# Appendix — Lue v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0963%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 1031

## Text

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 |=

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0963%3A2. Public record. Not legal advice.