# Amicus Curiae Brief — United States v. Russell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0132%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 411 U.S. 423 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0132%3A4. Public record. Not legal advice.