful the adversary.
It is equally clear that were we dealing here only with the supplying of phenyl magnesium bromide, or some other chemical, that level would not have been exceeded. Hampton, 425 U.S. at 491-492 , 96 S.Ct. 1646 (Powell, J., concurring).
This, however, was not the limit of governmental participation in appellants’ manufacture of phencyclidine. The DEA supplied not only the ingredients, but also the laboratory site, and most important: technical knowledge without which the phency-clidine could not have been produced.
Whatever else egregious conduct may be, it is at least the instruction by law enforcement officers in the technical expertise necessary for the commission of a crime. Such conduct is sufficiently violative of the concept of “fundamental fairness” as to be a denial of due process. Kinsella v. United *248 States, ex rel. Singleton, 361 U.S. 234, 246 , 80 S.Ct. 297 , 4 L.Ed.2d 268 (1960).
By its very nature, “due process” is not a calibrated standard. As the Supreme Court noted in United States v. Russell, 411 U.S. at 431, 93 S.Ct. at 1642, there are “. . . difficulties attending the notion that due process of law can be embodied in fixed rules.....”
The activities of the United States should be tested against the statement of Justice Frankfurter writing for the Court in Ro-chin v. California, 342 U.S. 165,169 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), that:
Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardoza twice wrote for the Court, are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’, Snyder v. Massachusetts, 291 U.S. 97, 105 , [ 54 S.Ct. 330, 332 , 78 L.Ed. 674 ], or are ‘implicit in the concept of ordered liberty’. Palko v. Connecticut, 302 U.S. 319, 325 , [ 58 S.Ct. 149, 152 , 82 L.Ed. 288 ].
I believe that in this case and under these circumstances the activities of the United States violated due process of law as above defined.
I would reverse the convictions of Michael Leja and John Cody.
. Majority Opinion Page 246.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464185. Public record. Not legal advice.