Brief for the Respondents in Opposition — Lue v. United States

INDEX

Page

SIS WO incase a cabeascentiiunnwenwne ans 1

ae ieee 1

ae IN te eS ecw aces 2

DONS Peo Aes cance shec cose uwee cnn nwecs 2

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CITATIONS

Cases:

Chapman v. United States, 443 F.2d 917___ _- 15

Sherman v. United States, 356 U.S. 369_____- 15

United States v. Beckley, 335 \'.2d 86, certiorari

denied sub nom. Stone v. United States, 380

Mi WEE en eee SSS Peweacuas hear 15

United States v. Bueno, 447 F.2d 903_______- 15

United States vy. Davis, 272 V'.2d 149________.. 15

United States v. Oquendo, 490 F.2d 161_____- 14, 15

United States v. Ortega, 471 ¥'.2d 1350, certiorari

ae TE S| eee ee kee 15

United States v. Russell, 411 U.S. 423. 2, 12, 13, 14, 15

United States v. Sohnen, 298 IF’. Supp. 51-_--- 15

Statutes:

Be Meeks Exes oo dank as odes emnewnes 2

BIE 8 pe atta ae erate 2

7 ————EE——

In the Supreme Gourt of the Wnited States

OctToBerR TERM, 1974

No. 73-2063

NorRMAN LUE, PETITIONER

v.

Unirep Srates or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 498 F. 2d 531.

JURISDICTION

The judgment of the court of appeals was entered

on June 19, 1974. A petition for a writ of certiorari

was filed on July 22, 1974, and is therefore out of

time under Rule 22(2) of the Rules of this Court.

The jurisdiction of this Comt is invoked under 28

U.S.C. 1254(1).

(1)

ELLE LEE LYELL ALI G 8 PLEO IAAP IT IBF LE TELS

2

QUESTION PRESENTED

Whether petitioner was entrapped into dealing in

heroin under the due process standards of United

States v. Russell, 411 U.S. 423.

STATEMENT

On July 27, 1972, a grand jury in the Northern

District of California returned a seven-count indict-

ment charging petitioner and two others, Young Ah

Jen end Chung Hen Ho, with various narcotics

offerses. Petitioner was named as a defendant in five

counts. Count 1 alleged that petitioner and Young

had conspired te import heroin into the United States,

in violation of 21 U.S.C. 952. Count 6 alleged that

petitioner had conspired with Ho to distribute heroin,

in violation of 21 U.S.C. 841(a)(1). Counts 2, 3, and

7 alleged that petitioner had distributed heroin and

possessed heroin with intent to distribute, in viola-

tion of 21 U.S.C. 841(a) (1). After a joint trial before

a jury with co-defendant Ho,’ petitioner was convicted

on counts 1, 2, 3, and 7. The jury was unable to reach

a verdict as to count 6.’ Petitioner received concur-

reit sentences of ten years’ imprisonment on each

count. The court of appeals affirmed.

*Young Ah Jen has remained outside the jurisdiction of

United States law enforcement authorities.

*The jury aequitted co-defendant Ho on count 5, which

charged him with having possessed heroin with intent to

distribute, in violation of 21 U.S.C. 841(a)(1). The jury wes

unable to reach a verdict as to Ho's guilt or innocence under

count 4, which also alleged that he had possessed heroin with

intent to distribute, in violation of 21 U.S.C. 841(a)(1), and

count 6.

PAL POLE ELLEI EE DNS TI NEV LOLS AOIT NEL 0 LLL ION ELE III ENT EOL IE TLE OTE CW LEME

ABD ATA

3

The evidence at trial showed that in November of

1971, petitioner, who operated a poultry market in

Los Angeles, traveled to Hong Kong and met Young,

a Hong Kong businessman (Tr. A. 4, 7-8, 12). At

that time, Young told petitioner that he could send

petitioner some heroin after petitioner got back to the

United States. Petitioner subsequently returned to

California (Tr. B. 63).

In Hong Kong on the morning of March 9), 1972,

Young approached one Henry Monsen, a Norwegian

ship broker and gold smuggler, and asked him to par-

ticipate in a “regular weekly business” of smuggling

narcotics from Hong Kong to San Francisco, Young

propescd that Moiisei carry the drugs to San Fran-

cisco, one kilo at a time. Monsen told Young that he

would consider the offer, and the two parted (Tr.

A. 2, 4, 6-7, 88-89).

Immediately after leaving Young, Monsen tele-

phoned the United States Embassy in Hong Kong and

spoke with Stewart Shostrom, an agent with the

Bureau of Nareoties and Dangerous Drugs

(B.N.D.D.). Monsen, who had no prior dealings with

United States law enforcement officers, met with

Agent Shostrom later that day and told him about

his encounter with Young (Tr. A. 10-12). Shostrom

asked Monsen to find out more about Young and his

proposal (Tr. A. 195).

°*Tr. A.” refers to the seven-volume transcript of all pro-

ceedings at trial except the testimony of the defendants.

‘“Tr. B.” refers to the one-volume transcript of the defend-

ants’ testimony.

4

Monsen continued his negotiations with Young (Tr.

A. 13). Young told Monsen that he had a “reliable

receiver” in the United States who was willing to pay

for drugs as soon as they were delivered (Tr. A. 17).

When Monsen asked who the receiver was, Young told

him that it was not necessary for him to know until

the drugs were available for shipment (Tr. A. 19).

Monsen agreed to transport the drugs to the United

States for Young if Young obtained them from his

source (Tr. A. 16).

Monsen maintained daily communication with both

Young and Agent Shostrom (Tr. A. 13). Young ex-

pevienced financial difficulties which delayed his pro-

curing drugs. On April 24, 1972, Monsen informed

Young that his Hong Kong tourist visa expired the

next day and that he had to go to Formosa for a brief

period to renew it. While in Formosa, Monsen learned

that his name had been linked to gold smuggling in

newspapers in Hong Kong, and he decided not to re-

turn there. He telephoned Agent Shostrom from For-

mosa and told him that he was going to San Francisco.

Monsen flew to San Francisco on May 10, 1972 (Tr. A.

22-23, 165-166).

In San Francisco, Monsen received a letter from a

friend in Hong Kong which stated that Young was

looking for Monsen, that Young “could get the sup-

plies from Bangkok,” and that Young wanted Mon-

sen to contact him (Tr. A. 24, 102-104). Monsenyim-

mediately telephoned the B.N.D.D, in San Francisco,

and on May 26, 1972, he met with Agent Peter Niblo

(Tr. A. 26). Monsen and Agent Niblo agreed that

LE RL IEE OEE By POLIO el A LINE OLE CRE aE PR ES I

5

rather than have Monsen return’ to Hong Kong and

receive the drugs from Young, Agént Shostrom should

contact Young and tell him that he was a friend of

Monsen’s and would take the drugs to the United

States (Tr. A. 26-27),

On May 31, 1972, Agent Shostrom telephoned

Young and told him that his name wis “Ken Stewart”

and that he was a friend of Monsen’s who had recent-

ly arrived in Hong Kong. Shostrom told Young that

Monsen wanted Young to telephone him in San Fran-

cisco and gave him Monsen’s telephone number. Young

asked Shostrom how he could reach him and Shostrom

gave him an undercover telephone number in his

Hong Kong office (Tr. A. 201-202). :

Monsen telephoned Young from San Francisco and

told him that Ken Stewart was an “aright fellow”

who “could carry the deal of bringing the drugs into

the United States.” Young told Monsen that Stewart

Was acceptable, but that he “still had some financial

troubles” (Tr. A. 33-34).

On June 5, 1972, Young telephoned Shostrom and

asked him to “take a package” to Monsen in San

Francisco. Shostrom said that he would (Tr. A. 205-

206). Young and Shostrom met. in Hong Kong on

June 13, 1973 and agreed that Shostrom would sail for

San Francisco with a package of heroin on June 16

(Tr. A. 208-209).

On the iiorning of June 16, Young telephoned

Shostrom and told him that “the deal was off” and

that they would do business at a later date. Shostrom

responded that there would be no next time and that

Pa a cit est ——

he did not believe that Young could get drugs. The

agent hung up before Young could reply (Tr. A.

210).

Later on June 16, Young telephoned Shostrom

again and told him to have Monsen telephone peti-

tioner in Los Angeles. Young gave Shostrom the tele-

phone number of petitioner’s poultry market and told

him that after Monsen called petitioner, he wouid he

able to deliver the heroin (Tr. A. 211). Young said

that Monsen should give the code phrase ‘* Young has

just come from the airport’? when he spoke with pe-

titioner (Tr. A. 211-212, 245). Shostrom, by tele-

phone, immediately reported this conversation to

Agent Niblo in San Francisco (Tr. A. 211-212, 245).

In San Francisco, acting on instructions from Agent

Niblo, Monsen telephoned petitioner’s poultry market

in Los Angeles (Tr. A. 37). Petitioner was not in, but

Monsen left his number and petitioner soon returned

his call (Tr. A. 38). Monsen told petitioner that

“Young had just arrived on the airline,” but pe-

titioner gave no indication whether he recognized the

code. Monsen told petitioner that his friend Stewart

was scheduled to leave from Hong Kong the next day

and that there was some “business” from Young for

them to talk about. Petitioner indicated that he would

talk to Monsen in Los Angeles and Monsen said that

le would be there the next day (Tr. A. 20-41, 120-

124; Govt. Ex. No. 2).’

*Two reels of tape (Government Exhibits, Numbers f and

2), containing telephone conversations to which Monsen was a

party and which were recorded with his consent by federal

agents. were received in evidence (Tr. A. 441-442).

Sig ORME OL AOT EO

IIe De ae wise kal

bese.

PREECE TY a PEE! APO ARIES Pa nog

—

After talking with petitioner, Monsen telephoned

Young in Hong Kong and told him that since peti-

tioner had agreed to meet with hin, Young could dis-

patch Stewart with the drugs. Young told Monsen

that when he met with petitioner he should tell him to

“call his party in Hong Kong” (Tr. A. 43; Govt. Ex.

No. 2).

In Hong Kong, Young delivered to agent Shostrom

a package containing about 1 kilo of pure heroin, and

Shostrom sailed for San Francisco on Juae 18, 1972

(Tr. A. 212-214, 219, 224, 302, 280).

Meanwhile, Monsen had gone to Los Angeles where,

on June 17, 1972, he talked with petitioner at a Chi-

nese restaurant which petitioner had suggested as a

meeting place (Tr, A. 44-46; Govt. Ex. No. 1). When

Monsen mentioned Young, petitioner said that he did

not know Young or anyone else in Hong Kong. Later

in their conversation, however, when Monsen (in ac-

cordance with Young’s instruction) suggested that

petitioner “contact his party in Hong Kong,” peti-

tioner said that he would. As Monsen and petitioner

parted, petitioner offered to keep in touch and Monsen

gave him his undercover telephone number at the

3.N.D.D. in San Francisco (Tr. A. 47-49).

On June 20, 1272, Monsen learned from Agent Niblo

that petitioner had been trying to reach him at the

undercover number. Monsen immediately telephoned

petitioner’s poultry business in Los Angeles. The per-

son who answered said that petitioner had taken the

day off. When Monsen mentioned that he was calling

from San Francisco, the person said, “Oh, San Fran-

5b2-746—74——2

SADE DOE?

cisco. I have a number * * *. You call him now.’’ He

gave Monsen another number in Los Angeles at which

Monsen was able to reach petitioner a few moments

later (Tr. A. 50-53; Govt. Ex. No. 2). Petitioner told

Monsen that he had spoken with Young in Hong

Kong* and that as a result he would come to San

Francisco and talk with Monsen (Tr. A. 54; Govt.

Ex. No. 2).

Petitioner telephoned Monsen on June 22, 1972, and

told him that he was in Oakland. He told Monsen

that he wanted to meet him at the corner of Broad-

way and Polk Streets in San Francisco (Tr. 54-55;

Govt. Ex. No. 2). Petitioner picked up Monsen in

his car at the specified location and they drove around

for half an hour. Petitioner again stated that he had

spoken with Young and asked Monsen “how much

was coming” and when it would arrive. Monsen told

petitioner that the drugs would arrive by ship about

July 10 and that Young had merely told him that

there would be “two units.” Petitioner remarked to

Monsen that he was acting as a “‘broker’’ and “would

have to contact his peopie.’’ Before he dropped off

Monsen, petitioner told him that he had moved to

Oakland for a month and would stay in contact (Tr.

A. 55, 58-60, 141).

Monsen wrote Young on June 30, 1972, asking him

“‘to clarify the prices and the cut up of profits.”

Young telephoned Monsen on July 5 and told himy

*A telephone company toll statement indicating that on

June 20, 1972 a person-to-person telephone call was placed from

petitioner’s telephone in Los Angeles to a “Mr. Young” in Hong

Kong was received in evidence (Tr. A. 370-373, 470).

LEE FIN EIN TEMES, EVEL

9

to collect $7,000 from petitioner. Monsen was to keep

$1,250, Stewart was to get $1,250 plus $700 for ex-

penses, and the balance was to be forwarded to Young

(Tr. A. 61-62).

On July 7, 1972, after learning that Agent Shostrom

had reached San Francisco with the heroin, Monsen

telephoned petitioner in Oakland and told him that

the “goods had arrived.’’ When Monsen told petitioner

that Young wanted $7,000 for the drugs, petitioner

said that he did not have that much money and would

have to talk to his people. Petitioner told Monsen

that he would call him at 10:00 p.m. (Tr. A. 64-65,

144, 148; Govt. Ex. No. 2).

Because of a mistake at the L.N.D.D. office in San

Francisco, petitioner heard a recorded announcement

that the number had been changed when he attempted

to call Monsen back at the undercover number. When

Monsen did not receive petitioner’s call, he telephoned

petitioner in Oakland (Tr. A. 253-254). Petitioner

told Monsen that he had been trying unsuccessfully

to reach him and that he wanted to see him that

evening. They agreed to meet at Polk and Broadway

at 11:00 p.m. (Tr. A. 65-66; Govt. Ex. No. 2).

Federal agents gave Monsen a black valise con-

taining 10 grams of the heroin that Agent Shostrom

had brought from Hong Kong mixed with more than

800 grams of soap powder, and Monsen proceeded to

the appointed intersection, where petitioner picked

him up in his ear (Tr. A. 66-67, 254-255, 378-379).

As they drove, Monsen told petitioner that the carrier

was there and needed the money immediately and

ABE MP AGEBE EID CNG ATTIRE 6

ithe t ez perv

aero

LOGE GAEL CSL LER IO LEY NALS PLLA BF

10

that petitioner could pay $2,000 the next day (Satur-

day, July 8) and the balance on Monday. They agreed

to meet at 1:00 p.m. the following day in Oakland

at 7th and Alice Streets. Monsen kept the valise and

its contents (Tr. A. 67-69).

The next day, July 8, 1972, petitioner picked up

Monsen in his car at the designated time and place.

Monsen handed petitioner the valise containing the

soap and heroin mixture, and, petitioner gave him

$2,000 (Tr, A. 70-72). After dropping off Monsen,

petitioner drove to his apartment at 51 Vernon Street

in Oakland; he was followed by feders] agents in a

patrol car. The agents saw petitioner enter the resi-

dence carrying the valise, and they undertook a sur-

veillance (Tr. A. 72, 258, 303).

Almost three hours later, the agents saw petitioner

leave his apartment carrying a brown shopping bag

and, drive away. They followed him to co-defendant

Ho’s apartment at 728 Filbert Street in San Fran-

cisco. There the agents knocked on the door and when

petitioner opened it, they placed him under arrest.’

As the agents took petitioner into custody, they seized

a small open packet containing heroin mixed with

soap that lay on a nearby table (Tr. A. 259-267, 281,

384).

Later on July 8, the agents searched the premises at

728 Filbert and 81 Vernon pursuant to search war-

rants. At 728 Filbert they found a brown shopyjng

bag containing a mixture of soap and heroin equal to

7 Co-defendant Ho was arrested outside his apartment a few

minutes later (Tr. A. 209).

il

about half of the quantity that Monsen had given

petitioner earlier that day (Tr. A. 270, 301, 304-307,

388). At 81 Vernon the agents seized the black valise,

the balance of the soap-heroin mixture, and a packet

containing 8.6 grams of pure heroin (Tr. A, 329-341,

390-391).

Petitioner testified in his own behalf that when

Monsen first told him that he had some business for

him from Young, he had thought that Monsen was

talking about bringing a Chinese opera to perform in

the United States (Tr. B. 11). According to peti-

tioner, when Monsen mentioned smuggling drugs, he

told Monsen that he wanted no part of any illegal

enterprise (Tr. B. 14). Petitioner testified that when

he tried to call Young in Hong Kong to tell him not to

send him any drugs, the person who answered told

him that Young was not there, that the heroin had

already been shipped, and that he had to buy it (Tr.

B. 16-19). Petitioner further testified that he eventu-

ally purchased the heroin because Monsen looked like

a gangster and he feared that Monsen might kill him

(Tr. B. 22). He conceded, however, that Monsen never

threatened him (Tr. B. 42). Petitioner admitted that

after he received the heroin mixture from Monsen, he

repackaged it in small envelopes which he intended to

sell for $200 each. He also admitted that he had car-

ried the heroin to Ho’s apartment with the intention

of selling some to Ho (Tr. B. 80-83). Petitioner

claimed that the 8.6 grams of pure heroin that agents

found in his apartment had been smuggled from Mex-

ico by him exclusively for his personal use—which he

12

estimated at fourteen times a year.* He stated that he

had smuggled heroin from Mexico—always for his

own use— three or four times” (Tr. B. 68-72).

ARGUMENT

Petitioner contends that his conviction should be

reversed on the ground that he was a victim of en-

trapment by federal officers. He alleges that govern-

ment agents initiated the heroin smuggling scheme

and that their conduct was so outrageous that his con-

Viction constituted a denial of due process under the

standards of United States v. Russell, 411 U.S. 423,

430-432. .

1. Petitioner’s assertions notwithstanding, the her-

oin smuggling enterprise originated with him and

Young—not with government agents. The smuggling

ring had already been formed when law enforcement

officers entered the picture. As detailed above, pe-

titioner and Young had met in Hong Kong in No-

vember, 1971 and discussed the shipment of heroin to

petitioner in the United States. The following March,

Young approached Monsen, who at that time had no

connection with the government, and asked him to

participate in a “regular weekly business’’ of smug-

gling narcoties to this country from Hong Kong.

Young told Monsen that he already had a ‘‘reliable

receiver” in the United States whose identity he

would not divulge before it was necessary. Eventual-*

ly, of course, Young revealed that petitioner was that

receiver,

er ee

Soul aby erated

“A government expert testified that 8.6 grams of pure heroin

was enough for 170 typical individual daily doses of the drug

(Tr. A. 417).

13

It was not until after Young had invited Monsen

to participate in the smuggling operation that Monsen

went to government agents and volunteered to coop-

erate with them. Monsen maintained contact with

Young, who, despite financial difficulties, showed con-

tinuing eagerness for Monsen to transport drugs.

When circumstances led Monsen to move to San Fran-

cisco, his participation in the ring seemed in doubt.

However, Young kept Monsen in the operation by

having word sent to Monsen that he could get drugs

and that Monsen should contact him. Rather than

have Monsen return to Hong Kong, Agent Shostrorm,

posing as Stewart, contacted Young in Home Kone.

At Young’s request, Shostrom brought the heroin to

San Francisco, where Monsen delivered it to peti-

tioner.

In United States v. Russell, supra, this Court up-

held a defendant’s conviction for manufacturing illicit

amphetamines even though an undercover govern-

ment agent had provided an essential chemical ingre-

dient. As the Court noted there, in order to obtain

convictions where organized drug rings are involved,

law enforcement officers must sometimes infiltrate the

criminal organizations and participate to some extent

in theiy unlawful activities. 411 U.S. at 422.

Such infiltration is a recognized and permissi-

ble 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 %n-

less he has something of value to offer them.

Law enforcement tacties such as this can hardly

PRE Re nae A TY CELE S TILLY LLOYD EL OE EI ME PI No OE AF ect

14

be said to violate “fundamental fairness” or

“shocking to the universal sense of justice,” Kin-

sella [v. United States ex rel. Singleton, 361 U.S.

234, 246]. [411 U.S. at 432.]

Here, as in Russell, the government agents provided

something of value to the illegal entrepreneurs in

order to infiltrate the drug ring. Specifically, the gov-

ernment furnished couriers to carry the heroin (which

Young had obtained from his own source in Hong

Kong) to petitioner in the United States for distrilbu-

tion. This Court stressed in Russell that although the

chemical ingredient supplied by the governinent agent

was scarce, the defendants could have obtained it from

alternate sources and achieved their criminal purpose

without the agent’s assistance. Similarly, as the court

of appeals held here, if Monsen and Shostrom had

been unavailable, Young would simply have employed

someone else to carry the heroin to petitioner (Pet.

App. -A, p. vi).

As noted, co-defendant Young, not Monsen or Shos-

trom, provided the heroin for petitioner. This con-

trasts with the situation in United States v. Oquendo,

490 F.2d 161 (C.A. 5), relied on by petitioner (Pet.

11), where it was alleged that a government informant

was the source cf heroin which the defendant was con-

victed of distributing.” Here, Monsen and Shostrom

were mere conduits in transferring the heroin from

* Moreover, the decision in Oquendo was based upon the rite

Circuit's earlier opinion in United States v. Bueno, 447 F.2d 903,

which may well not be good law in light of this Court’s opinion

in Lussell. See United States v. Oquendo, supra, 490 F.2d at 166-

167 (Gee, J., concurring).

15

its illicit source to peticioner. Such conduct has re-

peatedly been recognized as a proper invest*gatory

tactic. See, ¢.g., United States v. Ortega, 471 F.2d

1350 (C.A. 2), certiorari denied, 411 U.S. 948; Chap-

man vy. United States, 443 F.2d 917 (C.A. 10) ; United

States v. Beckley, 335 F.2d 86 (C.A. 6), certiorari

denied sub nom. Stone v. United Stotes, 380 U.S. 922;

United States v. Davis, 272 F.2d 149 (C.A. 7); United

States v. Sohnen, 298 F. Supp. 51 (1.D.N.Y.).

In sum, “[tthe law enforcement conduct here stops

far short of violating that ‘fundamenval fairness, shock-

ing to the universal sense of justice’, mandated by the

Due Process Clause of the Fifth Amendment.” United

States v. Russell, supra, 411 U.S. at 432.

2. While petitioner purports only to raise the due

process issue, implicit in his petition is a contention

that he was entrapped as a matter of law under tradi-

tional standards, a claim which was rejected by the

court of appeals (Pet. App. A, pp. lil-iv).

In determining whether a defendant has been en-

trapped, “a line must be drawn between the trap for

the unwary innocent and the trap for the unwary

eriminal.” Sherman y. United States, 356 U.S. 369,

272. Here, petitioner was not an innocent person

whom Monsen led astray. Petitioner’s initial hesitancy

about doing business with Monsen apparently arose

from his uncertainty as to whether Monsen was an ac-

tual narcotics smuggler, not from any reluctance to

break the law. Moreover, the “principal element in the

defense of entrapment [is] the defendant's predis)o-

supra, 411 U.S. at 433. Petitioner asserts that there

SRO LA LEI LC LP EP OIOOI NGI A ed

. Sear nee LLL TILES Pee

16

was no evidence from which the jury could infer such

a predisposition on his part." However, as the court

of appeals held (Pet. App. A, p. iv), the record belies

that contention.

Petitioner agreed to meet in Los Angeles with Mon-

sen, a total stranger, after Monsen began a long dis-

tance telephone conversation with the seemingly bi-

zarre remark that ‘‘Young has just arrived on the air-

line.” At their Los Angeles meeting, petitioner pro-

ceeded circumspectly, since he was still uncertain

whether Monsen was a genuine narcotics smuggler

or an undercover government agent. However, when

petitioner telephoned Young in Hong Kong, his doubts

were allayed and his attitude towards Monsen changed

markedly. Now he was eager to do business. Petitioner

tried unsuccessfully to contact Monsen by telephone

in San Francisco. When Monsen called back, peti-

tioner had gone to the trouble of leaving another

number where Monsen could reach him if he called.

Petitioner told Monsen over the phone that he wanted

to come to San Francisco and talk with him. Peti-

” The trial court instructed the jury (Tr. A. 850) in instrue-

tions approved by the court of appeals (Pet. App. A, pp. iii-iv,

n. 1):

“The defendant asserts that he was a victim of entrapment as

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 officers

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

and the law as a matter of policy forbids his conviction 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.”

17

tioner set up a meeting in San Francisco at which he

eagerly asked Monsen how much heroin was coming

and when it would arrive. Ultimately, petitioner

agreed to pay the sizable sum of $7,000 and took de-

livery of the narcotics.

These were the actions of an experienced profes-

sional narcotics dealer—not those of an innoceiit citi-

zen seduced into criminal activity. Once petitioner

thought that he could trust Monsen, he joined en-

thusiastically in the conspiracy. At no time did peti-

tioner teli Monsen that he wanted nothing more to do

with him; neither did he go to the police.

Petitioner’s predisposition to commit the offense

was further demonstrated by the knowledgeable man-

ner in which he packed the heroin in small envelopes

for resale as soon as he received it. His admission that

he previously had smuggled heroin “three or four

times” was additional evidence of predisposition.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

Rosert H. Bork,

Solicitor General.

Henry FE. Perersen,

Assistant Attorney General.

JEROME M. Fer,

reperick W. Reap TET,

Attorneys.

NOVEMBER 1974.

©.S. GOVERNMENT PRINTING OFFICE t974

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