Opposition Brief — Cooper v. United States

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No. 92-1090 feu ob 998

'

OEFICE OF iit OLERM

Et ee —

In the Supreme Court of the united States

OcTOBER TERM, 1992

ON P]} IQ) FO 1 WwW, OF CE] |

y y 4 7'T y y ‘ r 4

() | f NITED STATI COUCH UI , i

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WILLIAM ©. BRYSON

Act ng Solicitor Genera

De partn ent of Ju

Washinator

SA P02) 514 PE i

DAYTON M. CRAMER

Colonel, JACG, U

JOSEPH A. Rt

]

ISSELBURG

fat

— ,

eutenant Colone

JACG, l

JAMES L

POHL

SA

Major, JACG, USA

TIMOTHY W. LUCAS

Major, JACG, USA

SAMUEL J. SMITH

Captain, JACG. USA

Appr llate Government Coun

Government Appe llate D

US. Army Legal Services Age)

Falls Church, VA 22041-5018

QUESTIONS PRESENTED

1. Whether petitioner was entrapped as a matter of

law.

2. Whether the government violated regulations of

the Department of Health and Human Services or the

Department of the Army in offering petitioner an

opportunity to engage in drug trafficking.

3. Whether the government engaged in outrageous

conduct.

(I)

TABLE OF CONTENTS

Page

EDIE LOE DIELS TCE RE 1

a tmuiuis 1

RES Ea OS IRE se a a a 2

A aN sidl Tai bals ssa hha dient Sibclacesabiughudeguiinabiuideckseosenoanexmaye 5

EERE SAS RI eo SS CEE ea re 14

TABLE OF AUTHORITIES

Cases:

Hampton v. United States, 425 U.S. 484 (1976) .............. 11, 13

Jackson v. Virginia, 443 U.S. 307 (1979) ............cccceeeeeeees 6

Jacobson v. United States, 112 S. Ct. 1535 (1992) ............ 7, 12

Sherman v. United States, 356 U.S. 369 (1958) ............... 7

Sorrells v. United States, 287 U.S. 435 (1932) ..........0...... 7

United States v. Allibhai, 939 F.2d 244 (5th Cir. 1991),

Gurt. Gomied, 118 BH. OF, BOT (RBBB) cccvisicccccnccesccscsecescceese. 12

United States v. Burkley, 591 F.2d 903 (D.C. Cir. 1978) .. 6

United States v. Caceres, 440 U.S. 741 (1979) ...........0..... 10, 11

United States v. Chin, 934 F.2d 393 (2d Cir. 1991) .......... 12

United States v. Ford, 918 F.2d 1343 (8th Cir. 1990) ...... 13

United States v. Gamble, 737 F.2d 853 (10th Cir. 1984) ... 12

United States v. Garrett, 716 F.2d 257 (5th Cir. 1983),

cert. denied, 466 U.S. 937 (1984) ................scscccssessseesees 11

United States v. Jannotti, 673 F.2d 578 (3d Cir.), cert.

I i MD oo ... . scccnconssousataseoananseesoene 12

United States v. Jenrette, 744 F.2d 817 (D.C. Cir. 1984),

cert. denied, 471 U.S. 1099 (1985) ................cccccsssseceeeees 12

United States v. Luttrell, 923 F.2d 764 (9th Cir. 1991),

Cort. Gensed, 112 S. Ct. IGG (UGE) ........cccccccccccccccsesenees 12

United States v. Miller, 891 F.2d 1265 (7th Cir. 1989) ..... 10, 11

United States v. Payner, 447 U.S. 727 (1980) ..............062. 10, 13

United States v. Russell, 411 U.S. 423 (1978) .................. 6, 11, 13

(IIT)

IV

Cases—Continued: Page

United States v. Simpson, 927 F.2d 1088 (9th Cir. 1991).. 10

United States v. Smith, 924 F.2d 889 (9th Cir. 1991) ...... 13

United States v. Ventura, 936 F.2d 1228 (11th Cir.

ROPES viicciscacscsthacccmsenepisisnialdipeetanatenseaadaenaananiaan .

Constitution, statute, regulations, and rule:

U.S. Const. Amend. V (Due Process Clause) ................... 12

Uniform Code of Military Justice, Art. 112a, 10 U.S.C.

DRTII,. scsssisncsicenniientinsnisnateivesibenieshanonehianbiteeniceinaiamudmunimmanaadbebales 2

GB Gir hs BBA -cvsccucerusseisapicseecsntcedinnsiamniiaaiaaddddaabis 8

Army Criminal Investigation Division Reg. 195-15

CEBIFED <sncnsiicccsoianisebetheaseniblaembepsetcandmantarendebinadalainimcatas 8

Army Reg.:

Re: TPT GD cen censrtnsiscnesiiiniancatnbeiebiadecencaie 8

POE TS CRUD hitiscsntsndicecevtestastaserensdsheuneeedeticlinnneee 8

Rule for Courts-Martial 916(g) ................c0c.c0ccccccsssssssseseees 6

In the Supreme Court of the Anted States

OCTOBER TERM, 1992

No. 92-1090

SIDNEY P. COOPER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals on

reconsideration, Pet. App. la-3la, is reported at 35

M.J. 417. That court’s initial opinion, Pet. App. 1b-

16b, is reported at 33 M.J. 356. The opinion of the

Army Court of Military Review, Pet. App. 1c-2c, is

unreported.

JURISDICTION

The judgment of the Court of Military Appeals on

reconsideration was entered on September 30, 1992.

The petition for a writ of certiorari was filed on

December 28, 1992. The jurisdiction of this Court is

invoked under 28 U.S.C. 1259(3).

(1)

2

STATEMENT

Petitioner, a member of the United States Army,

was tried by a general court-martial at Fort McNair

in Washington, D.C. Petitioner was convicted of

distribution of cocaine in violation of Article 112a of

the Uniform Code of Military Justice (UCMJ), 10

U.S.C. 912a. He was sentenced to confinement for

five years and a dishonorable discharge. The conven-

ing authority approved the findings and sentence.'

The Army Court of Military Review affirmed the

findings and sentence. Upon discretionary review,

the Court of Military Appeals affirmed in an initial

opinion and again on reconsideration.

1. In the fall of 1988, agents of the Army Criminal

Investigation Division (CID) suspected that a drug

distribution ring was operating within the CID’s

headquarters in Falls Church, Virginia. Pet. App. 2a.

On November 30, 1988, Rodney Powell became a

“registered source” for the CID and named five or six

individuals who (according to Powell) had sold drugs

within CID headquarters. /d. at 2a, 2b. Petitioner

was one of the persons named by Powell. /d. at 2a.2 At

the time, petitioner was a recovering drug addict

enrolled in the Army Alcohol and Drug Abuse

1 The “convening authority” is the commander who con-

venes the court-martial. The convening authority selects the

court-martial members (who are analogous to jurors), directs

that the accused be tried by the court-martial for the charged

offenses, and conducts a post-trial review of the proceedings.

2 Powell later testified at trial that he and petitioner had

used cocaine together, but that he had no prior knowledge that

petitioner previously had sold drugs. Pet. App. 14b-15b.

3

Prevention and Control Program (ADAPCP). Id.

at 2b.

On December 2, 1988, Powell called petitioner at

the CID’s request and asked petitioner if he could

obtain drugs.’ Pet. App. 3a. Powell told petitioner

that he knew someone who had money and wanted to

sell drugs, but did not know where to obtain drugs to

sell. Jd. at 3b. Petitioner agreed to help Powell

obtain drugs. Jd. at 3a. Later that day, as arranged,

Powell and a CID agent (posing as the would-be

seller) met petitioner at a convenience store in Falls

Church. Jbid. Petitioner led them to a crack house in

Washington, D.C. Jd. at 3a, 3b. En route to the crack

house, petitioner told the CID agent that he had sold

drugs while stationed in Panama, and he explained

how to manufacture powdered cocaine into crack

cocaine. Jd. at 3a. During the ride, petitioner said

that he was currently in a drug rehabilitation

program. [bid.

Upon arriving at the crack house, petitioner

entered the building and purchased cocaine while

Powell and the CID agent waited in the car. Pet. App.

3a-4a, 3b. Petitioner returned with cocaine, saying

that he had made “a ‘good deal’ and would do it again if

they needed more.” Id. at 4a.

On December 5, 1988, Powell again contacted peti-

tioner, and they agreed to another sale using the

same procedure. Pet. App. 4a, 3b. Petitioner, Powell,

and the CID agent drove to the same crack house as

3 The CID agent testified that only one phone call was made

to petitioner by Powell. Tr. 111-112. While that fact was

disputed, all credibility inferences must be drawn in favor of

the verdict. Pet. App. 18a n.6.

4

on December 2. Id. at 4a. Petitioner entered the

building, purchased cocaine, and returned to the car.

Id. at 4a. Petitioner again indicated that he had

gotten “a good deal” and asked to be compensated for

his services. Jd. at 4a-5a. Petitioner also said he

could do it again, but would have to do so before his

wife visited him in a few days. Id. at 4a.‘

2. At trial, petitioner admitted his role in the

distribution of drugs. Pet. App. 3b. He contended,

however, that he had been entrapped, that the

government had violated regulations of the Depart-

ment of Health and Human Services (HHS) and the

Department of the Army, and that the government

had engaged in outrageous conduct. Jd. at 3b-4b. The

convening authority denied petitioner’s motion for

dismissal. At trial, the judge instructed the members

of the court-martial panel on the entrapment defense.

Tr. 55. The court-martial panel, however, rejected

petitioner’s claim and found him guilty of distributing

cocaine. /d. at 4b.

3. The Court of Military Appeals, then a three-

judge court, affirmed in a 2-1 decision. Pet. App. 1b-

16b. The court found that petitioner was not

entrapped as a matter of law. Jd. at 7b-8b. The court

also found that the government had not violated HHS

or Army regulations, nor had the government

4 On January 17, 1989, the CID agent contacted petitioner to

arrange a third purchase of cocaine. Tr. 128. The agent

testified that petitioner agreed to another sale. Jbid. The deal

was never completed, however, because of concern that Powell

might tell petitioner about the status of the CID agent. Tr.

129.

5 The Army Court of Military Review previously had

affirmed in a brief per curiam decision. Pet. App. 1c-2c.

5

engaged in outrageous conduct. Jd. at 4b-7b, 8b-11b.

Senior Judge Everett dissented. Jd. at 11b-16b. He

concluded that the government had violated its

regulations, entitling petitioner to dismissal of the

charges. Jd. at 12b-16b.

4. In an opinion on reconsideration after Senior

Judge Everett’s retirement, a newly expanded Court

of Military Appeals affirmed in a 3-2 decision. Pet.

App. la-3la. The court found that the government had

carried its burden of proving beyond a reasonable

doubt that petitioner was predisposed to commit the

crime and therefore was not entrapped. /d. at 2a, 16a-

19a. The court concluded that the government did not

violate HHS or Army regulations and that, even

assuming the regulations had been violated, pe-

titioner was not entitled to dismissal of the charges.

Id. at Ta-16a. The court also held that the govern-

ment’s conduct was not outrageous. Jd. at 19a.°

Judges Gierke and Wiss dissented. Pet. App. 21la-

3la. They concluded that the government had violated

the applicable regulations, which warranted dismissal

of the charges. Id. at 24a-26a. They also concluded

that petitioner had been entrapped. Jd. at 26a-31a.

ARGUMENT

1. Petitioner contends that he was entrapped. Pet.

21-27. The courts below and the members of the court-

martial correctly found that petitioner was predis-

posed to commit the crime and therefore was not

entrapped.

6 Judge Cox and Chief Judge Sullivan wrote brief con-

curring opinions. Pet. App. 19a-21la.

as

6

The predisposition requirement is designed to

eliminate the entrapment defense for those defen-

dants who would have committed the crime anyway,

even absent inducement by the government. See

United States v. Russell, 411 U.S. 423, 434 (1973); see

Rule for Courts-Martial 916(g) (“It is a defense that

*** the accused had no predisposition to commit the

offense.”). It is “a state of mind which readily

responds to the opportunity furnished by the officer

or his agent to commit the forbidden act for which the

accused is charged.” United States v. Burkley, 591

F.2d 903, 913-916 (D.C. Cir. 1978).

As the courts below and the members of the court-

martial correctly determined, the evidence presented

at trial revealed that petitioner was ready and willing

to commit the crime. When Powell first called,

petitioner agreed to help him obtain drugs.’ Peti-

tioner met Powell and the CID agent later that day,

led them to a crack house in Washington, purchased

cocaine, and gave the cocaine to the CID agent. As

this Court has stated, such readiness to commit

crime establishes the defendant’s predisposition:

“[A]n agent deployed to stop the traffic in illegal

drugs may offer the opportunity to buy or sell drugs,

and, if the offer is accepted, make an arrest on the

spot or later. In such a typical case, or in a more

elaborate ‘sting’ operation involving government-

’ The CID agent testified that Powell called petitioner only

once. While there was testimony that there was more than one

call, the testimony of the CID agent must, of course, be

accepted on appellate review of the verdict. Pet. App. 18a n.6.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (the evidence

must be viewed in the light most favorable to the government).

aeeeiiaeiie aaa

sponsored fencing where the defendant is simply

provided with the opportunity to commit a crime, the

entrapment defense is of little use because the ready

commission of the criminal act amply demonstrates

the defendant’s predisposition.” Jacobson v. United

States, 112 S. Ct. 1535, 1541 (1992).

| In this case there also was further evidence of

petitioner’s predisposition. “There was evidence that

[petitioner] had used and sold cocaine in the past. In

fact, he bragged about the ability to make crack from

powdered cocaine.” Pet. App. 18a. Furthermore, “at

least on one occasion, [petitioner] indicated that he

would like his profit and showed his willingness to

buy other drugs for the government agent anytime

before his wife’s arrival.” Jd. at 19a. In sum, the

evidence amply supports the conclusion of the courts

below and the court-martial panel members that

petitioner was predisposed and therefore was not

entrapped.

Petitioner’s reliance on Jacobson and Sherman v.

United States, 356 U.S. 369 (1958), is misplaced. In

Jacobson, the defendant committed the crime only

after “26 months of repeated mailings and communi-

cations from Government agents and fictitious orga-

nizations” attempting to convince him to purchase

child pornography. 112 S. Ct. at 1541. In Sherman,

the government agent repeatedly and unsuccessfully

coaxed the defendant to buy drugs, ultimately suc-

ceeding only by playing on the defendant’s sympathy

) for a fellow drug addict suffering the pangs of

withdrawal. By contrast, in this case petitioner

readily agreed to commit a crime and did so the very

day it was proposed. Compare Sorrells v. United

States, 287 U.S. 435, 441 (1932) (“agent lured defen-

8

dant, otherwise innocent, to [crime’s] commission by

repeated and persistent solicitation in which he

succeeded by taking advantage of the sentiment

aroused by reminiscences of their experiences as

companions in arms in the World War.”). Further-

more, unlike in Sherman, Powell told petitioner that

he wanted drugs for distribution and profit, not for his

own personal use to alleviate the physical suffering of

drug withdrawal. Powell therefore did not play on

petitioner’s sympathy for a fellow recovering addict.

See United States v. Ventura, 936 F.2d 1228, 1230-

1231 n.13 (11th Cir. 1991).

2. Petitioner contends that the government vio-

lated HHS and Army regulations, thus requiring

dismissal of the charges against him. Pet. 27-32.

That contention is without merit.

a. The courts below correctly found that the

government’s conduct did not violate any agency

regulations.

To encourage participation in drug rehabilitation

programs, HHS and the Army have adopted regula-

tions regarding the confidentiality of information

provided by the participants in such programs. See 42

C.F.R. 2.17; Army Reg. 600-85 (1988); Army Reg.

195-2 (1985); Army Criminal Investigation Division

Reg. 195-15 (1987). Those regulations “proscribe

placement of informants in these programs, and use of

information gathered by informants or undercover

agents against the patients of such a program.” Pet.

App. 10a, 10b. But “these regulations cannot be

reasonably construed to give patients immunity for

post-entry drug offenses observed and participated in

by government agents or informants.” Jd. at 10a, 10b.

Indeed, petitioner concedes that “(t]he statutory and

9

regulatory provisions do not specifically address

undercover sting operations, or, for that matter, most

other aspects or techniques of law enforcement.” Pet.

31. The regulations thus protect participants from

suffering adverse consequences as : result of the

information they provide during their participation in

the program, but the regulations do not protect

participants (such as petitioner) from suffering the

consequences of their continued participation in

illegal drug trafficking activities.

Petitioner’s suggestion that the regulations create

an all-encompassing immunity and prohibit all covert

activities against ADAPCP participants would create

a safe haven for drug dealers. Of course, “[i]t is not

the purpose of drug rehabilitation programs to

provide a safe harbor for those who continue to

engage freely and voluntarily in subsequent criminal

activity.” Pet. App. 6b-7b. Such a holding would also

thwart the efforts of law enforcement authorities

who, in good faith, are trying to uphold the law

through covert drug operations.

Even if petitioner were correct that the regulations

bar CID agents from offering a known ADAPCP par-

ticipant an opportunity to partake in drug trafficking,

Pet. 31, government informant Powell did not know

that petitioner was in drug rehabilitation “at the time

[petitioner] was approached.” Pet. App. 21a (Cox, J.,

concurring). Thus, even under petitioner’s inter-

pretation of the regulations, the sting operation here

did not violate the regulations, because petitioner

“clearly was not targeted as a result of being in the

program.” Ibid.

b. In any event, even assuming the regulations

were violated, petitioner cites no support for his

10

contention that the charges against him should be

dismissed as a result. See Pet. App. 10a. The

regulations themselves do not provide such a remedy.

Moreover, this Court has been unwilling to remedy an

agency’s violations of regulations by excluding

evidence obtained in violation of the regulations or by

dismissing the prosecution altogether. See, e.g.,

United States v. Caceres, 440 U.S. 741, 755, 757 (1979);

cf. United States v. Payner, 447 U.S. 727, 737 (1980)

(Burger, C.J., concurring) (“Orderly government

under our system of separate powers calls for

internal self-restraint and discipline in each Branch;

this Court has no general supervisory authority over

operations of the Executive Branch, as it has with

respect to the federal courts.”); Pet. App. 20a (Cox, J.,

concurring) (“If the Secretary believes that law

enforcement personnel are mucking up his program,

the Secretary can fix that, and he can certainly

inhibit prosecutions in derogation of his regula-

tions.”). In the context of a criminal prosecution, the

courts are not the proper authority to establish such

remedies for an agency’s violations of its own

regulations governing the investigation and prosecu-

tion of crime. Cf. United States v. Simpson, 927 F.2d

1088 (9th Cir. 1991); United States v. Miller, 891 F.2d

1265, 1271 (7th Cir. 1989) (Easterbrook, J., concur-

ring) (“When push comes to shove, we should reject

the contention that the criminal must go free because

the constable was too zealous.”). “There are a variety

of tools available to the Executive Branch to

determine * * * what action should be taken against

those violating the regulations.” Pet. App. 16a.

As a practical matter, if petitioner’s argument were

correct, defendants would be entitled to automatic

11

dismissal any time an agency violated its regulations

during the investigation or prosecution of criminal

activity. Such a rule of automatic dismissal would

cause executive agencies to promulgate fewer rules

governing the conduct of its agents. That would not

be a beneficial result, as this Court noted in Caceres:

“In the long run, it is far better to have rules like

those contained in the IRS Manual, and to tolerate

occasional erroneous administration of the kind

displayed by this record, than either to have no rules

except those mandated by statute, or to have them

framed in a mere precatory form.” 440 U.S. at 756.

3. Petitioner claims that the government engaged

in outrageous conduct, requiring dismissal of the

charges against him. Pet. 33-37.

The courts of appeals have repeatedly stated that

they would find that the government has engaged in

outrageous conduct only in “the rarest and most

outrageous circumstances,” United States v. Garrett,

716 F.2d 257, 275 (5th Cir. 1983), cert. denied, 466 U.S.

937 (1984)—where the government’s conduct is “truly

outrageous,” United States v. Miller, 891 F.2d 1265,

1267 (7th Cir. 1989), and “shocking to the universal

sense of justice,” United States v. Russell, 411 US.

423, 432 (1973). See Hampton v. United States, 425

U.S. 484, 495 n.7 (1976) (Powell, J., concurring)

(“Police overinvolvement in crime would have to

reach a demonstrable level of outrageousness before

it could bar conviction. This would be especially

difficult to show with respect to contraband offenses,

which are so difficult to detect in the absence of

undercover Government involvement.”). The courts

below correctly determined that this is not such a

case.

12

The investigating agents had a reasonable suspi-

cion based on information from informant Powell (not

from petitioner’s participation in drug rehabilitation)

that petitioner was involved in drug trafficking.* The

government then offered petitioner the opportunity to

participate in drug trafficking, and petitioner enthu-

siastically responded. The government’s conduct was

not inappropriate at all, much iess “truly outra-

geous.” Cf. Jacobson, 112 8. Ct. at 1540 (“[T]Jhere can

be no dispute that the Government may use under-

cover agents to enforce the law. * * * Artifice and

stratagem may be employed to catch those engaged in

criminal enterprises.”) (internal quotation marks

omitted).

Moreover, contrary to petitioner’s assertion, the

government did not “[induce] a recovering drug addict

to distribute drugs and thus throw away his hard-won

sobriety.” Pet. 21. “If the government informant had

preyed on [petitioner’s] addiction to induce him to

commit the crime of using cocaine,” petitioner might

be able to maintain an outrageous government con-

duct claim. Pet. App. 10b (Sullivan, C.J., concurring).

8 Although the CID had a reasonable suspicion regarding

petitioner, the government need not have reasonable suspicion

of criminal activity before beginning an undercover investiga-

tion of an individual. See, e.g., United States v. Allibhai, 939

F.2d 244, 248-249 (5th Cir. 1991), cert. denied, 112 S. Ct. 967

(1992); United States v. Chin, 934 F.2d 393 (2d Cir. 1991);

United States v. Luttrell, 923 F.2d 764 (9th Cir. 1991) (en

banc), cert. denied, 112 S. Ct. 1558 (1992); United States v.

Jenrette, 744 F.2d 817, 824 (D.C. Cir. 1984), cert. denied, 471

U.S. 1099 (1985); United States v. Gamble, 737 F.2d 853, 860

(10th Cir. 1984); United States v. Jannotti, 673 F.2d 578, 608-

609 (3d Cir.), cert. denied, 457 U.S. 1106 (1982).

ee ee eee

13

But, as the court below observed, an appeal was not

made to petitioner’s addiction, but rather to his greed

and willingness to engage in and profit from the

illegal drug traffic to others, Pet. App. 5a-6a:

[T]his is not a ease in which an alcoholic is given

alcohol to drink or a cocaine user is given cocaine

to use. Instead, this is an instance in which an

individual who had sold cocaine in the past was

willing to become a distributor for profit, a

merchant in the spread of human misery that is

this country’s drug epidemic.

See also United States v. Smith, 924 F.2d 889, 898 (9th

Cir. 1991); United States v. Ford, 918 F.2d 1348 (8th

Cir. 1990).

In any event, this Court has never held that the

Due Process Clause requires dismissal of the

charges against a defendant in a case of outrageous

government conduct. See, e.g., United States v.

Payner, 447 U.S. at 737 n.9; Hampton v. United

States, 425 U.S. 484, 488-491 (1976) (plurality opinion);

United States v. Russell, 411 U.S. at 431-432. Since

the government did not attempt to exploit petitioner’s

weaknesses—other than his willingness to commit

drug trafficking crimes—the government cannot

fairly be said to have engaged in outrageous conduct

in this case. See, e.g., United States v. Smith, 924

F.2d at 898; United States v. Ford, 918 F.2d at 1349.9

* As the Eighth Circuit explained in United States v. Ford,

918 F.2d at 1349: “Were we to accept Ford’s argument, we

would prevent the government from making the accommoda-

tions needed to function effectively in the drug culture.

Furthermore, we would provide drug dealers with an easy

means for determining whether a potential drug buyer is an

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

DAYTON M. CRAMER

Colonel, JACG, USA

JOSEPH A. RUSSELBURG

Lieutenant Colonel, JACG, USA

JAMES L. POHL

Major, JACG, USA

TIMOTHY W. LUCAS

Major, JACG, USA

SAMUEL J. SMITH

Captain, JACG, USA

Appellate Government Counsel

Government Appellate Division

U.S. Army Legal Services Agency

FEBRUARY 1993

undercover agent. For example, if we prevent undercover

officers from ever giving quantities of drugs to drug sellers

who were also drug addicts, any dealer would easily be able to

avoid arrest by informing potential purchasers of their

addiction, real or phony, and asking for a sample of the drug.

If the purchaser refuses, the dealer would likely conclude that

the purchaser is a police officer, and refuse to sell the drugs.

Thus, the efficacy of undercover operations would be greatly

reduced and undercover agents would be seriously compro-

mised.”