Petition for Writ of Certiorari — Basey v. United States

United States

Ocroser TERM, 1972

Rosert STEPHEN Basey,

Petitioner,

vs.

UnitTep States OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

Court of Appeals for the Ninth Circuit

GILBERT EISENBERG

Messrs. FILrereLui & EISENBERG

450 Sansome Street, Suite 406

San Francisco, California 94111

Counsel for Petitioner

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

g

<

SUBJECT INDEX :

Page

I NII ects dccscssnitbacscpuasbencontestevensinnie 2 1

urisdiction } ee

uestions Presented for Review ................. o 2

I a acca onion 2

ass acdeaniallioetibe 3

A. Nature of the Proceedings Below 3 4

B. Statement of Facts 3 i

easons Compelling Allowance of the Writ .................... 7

As Evidenced by the Facts of this Case Viewed in :

Context with the Applicable Law, the Defense of 3

Entrapment in the Federal Judiciary Continues to :

Suffer from the Absence of a Cohesive Doctrinal :

Basis and Clear Test Articulated by this Court... 7 f

A. The Law is Unclear Regarding the Relevancy £

of Predisposition to the Entrapment Defense.... 12 ;

B. Review is Necessary to Settle Issues Regarding 3

Proper Quantification and Allocation of Burden

of Proof 14 t

ac iecanbine 17 t

#

ppendix E

‘

Pert SYR Lee BROT ONO

TABLE OF AUTHORITIES CITED

CASES Pages

Accardi v. United States, 257 F.2d 168 (5th Cir.

STITT)’ <aheocinsaanbanicmaeieestibapel aieneeasbeuiabtaaduragibtonmiaeiveritaalia 11

Gonzales v. United States, 251 F.2d 298 (9th Cir.

ER eee SEN RAE ORL, See IER 10

Gorin v. United States, 313 F.2d 641 (5th Cir. 1963)... 15

Green v. United States, 454 F.2d 783 (9th Cir. 1971)....13, 14

Kadis v. United States, 373 F.2d 370 (1st Cir. 1967)... 16

Kivette v. United States, 230 F.2d 749 (5th Cir. 1956) 16

Lopez v. United States, 373 U.S. 427 (1963) 20 .. 13

Matysek v. United States, 321 F.2d 246 (9th Cir. 1963) 13

Notaro v. United States, 363 F.2d 169 (9th Cir. 1966) 16

Polski v. United States, 33 F.2d 686 (Sth Cir. 1929)... 10

Robison v. United States, 379 F.2d 338 (9th Cir. 1967) 16

Sagansky v. United States, 358 F.2d 195 (1st Cir.

LEE eS CaN: OMOEA CII AEM 16

Sherman v. United States, 356 U.S. 369 (1958) ........ passim

Sorrells v. United States, 287 U.S. 485 (1932) 0... passim

Stanley v. United States, 239 F.2d 765 (9th Cir. 1956) 11

United States v. Bailey, 331 F.2d 218 (7th Cir. 1964) 11

United States v. Basey, unreported opinion No.

PA CE I, BIE sitcsiscnisinchisestondincibascinsoicoonaniachodees 8

United States v. Bishop, 367 F.2d 806 (2nd Cir. 1966) 16

United States v. Brown, 421 F.2d 1283 (9th Cir.

1970) 16

United States v. Bueno, 447 F.2d 903 (Sth Cir. 1971) 18

United States v. Chisum, 312 F.Supp. 1307 (C.D.Cal.

ge aR ABER me See Meee ESE IN, OE NR MIRE 6, 13

United States v. Morrison, 348 F.2d 1003 (2nd Cir.

SRR eee naan Eee CES 11

RIEFED THROUGH POOR COPY

ar Ween YS eT RT EAR A ET RE aS NEPEAN TA TN Oe 6 Be! FR MN sp NR ob! TRY COD Re REFIT oA

TaBLE oF AuTHORITIES CITED ill

Pages

United States v. Prieto-Olivas, 419 F.2d 149 (5th

IS _ RRIF ACRE ENE Co NOU RC e ee TD 16

United States v. Pugliese, 346 F.2d 861 (2nd Cir.

aS a aneniiiinas 16

United States v. Russell, 459 F.2d 671 (9th Cir.

SIDI “air sasieacadaieepaedaelianioesh-caasddnedas sta cnndadectsoabnaataedbiead 8, 10, 138, 14

Walker v. United States, 344 F.2d 795 (1st Cir. 1965) = 11

Whiting v. United States, 321 F.2d 72 (1st Cir. 1963) = 11

Williamson v. United States, 311 F.2d 411 (5th Cir.

IE < opis Ul aeies esr igaliaeg cia acne deaasalnnemanopaivenueonoapelahel ll

STATUTES

rT IID ORD co scievtctesectetbeiechicccaseaescsvesvsianion 2,3

MISCELLANEOUS

Cowen, The Entrapment Doctrine in the Federal

Courts, and Some State Comparisons, 49 J. Crim.

ao. fo ab) | one PSAP 11

Donnelly, Judicial Control of Informants, Spies, Stool

Pigeons and Provocateurs, 60 Yale L. J. 1091 (1951) 11

Model Penal Code §2.10, Comments (Tent. Draft No.

UD sccrchaiptcs cuss socictetetc la edeikact enseedobeiinmibaachaiahabendieSitiniy 10

Mobs, BS Ba. Ts, Bev. GOS (IGGD): ..n..cnevcieosccsessecsncsscsocerscee 11

Bate, TE Take Ts. F. GES CIOS) cen nscncssisscrvsnsnssnierssesorssnensvese 11

eat, TS Take Ta. TU CU) iinnnsc ene onicniennccscscccceneses ese 11

Orfield, The Defense of Entrapment in Federal Courts,

I i I ia acta tite rcistiasansiciatendinicbcveonn 11

Rotenberg, The Police Detection Practice of Encour-

agement, 49 Vir. L. Rev. 871 (19638) 20.0. 11

Sherrill, The Defense of Entrapment: A Plea for Con-

stitutional Standards, 20 Fla. L. Rev. 63 (1967) .... 11

Williams, The Defense of Entrapment and Related

Problems, 28 Fordham L. Rev. 399 (1959) _..000... 11

ae

a

fh

%

— LETTE OER ESAS LEE TL INTE LOO I NE IT

og epee

the Supreme Court of the

United States

Octoser Term, 1972

ce

Rosert STEPHEN Basey,

Petitioner,

Vs.

Unitep States or AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

Court of Appeals for the Ninth Circuit

titioner, Robert Stephen Basey, prays that a Writ

rtiorari issue to review the judgment of the United

s Court of Appeals for the Ninth Circuit, entered

is case (Court of Appeals No. 72-1813) on September

72.

OPINION BELOW

e opinion of the Court of Appeals for the Ninth Cir-

was not reported. A copy of this opinion is attached

o as “Appendix”.

JURISDICTION

e judgment of the United States Court of Appeals

he Ninth Circuit was entered on September 29, 1972.

AI tN 2S ie Ss

TE PONS PIER LES

PBA seen ye

POA LEENA FURL HORA BEY DEG RSS OM LN HB eg ERS NE Se it

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the opinions announced by the majority of

this Court in Sorrells vs. United States, 287 U.S. 435 (1932)

and Sherman vs. United States, 356 U.S. 369 (1958) pose

the sole and exclusive test applicable to the defense of en-

trapment in Federal courts.

2. Whether the predisposition of the accused to commit

the offense charged continues to be relevant in the defense

of entrapment where uncontradicted evidence shows an un-

conscionable degree of government participation in the

proscribed criminal activity.

3. Whether and to what extent the prosecution bears

the burden of proof once the issue of entrapment is fairly

raised,

4. Whether uncontradicted evidence that Federal nar-

cotics agents supplied the illicit chemical ingredient essen-

tial to the manufacture of the controlled substance for the

possession of which petitioner was charged precludes con-

viction under the doctrine of entrapment as a matter of

law.

STATUTES INVOLVED

The statute under which petitioner was prosecuted under

Count I of the Indictment, the only relevant charge here

involved, was 21 U.S.C. § 841(a)(1), 1970, which provides

as follows:

“$841. Prohibited acts A—Unlawful acts

(a) Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentional-

lv—

: (1) to manufacture, distribute or dispense, or

possess with intent to manufacture, distribute, or

dispense. 4 controlled substance...”

, —

3

STATEMENT

A. Nature of the Proceedings Below.

Petitioner, Robert Stephen Basey, was indicted on Au-

gust 18, 1971, on three counts of violating Title 21, United

States Code, Section 841(a)(1) and one count of conspiracy

(petitioner was indicted with three other defendants whose

eases were resolved before trial and thus not relevant to

this Petition).

Petitioner was tried before a jury on November 22-24,

1971. Decision on petitioner’s motion for judgment of ac-

quittal at the close of the government’s case was reserved.

It was denied following the jury verdict.

The jury found petitioner not guilty of Counts IT through

IV, and guilty of Count I, which charged a violation of Title

21, United States Code, Section 841(a)(1), distribution

of a 0.9 gram “sample” of D1-desoxyephedrine on June 15,

1971.

On January 5, 1972, the District Court denied a motion

for a new trial and imposed sentence. Petitioner filed timely

appeal with the Court of Appeals for the Ninth Circuit.

That Court affirmed on September 29, 1971.

B. Statement of Facts.

The trial was had solely on the testimony of agents of

the Federal Bureau of Narcotics and Dangerous Drugs.

This testimony revealed that some time shortly prior to

June 4, 1971, a Boston agent of the Federal Narcotics

Bureau sent four 500 gram bottles of the chemical pheny]l-

2-propanone (hereinafter referred to as “P2P”) to one

Karen Lyons in San Diego, California (Reporter’s Tran-

script, page 47, and hereinafter referred to as “T'r., p.......”).

This chemical is an indispensable ingredient in the manu-

facture of the illicit drug dl-desoxvephedrine (Tr., p. 77),

and a difficult, if not impossible chemical to obtain without

—_— RAEOOE LESS IELEE RAPER NLL MN, LEAL SLI RO SETS PMR NS a ER RRS a ,

4

an illegal source (Tr., pp. 56-57). It was supplied to

Karen Lyons on the understanding that it would be used

to manufacture methamphetamine (dl-desoxyephedrine),

three pounds of which would be returned to the suppliers

of P2P—the Federal agents in Boston (Tr., p. 54).

On June 4, 1971, Agent Charles Bullock telephoned

Karen Lyons from Boston and introduced himself as “the

man that Boston said supplied the P2P” (Tr., p. 44) and

stated that he could sup»ly greater quantities of the chemi-

cal in return for equivalent amounts of the finished drug

(Tr., pp. 45-46). At this time Karen Lyons was not manu-

facturing amphetamine (Tr., p. 46) but she indicated that

if Bullock could supply P2P it would be possible to arrange

for it (Tr., pp. 46-47).

During the week following this initial telephone conver-

sation, Agent Bullock was in telephone contact with Lyons

practically every day (Tr., p. 48). His “orders” from the

Bureau, with respect to Lyons, were “to supply her with

P2P in exchange for amphetamine powder” (Tr., p. 50),

and to “follow through” on the P2P which had already

been supplied (Tr., p. 22), none of which had yet been

returned to “Boston” in the form of amphetamine (Tr,

p. 54).

On June 10, 1971, pursuant to a telephone conversation

of that day, Bullock and another agent met with Lyons

at a restaurant in San Francisco (Tr., p. 51) where it was

disclosed that she had “finally gotten ahold of her man”

(Tr., p. 52), so a meeting was arranged for the following

Monday, June 14, 1971 (Tr., p. 52).

On June 15, 1971, Agents Bullock and Hochman met

petitioner for the first time in the company of Karen

Lyons and one Jimmie Kibbee (Tr., p. 14). At this meeting,

according to Bullock,

5

“a conversation ensued about Agent Hockman and I

providing phenyl-2-propanone and they delivering

amphetamine powder to us” (Tr., p. 15).

(gain, agent Bullock testified that this conversation con-

erned

“the previous arrangements that had been made...

that myself and agent Hochman were to deliver quan-

tities of phenyl-2-propanone” (Tr., p. 16).

(gent Bullock testified that he and Hochman drove a hard

argain, insisting upon amphetamine worth about $400

‘or every $60 worth of P2P (Tr., pp. 55-56). They were

ible to do so because P2P is obtainable only through a

pecial “connection” of the type these agents represented

hemselves to be (Tr., pp. 56-57). Bullock admitted that

he defendants “did indicate that they could get everything

Ise but that [P2P]” (Tr., p. 57). Bullock told Kibbee that

‘T could get all he wanted when the situation came to it”

(Tr., p. 59). He said that he and Hochman would “like to

ret up to 20 pounds [of amphetamine] a week” (Tr., p. 16),

ind that they would like to see the manufacturing process

yy which their P2P was converted into amphetamine (Tr.,

». 66). At one point the agents even discussed supplying

idditional laboratory equipment to meet these demands

(Tr., p. 17), but other arrangements apparently made this

assistance unnecessary.

At this meeting on June 15, 1971, Kibbee, in the presence

of the other defendants, including Basey, produced a

small amount of amphetamine as a sample (Tr., pp. 17-18).

This became the basis for Count I of the Indictment, the

only count for which petitioner was convicted. Although

the record does not conclusively establish the source of

the P2P which had been used to manufacture the ampheta-

mine, testimony of Agent Bullock reveals that on June 10,

: are |

SPEARS

EI FE ON PO

laoticmashare ia ne ae See aeae

6

1971 Lyons had only three bottles remaining out of the four

which “Boston” had originally supplied (Tr., p. 51). More-

over, by June 15, 1971, no other amphetamine had been

produced for the agents (Tr., p. 54).

At the June 15th meeting further arrangements were

made for delivery of larger quantities of amphetamine

“in exchange for the phenyl-2-propanone” (Tr., p. 20).

Thereafter, and at several times, agents met with petitioner

and exchanged various quantities of P2P for the finished

product (Tr., pp. 22-25). On June 25, 1972, petitioner was

arrested at what was purported to be his laboratory (Tr.,

p. 32), with regard to which a chemist testified that he had

received and reviewed all the chemicals seized at the time

of the arrest, and that they included all of the ingredients

essential to make amphetamine except one: phenyl-2-

propanone (Tr., pp. 77-78).

At the conclusion of the government’s case, Basey’s

counsel moved for a judgment of acquittal on the ground

that the evidence disclosed entrapment as a matter of law

(Tr., p. 100), citing to the Court United States vs. Chisum,

312 F.Supp. 1307 (C.D. Cal. 1970). The Court reserved

ruling on the motion, and in due course the case was

presented to the jury on the issue of entrapment.

After some deliberation the jury sent word that it had

two questions: (1) “When was P2P first supplied to the

defendant by undercover agents,” (Tr., p. 107); and (2)

“Was exhibit No. 1 [the sample delivered to the agents on

June 15] manufactured from undercover agent’s merchan-

dise” (Tr., p. 109). In response to the first question, the

Court gave the jury the date of June 4 for shipment of

the P2P to Karen Lyons from Boston (Tr., p. 113). With

respect to the second question, the Court appeared to agree

with counsel that the inference, at least, was that the

7

sample contained in exhibit 1 contained the P2P sent to

Lyons from Boston (Tr., pp. 109-110), and told the jury

that:

“There’s just no evidence establishing that one way or

the other. What Exhibit 1 was manufactured from...

there was nothing in the testimony that directly con-

nected Exhibit 1, which I take it was a sample... .”

*

“By whom, how it was manufactured; not a word

establishes that. You might be able to draw certain

conclusions, but no reliable evidence at all on that”

(Tr., p. 113).

Thereafter the jury convicted Basey on Count I of illegally

distributing the sample contained in exhibit No. 1, while

acquitting him on all other counts. From the questions

asked by the jury and the comments of the District Court,

it is clear that the petitioner’s entrapment defense was

considered to hinge on the evidence—or lack thereof—link-

ing the dl-desoxyephedrine supplied to the agents with the

particular P2P supplied by them. It is the lower Court’s

approach to this factual issue which petitioner believes

to be the heart of the problem.

REASONS COMPELLING ALLOWANCE OF THE WRIT

As Evidenced by the Facts of This Case Viewed in Context with

the Applicable Law, the Defense of Entrapment in the Federal

Judiciary Continues to Suffer from the Absence of a Cohesive

Doctrinal Basis and Clear Test Articulated by This Court.

As surveyed in the Statement, the uncontroverted evi-

dence at trial established that government agents not only

approached defendants and urged them to manufacture

quantities of the controlled substance, dl-desoxyephedrine,

but also supplied them with P2P, the illicit chemical in-

gredient indispensable to the process. On appeal petitioner

urged as error that such conduct on the part of government

Sipe ARTE AOE

8

agents constitutes entrapment as a matter of law, citing

Umited States vs. Russell, 459 F.2d 671 (9th Cir. 1972), a

case directly on point and now before this Court on certio-

rari (Docket No. 72-355).

Rather than respond to—or even mention—the Russell

case, the Court of Appeals chose instead to characterize

the government activity as merely affording the defendant

“opportunities and facilities for the commission of the

offense in question”. United States vs. Basey, No. 72-1813

(9th Cir. 1972), Appendix at p. 2. Implicit in its avoidance

of Russell is the lower Court’s out-of-hand rejection of the

many principles advanced by courts and commentators

dealing with the extremely difficult questions posed in

situations such as this where government agents become

intimately enmeshed with and actively participate in the

very criminal enterprise which is the subject of investiga-

tion. Reluctance to confront the issue is, of course, under-

standable in view of the underlying confusion and dispar-

ate rules governing the scope and application of the

entrapment defense as it presently exists.

This Court first addressed itself to the entrapment

doctrine in Sorrells vs. United States, 287 U.S. 435 (1932),

propounding a two-fold test for the defense: (1) the

crime is the product of the creative activity of the govern-

ment agents which defendant was induced to participate

in; and (2) the defendant did not have a criminal predis-

position or design. Sorrells, supra, at 451. The majority

stated that the basis for the defense was statutory inter-

pretation:

“We are not forced by the letter to do violence to the

spirit and purpose of the statute ... If the require-

ments of the highest public policy in the maintenance

of the integrity of administration would preclude the

enforcement of the statute in such circumstances as are

present here, the same considerations would justify

BLEED THROUGH POOR COPY

the conclusion that the case lies outside the purview of

the Act and that its general words should not be

construed to demand a proceeding at once inconsistent

with that policy and abhorrent to the sense of

justice.” Sorrells, supra at 448-449.

This view was substantially adopted by this Court in

Sherman vs. United States, 356 U.S. 369 (1957), where the

exemplary language of the majority pointed out: “Congress

could not have intended that its statutes were to be enforced

by tempting innocent persons into violations”. Id. at 372.

While the technique of statutory construction has been

propounded as the basis for the defense of entrapment in

many Federal courts, this devise has been far from unani-

mously received. The concurring justices in Sorrells,

through Mr. Justice Roberts, refused to adopt the fiction of

statutory construction and rested their conclusion instead

upon an assertion that the courts have inherent power to

refuse to become instruments of injustice. Sorrells v. United

States, supra, at 454-55, (concurring opinion). A similar

objection was voiced by the minority in Sherman. Speaking

for the concurrence, Mr. Justice Frankfurter stated that

the power to protect the judiciary for the degradation of

convicting persons who had been induced to commit illegal

acts derives from the Court’s “supervisory jurisdiction over

the administration of criminal justice.” Sherman v. United

States, supra at 381, (concurring opinion).

At one with this departure from the statutory construc-

tion rationale is the recognition that the principal focus of

the defense concentrates upon the activity of government

agents rather than upon the guilt or innocence of the

accused.

“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,

F

§

— 2S RES AEG EEE LOR, PETE EUAN SOIR PLY ELIE 1B IIIT aS: :

10

has any place in the enforcement of this overruling

principle of public policy.” Sorrells v. United States,

supra, at 459 (concurring opinion).

“The crucial question, not easy of answer, to which

the court must direct itself is whether the police con-

duct revealed in the particular case falls below stand-

ards, to which common feeling respond, for the proper

use of governmental power. For answer it is wholly

irrelevant to ask if the ‘intention’ to commit the crime

originated with the defendant or government officers,

or if the criminal conduct was the product of ‘the

creative activity’ of law enforcement officials.” Sher-

man v. United States, supra, at 382 (concurring

opinion).

Under this view, then the fundamental issue is the conduct

of government officials and the extent of their participation

in criminal activity.

“The defendant whose crime results from an entrap-

ment is neither less reprehensible or dangerous nor

more reformable or deterrable than other defendants

who are properly convicted. Defendants who are aided,

deceived or persuaded by police officials stand in the

same moral position as those who are aided, deceived

or persuaded by other persons. It is the attempt to

deter wrongful conduct on the part of the government

that provides the justification for the defense of en-

trapment not the innocence of the defendant.” Model

Penal Code § 2.10 at 14, Comments (Tent. Draft No.

9, 1959).

While this approach has not been universally accepted,

it has found considerable support in the courts of appeal.

Some hold that entrapment is concerned solely with acts

done by agents of the government, United States v. Russell,

459 F.2d 671 (9th Cir. 1972), Gonzales v. United States, 251

F.2d 298 (9th Cir. 1958), Polski v. United States, 33 F.2d

11

686 (8th Cir. 1929), while others hold that entrapment

focuses primarily on government activity, United States

v. Morrison, 348 F.2d 1003 (2nd Cir. 1965), cert. denied 382

U.S. 905, Walker v. United States, 344 F.2d 795 (1st Cir.

1965), Whiting v. United States, 321 F.2d 72 (1st Cir. 1963),

cert. denied 375 U.S. 884, Williamson v. United States, 311

F.2d 411 (5th Cir. 1962), Accardi v. United States, 257

F.2d 168 (5th Cir. 1958), cert. denied 358 U.S. 883.

Similarly, this position has been well received by a host

of commentators. Consider for example: Sherrill, The

Defense of Entrapment: A Plea for Constitutional Stand-

ards, 20 Fla. L. Rev. 63 (1967); Orfield, The Defense of

Entrapment in Federal Courts, 1 Duke L. J. 39 (1967) ;

Rotenberg, The Police Detection Practice of Encourage-

ment, 49 Vir. L. Rev. 871 (1963) ; Williams, The Defense of

Entrapment and Related Problems, 28 Fordham L, Rev.

399 (1959); Cowen, The Entrapment Doctrine in the Fed-

eral Courts, and Some State Comparisons, 49 J. Crim. L.,

C. & P.S. 447 (1959) ; Donnelly, /udicial Control of Inform-

ants, Spies, Stool Pigeons ana Provacateurs, 60 Yale L. J.

1091 (1951); Note, 78 Yale L. J. 1046 (1969); Note, 74

Yale L. J. 942 (1965) ; Note, 26 La. L. Rev. 848 (1960).

A review of these cases and commentaries reveals at very

least the extent to which the lower courts have become

divided on the issues regarding entrapment. Some follow

the majority views expressed in Sorrells and Sherman,

some principally rely on the minority position, while others

grope in the middle-ground for a plausible theoretical

foundation on which to ground their decisions. The con-

fusing disparity is not surprising since the defense exists

without statutory mandate, without judicially articulated

constitutional imperative, United States v. Bailey, 331 F.2d

218 (7th Cir. 1964), Stanley v. United States, 239 F.2d 765

(9 Cir. 1956), and even “without the formulated basis in

OER POE IEE LE EE ee NE OE Ae ee ee tee ee

LPL LEIS ANIL EEE HE DN Le

LEIS SMT ERY IT Ee

12

reason that it is the first duty of the courts to construct.”

Sherman vs. United States, 356 U.S. 369, 378 (concurring

opinion of Mr. Justice Frankfurter).

Thus, both the District Court and the Court of Appeals

below, without clear and precise guidelines from this Hon-

orable Court, were free to wander through the conflicting

precedents and select any of several tests upon which to

premise their holdings. It is into this general confusion

which petitioner respectfully invites attention and urges

review. Particularly in need of resolution are the problems

outlined below.

A. The Law Is Unclear Regarding the Relevancy of Predisposition

to the Entrapment Defense.

Classically, entrapment has been defined as “the concep-

tion and planning of an offense by an officer, and his pro-

curement of its commission by one who would not have

perpetrated it except for the trickery, persuasion, or fraud

of the officer.” Sorrells vs. United States, 287 U.S. 435,

454 (1932). Mr. Chief Justice Warren explained that

“entrapment occurs only when the criminal conduct was

the ‘product of the creative activity’ of law enforcement

officials [and that] . . . a line must be drawn between the

trap for the unwary innocent and the unwary criminal.”

Sherman vs. United States, 356 U.S. 369, 372 (1958)

(emphasis in original). On their face, these delineations do

little to clarify the elusive doctrine. In this Court’s last

examination of the entrapment defense, Mr. Justice Harlan,

after noting the problems this defense has created in the

past, stated that it is “the manufacturing of crime by law

enforcement officials and their agents” which is of primary

concern :

“Thus before the issue of entrapment can fairly be

said to have been presented in a criminal prosecution

there must have been at least some showing of the

kind of conduct by government agents which may

— ee ee ee wer *

— AE AME 8 wm ad ALD AE

13

well have induced the accused to commit the crime

charged.” Lopez vs. United States, 373 U.S. 427, 434-

435 (1963).

Beyond these pronouncements, and in view of the rela-

tive paucity of decisions from this Court on the question,

there is little to provide guidance for distinguishing be-

tween impermissible inducement and that type of allow-

able activity which—as characterized by the court below—

merely “affords . . . opportunities and facilities for the

commission of the offense in question.” Appendix, p. 2.

Since the defense rests upon a finding that government

agents in some way elicited the forbidden acts, the predis-

position of the defendant to commit the acts in absence of

inducement has been held relevant in many cases. Eg.,

Matysck vs. United States, 321 F.2d 246, 248 (9th Cir.

1963), cert. denied, 376 U.S. 917 (1964). Several recent

cases, however, have either de-emphasized the relevancy

of predisposition or eliminated it entirely as an element of

the defense where the conduct of government agents has

been particularly repugnant. United States vs. Chisum, 312

F.Supp. 1307 (C.D. Cal. 1970) ; United States vs. Bueno,

447 F.2d 903 (5th Cir. 1971); Green vs. United States, 454

F.2d 783 (9th Cir. 1971) ; and United States vs. Russell, 459

F.2d 671 (9th Cir. 1972).

In Bueno, supra, the defendant was convicted of selling

to a Federal agent heroin which he had received from a

government informer who also arranged the sale to the

agent. The Court of Appeals reversed holding that as a

matter of law defendant could not be convicted. No mention

was made of predisposition. Similarly in Chisum, supra,

the District Court held as a matter of law that the accused

could not be convicted of receiving counterfeit money which

he had originally acquired from a government agent. Again,

predisposition was deemed irrelevant.

— aeRneRE

ee ee |

14

In Green vs. United States, swpra, the Court reversed a

conviction for manufacturing bootleg whiskey where the

government agent involved himself “directly and continu-

ously over ...a long period of time in the creation and

maintenance of criminal operations .. .” Green, supra, at

787. The Court there expressly adopted the position that

a high degree of government »articipation in the criminal

activity precludes conviction «s a matter of law despite

clear evidence of predisposition on defendant’s part. So

too in Russell, supra, the Court of Appeals held entrapment

as a matter of law (without choosing to affix a label to their

result) even though the defendant candidly conceded that

he may have harbored a predisposition to commit the

charged offense.

“... [RJegardless of the significance of ‘predisposition’

as an element of ‘entrapment,’ we conclude that there

j* merit in Russell’s contention that a defense to a

criminal charge may be founded upon an intolerable

degree of government participation in the criminal

enterprise...” United States vs. Russell, supra, at 673.

Whether or not predisposition is a relevant element in the

defense of “entrapment” under the facts of the instant

case is key. The activity of the government agents here

was certainly as “creative” as that held intolerable in the

above-cited cases, and clearly no less deserving of judicial

censure. Since various lower courts may under the pres-

ently incohesive standards surrounding this issue choose

alternatively to countenance and then to condemn identical

“investigative” practices, this Court’s review is both war-

ranted and compelled.

B. Review Is Necessary to Settle Issues Regarding Proper Quanti-

fication and Allocation of Burden of Proof.

Petitioner moved for judgment of acquittal at the close

of the government’s case on the ground that the evidence

BLEED THROUGH POOR COPY

es SMAI Pe ey

15

disclosed entrapment as a matter of law (Tr., p. 97). Im-

plicit in that motion was the contention that the govern-

ment had failed to sustain its burden of proof relative

to the entrapment defense. Believing there to be sufficient

evidence for the jury, the trial court denied the motion.

Later, upon questions from the jury, however, the trial :

court commented on exhibit No. 1 (the sample delivered :

to the agents on June 15, 1971) stating that there was ab- t

solutely no evidence at all with respect to whether or not

that particular substance was manufactured from under-

cover agents’ merchandise (Tr., pp. 109-113). Assuming,

arguendo, that a direct connection between the illegal in-

gredient supplied by the agents and the substance con-

tained in exhibit No. 1 is determinative of petitioner’s en-

trapment defense, it is inconceivable that this conviction

be allowed to stand without a shred of evidence on that

point one way or the other.

The trial court’s ruling would seem to imply that petv-

tioner had the burden of proving the presence of govern-

ment-supplied P2P in exhibit No. 1, and that his entrap-

ment defense in effect depended upon such proof. This

ruling typifies the pregnant confusion surrounding the de-

fense with regard to assigning burdens of proof between

defendant and prosecution. This difficulty derives primar-

ily from the doctrinal problems discussed above, but is

compounded by ambiguous rules which have developed as

a result of lower courts struggling toward piecemeal an-

swers to a complex problem.

For example, some courts divide the defense into two

elements and assign burdens accordingly. “For conveni-

ence they [the issues] can be called the primary issue of

inducement and the rebuttal issue of predisposition.” Gorin

vs, United States, 313 F.2d 641, 653 (5th Cir. 1963). Many

courts require defendant to prove “the primary issue” by

yore

i

—_—— ee ke

16

a preponderance before shifting the “rebuttal issue” to the

prosecution, United States vs, Pugliese, 346 F.2d 861 (2d |

Cir. 1965); United States vs. Bishop, 367 F.2d 806 (24

Cir. 1966). Some courts allocate the burdens but do not

quantify them. United States vs, Prieto-Olivas, 419 F.2d

149 (5th Cir. 1969); Kivette vs. United States, 230 F.2d

749 (5th Cir. 1956). Others place a slight burden upon the

defendant such as that of “coming forward with some evi-

dence”, Sagansky vs. United States, 358 F.2d 195 (1st Cir,

1966), or “fairly raising the issue”, United States vs,

Brown, 421 F.2d 1283 (9th Cir. 1970), cert. denied, 398

U.S. 941, and then shift the burden to the prosecution to

prove “nonentrapment beyond a reasonable doubt”. This

has led some courts to completely reject the bifurcated

issue approach and to consider only the “ultimate question

of entrapment”. Kadis vs. United States, 373 F.2d 370 (1st

Cir. 1967). The furthest development has been to place no

burden of proof whatsoever upon defendant, while requir-

ing the prosecution to disprove entrapment beyond a reas-

onable doubt. Notaro vs. United States, 363 U.S. F.2d 169

(9th Cir. 1966).

As becomes apparent from even a brief review of these

decisions, the area abounds with disparity. There may be

a developing common trend with regard to allocation in

that most cases place the burden on the prosecution to dis-

prove entrapment once the issue is raised. However, the

method by which the issue arises and the quantity of proof

necessary to satisfy these relative burdens remains unclear.

In the instant case, if the issue had been “fairly raised”

then the prosecution should have been required to disprove

entrapment beyond a reasonable doubt. Robison vs. United

States, 379 F.2d 338 (9th Cir. 1967); Notaro, supra. Yet

the trial court allowed the issue of entrapment to go to the

jury without any evidence at all regarding the source of

—

—_—

17

P2P contained in the sample. Thus, the trial court not only

confused the quantum of proof necessary, but moreover

allocated it to the wrong party.

ear |

CONCLUSION

For the reasons stated above, this Honorable Court :

should grant the petition for certiorari and dispose of

the issues surrounding this significant area of criminal

justice. ;

Respectfully submitted,

GILBert EISENBERG

Messrs, FiLierecii & E1seNBERG

Counsel for Petitioner

(Appendix Follows)

Ne aaa 4 CA Shee 2 TESS we . 7 ° we

Appendix

United States Court of Appeals

For the Ninth Circuit

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

eins No. 72-1813

Rosert STEPHEN Basey,

Defendant-A ppellant.

[September 29, 1972]

An Appeal from the United States District Court

for the Northern District of California

Before: CHAMBERS, BARNES and MOORE’, Circuit

Judges. BARNES, Circuit Judge:

Appellant Basey was indicted with three co-defendants

of the possession, with intent to distribute, various amounts

of dl-desoxyephedrine, a “Schedule III controlled sub-

stance.” This was a four count indictment with three sub-

stantive counts (involving .9 gram, 456 grams, and 802

grams, respectively)—[21 U.S.C. § 841(a) (1) ]—and a con-

spiracy count—[21 U.S.C. § 8461]. Appellant Basey was

convicted only on Count One, involving a “sample” of the

drug in his possession.

Government agents supplied appellant and his co-defend-

ants at differing times with a difficult to get chemical es-

sential to the manufacture of dl-desoxeyephedrine, namely:

“phenyl-2-propanone” (commonly known, and hereinafter

*The Honorable Leonard P. Moore, Senior United States Cireuit

Judge of the Second Cireuit, sitting by designation.

2 Appendiz

referred to, as “P2P”). No defendant testified. The goy-

ernment’s testimony as to the “trade” of the P2P for cer-

tain quantities of the controlled substance resulted in a

jury verdict for all defendants on Counts Two, Three and

Four on grounds of government entrapment. The jury,

after some deliberation, asked the judge whether the gov-

ernment had supplied the essential chemical (P2P) for

the production of the .9 gram which was the subject of

Count One. The trial judge stated there was no direct

proof “[E]stablishing that one way or the other.” (R.T.

112-113) Counsel for defendant below agreed. (R.T. 109-

110) The jury decided appellant’s entrapment argument

failed as to Count One.

Appellant urges as the first error that the evidence

established, as a matter of law, entrapment as to Count One.

Neither the jury nor the trial judge agreed, nor do we. For

government agents to afford a defendant opportunities

and facilities for the commission of the offense in question

is not enough. There is ample evidence to support an im-

plicit jury finding that the governmental agents did not

exert persuasion or pressure of any kind in an effort to

induce defendant to commit the offenses charged, i.e., to

produce the contraband drug. See: United States v. Walton,

411 F.2d 283, 288 (9th Cir., 1969) ; United States v. Hodas,

sens F.2d ......, No. 72-1441 (9th Cir., decided 9/11/72). The

jury so found as to Count One, and found to the contrary

in Counts Two to Four, inclusive. As triers of fact, that

was their right. But their determination was made as a

matter of fact, not as a matter of law.

Appellant urges as a second error that the district court

mistated the evidence relating to whether the government

supplied an essential ingredient to the manufacture of the

illegal substance involved in Count One. Appellant urges

this evidence is “clear” (Brief, p. 5, citing R.T., pp. 54, 62,

Appendiz 3

63, and at oral argument, pages 44-47). Again, we disagree.

Neither the cited pages nor a careful examination of the

entire transcript disclose any significant evidence that the :

9 gram referred to in Count One was manufactured with

the aid of P2P supplied by the government. When the

sample was supplied to the agents, Mr. Kibbee, who pro-

duced it, had been and then was manufacturing ampheta- é

mines (as related by Agent Bullock) (Ct. Tr., p. 17), 4

and there were other sources of supply from which P2P

could be obtained, according to Mr. Kibbee.

The conviction as to Count One is affirmed.

ee |