Appendix — Lue v. United States

Appendix A

United States Court of Appeals

for the Ninth Circuit

Unirep STaTEs OF AMERICA,

Plaintiff-Appellee, |. 73 1980

OPINION

VS.

Norman Lve,

Defendant-A ppellant.

[June 19, 1974]

Appeal from the United States District Court

for the Northern District of California

Before: DUNIWAY and WALLACE, Circuit Judges,

and EAST,* District Judge.

WALLACE, Circuit Judge:

A jury convicted Lue of one count of conspiring to

import heroin in violation of 21 U.S.C. § 952 and

three counts of distributing heroin and_ possessing

heroin with intent to distribute in violation of 21

U.S.C. § 841(a)(1).

He appeals asserting two errors: (1) that he was a

victim of entrapment as a matter of law and (2) that

the conduct of the law enforcement officers was so out-

rageous that his conviction constituted a denial of

due process. We reject both of these contentions and

affirm the judgment.

*Honorable William G. East, United States District Judge, Dis-

trict of Oregon, sitting by designation.

OEE Pal oo DA SO ne

On March 5, 1972, Young Ah Jen (Young) ap-

proached Henry Monsen in Hong Kong and proposed

that Monsen participate with him in smuggling mor-

phine into the United States. After advising Young

that he would “think about it,” Monsen contacted the

agent in charge of the Bureau of Narcotics and

Dangerous Drugs in Hong Kong (Shostrom) and told

him of the proposal. Monsen was instructed to keep in

contact with Young; later, Monsen agreed to partici-

pate with Young in the smuggling. After May 10,

when Monsen came to San Francisco Shostrom became

the contact with Young in Hong Kong.

On June 5, Young asked and Shostrom agreed to

take a package to Monsen in San Francisco. On June

16, Young called Shostrom and asked him to have

Monsen call Lue in Los Angeles. Young had previously

met Lue in Hong Kong and had offered to send heroin

to Lue in the United States. Young gave Shostrom

Lue’s telephone number and said that Monsen should

give the code phrase “Young has just come from the

airport” when he spoke with Lue.

Monsen contacted Lue and repeated the phrase as

directed, but Lue gave no indication he recognized the

code. Monsen subsequently met with Lue in Los

Angeles, at Monsen’s request, and told him to “con-

tact his party in Hong Kong.” Later, on June 22,

Lue contacted Monsen in San Francisco and informed

him that he had talked to Young and asked Monstn

“how much was coming.”

After the drugs arrived in San Francisco, Monsen

met Lue, delivered a bag containing the heroin and

OEE CLES OL AIEEE ELLE SLAM GE S SR ERE LEMME FIG DRIES MIRE AS NS PE PBEM LNG OE

i:

received from him $2,000. Lue was followed by federal

agents and was later arrested.

Il. ENTRAPMENT

Lue maintains that he was the victim of entrapment

as a matter of law. He claims he was unwilling to

participate in narcotics smuggling but was overcome

by the repeated importunings of the government

agents. He also objects that the trial court instructed

the jury in accordance with the traditional concept

of entrapment which focuses on the accused’s predis-

position to commit the offense. He contends that the

jury instructions should have focused on the degree

of governmental activity.

In United States v. Russell, 411 U.S. 423 (1973), the

Court reaffirmed its earlier opinions in Sorrells v.

United States, 287 U.S. 485 (1932), and Sherman v.

United States, 356 U.S. 369 (1958), which held that

the defendant’s predisposition to commit the crime

was the principal element in the defense of entrap-

ment. In Russell, the Court expressly overruled the

conelusion reached by us that as a matter of law “a

defense to a criminal charge may be founded upon an

intolerable degree of governmental participation in the

criminal enterprise.” United States v. Russell, 459

F.2d 671, 673 (9th Cir. 1972), rev’d, 411 U.S. 423

(1973). The jury instructions’ given by the trial court

1The district court instructed in part:

The defendant asserts that he was a vietim of entrapment 2s

to the crimes charged in the indictment.

Where a person has no previous intent or purpose to violate

the law, but is induced or persuaded by law-enforcement offi-

cers or their agents to commit a crime, he is a victim of

iv

were directed to the concept of predisposition and are

therefore proper under the holdings of Sorrells, Sher-

man and Russell. The trial court committed no error

by denying Lue’s motions to instruct the jury in ac-

cordance with our erroneous holding in Russell.

We agree with Lue that this case differs from

Russell in the degree of predisposition, but that does

not call for a different result as a matter of law. In

Russell the evidence clearly disclosed that, prior to the

time of the government involvement, the defendant

had actually been engaged in the criminal activity for

which he was convicted. Russell even conceded in the

court of appeals “that he may have harbored a pre-

disposition to commit the charged offenses. . . .” 459

F.2d at 672. Lue, on the other hand, has persisted in

contending that he had no such predisposition nor

prior criminal activity. The jury, after hearing all

the evidence and after proper instructions, was ap-

parently persuaded that “the Government’s deception

[did not] actually implant the criminal design in the

mind of the defendant... .” Russell, 411 U.S. at 436.

The evidence was clearly sufficient for the jury to

reach that conclusion.

entrapment and the law as a matter of policy forbids his con-

viction in such a case.

On the other hand, where a person already has the readiness

and willingness to break the law, the mere fact that government

agents provide what appears to be a favorable opportunity is

not entrapment... .

If, then, the jury should find beyond a reasonable ddhbt

from the evidence in the case that, before anything at all oc-

curred respecting the alleged offense involved in this case, the

defendant was ready and willing to commit crimes such as

charged in the indictment, whenever opportunity was afforded,

and that government officers or their agents did no more than

ofier the opportunity, then the jury should find that the de-

fendant is not a victim of entrapment.

ear ro er

COLELLO IE LM I I RE

Sitges:

Il. DUE PROCESS

Lue asserts that his conviction was obtained in

violation of due process because of the conduct of the

law enforcement officers. His contention is apparently

based apon the following language from Russell:

While we may some day be presented with a

situation in which the conduct of law enforcement

agents is so outrageous that due process principles

would absolutely bar the government from in-

voking judicial processes to obtain a conviction,

cf. Rochin v. California, 342 U.S. 165 (1952), the

instant case is distinctly not of that breed.

411 U.S. at 431-32. This dictum has already produced

some speculation, Comment, The Viability of the

Entrapment Defense tn the Constitutional Context, 59

Towa L. Rev. 655, 664-69 (1974), and litigation, United

States v. Archer, 486 F.2d 670 (2d Cir. 1973), but

no resolution.? The Russell dictum implies that where

the entrapment defense is unavailable to the defendant

because of his predisposition, a remedy founded on

due process may still be available in an extreme case.*

2In Archer the defendants asserted the due process defense based

on the Russell dictum but the Second Cireuit avoided the resolution

of the “uncertainties and dimensions of this defense,” Comment,

The Viability of the Entrapment Defense in the Constitutional Con-

text, 59 Iowa L. Rev. 655, 665 (1974), and decided the case on other

grounds. United States v. Archer, 486 F.2d 670, 677 (2d Cir. 1973).

®Unwilling to abandon the subjective test, the Court has

apparently tried to augment it with a separate non-entrapment

defense based on due process. This defense is centered on the

theory that although the predisposition of a defendant will

render the traditional entrapment defense unavailable to him,

the fundamental fairness xequirements of due process may pre-

vent his proseeution.

Comment, The Viability of the Entrapment Defense in the Consti-

tutional Contest, 59 lowa L. Rev. 655, 665 (1974).

vi

Thus, the Court did close the door on the government

activity theory in an entrapment case, but it left it

open enough to provide proper relief when such ac-

tivity violates due process. This is not an exception to

entrapment law which focuses on a defendant’s predis-

position. It is a recognition that some government

activity might be so grossly shocking to be violative of

due process regardless of whether the requirements

of entrapment have been met. For an accused to bene-

fit from this remedy, the facts of his case would have

to demonstrate government conduct “so outrageous”

as to be analogous to the police conduct in Rochin.

Lue, however, attempts to thrust open completely

that which was left slightly ajar by claiming the same

type of government activity validated in Russell is

now tainted under the banner of due process. In this

he fails. Monsen and Shostrom were conduits in the

transfer of the heroin from Young to Lue. As in

Russell, where the government agents provided some-

thing of value in order to infiltrate the drug ring, here

also the government provided something of value

when it furnished the needed couriers to carry the

heroin. The Court stressed in Russell that the de-

fendants could have obtained the chemical ingredient

supplied by the government from alternate sources

and thereby achieved their criminal purpose without

the assistance of the government. Similarly, if Monsen

and Shostrom had not been available, someone else

would have been employed by Young to carry the

heroin to Lue.

————ee a

vii

In Russeil, the Court, addressing itself to govern-

ment activity similar to that involved in this case,

stated :

[Ujn drug-related offenses law enforcement per-

sonnel have turned to one of the only practicable

means of detection: the infiltration of drug rings

and a limited participation in their unlawful

present practices. Such infiltration is a recognized

and permissible means of investigation; if that be

so, 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 “shock-

ing to Longs universal sense of justice,” Kinsella,

[361 . at 246].

411 USS. at 432,

Just as the Supreme Court concluded in Russell,

we also conclude in this case:

The law enforcement conduct here stops far short

of violating that “fundamental fairness, shocking

to the universal sense of justice,” mandated by

the Due Process Clause of the Fifth Amendment.

Kinsella v. United States ex rel. Singleton, 361

U.S. 234, 246 (1960).

411 U.S. at 432.

AFFIRMED.

PDB OC LOE LTO GOE |=