Amicus Curiae Brief — United States v. Russell

Supreme Court of the United States

Ocropgr Tax, 1972

No. 71-1585

— —

Uxrrro States or AMERICA,

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION

AND NATIONAL EMERGENCY CIVIL LIBERTIES

COMMITTEE, AMICI CURIAE

—— ͤ — —RN—HZ——— ——ͤ— u—— — — —

Dam Kamys Paul G. CHEVIGNY

Kairys & Rudovsky New York Civil Liberties

1427 Walnut Street Union

Philadelphia, Pa. 19102 84 Fifth Avenue

ee New York, N.Y. 10011

Mv L. Wor

American Civil Liberties

Union

New York, N.Y. 10017 22 East 40th Street

Attorneys for New York, N.Y. 10016

National Emergency Civil Attorneys for

Liberties Committee — Civil Liberties

mon

INDEX

PAGE

of Amici 1

Statement of the Case

ae .

8 * The kistory and present status of the entrap-

b ment defense supports the decision of the court

below

Defense .

B. Present Status of the Entrapment Defense

It is impermissible creative activity for the

government to supply the contraband upon

which a prosecution is based

. The defense recognized by the court below is

essential for the preservation of political liber-

ties

USION —

A. Historical Background of the Entrapment

Cases:

_Aeoardi v. United States, 257 F.2d 168 (5th Cir.

1 ores VEE 16, 17.

4

Banks v. Date Staton, 960 F.2d em G Cir 1987) — 10

Becker v. United States, 62 F. 2d 1002 (2nd Cir. 1933) 6

Butts v. United States, 278 V. 3 (8th Cir, 1921) 10

Carbajal-Portillo v. United States, $96 F.2d 944 (9th ;

Cir. 1968) 14, 15, 16

Casey v. United States, 276 U.S. 413 (1928) 3

Commonwealth v. Harvard, 356 Mass. 452, 253 N. E. 2d

$46. (1969)... 1

Dixon v. District ot Colunbi, 994 van 966 (D.C. Cir.

1968)» 16

Groene v. United States, 454 F.2d 783 (9th Cir. 1971) 12, 19,

20, 25

Grossman v. State, 456 P.2d 226 (Alasks, 1969) 16

Henderson v. United States, 261 F.2d 909 (5th Cir.

1958) — f 14

Johnson v. Comihctiweslth, 180 8M. 2d 661 (Va. 1971) 16

Jones v. State, 101 Ga. App. S51, 115 8.1.20 576 (1960) 18

Kadis v. United States, 373 F.2d 370 (1st Cir. 1967) —11, 17

Klosterman v. United States, 248 F.2d 101 (3rd Cir.

1957) 18

PAGE

United States, 373 U.S. 427 (1968) . 10, 11

ev. Sinclair, 387 Mich. 91, 194 N.W.2d 878

2) .. 3 16

Strong, 21 II. 2 320, 172 N.E.2d 765 (1961) . 21

Ohio, 360 U.S. 493 (1959) . 22

v. United States, 379 F.2d 338 (9th Cir. 1967) . 16

v. United States, 356 U. S. 369 (1958) _..8, 9, 10, 18,

25 14, 15, 18 28

v. United States, 381 F.2d 784 (D.C. Cir,

ae 11, 16,19.

f v. U. S., 287 U.S. 485 (1982) 2.8, 4, 5, 6, 7, 8, 12,

5 18, 14 15, 17, 21, 2 27

ite v. Boocelli, 105 Aris. 495, 467 P-2d 740 (1970) 17, 19

Ct of App. 9/29/72) 16

4 ol. (DMI. Ce. No.

ited States v. Bueno, 447 F. 24 902 (5th Cir. 1971) 19, 21

ted States v. Campbell, 285 F. Supp. 190 (E. D. N. v.

lied States v. Chisum, 312 F. Supp. 1807 (CD. Gal

970) 10, 11, 16, 19, 21

Med States v. Dillet, 265 F. Supp. 980 (S. DNT.

86) : 17, 19

Ried States v. Freed, 401 U.S. 601 (1971) — #

Reed States v. Kirschenblatt, 16 F.2d 202 (2nd Cir.

14

iv

dne State . Mos, 296 F Sopp. 972 (ED. Pa

1969) 5.

“United: States . Morrison, 348 F.2d 1003 (2d Cir.)

Pty denied, $82 U8. 905 (1965) 11. *

Whiting v. United States, 821 F.2d 72 (1st Cir, 1963) .. 1

Wien v. Masia States, 311 F.2d 441 (Sth Cir. ©

1962) — 181

Woo Wai v. dates State, 228 F 412 (9th Cir. 1016) — 3

United States Constitution:

ith Amendment

Bramstedt, Dictatorship and Political Police (1945),

vp. 59-60

eue, Cops and Rebels (1972), passim, esp. 249-

e III. I. Fouvm 821 (1964) FOS ASABE AS

Comment, 74 Yaux L.J. 942 (1965) 10

Cowen, The Entrapment Doctrine in the Federal

“ Courts, and Some State Court Comparisons, 49 J. or

nnr. L., Crocmotocy, and P. S. 447 (1959) — 6, 10, 11

- Donnelly, Judicial Control of Informants, Spies, Stcol

Pigeons, and Agents Provocateurs, 60 Tala LI. 1091

(1951) 7, 10,17

‘Domest, “Agent-Provocateur as Folk-Hero,” Civil

Liberties, September, 1971 2

Donner, The Confessions of an FBI Informer,”

Harpers, December, 1972, pp. 54, 58 25, 26

28

Gourts, 90 U. Pa. L. Rav, 245 (1942) 10,17

del Penal Code, Tent. Draft No. 9, Sec. 2.10... 10

Yale L. J. 1046 (1969) 20

baum, “Run, Tommy, Run,” Esquire, July, 1971,

pp. 51, 58-59 25, 26

‘Rotenberg The Police Detection Practice of Encourage-

dest, 49 Va. L. Rav. 871 (1963) . 10

liams, The Defense of Entrapment and Related

| Problems in Criminal Prosecution, 28 Fouvnau I. |

F B v. 899 (1959) 17

Unrrep States or AMERICA,

Petitioner,

E against—

RioRAnͥůũV RussEt1,

- Respondent.

—

EF FOR AMERICAN CIVIL LIBERTIES UNION

D NATIONAL EMERGENCY CIVIL LIBERTIES

COMMITTEE, AMICI CURIAE

Interest of Amici

The American Civil Liberties Union and the National

nergency Civil Liberties Committee have a long-standing

CFF

s to be free from denial of due process of law

PPTP

viti 3 by government agents bent on securing convictions.

The case at bar draws into question the propriety of the

bvernment supplying the contraband upon which a prose-

fon is based. The question is a complex one, and we

eve that our brief will be of substantial assistance to

ietters consenting to the filing of this brief have been

0 A with the Clerk.

e ene sens

Is it a defense to a crime of trade in contraband that U

government has supplied the contraband or an indispen-

sable element of the contraband?

Statement of the Case

| The essential facts of this case are set forth in the ms

jority opinion of the court below. 459 F.2d 671 (9th Cir.

1972).

Summary of the Argument

I. The history of the entrapment defense in this and

other courts discloses a de facto and in some cases a de jure

rejection of the “predisposition” standard of the majority

in Sorrelle v. United States, 287 U.S. 435 (1932). Regard-

less of the expressed rationales, the courts have condemned

and prohibited prosecutions based on excessive creative ac-

». tivity by government officials even where the defendant's

‘predisposition seems clear. Following this reasoning, some

courts, including the court below, have established an en-

trapment-related defense based on creative government ac-

tivity under which the government may not supply. the

ee et 5

u. Courts have found it permissible for an official to

offer an opportunity for crime; more creative activity than

that is not justified by a legitimate state interest. Supply-

ing an element of the crime implies that that clement was

P

‘son . Pe. 5 4“ 2

r 8 . 8

,

ae.

een if Scag es ie ene

2 Arn va 22 15 33 pie . £. %

A +) 2 5 2 1 * be adopted by this

ARGUMENT

L

ical Rackground of the Entrapment Defense

apment is a judicially created doctrine dating back

8. Tt was first discussed by this Court in Casey v.

ed States, 276 U.S. 413 (1928), where Justice Brandeis,

snting, said the government

may not provoke or create a crime and then punish

the criminal, its creature.

his prosecution should be stopped, not because some

right of Casey’s has been denied, but in order to pro-

the Government. To protect it from illegal con-

st of its officers. To preserve the purity of its

is.” 276 U.S. at 423.25.

a Sorrells v. United States, 287 US. 485. (1982), a

Ned Court attempted to define the doctrine, but the

Bis Gest decision was Woo Wai v. United States, 223 F. 412 (9th

— division ae: nil wich today. Sorrella

Was charged with ese ‘one half-gallon of whiskey

e division ‘during World Wer I, and, after

. 8 3 1a half-gallon of whiskey. Sorrells’ }

| get for hang on npn Ob

trial judge. g :

This Court reversed the “conviction and ordered a new

trial. In an opinion written by Chief Justice Hughes, the

majority. framed an entrapment defense prompted by im-

proper governmental conduct but available only to “other.

wise inndeent persons.” The defense was based on an un-

expressed intent of Congress to exclude from its criminal

statutes the injustice that conviction of entrapped “in-

nocents” would accomplish. Regardless of the nature and

extent of the governmental activity, the Court said, there

is no entrapment if the defendant has the 3

to commit the crime or if the “criminal design” —

with the defendant.

“There are fundamental theoretical and practical prob-

“Jems with this approach. It is contrary to our traditions

and beyond our scientine .knowledge to attempt to dis-

tingnish the criminal from the noncriminal by predisposi-

tions or propensities to commit crimes. It is one thing to

vids Os A Rg it is quite another to give

crucial significance to a predisposition which is antece

: e ee ee ot vol Ss He

A

, are there really any “innocents” among defen-

o have all done exactly what Congress has defined

al? Those who refuse the government’s induce-

provocations or temptations are neither entrapped

rged with crimes. Clearly, all defendants claiming

t who have been induced, provoked or tempted

vernment agent, have demonstrated a “predisposi-

5 commit the crimes they have committed. We know

vause they have committed them. They may not have

5 ee the exact details,“ but they are

disposed“ in the sense that they all proved to be open

what they have done, given the inducement, provoca-

01 a Can we say that any of them are more

sed than they all are in this sense? Can we say

y oat meaning, for instance, that a defendant who

if illegally sold liquor ten times after inducement by an

ent is more predisposed than one who has done it once

‘the same inducement! Or that one who must be asked

fice is less predisposed than one who completes the sale

‘the first request? All we really know is that all of

the are predisposed to sell liquor illegally when induced.

An @ the only appropriate question is whether the govern-

al conduct i is proper; whether, in Sorrells, for example,

.. for the agent to ingratiate himself with the

nt by use of friendship and comradeship and then

to commit the crime three times. If entrapment is

ledged to be illegitimate, it should be because the

nt has acted improperly, not because the defen-

ect eee originate with the govern- .

t the criminal beg 4 no matter how induced,

tempted, or ties in the mind of the defendant,

Further, this predisposition that purports to distinguish

the’ “himosenit?” trom the “guilty” is impossible of reliable

proof. The courts that have followed the Sorrells approach

do not attempt a dissection of the defendant’s. mind; they

merely rely on the past activities of the defendant, includ.

‘ing, in some cases, even suspected and rumored activities

for which the government has insufficient evidence to ob-

tain an indictment and conviction.* Thus, if one has violated

the law in the past, it is assumed that he or she is pre-

disposed” to do it again. Stated another way, in more

practical terms, it means the government is allowed to en-

trap persons with criminal records or bad reputations. The

government ean selectively prosecute persons it does not

like for: ‘erimes that it manufactures.

2 ‘Justices Roberts, Brandeis and Stone, concurring in

Borrells, had a different view. They found that the Huge

. 8 a form of words to justify action which ought to

de based on the inherent right of the Court not to be

made the instrument of wrong.

“ees

“Whatever may be the demerits of the defendant or his

85 previous infractions of law, these will not justify the

instigation and creation of a new crime, as a means to

reach him and punish him for his past misdemednors

i jo say that such conduct by an official of the

: bee fs condoned ani rendered innoctious by the

_ fast fant the defendant hag a bad reputation or had

Beck F (2nd Cir. 1933).

Cowen, 3 Doctrine in the Federal

2 *

7

_ previously transgressed is wholly to disregard the rea-

don for refusing the processes of the court to con-

‘Summate an abhorrent transaction. It is to discard

basis of the doctrine and in effect to weigh the

ities as between the government and the defendant

hen there are in truth no equities belonging to the

latter, and when the rule of action cannot rest on any

estimates of the good which may come of the conviction

of the offender by foul means.” 287 U.S. at 456-59.

thus the lines were early drawn. The Hughes approach,

ased on a statutory interpretation,“ recognized the need

lo stem “shocking” governmental conduct, but only for

mts” and those not “predisposed” to crime, a task

N —

in theory and impossible in practice. The Roberts

dach, based on the inherent supervisory power of the

and public policy, and implemented by the courts,

ed on the evil to be remedied—lawless, reprehensible

ment conduct—and not the individual entrapped.

ren. the basis for the Hughes ruling, the entrapment defense

: ae’ * — caine cra de

Juntice rni e a ity of the defense

tor “innocents,” “Is the statute upon which the indictment

ed to be further construed as removing the defense of entrap-

ant from [defendants with bad records or reputations]”? 287

| Donnelly, Judicial Control of Informants, Spies, Stool

and Agents Provocateurs, 60 Yauz L.J. 1091, 1111 (1951) :

7.

. =

: 3

oe

The issues were next confronted in Sherman v. United.

States, 856 U.S. 369 (1958). Sherman and an agent met at

a dottor’s office where they were both being treated for

drug addiction. After first refusing, Sherman secured some

heroin for the agent and himself. Chief Justice Warren,

writing for a majority of five, held there was entrapment

as a matter of law, but specifically refused to reconsider

Sorreils because the issues were not raised below or argued

before the Court. The crucial questions—the basis for the

doctrine and whether the focus is the government conduct

alone or includes an evaluation of the individual defen.

dant—were specifically left open by the majority.

Justice Frankfurter, joined by Justices Harlan, Douglas

: and Brennan, concurred in an extraordinary .

is worth quoting at length:

hne lower courts have either ignored [Sorrells] and

continued to rest decisions on the narrow facts of each

case, or have failed after penetrating effort to define

a satisfactory generalization, see, e. g., United States

v. Becker, 62 F. 2d 1007 (L. Hand, J.)

A the defendant is to be relieved from the usual puni-

tive consequences, it is on no account ‘because he is

innocent of the offenses described. . conduet is not

less criminal because the result of Stites 7

“Insofar as they are used as instrumentalities in the

edministration of criminal justice, the federal courts

have an obligation to set their face against enforce-

ment of the law by lawless means or means that vio-

late rationally vindicated standards of justice, and

wen to refuse to sustain such methods by effectuating

en They do this in the exercise of a recognized

sdiction to formulate and apply ‘proper standards

the enforcement of the federal criminal law in the

ral courts,’ McNabb v. United States, 318 US.

341, an obligation that goes beyond the conviction

the particular defendant before the court. Public

idence in the fair and honorable administration of

Justice, upon which ultimately depends the rule of

; is the transcending value at stake.

a Tt 2 crucial question, not easy to answer, to which the

court must direct itself is whether the police conduct

revealed in the particular case falls below the stand-

ards, to which common feelings respond, for the proper

“use of governmental power.

matter what the defendant’s past record and pres-

‘inclinations to criminality, or the depth to which he

s sunk in the estimation of society, certain police

onduct to ensnare him into further crime is not to be

» tolerated by an advanced society... .

rmissible police activity does not vary according to

particular defendant concerned ; surely if two sus-

sts have been solicited at the same time and in the

me manner, one should not go to jail simply because

has been convicted before and is said to have a

minal disposition. No more does it vary according

the suspicions, reasonable or unreasonable, of the

ie 6 concerning the defendant’s activities.” 356 U.S.

379-83.

under the Frankfurter-Roberts approach, entrap-

a self-preservation and self-protection device for

10

the courts and society, based on the inherent supervisory

power of the eourte and public policy’ and implemented

by the courts. Its purpose is preservation of the integrity

of the courts and society and prohibition of overzealous

law enforcement that promotes rather than detects crime.

And the very real danger of selective prosecution of per-

sons with bad records or reputations whom the govern-

ment wishes to punish for political (see Point III, infra)

or other reasons based on government manvfactured crimes

cifically recognized and eliminated under the Frankfurter.

Roberts approach. Id. at 383."

1¹

mont defense is unresolved. Since there was no sub-

te the entrapment claim in Lopes, these questions

A not have to be resolved, but this Court said of entrap.

s defense of entrapment, its meaning, purpose, and

application, are problems that have sharply divided

Court on past occasions. [Citation omitted.]

Whether in the absence of a conclusive showing the

defense is for the court or the jury, and whether the

ontrolling standard looks only to the conduct of the

“Government, or also takes into account the predisposi-

d of the defendant, are among the issues that have

sn mooted... .

The conduct with which the defense of entrapment is

5 ned is the manufacturing of erime by law en-

t officials and their agents.“ Id. at 434 (em-

ens might expect, Lopes has been read by many courts

be an invitation to reassess the entrapment defense and

e in the direction of the Frankfurter-Roberts approach.

Bg. Smith v. United States, 381 F.2d 784 (D.C. Cir. 1964)

m banc); United States v. Morrison, 348 F.2d 1008 (2d

) cert. denied, 382 U.S. 905 (1965); Kadis v. United

Hes, 373 F.2d 370 (ist Cir. 1967); United States v.

‘sum, 312 F. Supp. 1307 (C.D. Cal. 1970). That ap-

ach, approved during the past forty years hy seven

ice of this Court, is still open for approval by a ma-

12

D. . she Making ities

3 n . ear Wees in thi Sssden et the Framkturtg

Roberts view which focuses solely on the government con-

duct—is not only wiser and more consistent with an ordered,

civilized society, but also is now accepted, either de jure

or de facto, by the majority of lower federal courts. The

defense: recognized by the court below may be viewed as

following from the Frankfurter-Roberts approach, or as

36 “oreative activity” raising

fing objections which render entrapment

ae e to: e criminal: justice . 459 F. ad at

674, quoting Greene v. United States, 454 F. 2d 783, 787 (9th

Dir. 4971) (emphasis added). ‘To establish this thesis we

„% ater e cae ah tae the Ling

6 n at ve” and “predisposition” ; (2) cases ex-

doy ting the Frankfurter. Roberts view; (3) cases

concept of aba ti and 15 cases concerning “ere-

pa nna 1 not traditionally thought of as

sun U the of Sorrells:

13 — ga 2

ear oute use. ‘the a: of Sorrells concerning

eee.

the facts sin these cases, however, reveals that when the gov-

ernment conduct is seriously improper, the courts sustain

tie entrapeeent intense, even the face of clear proof

Kees m,” in effect applying the Frankfurter

13

1 Roberts approach This point can be demonstrated by an

~@zamination of the facts in many cases, commencing with

f el itself.

i Borrells, although this Court only remanded for a

4 3 new trial, the majority repeatedly referred to the “in-

noddence“ of the petitioner, saying:

it is clear that the evidence was sufficient to warrant

e finding that the act for which the defendant was

5 sated was instigated by the prohibition agent,

it was the creature of his purpose, that defendant

ad no previous disposition to commit it but was an

industrious, law-abiding citizen, and that the agent

lured defendant, otherwise innocent, to its commission

„ 287 U.S. at 441 (emphasis added).

ibed above, in that we know he was open to sell liquor

y if a companion from World War I asked him three

time But more importantly, the trial record, as reported

tus opinion of the court below, indicated the government

iad proved that: (1) Sorrells had a reputation in the com-

uty as a “romrunner;” (2) he had subsequently sold

iquor illegally to other agents; and (3) his house was sub-

Wentiy searched and eleven one half-gallons of illicit

hiskey—like the one he had sold to the agent—were found.

20 at 974, 980. This “industrious, law-abiding citizen

otherwise innocent,” may have been regularly selling

Wey illegally, But the government’s role—the induce-

4

3

N

gy gt

| il because couria are motivated the legitimate rationale

he entrapm a ee ten ern and

et ma of the integrity of the courts and the society.

14

een een bag cg een n the ee

„Simülariy, l ot tee mR

eee ee ee eee ee,

addicted to drugs he could only obtain illegally (for which

he was undergoing treatment), and he sold narcotics to the

government agent. On that record it is hard to explain,

or for the lower courts to understand, this Court's finding

that, as a matter Of law, Sherman was an “innocent”

violator. Again, the government conduct, leading the de-

fendant away from treatment and back to his past life with.

eee reer ren ver, Sovernne She convic-

tion.

Since Sorrells and Sherman, there have been numerous

decisions that uphold an entrapment defense based on the

language of Sorrelis but under circumstances where the de-

fendant is factually neither “innocent” nor lacks “predis-

position.” E.g. Carbajal-Portillo v. United States, 396 F.2d

944 (9th Cir. 1968) (although defendant was definitely pre

disposed to sell drugs, court upholds entrapment because

sfendant was not predisposed to bring them into the

United States and sell them here, which he did); Hender-

bon v. United States, 261 F.2d 909 (5th Cir. 1958) (defen-

dant with prior drug convictions who admitted to prior

use found “unwary innocent” even though government

agent testified that “we had knowledge that she was in the

traffic ;” defendant was induced to get drugs from informer’s

contact for informer and his wife, who were close friends

of defendant’s and told her they desperately needed the

drugs); United States v. Campbell, 235 F. Supp. 190 (E.D.

N-Y. 1964) (agent placed illegal bets with defendant

a friend of defendant; no repeated requests and

that defendant had taken other illegal - bets) ;

tates v. Kros, 296 F. Supp. 972 (E.D. Pa. 1969)

lant sent obscene material through mail in response

in “Swinger’s Life Magazine” placed by the govern-

court held defendant had predisposition to sell ob-

ene material but no predisposition to do it through the

even though defendant responded to the ad from

er state and may well have anticipated the use of the

} cases evidence a tortured attempt to find a lack

predisposition when the court believes the government

acted wrongly. Justice Frankfurter recognized this

m with the Sorrells approach in Sherman: :

he lower courts have continued gropingly to express

ie feeling of outrage at conduct of law enforcers

that brought recognition of the defense in the first

instance, but without the formulated basis in reason

that it is the first duty of the courts to construct for

Justifying and guiding emotion and instinct.” 356

S. at 378. 3

re are, however, some threads running through these

In each, the government has abused its powers.

Placed an ad in “Swinger’s Life Magazine” to

lonely readers (Kros), encouraged a destitute

m citizen to bring narcotics into the United States

Warbajal), or interfered with a defendant’s attempt to

-drugs (Sherman). Very often they involve situations

wre. the government has abused close relationships

sd by society, such as friendship or companionship

War, or interfered with socially useful programs, such

0 atment for drug addiction.

Po ao ea a

furter-Roberts view. United States v. Chisum, 312 F.

Supp. 1307 (C.D. Cal. 1970) (pre-trial motion to dismiss

: - indictment based on entrapment granted; defendant had

ion, but, “Entrapment is indistinguishable

from other law enforcement practices which the courts

have held to violate due process. . Were the courts to

sanction the law enforcement e committed in this

case, it would transform the laws designed to promote

the general. welfare into a technique aimed at manufac.

turing disobedience in order to punish, a concept thor-

oughly repugnant to constitutional principles”) ; State v.

Saine, —— N. M. ——, 11 Cr. L. 2108 (N. M. Ct. of App.

9/29/72); People v. Binolair:; 387 Mich. 91, 194 N. W. 2d

878 (1972); Johnson v. Commonwealth, 180 S. E. 2d 661

(Va. 1971) (“The defense of entrapment is, in essence,

a rule of fairness that bars the conviction of an accused

in the event of improper police conduct”); Grossman v.

State, 456 P.2d 226 (Alaska, 1969). See also Smith v.

United States, 381 F.2d 784, 790, 792 (D.C. Cir. 1964)

(en bane); Dixon v. District of Columbia, 394 F.2d 966,

970 (D.C. Cir. 1968); Carbajal-Portillo v. United States,

396 F. 2d 944, 948 (9th Cir. 1968) (entrapment is a defense

“not because inducement negatives criminal intent‘ and

thus establishes innocence; but because Government agents

should not be permitted to act in such a fashion”);

Aobardt v. United States, 257 F.2d 168, 172-73 n. 5 (5th

Cir, 1958) (favors but does not fidopt Frankfurter-Roberts

approach) ; Robison v. United States, 379 F.2d 338 (9th

Cir. 1907) (same). The Frankfurter-Roberts ‘view is *

12

et scholars “who: have written cn

„

abe of courts, faced with the division in this Court

lower courts, have adopted both approaches as

mative bases. United States v. Morrison, 348 F. 2d

(2d Cir.), cert. denied, 382 U.S. 905 (1965) (applies

is standard and, “alternatively, whether, in exposing

fendant’s criminality, the government agents have

in an offensive manner or lived up to reasonably

civilized standards for the proper use of government

); United States v. Dillet, 265 F. Supp. 980 (S. D.

1966); State v. Boccelli, 105 Ariz. 495, 467 P.2d 740

3 Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.

(1969). See also Kadis v. United States, 373 F.2d

Cir. 1967); Whiting v. United States, 321 F.2d 72

ir. 1963); Accardi v. United States, 257 F.2d 168

Vir. 1958); United States v. Kros, 296 F. Supp. 972

. Pa. 1969) (“the thrust of the doctrine is to enjoin

Government from acting in improper ways”).

Cases Limiting “Predisposition” by de

Concept of Abandonment 7

tere the “predisposition” has been abandoned but then

Wed as a result of governmental. conduct, courts have

held the entrapment defense, which makes sense under

lis as well as the Frankfurter-Roberts approach.

Ee, Cowen, supra note 4; Donn supra note 6; Mikell,

ro et, Wits, The 3 and Related

ems f. S (f. . Rav. 899 (1959) ;

18 eg

Klosterman’ v: United: States, 248 Fand 101 (3rd Cir. 1050

FFC

voughé . b the gates and eres bin in front

of the press; “every objection and obstacle which the defen.

))))

Dna iy Thought of as Entrapment

Without ee e adopting or refuting the Frank-

ee ee e have. analysed .

trapment situations in terms of the supervisory power as

defined in Justice Frankfurter’s concurring opinion in

Sherman. All of them involve situations where the defen-

dant’s predisposition to commit the crime is quite clear

(or as clear as that concept can be), but the courts, pur-

suant to the supervisory power, evaluate only the govern-

ment conduct.

In Williamson v. United States, 311 F.2d 441 (5th Cir.

, 1962) an informer made a contingent fee arrangement with

the government; he was to receive a specific amount of

money for each specific person he could incriminate. The

Court held that such an arrangement must be prohibited

pursuant to the supervisory power, that “McNabb and its

progeny clearly forbid the Government to make use of the

fruits of wrongdoing by its officers or agents.” 311 F.2d

at 445. Judge Brown, concurring, said:

4 . recognized as is the role of informers in the enforce-

ment of criminal laws, therécomes a time when enough

is more than enough—it is just too much. When that

ours, the law must condemn it as offensive whether

method used is refined or crude, subtle or spectacu:

‘BLL F.2d at 445. | :

were purchased in Mexico, brought into the United

the informer and then sold to a government agent

fendant. The Court reversed the conviction, pur-

the supervisory power, saying:

the sales of heroin were made through the creative

‘activity of the government.. . The government’s case

cannot rest on the mere fact that [defendant] entered

into the informer’s plan willingly.” 447 F.2d 906.

Th Same result was reached on virtually identical facts

ed States v. Dillet, 265 F. Supp. 980 (S.D.N.Y. 1966)

State v. Boccelli, 105 Ariz. 495, 467 P. 2d 740 (1970).

same principle was applied in Smith v. United

$, 331 F. ad 784 (D.C. Cir. 1964) (en banc) (informer

defendant heroin in defendant's apartment; defen-

apartment searched and defendant arrested for pos-

m forty-five minutes later); and United States v.

bum, 312 F. Supp. 1307 (C.D. Cal. 1970) (undercover

gent supplied counterfeit money upon which charge of

ing such counterfeit was based).

i United States v. Greene, 454 F. 2d 783 (9th Cir. 1971)

art noted the sharp division concerning entrapment

reated a somewhat different but related defense.

dants were charged with sale of bootleg liquor, pos-

Mon of still apparatus, and conspiracy. They had set

still and were producing bootleg liquor for sale to

lan who identified himself as a “syndicate man” but

y & government agent. The agent assisted de-

fendants over a long period of time and supplied, inter :

alla, parts for the still, containers, and chemicals. =

Court found the bootleg liquor “might never have |

produce” without th ware and urging of the aga

“We sis is dhl tes Wndelaek may involve itself

0 direetiy and continuously over such a long period

of time in the creation and maintenance of

operations, and yet prosecute its collaborators. As

pointed out in Sherman v. United States, supra, at 372

a certain amount of stealth and strategy ‘are necessary

‘weapons in the arsenal of the police officer.“ But, al-

‘though this is not an entrapment case, when the Gov.

ernment permits itself to become enmeshed in criminal

| activity, from beginning to end, to the extent which

appears here, the same underlying objections which

render entrapment repugnant to American criminal

justice are operative. Under these circumstances, the

Government’s conduct rises to a level of ‘creative ac-

tivity’ (Sherman, supra, at 372), substantially more in-

tense and aggressive than the level of such activity

charged against the Government in numerous entrap-

ment cases we have exginined.” 454 F.2d at 787.

In summary, it is clear that even before the decision of

the court below, the courts had set their faces against

excessive creative activity in manufacturing crimes, re-

gardless of the rationale adopted in the particular case

The cases in the foregoing sections, even those which appeat

to go beyond the entrapment defense, may be justified

under the Frankfurter-Roberts view, and it is the position

ot amici curiae that that standard should be adopted Wy

this Court.

e cases relied on there, see Point I (5) supra; United

v. Bueno, supra; United States v. Chisum, supra;

jople v. Strong, 21 II. 2d 320, 172 N.E.2d 765 (1961),

ong 18 effect adopted the position that it is a per se defense

§ @ contraband crime if the government has supplied the

ntraband. Amici urge the view that this conclusion is

npelled under any theory of the law, although it is almost

f-e bent under the V view.

mates the policies underlying the decision of the court

v. The courts permit agents of the government to offer

suspected person an opportunity to commit a crime,

otherwise many crimes, especially those involving

and, could not otherwise be detected. The state has

est only in apprehending those engaged in criminal

by the mere offer of a neutral opportunity, see

lls v. United States, 287 U.S. at 441, not in the “manu-

ring of crime,” Lopes v. United States, 373 U.S. at 434.

tere is no state interest in intervening in contraband trade

‘such a way as to obtain any result other than an arrest

8 bon an opportunity. If the government supplies

eontraband, then it is not acting within the bounds of its

mate interest..

Beil be argued that in a cane such as this the govern

it did little different from offering an opportunity; the

5 2

JJ 0

done so if he had been able. But if that is so, it is impos

sible to explain why in fact the government did not simply

wait until he did commit it sua sponte, that is, until he him

self obtained the components, manufactured the drug and

sold it to the agent. By the act itself of supplying the

contraband, or a necessary element of it, the government

has told us that merely to supply an opportunity to the de.

fendant was not enough; if it were enough, then that ia

surely exactly what the government would have done.

This inescapable proposition lies behind all the decisions

which.condemn any conviction for a contraband crime if the

goverment supplies the contraband. The court below sug-

gested as much by its finding that the component, phenyl-2,

propanone, could not have been obtained without the inter-

vention of the agent. The dissent disputes that finding,

but whether or not it is in fact the case that the component

was available from another source is beside the point. If

the component really was so easily available, then it was

simple for the government merely to wait and buy the

finished product from the defendant. The government has

implied by its conduct that the crime would not have been

committed without its intervention, and cannot now say that

it would have been commiittéd in some other way.”

The majority below cited this Court’s decision in Raley

y. Ohio, 360 U.S, 423 (1959), and the government has

branded that reference “inapposite” (Brief for the United

States, p. 26 fn. 17). That case is different from this, be-

cause there the state had actually advised the defendant

5 ee ee e

rule advaneed here shld be the lew rane oot Sle oe

Appellants’ brief, pp. 11, 82. 2

onduc was permissible. But the estoppel principle

inderlies that decision is similar to the one which

this: the government, having shown by its con-

be said that such supply as a matter of law creates

stantial risk that a person not predisposed will commif

r n innocent person will be convicted. Under the

ls formulation of the defense, it may be said that,

the government supplies the contraband, as a matter

the likelihood that the defendant would commit the

crime cannot be known beyond a reasonable

‘sum, to permit a conviction for the sale of contraband

the government has supplied violates fundamental

tds of fairness in two ways. First, there is no inter-

the state in prosecuting a manufactured crime; the

t of the state at most supports offering an oppor-

to commit a crime which would otherwise be com-

As a matter of logic, supplying the contraband

the bounds of that interest. Second, the interven.

Tt ma; be argued that this statement is less true under the

4 al f. ete of this on hae the defendant showed his propen-

nanufacturing the That argument ignores the possi-

yt Aah t never have been made at all, without the

nts

| Amendment or mar he nnen power of his Com,

.

6

tial for the preservation of political lherties. 25

JJ ee

portance at thie Hime, The question of the permissible de-

gree of “government intervention” in the commission af

erimes has been raised as a public matter repeatedly in

recent eases of great notoriety involving prosecutions 9

political dissidents. As Learned Hand put it,

“Nor should we forget that what seems fair enough

against (liquor law offenders] may take on a very

‘different face if used by a government determined to

| Suppress political opposition. United States .

2 Kirschenblatt, 16 F.2d 202, 208 (2nd Oi. 1926).

Some of the cases 1 the actual supplying of con-

traband, in a manner parallel to this case and its recent

forebears.. The appendix filed in this Court in the case of

United States v. Freed, which came before this Court ons

different point, 401 U.S. 601 (1971), discloses that the un-

registered hand grenades whith the defendants were in-

ieee ee

See Oe Tete

orted that at a trial for conspiracy to cause a

United States ‘District Court at Tacoma, Wash-

lercove! agent testified that he was directed

ment superiors to offer to purchase dynamite

ng caps, and that he did purchase potassium

supposedly to make fire bombs. New York Times,

8, 1970, p. 52. It is further reported that one

Tongyai, a government agent operating in Geneva,

supplied and taught the use of a rifle and a

ollege students. Rosenbaum, “Run, Tommy, Run,”

July, 1971, pp. 51, 58-59; Donner, “Agent-Pro-

ras Folk-Heto,” Civil Liberties, September, 1971.

upplying contraband upon which an arrest may be

fed, either for its possession or some derivative crime, is

course one of the simplest tools of provocation against

itical dissidents. To cite only one example from a long

A dishonorable history, Mussolini’s secret police, the

BA, discredited its enemies and obtained their arrest

Eplanting explosives and weapons, Bramstedt, Dictator-

d Political Police (1945), pp. 59-60.

problem, however, is not limited to the supplying

“eentraband ; there has been a pervasive growth of the

gree of governmental participation” in allegedly crimi-

enterprises of political dissidents. It is only a step

m the supplying of contraband to the provocation of

mplex crimes. Cf. Greene v. United States, supra.

some clear in several recent cases that agents have

the driving force for actions resulting in arrests

conspiracy and other criminal charges. See Donner,

ie Confessions of an FBI Informer,” Harper’s, Decem

‘op. cits; Donner, op: cf Chevigny, Geer en ,

bassin, esp. 249-276. (eolleots cases and analyze

one pri ecution of Black Panthers). Of these, perhaps ts

clearest example has occurred in United States v. Anders

son, eal: (D. J. Or. No. 602-71), in which the defendants

are with conspiracy to destroy and destruction dt

selective service records. In that case, the government

agent, Robert Hardy, stated in an affidavit sworn to Feb

ruary 28, 1972, and filed in the case (affidavit at p. 4) %

ee. definitely wouldn't have happened without me.

1 Mariel 90% tm tole ren for thew

tion. They couldn’t afford them, so I paid and the

FBI reimbursed me. ö

hits, et. They couldn't use some of the tools with

hurting themselves, so I taught them. My van was

used on a daily basis (the FBI paid the gas). I rented

trucks for the dry runs and provided about $20 to $40

worth of groceries per week for the people living at

Dr. Anderson’s. This, and all my expenses, were paid

ee inate ,

Hardy further admitted that he worked with the defendants

daily for over two months end provided the strategies and

_ 4 The Anderson case is still pendi „ The 28 defendants made s

motion an eviden

ools and equipment (at government expense)

into the building and into the file cabinets. He

FBI many times that it couldn’t have happened

there.” Here is a signal case of the creative

he government which the defense urged here is

n part, to curtail. The political provocateur does

cessarily supply the original idea; what he does sup-

Organization and materials without which the iden

powerless to limit such political provocations and

sured crimes. The per se defense recognized by

below thus becomes an essential protection

‘a growing official abuse.

that it is impossible to determine afterward

the same crime would have occurred without them

some cases, by such intervention that it is possible

mine that it likely would not have happened).

is clear that contraband cannot be supplied, then

‘tools of the provocateur are gone; moreover, if

‘ .

. ‘difficult for him to supply the binding force of will for“

crime. Finally, amici have argued above that the state

interest in rejecting the defense is very weak. The interest

in the healthy development of u political life free from the

distortions. occasioned ‘by provocation and of individua

in being free from police control is much stronger. ie

words of Thomas Hrskine May, II Constitutional Hie

of England (1899 Id.) p. 276:

eel ign lig eee

dt to retain in Government pay, and to reward spies

a mets, who consort with conspirators as theif

sworn sesomplices, and encourage while they betray

tem in their crimes, is 8 practice for which no plea

dean be offered. No Government, indeed, can be sup-

“+ posed to have expressly instructed its spies to insti-

».. gate the perpetration of crime; but to be unsuspected,

every spy must be zealous in the cause which be

_ pretends to have espoused; and his zeal in a criminal

wise is a direct encouragement of crime.”

If these words are to be fully effective, the defense adopted

by the court below must be our law.

.

Bike

Pav G. Carvery

New York Civil Liberties

Union

84 Fifth Avenue

New York, N.Y. 10011

Mmvnt L. Wour

American Civil Liberties

Union

22 East 40th Street

0 York, N.Y. 10016

Civil Liberties

Union