# Opposition Brief — Cooper v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 985

## Text

Bupre gla t. U.S
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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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1872%3A2. Public record. Not legal advice.