Respondents Reply Brief — Hampton v. United States

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No. 74-6822

Yn the Supreme Gaurt of the Wnited States

Octroser Term, 1975

CHARLES HAMPTON, PETITIONER

v.

Unirep States of AMERICA

ON WRIT OF OCPRTIORARI TO THH UNITHD STATES COURT OF

APPRALS FOR THE KIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

KEITH A. JONES,

Deputy Solicitor General,

JEROME M. FEIT,

WILLIAM G. OTIS,

Attorneys,

Department of Justice,

Washington, D.V. 20530.

Opinion below-----.---------------------------

DO... oc amococodnceccocsucsccocces

Question presented ___-....-.-.------------------

Constitutional provision involved - - -- . ~~ --------

Grateenaeh. << oro cas ccccccvccccnaccnceccceecs

Summary of argument__..-.-----.--------------

Argument:

The government is not constitutionally barred

from convicting a defendant for selling

contraband that he procured from an in- °

formant or government agent-- ---------- 8

A. The furnishing of contraband is not

constitutionally distinguishable

from the furnishing of any other

means indispensable to the commis-

sion of the offense_-__- .--.-------- 12

B. The rule for which petitioner contends

could significantly hamper enforce-

ment of the narcotics laws. - --- ~~ - 17

1. Governmental furnishing of

contraband may in some

circumstances be necessary

to effective law enforcement. 17

2. There is no basis for the pro-

mulgation of a broad defense

based upon the defendant’s

source of supply_..---.-----

Cumcietiee .. .. cccccaccsoeccoeseseoscsossacse

ger ee

=

mo0-127—-1T5—-1

CITATIONS

Cases: Page

Johnson v. United States, 317 F.2d 127... -. 18

Kinsella v. United States ex rel. Singleton, 361

USB. 904.......<nwsessussecosnaeueueee 12-13

Lewis v. United States, 385 U.S. 206_......-- 14

Osborn v. United States, 385 U.S. 323... ...-- 14,18

Sherman v. United States, 356 U.S, 369. . ~~. 9,

11, 12, 15, 16, 23

Sorrells v. United States, 287 U.S. 435_---... 7,

9, 11, 12, 15, 17

United States v. Arias-Diaz, 497 F.2d 165... ..

22

United States v. Bueno, 447 F.2d 903_......- 6

United States v. Gomez-Rojas, 507 F.2d 1213_.. 6

United States v. Johnson, 484 F.2d 165, cer-

tiorari denied, 414 U.S. L112. ....-...---. 6

United States v. Kohn, 365 F. Supp. 1031,

affirmed per curiam, 495 F.2d 763... ~~~ 22

United States v. McGrath, 494 F.2d 562... _- 6, 19

United States v. Mitchell, Cr. No. 74-H-179,

decided November 26, 1974 (S.D. Texas) - - 22

United States v. Mosley, 496 F.2d 1012.-_..-- 6, 23

United States v. Oquendo, 490 F.2d 161... ~~ - 6

United States v. Ramey, Cr. No, 73-H-389,

decided November 8, 1974 (8.D. Texas) _ -- 22

United States v. Register, 496 F.2d 1072_____- 22

United States v. Rosner, 485 F.2d 1213 ___-__- 6

United States v. Russell, 411 U.S. 423_-.----- 5,

6, 7,8, 9, 10, 11, 13, 14, 15, 16, 18, 23, 24

United States v. Spivey, 508 F.2d 146, cer-

tiorari denied, April 28, 1975, (No. 74-5971)

United States v. West, 511 F.2d 10838. ___-_--

Whiting v. United States, 321 F.2d 72, cer-

tiorari denied, 375 U.S. 884__..---------- 18

rs

Constitution and Statute:

United States Constitution:

21 U.S.C. 841(a)(1)....-------- 28.

Miscellaneous:

Bancroft, Administration of the Affirmative

Trap and the Doctrine of Entrapment: De-

vice and Defense, 31 U. Chi. L. Rev. 137

—="~.

Bn the Supreme Gourt of the Wnited States

Octorner TERM, 1975

No. 74-5822

CHARLES HAMPTON, PETITIONER

v.

Unirep Stares or AMERICA

ON WRIT OF CHRTIORARI TO THE UNITRD STATHS COURT OF

APPHALS FOR THE RIGHTH OIROUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (A. 107-114) is

reported at 507 F. 2d 832.

JURISDICTION

The judgment of the court of appeals was entered

on December 11, 1974. The petition for a writ of cer-

tiorari was filed on January 10 1975, and was granted

on March 31, 1975. The jurisdi: tion of this Court rests

upon 28 U.S.C. 1254(1).

Whether the government is constitutionally barred

from convicting a defendant for the sale of contra-

(1)

2

band that he procured from an informant or govern-

ment agent.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution in per-

tinent part provides:

No person shall * * * be deprived of life,

liberty, or property, without due process of

* * * ’

STATEMENT

law

Following a jury trial in the United States District

Jourt for the Eastern District of Missouri, peti-

tioner was convicted on two counts of distributing

heroin, in violation of 21 U.S.C, 841(a)(1). He was

sentenced to concurrent terms of five years’ imprison-

ment, to be followed by a three-year term of special

parole on each count. The district court suspended

imposition of the sentence and placed petitioner on

probation for five years.’ The court of appeals af-

firmed, one judge dissenting (A, LO7-1L1L5).

1. The govérnment’s evidence showed that petitioner

and Jule Hutton, a government informant, became ac-

quainted at a tavern in St. Louis where the two fre-

quently played pool. On February 25, 1974, while the

two were at the tavern, petitioner told Hutton that

he needed money, knew of a souree of heroin, and

would sell a certain quantity for $155. Hutton replied

that he knew some potential buyers, whereupon peti-

*The term of probation was made to run concurrently with

the remainder of a state term of 28 to 30 years’ imprisonment

petitioner was serving for armed robbery (Tr. 218). Petitioner

had served four years of that sentence before escaping several

months prior to his arrest in this case (A. 60-62).

tioner asked him to “get in touch with those people

and let me know what happens” (A. 6, 90). Hutton

called Special Agent Terry Sawyer of the Drug En-

forcement Administration and told him of his conver-

gation with petitioner (A. 6),’ and then reported to

petitioner that a meeting had been arranged at 10:00

p.m. that evening with a buyer. Petitioner left the

tavern and returned 10 or 15 minutes later, saying

“everything [is] all right” (A. 6-7).

Petitioner and Hutton met Sawyer and another

agent, James MeDowell, at 10:00 p.m., at which time

petitioner gave Sawyer a tinfoil packet of heroin (A.

8-9). After McDowell tested the drug for purity (A.

10), Sawyer paid petitioner.’ Sawyer then asked about

buying more heroin. Petitioner replied, ‘| y]ou can get

better stuff if you [come] up with bigger money” (A,

73), and he gave Sawyer a telephone number at whieh

he could be reached (A. 32-33).

On the following day, petitioner and Sawyer, by

telephone, made arrangements for a second sale (A,

75-16). Petitioner persuaded Hutton to aecompany

him to the place where he was to meet Sawyer (A,

12-13, 76). At that meeting, petitioner onee again

gave Sawyer a tinfoil packet of heroin, which he of-

fered to sell for #500." After MeDowell determined

that the substance was in fact heroin, petitioner was

arrested (A. 14, 33-35).

* Hutton testified that at the time he had identified petitioner

to Sawyer as “Michael Byers,” an alias used by petitioner (A.

5-8).

*This was the transaction charged in Count 1.

* This transaction was charged in Count 2.

4

Petitioner’s defense was based upon an alleged ab-

sence of scienter. He testified that Hutton had pro-

posed the sale of a non-narcotic counterfeit drug,

which Hutton would obtain from a friend, to gullible

acquaintances who would be led to believe that they

were buying heroin (A. 63-67). Petitioner claimed

that they had suecessfully duped one buyer with fake

drugs supplied by Hutton, and that he had urged

Hutton to arrange another, similar transaction (A.

67-70). According to petitioner, Hutton several days

later told him that he had more buyers in line and

supplied him with tinfoil packets of what petitioner

claimed to believe to he a merely counterfeit drug

(A. 70-72, 77-79). As the court of appeals put it (A.

108-109), the buyers turned out to be Agents Sawyer

and McDowell and the substance turned out to be

heroin,

Petitioner testified that he neither intended to sell

nor knew that he was selling heroin; he claimed that

he thought he was dealing in “some kind of compound

with pollutant in it’? (A. 78-79). Petitioner also testi-

fied, however, that he had become addicted to heroin

while in the military and remained addicted for at

least three years after discharge (A. 59-61). His testi-

mony further showed that he was well acquainted

with the appearance of the drug and had had some

contact with it during the several months between his

escape from state prison and his arrest by the federal

agents in this ease.”

° Petitioner testified, “The heroin I have seen since I have

been back, since I have been out of the penitentiary, has been

brown. Before that it was usually white, a white powdery

flour-like substance” (A. 87).

5

2. Petitioner did not request a standard entrapment

instruction. Instead, petitioner asked the district court

to charge the jury to acquit, regardless of his pre-

disposition, if it found that the heroin he had sold to

the agents had been supplied to him by Hutton (A.

104-105) :

The defendant asserts that he was the victim

of entrapment as to the crimes charged in the

indictment.

If you find that the defendant’s sales of nar-

cotics were sales of narcotics supplied to him by

an informer in the employ of or acting on be-

half of the government, then you must acquit

the defendant because the law as a matter of

policy forbids his conviction in such a case.

Furthermore, under this particular defense,

you need not consider the predisposition of the

defendant to commit the offense charged, be-

cause if the governmental involvement through

ite informer reached the point that I have just

defined in your own minds, then the predisposi-

tion of the defendant would not matter.

The trial court refused the requested instruction

(A. 95-96). The court did, however, submit to the

jury the issue of scienter raised by petitioner’s testi-

mony, and the jury found petitioner guilty.

3. The court of appeals affirmed petitioner’s con-

viction on the basis of United States vy. Russell, 411

U.S, 423, The court reasoned that ‘‘the extent of Gov-

ernment participation in the commission of the crime,

under the facts claimed by [petitioner, does not] war-

rant an entrapment defense based upon Government

conduct, apart from * * * predisposition” (A. 112;

500. 127—75-——-2

507 FB. 2d at 836).° Judge Heaney, dissenting, believed

that petitioner’s claim that the government supplied

him with the contraband raised a due process defense,

left open in Russell, based on “outrageous” govern-

mental conduet (A. 114-115; 507 BF. 2d at 837).

Because of a conflict among the courts ef appeals

on the question presented in this case,’ and because

the question is of considerable importance to effective

law enforcement and affects a substantial volume of

litigation, the United States did not oppose the petition

for a writ of certiorari.

SUMMARY OF ARGUMENT

The rule petitioner contends for, that due process

forbids conviction of a defendant for selling contra-

band he procured from the government, is precluded

by this Court’s decision in United States v. Russell,

*The court also noted that the trial judge did not err in

failing to give the standard entrapment instruction based on

predisposition since petitioner had never requested such an in-

struction, did not raise the issue on appeal, and, in any event,

had conceded the existence of predisposition at oral argument

(A. 118; 507 F. 2d at 836).

"The Court of Appeals for the Seventh Circuit has con-

cluded, like the court below, that the supplying of contraband

by a government agent does not constitute entrapment per se

or otherwise bar the defendant’s conviction. See /nited States v.

Mec@rath, 494 F. 2d 562. Cf. United States vy. Johnaon, 484

F. 2d 165 (C.A. 9), certiorari denied, 414 U.S. 1112; United

States v. Rosner, 485 F. 2d 1213 (C.A. 2). See also United

States v. Spivey, 508 F. 2d 146 (C.A. 10), certiorari denied,

April 28, 1975 (No. 74-5971). On the other hand, the Fifth

Circuit has determined that, notwithstanding the Russell deci-

sion, “the law of this Circuit is that a defendant, where entrap-

ment is an issue, may be acquitted for lack of predisposition,

or, even though disposed, where the undercover agent supplies

him with the contraband.” United States v. Mosley, 496 F. 2d

7

411 U.S. 423. In that case the defendant was con-

victed for the illegal manufacture and sale of a drug

he had made with a scarce chemical ingredient sup-

plied by a government agent posing as a co-venturer

in crime. Notwithstanding that the chemical was dif-

ficult for private individuals to obtain, and indispen-

sable to defendant’s crime, the Court ruled (411 U.S.

at 432) that the government’s conduct had fallen “far

short”’ of violating the Due Process Clause.

This case is not constitutionally distinguishable

from Russell. Petitioner does not claim, and, given his

testimony, could not claim, that the government was

his only source of heroin. Thus, the heroin allegedly

supplied him was no more likely to result in the

“‘manufacturing of crime” (Pet. Br. 21) than the

chemical supplied in Russell. Nor is the fact that the

heroin was a “sine qua non” (Pet. Br. 21) of peti-

tioner’s crime any basis for a distinction: in Russell

this Court approved (411 U.S. at 432) the govern-

ment’s “supply of some item of value that the [defend-

ant] requires * * *.” Moreover, the provision of con-

traband is no more inducive to criminality than the

provision of any other indispensable means, and the

traditional entrapment defense in any event ade-

quately protects the “otherwise innocent” (Sorrells v.

United States, 287 U.S. 435, 448) against law enforce-

ment practices that might overbear their will,

Adoption of the rule urged by petitioner would

1012, 1016. See also United States v. Gomez-Rojas, 507 F. 2d

1213 (C.A. 5); United States v. Oquendo, 490 F. 2d 161 (C.A.

5); United States v. Bueno, 447 F. 2d 908 (C.A. 5). The Third

Circuit has now apparently joined the Fifth in this view. See

United States v. West, 511 F. 2d 1083.

gravely impair the government’s ability to enforce the

narcotics laws. Illegal narcotics transactions are diffi-

cult to detect. Undercover activity was recognized in

Russell (411 U.S. at 432) as “the only practicable

means of detection.” A constitutional proscription

against the provision of contraband would improperly

afford nareoties traffickers a ready means of testing

prospective confederates.

Accordingly, governmental furnishing of contra-

band cannot be a per se defense; in any given case, it

is merely one fact to be considered with others in con-

nection with the defense of entrapment. Moreover, an

unyielding constitutional rule here would ignore the

variety of circumstances under which the government

may be said to ‘“‘supply’”’ contraband. In rare cases a

government agent may furnish contraband directly.

But in most cases the government will have no knowl-

edge of the defendant’s source of contraband. Indeed,

that appears to be the case here. If a defendant pro-

cures contraband from an informant who is acting

without the knowledge or approval of the government,

there clearly is no basis for requiring an acquittal.

ARGUMENT

THE GOVERNMENT IS NOT CONSTITUTIONALLY BARRED

FROM CONVICTING A DEFENDANT FOR SELLING CONTRA-

BAND THAT HE PROCURED FROM AN INFORMANT OR

GOVERN MENT AGENT

The issue presented here is best understood in the

context of this Court’s decision in United States v.

Russell, 411 U.S. 423. In Russell, an undercover nar-

coties agent had furnished the defendant with phenyl-

2-propanone, an essential ingredient in the manufac-

ture of methamphetamine, in return for a portion of

the methamphetamine that the defendant produced ;

the defendant was then prosecuted for the unlawful

manufacture and sale of that methamphetamine. The

defendant, who coneeded that he bad been predisposed

to commit the charged offenses, nevertheless contended

that the government’s participation in the illegal en-

terprise was such as to require his acquittal. This con-

tention rested upon two alternative theories: that the

nonconstitutional defense of entrapment should rest

exclusively upon the type and degree of governmental

conduct, without regard to the defendant's predisposi-

tion to commit the eharged offense, and that due proc-

ess precludes conviction of a defendant to whom the

government has furnished means indispensable to

the commission of the crime.

This Court rejected both theories. With respect to

the defendant’s argument concerning the proper scope

of the nonconstitutional defense of entrapment, the

Court reaffirmed its prior holdings in Sorrells v.

United States, 287 U.S. 435, and Sherman v. United

States, 356 U.S. 369, that ‘‘the principal element in

the defense of entrapment {is| the defendant’s predis-

position” (411 U.S. at 433). As to that issue, the Court

concluded that the ‘‘[r]Jespondent’s concession * * *

that the jury finding as to predisposition was sup-

ported by the evidence is, therefore, fatal to his claim

of entrapment”’ (411 U.S. at 436).

The respondent’s due process argument in Russell

was similarly rejected (411 U.S. at 431-432) :

While we may some day be presented with a

situation in which the conduct of law enforce-

10

ment agents is so outrageous that due process

principles would absolutely bar the government

from invoking judicial processes to obtain a

conviction, ef. Rochin v. California, 342 U.S.

165 (1952), the instant ease is distinctly not of

that breed. * * * The law enforcement conduct

here stops far short of violating that ‘funda-

mental fairness * * *” mandated by the Due

Process Clause of the Fifth Amendment.

Kinsella v. United States ex rel. Singleton, 361

U.S. 234, 246 (1960).

In this ease, petitioner has conceded both that he

was predisposed to traffic in heroin (A. 113, n. 5; 507

F. 2d at 836, n. 5) and, in view of Russell, that this

ease “is not to [be] regard[ed] * * * as an entrap-

ment case at all” (Pet. Br. 17). Petitioner rests his

ease entirely upon a claimed denial of due process: he

contends that where an informant or government

agent has furnished a defendant with the contraband

that he is indicted for subsequently seiling, ‘due pro-

cess principles would absolutely bar the government

from invoking judicial processes to obtain a convic-

tion.” For the reasons we diseuss below, we disagree.”

*One of petitioner's arguments can be disposed of at the

outset. He appears to argue (Pet. Br. 18-20) that to convict a de-

fendant for the sale of contraband that he procured from sn

informant or other government agent entails a constitutionally

impermissible presumption “that the accused would commit @

similar offense in the future” (Pet. Br. 19). That argument is with-

out substance; there was no unconstitutional presumption here.

Even if, as petitioner claims, an informant or government

agent furnished him with the heroin that he was convicted

for having sold, his conviction nevertheless rested not upon

any constitutionally impermissible presumption about crimes

that he might commit in the future but rather upon con-

11

By way of preface, however, we begin with a few

words regarding the relationship between the instant

ease and the doctrine of entrapment as it has evolved

in federal law. This is not, as petitioner soundly con-

cedes, an entrapment case. The doctrine of entrapment

is concerned with the evil of government conduct that

“plays on the weaknesses of an innocent party and

beguiles him into committing crimes which he other-

wise would not have attempted.” Sherman v. United

States, supra, 356 U.S. at 376. That much was com-

mon ground shared by the majorities in Sherman and

Sorreils and the concurrences of Justices Roberts and

Frankfurter. The sole ground of disagreement in-

volved whether an objective or subjective standard

should be employed in gauging the success of the

wrongdoer’s entrapment defense.

clusive evidence that he already had committed a particular

crime.

At bottom, petitioner’s argument on this point is indistin-

guishable from the contention that to deny the defense of

entrapment to a defendant who, like petitioner, was predis-

posed to commit the offense with which he was charged denies

due process by permitting conviction merely for a criminal

propensity, But that contention was rejected by this Court in

Russell. Due process principles are not violated by making the

availability of the defense of entrapment turn upon the de-

fendant’s predisposition: although the absence of any criminal

propensity may in some cases serve to sustain an entrapment

defense, in no case is a defendant convicted merely upon proof

of criminal propensity; a conviction ultimately rests not upon

the defendant’s predisposition toward crime, or upon any

speculation or presumption with regard to the probability that

he may turn to crime in the future, but upon proof beyond a

reasonable doubt that he in fact committed the specific crime

charged in the indictment.

Petitioner here secks recognition of an absolute

defense based on the presence of a single fact, the

provision of contraband by a person who has some

connection with the government. Regardless of the

approach by which such an action is to be evaluated,

all members of both the Sorrells and the Sherman

Court would surely have agreed that, by itself, the

supplying of contraband could not possibly create the

least risk of inducing to criminal acts those “who

would normally avoid crime and through self-struggle

resist ordinary temptations.” Sherman v. United

States, supra, 356 U.S. at 384 (concurring opinion of

Mr. Justice Frankfurter), What this Court must

evaluate in this case, in other words, is law en-

forcement conduct that, while useful for apprehend-

ing the “unwary criminal,” poses no risk of trapping

the “unwary innocent” (356 U.S. at 372).

We turn now to the discussion of whether the pro-

vision of contraband by government agents or inform-

ants, although not implicating the essential concerns

underlying the traditional defense of entrapment, is

nevertheless otherwise so offensive to notions of essen-

tial fairness that wrongdoers should be afforded a

defense on the basis of the presence of such conduct.

A. THE FURNISHING OF CONTRABAND IS NOT CONSTITUTIONALLY

DISTINGUISHABLE FROM THE FURNISHING OF ANY OTHER MEANS

INDISPENSABLE TO THE COMMISSION OF TILE OFFENSE

The protections of due process that petitioner at-

tempts to invoke here serve to ensure that the individ-

ual, in his relations with the state, will not be treated

unfairly, in a manner “shocking to the universal sense

of justice.” Kinsella v. United States ex rel. Single-

ton, 361 U.S. 234, 246, But petitioner has failed to

demonstrate that a convietion resulting from govern-

mental furnishing of contraband to him in the circum-

stances of this case would be fundamentally unfair.

If petitioner is to prevail in this ease, he must draw

a constitutionally significant distinction between the

governmental conduct alleged here, i.e., the furnishing

by an informant of the contraband petitioner is

eharged with having sold, and the conduet at issue in

Russell, i.c., the furnishing by a government agent of

a means indispensable to the commission of the offense

there charged. This petitioner has not done and can-

not do.

The only relevant distinction between the heroin al-

legedly supplied here and the phenyl-2-propanone sup-

plied in Russell is that heroin is contraband whereas

phenyl-2-propanone is not. It is upon this distinction

that petitioner, at bottom, relies. But it is a distinction

without any constitutional force, for it does not sig-

nificantly bear upon the likelihood that an otherwise

law-abiding individual will be unfairly inveigled by

the government into the commission of a crime; it

does not bear upon the fundamental fairness of the

criminal investigation and subsequent prosecution.

It is, of course, clear that no constitutional distinc-

tion can be drawn between contraband and noncontra-

band on the basis of relative obtainability. The ‘‘un-

fairness” alleged in Russell lay in the fact that phenyl-

2-propanone, although a lawful substance, was difficult

to obtain, and therefore that the defendant probably

would not have been able to commit the specific offense

14

charged in the indictment but for the governmental

furnishing of the chemical. But the countervailing

fact deemed controlling by the Court was that since

phenyl-2-propanone was not actually otherwise un-

obtainable, the absence of any governmental furnish-

ing would not have precluded the defendant from com-

mitting other similar offenses. See also Lewis V.

United States, 385 U.S. 206; Osborn v. United States,

985 U.S. 323. That reasoning is fatal to petitioner’s

claim here. Petitioner does not assert that he would

have incurred any greater difficulty in procuring

heroin from nongovernmental sources than the de-

fendant in Russell faced in independently obtaining

phenyl-2-propanone. Any such assertion would, more-

over, have rung conspiciously false in view of peti-

tioner’s testimony concerning his lengthy heroin

addiction and his admission that he had had access

to heroin during the months immediately preceding

his arrest (see p. 4, supra). It was, therefore, no

more unfair for the government to convict petitioner

after furnishing him with heroin, if that is in fact

what occurred, than for it to convict in Russell after

furnishing phenyl-2-propanone to the defendant

there.”

Nor may any constitutional distinetion be drawn be-

tween the furnishing of contraband and the furnish-

*It may well be that convictions resulting from the furnish-

ing of an indispensable means are constitutionally impermissible

where the means in question was otherwise wholly unobtainable

by the particular defendant. But obtainability, regrettably, does

not turn upon whether the “facilities” are or are not contra-

band. Neither, therefore, should any constitutional rule.

15

ing of noncontraband on the basis of their respective

likelihoods of “manufacturing * * * crime” (Pet.

Br. 21). Indeed, petitioner does not even suggest that

governmental provision of contraband is more ‘“‘erime-

creating’ than the provision of any other indis-

pensable means. Instead, he rests upon the broad

contention that due process bars conviction wherever

the government has supplied “the sine qua non of the

offense” (Pet. Br. 21). But that contention was ex-

pressly rejected in Russell, where the Court refused to

adopt “a rigid constitutional rule that would preclude

any prosecution when it is shown that the criminal

conduct would not have been possible had not an

undercover agent ‘supplied an indispensable means to

the commission of the erime’” (411 U.S. at 431).

Instead, the Court held that (411 U.S. at 432) ‘the

supply of some item of value that the drug ring re-

quires must, as a general rule, * * * be permissible”

and that (411 U.S. at 435) “‘* * * the fact that

officers or employees of the Government merely afford

opportunities or facilities for the commission of the

offense does not defeat the prosecution * * *.’” See

also Sorrells v. United States, supra, 287 U.S. at 441;

Sherman y. United States, supra, 356 U.S, at 372.

Of course, the governmental provision of any indis-

pensable means to an individual who is criminally pre-

disposed may lead to the commission of a particular

erime that would not otherwise have been committed.

In Russell, for example, the defendant would not have

engaged in the particular manufacture and sale of

methamphetamine for which he was convicted but for

16

the governmentally supplied phenyl-2-propanone. But

law enforcement tactics that result in the commission

of a particular crime by one criminally predisposed

are not impermissibly crime-creating: the teaching of

Russell is that there is no denial of due process, and

no unfairness, where the government convicts a de-

fendant who, like petitioner, has attempted to exploit

a perceived opportunity, created by the government,

to satisfy his own pre-existing criminal propensities.”

Furthermore, we see no reason, and petitioner sug-

gests none, for believing that the provision of contra-

band would be significantly more likely to induce

crime than the furnishing of other indispensable

means. Otherwise innocent persons are unlikely to be

led into crime by informants or undercover agents

posing as narcotics suppliers, But to the extent that

governmental furnishing of contraband might induce

the commission of an offense by one “‘who would nor-

mally avoid crime and * * * resist ordinary temp-

tations” (Sherman v. United States, supra, 356 US.

at 384), it is already protected against by the defense

of entrapment. That defense bars conviction for com-

mission of a crime by an individual who, because lack-

1 Moreover, the particular offense that may result from the

provision of contraband occurs in @ governmentally monitored

getting in which there is little likelihood that the contraband

may escape through private channels to be used for anti-social

purposes. The practice of providing contraband, or any other

indispensable means, is therefore no more “crime-creating” than

the medical practice of innoculation is “disease-creating”: it is

a tactic that is designed to prevent or terminate an entire

course of criminal dealings by the expedient of facilitating the

commission of a particular offense in controlled surroundings.

17

ing criminal predisposition, “would not have per-

petrated [the offense] except for the trickery, per-

suasion, or fraud of the officer.” Sorrells v. United

States, supra, 287 U.S. at 454 (concurring opinion of

Mr. Justice Roberts).

In short, the law enforcement tactic of furnishing

contraband poses no risk for law-abiding individuals,

and convictions of criminally predisposed individuals

resulting from such furnishing are not unfair per se.

Moreover, for reasons that we now discuss, govern-

mental provision of contraband in some circumstances

may be necessary to effective criminal enforcement of

the narcotics laws.

BR. THE RULE FOR WHICH PETITIONER CONTENDS COULD SIGNIFTI-

CANTLY HAMPER ENFORCEMENT OF THE NARCOTICS LAWS

1. Governmental furnishing of contraband may in some circum-

stances be necessary to effective law enforcement

The peculiar nature of the illicit narcotics trade

requires the use by the government of special investi-

gatory techniques. Since narcotics offenses are “vic-

timless crimes” (in the narrow sense of the phrase),

there is seldom any injured party likely to bring a

complaint; members of the general public are rarely

in a position to assist law enforcement authorities in

ferreting out narcotics violators; narcotics transac-

tions normally are shrouded in secrecy ; at a distance,

illicit sales are difficult to distinguish from innocent

conversations; and evidence is easily destroyed, See

Bancroft, Administration of the Affirmative Trap and

the Doctrine of Entrapment: Device and Defense, 31

U. Chi. L. Rev. 137, 140 (1963). For these reasons,

18

ordinary techniques of surveillance and investigation

have been found to be ineffective in enforemg the nar-

coties laws; resort to undercover agents and inform-

ants has proved to be indispensable to enforcement.

Narcotics offenses are committed “under such cir-

cumstances that perpetrators might never be discov-

ered if government representatives were not per-

mitted to partieipate to some extent.” Whiting v.

United States, 321 F. 2d 72, 76 (C.A. 1), certiorari

denied, 375 U.S. 884. See also Osborn v. United States,

supra.

Undercover investigation of illegal nareotics enter-

prises may often require the government to furnish

facilities for the commission of crime; an undercover

agent may, for example, be required to furnish money,

tools, or a car, or allow the use of bis premises to plan

the crime. See, ¢.g., Johnson v. United States, 317 I.

2d 127 (C.A.D.C.). This Court explicitly sustained the

constitutionality of that practice in Russell (411 U.S.

at 432):

The illicit manufacture of drugs is not a

sporadic, isolated criminal incident, but a con-

tinuing, though illegal, business enterprise. In

order to obtain convictions for illegally manu-

facturing drugs, the gathering of evidence of

past unlawful conduct frequently proves to he

an all but impossible task. Thus in drug-related

offenses law enforcement personnel have turned

to one of the only practicable means of detection :

the infiltration of drug rings and a limited

participation in their unlawful present prae-

tices. Such infiltration is a recognized and per-

missible means of investigation; if that be so,

19

then the supply of some item of value that the

drug ring requires must, as a general rule, also

be permissible. For an agent will not be taken

into the confidence of the illegal entrepreneurs

unless he has something of value to offer them.

Law enforcement tactics such as this can hardly

be said to violate ‘fundamental fairness”

or [be] ‘‘shocking to the universal sense of jus-

n= ©,

The “item of value” required to be furnished may

in some situations be contraband: the governmental

provision of contraband may, in a given case, be the

only practicable means of yaining the confidence of

the participants in the illegal enterprise. Cf. United

States v. McGrath, supra. We see no constitutional

basis for depriving law enforcement authorities of

that means.

Moreover, the rule petitioner proposes—that no

defendant can be convicted for selling contraband that

he procured from an informant or other government

agent—would not merely interfere with some affirma-

tive efforts at infiltration. The adoption of that rule

could undermine narcotics enforcement efforts gen-

erally by providing a means by which all undercover

agents could be detected and neutralized. A constitu-

tional rule that effectively forbade the governmental

furnishing of contraband could quickly be converted

by nareotics traffickers into a sword rather than

merely a shield: prospective confederates could be

tested by requiring that they furnish contraband for

the carrying on of the illegal enterprise. The partic-

ular per se rule proposed by petitioner therefore

20

represents a manifestly inappropriate balance be-

tween, on the one hand, society’s legitimate interest in

the detection and prevention of serious criminal ac-

tivities and, on the other, the interest of potential or

actual criminals in having law enforcement authori-

ties “play fair.’’

2. There is no basis for the promulgation of a broad defense

based upon the defendant's source of supply

In view of the facts that contraband is not per se

more difficult to obtain than other indispensable

criminal means, that the furnishing of contraband is

no more likely to induce crime than the furnishing of

other means, and that the governmental furnishing of

contraband is a highly useful and in some cases

necessary law enforcement technique, it is, we believe,

clear that there is no constitutional basis for the

broad defense urged by petitioner.

To the contrary, if an, general rule is to govern

this area of the law, it is that the governmental fur-

nishing of contraband is merely one fact to be con-

sidered in connection with the standard defense of

entrapment. That rule would adequately protect

against unfair law enforcement tactics that might

threaten to overbear an otherwise innocent individ-

ual’s will, while preserving the government’s legiti-

mate interest in effective criminal enforcement of the

nareotics laws.

a. Certainly this is not an area of the law where a

rigid due process defense would be appropriate.

The factual circumstances in which a government

agent, or an informant acting with the sanction of

21

the government, furnishes contraband in connection

with the infiltration of a narcotics ring are too varied

to make appropriate the application of a rigid, one-

dimensional due process rule. The situation to which

petitioner’s argument, appears to be addressed is that

where the government, acting through a government

agent or familiar, paid informant, arranges to provide

a suspect with the narcotics that it has also arranged,

through other undercover agents, to purchase from

him. That is, in fact, a comparatively rare situation,”

although, for the reasons stated throughout this brief,

we submit that a conviction based upon such a pur-

chase, from an individual predisposed to traffic in

narcotics, does not contravene the requirements of

due process. But even if such investigative techniques

were determined to be fundamentally unfair—and we

reiterate that in our view they are not—there are

many other not uncommon situations in which the

indirect governmental furnishing of contraband,

through an informant, would, we believe, remain en-

tirely proper.

For example, in some cases individuals who have

been requested by narcotics traffickers to transport

contraband have voluntarily divulged the facts con-

cerning the illegal enterprise to government agents

and then completed delivery under governmental

We have been informed by the Drug Enforcement Ad-

ministration that prior approval of direct governmental fur-

nishing of contraband must be obtained from both the United

States Attorney and the Administration’s Assistant Adminis-

trator for Enforcement, that approval is granted only in con-

nection with efforts to infiltrate known criminal activities, and

that approval was granted only twice during 1974.

22

supervision. See, e.g., (/nited States v. Artas-Diaz, 497

FF. 2d 165 (C.A. 5); United States v. Register, 496 F.

2d 1072 (C.A. 5). In others, couriers may offer to

become informants and to continue transportation

of the narcotics after being apprehended en route.

Cf. United States v. Kohn, 365 F. Supp. 1031 CED.

N.Y.), affirmed per curiam, 495 BF. 2d 763 (C.A. 2);

United States v. Mitchell, Cr. No. 74-H-179, decided

November 26, 1974 (S.D. Texas) (defendant’s sup-

plier became an informant only after furnishing the

contraband). In still other cases, events may have in-

tervened so as to break the connection between the

governmental furnishing of contraband and the nar-

coties transaction for which the defendant is ulti-

mately tried. See United States v. Ramey, Cr. No, 73-

H-389, decided November 8, 1974 (S.D. Texas). These

varied cases cannot be made to lie in the same Pro-

crustean bed, unless the result, would be to sustain the

propriety of the official conduct in each,

b. Moreover, it is our belief that the majority of

cases in which a defendant has sold contraband that

he will ¢clann to have procured from an informant

will be cases in which the informant’s alleged fur-

nishing of narcotics was not known to the government.

Indeed, this is just such a case. The government’s

evidence directly contradicted petitioner’s testimony

that he was furnished heroin by the informant, Hut-

ton, and there is no evidence anywhere in the record

that even suggests that the investigating govern-

ment agents had any knowledge concerning petition-

er’s source of supply. Petitioner’s requested instrue-

tion (see p. 5, supra), which is similar to the one

23

now given in the Fifth Cireuit (see n. 7, supra),

would require acquittal in his case and in all such

similar cases.” That result is manifestly incorrect.

The government exercises little control over the ac-

tivities of many of its informants and may have little

knowledge about the extent to which they may operate

as narcotics suppliers and no knowledge of particu-

lar sales. Although the government may not ‘‘disown”

the successful blandishments or inducements of an in-

formant (Sherman v. United States, supra, 356 U.S.

at 373), not all the conduct of an informant may ap-

propriately be imputed to the government. Certainly

where an informant illegally, without the knowledge

and approval of a government agent, acts as a drug

supplier, the government cannot fairly be regarded as

‘involved”’ in the furnishing of contraband. We can

conceive of ‘no consideration of public policy that

would justify aecquitting a defendant on the ground

that his suppher was an informant whose illicit

activities were unknown to the government. i

Such an acquittal would be clearly incompatible

with this Court’s decision in Russell. In that case, a

government agent supplied the phenyl-2-propanone

necessary to the manufacture of methamphetamine,

was present during, and incidentally participated in,

'* Moreover, the instruction actually given in the Fifth Cir-

cuit (and this presumably is implicit in petitioner's requested

instruction as well) pleces upon the government the burden of

proving that the contraband the defendant is charged with

having sold was not procured from an informant—even where

the government may in fact have no knowledge concerning the

defendant’s source of supply. See United States v. Mosley,

supra,

Oe SSS

24

the manufacture, and purchased a portion of the final

product. This Court expressly rejected the claim that

those facts revealed ‘‘an intolerable degree of govern-

mental participation in the criminal enterprise’’ (411

U.S. at 427). A fortiori, the more extravagant claim

embodied in petitioner’s requested instruction—that

even the comparatively less comprehensive involve-

ment of a mere informant whose actions are not

known to or sanctioned by the government entails im-

permissible governmental participation in the crime—

must also be rejected.

CONCLUSION

The judgment of the court of appeals should be

affirmed

Respectfully submitted.

Rosert H. Borx,

Solicitor General.

Ricuarp L. THornpurGH,

Assistant Attorney General.

Keitu A. JONEs,

Deputy Solicitor General.

JuROME M, Fert,

WituiaM G. Orts,

Attorneys.

Avaust 1975.

US GOVERHMENT PRINTING OFFICE, te78

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