United States v. Russell

411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366, 1973 U.S. LEXIS 79

• Court: Supreme Court of the United States
• Decided: April 24, 1973
• Docket: 71-1585
• Status: Published

Opinions

Mr. Justice Rehnquist

delivered the opinion of the Court.

Respondent Richard Russell was charged in three counts of a five-count indictment returned against him and codefendants John and Patrick Connolly.¹ After a jury trial in the District Court, in which his sole defense was entrapment, respondent was convicted on all three counts of having unlawfully manufactured and processed methamphetamine (“speed”) and of having unlawfully sold and delivered that drug in violation of 21 U. S. C. §§ 331 (q) (1), (2), 360a (a), (b) (1964 ed., Supp. V). He was sentenced to concurrent terms of two years in prison for each offense, the terms to be suspended on the condition that he spend six months in prison and be placed on probation for the following three years. On appeal, the United States Court of Appeals for the Ninth Circuit, one judge dissenting, reversed the conviction solely for the reason that an undercover agent supplied an essential chemical for manufacturing the methamphetamine which formed the basis of respondent's conviction. The court concluded that as a matter of law “a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.” 459 P. 2d 671, 673 (1972). We granted certiorari, 409 U. S. 911 (1972), and now reverse that judgment.

There is little dispute concerning the essential facts in this case. On December 7, 1969, Joe Shapiro, an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs, went to respondent’s home on Whidbey Island in the State of Washington where he met with respondent and his two codefendants, John and Patrick Connolly. Shapiro’s assignment was to locate a laboratory where it was believed that methamphetamine was being manufactured illicitly. He told the respondent and the Connollys that he represented an organization in the Pacific Northwest that was interested in controlling the manufacture and distribution of methamphetamine. He then made an offer to supply the defendants with the chemical phenyl-2-propanone, an essential ingredient in the manufacture of methamphetamine, in return for one-half of the drug produced. This offer was made on the condition that Agent Shapiro be shown a sample of the drug which they were making and the laboratory where it was being produced.

During the conversation, Patrick Connolly revealed that he had been making the drug since May 1969 and since then had produced three pounds of it.² John Connolly gave the agent a bag containing a quantity of methamphetamine that he represented as being from “the last batch that we made.” Shortly thereafter, Shapiro and Patrick Connolly left respondent’s house to view the laboratory which was located in the Connolly house on Whidbey Island. At the house, Shapiro observed an empty bottle bearing the chemical label phenyl-2-propanone.

By prearrangement, Shapiro returned to the Connolly house on December 9, 1969, to supply 100 grams of propanone and observe the manufacturing process. When he arrived he observed Patrick Connolly and the respondent cutting up pieces of aluminum foil and placing them in a large flask. There was testimony that some of the foil pieces accidentally fell on the floor and were picked up by the respondent and Shapiro and put into' the flask.³ Thereafter, Patrick Connolly added all of the necessary chemicals, including the propanone brought by Shapiro, to make two batches of methamphetamine. The manufacturing process having been completed the following morning, Shapiro was given one-half of the drug and respondent kept the remainder. Shapiro offered to buy, and the respondent agreed to sell, part of the remainder for $60.

About a month later, Shapiro returned to the Connolly house and met with Patrick Connolly to ask if he was still interested in their “business arrangement.” Connolly replied that he was interested but that he had recently obtained two additional bottles of phenyl-2-propanone and would not be finished with them for a couple of days. He provided some additional methamphetamine to Shapiro at that time. Three days later Shapiro returned to the Connolly house with a search warrant and, among other items, seized an empty 500-gram bottle of propanone and a 100-gram bottle, not the one he had provided, that was partially filled with the chemical.

There was testimony at the trial of respondent and Patrick Connolly that phenyl-2-propanone was generally difficult to obtain. At the request of the Bureau of Narcotics and Dangerous Drugs, some chemical supply firms had voluntarily ceased selling the chemical.

At the close of the evidence, and after receiving the District Judge’s standard entrapment instruction,⁴ the jury found the respondent guilty on all counts charged. On appeal, the respondent conceded that the jury could have found him predisposed to commit the offenses, 459 F. 2d, at 672, but argued that on the facts presented there was entrapment as a matter of law. The Court of Appeals agreed, although it did not find the District Court had misconstrued or misapplied the traditional standards governing the entrapment defense. Rather, the court in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been “an intolerable degree of governmental participation in the criminal enterprise.” In this case the court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense.

This new defense was held to rest on either of two alternative theories. One theory is based on two lower court decisions which have found entrapment, regardless of predisposition, whenever the government supplies contraband to the defendants. United States v. Bueno, 447 (CA5 1971); United States v. Chisum, 312 F. Supp. 1307 (CD Cal. 1970). The second theory, a nonentrapment rationale, is based on a recent Ninth Circuit decision that reversed a conviction because a government investigator was so enmeshed in the criminal activity that the prosecution of the defendants was held to be repugnant to the American criminal justice system. Greene v. United States, 454 F. 2d 783 (CA9 1971). The court below held that these two rationales constitute the same defense, and that only the label distinguishes them. In any event, it held that “[b]oth theories are premised on fundamental concepts of due process and evince the reluctance of the judiciary to countenance ‘overzealous law enforcement.’ ” 459 F. 2d, at 674, quoting Sherman v. United States, 356 U. S. 369, 381 (1958) (Frankfurter, J., concurring in result).

This Court first recognized and applied the entrapment defense in Sorrells v. United States, 287 U. S. 435 (1932).⁵ In Sorrells, a federal prohibition agent visited the defendant while posing as a tourist and engaged him in conversation about their common war experiences. After gaining the defendant’s confidence, the agent asked for some liquor, was twice refused, but upon asking a third time the defendant finally capitulated, and was subsequently prosecuted for violating the National Prohibition Act.

Mr. Chief Justice Hughes, speaking for the Court, held that as a matter of statutory construction the defense of entrapment should have been available to' the defendant. Under the theory propounded by the Chief Justice, the entrapment defense prohibits law enforcement officers from instigating a criminal act by persons “otherwise innocent in order to lure them to its commission and to punish them.” 287 U. S., at 448. Thus, the thrust of the entrapment defense was held to focus on the intent or predisposition of the defendant to commit the crime. “[I]f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.” Id., at 451.

Mr. Justice Roberts concurred but was of the view "that courts must be closed to the trial of a crime instigated by the government’s own agents.” Id., at 459.⁶ The difference in the view of the majority and the concurring opinions is that in the former the inquiry focuses on the predisposition of the defendant, whereas in the latter the inquiry focuses on whether the government “instigated the crime.”

In 1958 the Court again considered the theory underlying the entrapment defense and expressly reaffirmed the view expressed by the Sorrells majority. Sherman v. United States, supra. In Sherman the defendant was convicted of selling narcotics to a Government informer. As in Sorrells, it appears that the Government agent gained the confidence of the defendant and, despite initial reluctance, the defendant finally acceded to the repeated importunings of the agent to commit the criminal act. On the basis of Sorrells, this Court reversed the affirmance of the defendant’s conviction.

In affirming the theory underlying Sorrells, Mr. Chief Justice Warren for the Court, held that "[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” 356 U. S., at 372. Mr. Justice Frankfurter stated in an opinion concurring in the result that he believed Mr. Justice Roberts had the better view in Sorrells and would have framed the question to be asked in an entrapment defense in terms of “whether the police conduct revealed in the particular case falls below standards ... for the proper use of governmental power.” Id., at 382.⁷

In the instant case, respondent asks us to reconsider the theory of the entrapment defense as it is set forth in the majority opinions in Sorrells and Sherman. His principal contention is that the defense should rest on constitutional grounds. He argues that the level of Shapiro’s involvement in the manufacture of the methamphetamine was so high that a criminal prosecution for the drug’s manufacture violates the fundamental principles of due process. The respondent contends that the same factors that led this Court to apply the exclusionary rule to illegal searches and seizures, Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961), and confessions, Miranda v. Arizona, 384 U. S. 436 (1966), should be considered here. But he would have the Court go further in deterring undesirable official conduct by requiring that any prosecution be barred absolutely because of the police involvement in criminal activity. The analogy is imperfect in any event, for the principal reason behind the adoption of the exclusionary rule was the Government’s “failure to observe its own laws.” Mapp v. Ohio, supra, at 659. Unlike the situations giving rise to the holdings in Mapp and Miranda, the Government’s conduct here violated no independent constitutional right of the respondent. Nor did Shapiro violate any federal statute or rule or commit any crime in infiltrating the respondent’s drug enterprise.

Respondent would overcome this basic weakness in his analogy to the exclusionary rule cases by having the Court adopt a rigid constitutional rule that would preclude any prosecution when it is shown that the criminal conduct would not have been possible had not an undercover agent “supplied an indispensable means to the commission of the crime that could not have been obtained otherwise, through legal or illegal channels.” Even if we were to surmount the difficulties attending the notion that due process of law can be embodied in fixed rules, and those attending respondent’s particular formulation, the rule he proposes would not appear to be of significant benefit to him. For, on the record presented, it appears that he cannot fit within the terms of the very rule he proposes.⁸

The record discloses that although the propanone was difficult to obtain, it was by no means impossible. The defendants admitted making the drug both before and after those batches made with the propanone supplied by Shapiro. Shapiro testified that he saw an empty bottle labeled phenyl-2-propanone on his first visit to the laboratory on December 7, 1969. And when the laboratory was searched pursuant to a search warrant on January 10, 1970, two additional bottles labeled phenyl-2-propanone were seized. Thus, the facts in the record amply demonstrate that the propanone used in the illicit manufacture of methamphetamine not only could have been obtained without the intervention of Shapiro but was in fact obtained by these defendants.

While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U. S. 165 (1952), the instant case is distinctly not of that breed. Shapiro’s contribution of propanone to the criminal enterprise already in process was scarcely objectionable. The chemical is by itself a harmless substance and its possession is legal. While the Government may have been seeking to make it more difficult for drug rings, such as that of which respondent was a member, to obtain the chemical, the evidence described above shows that it nonetheless was obtainable. The law enforcement conduct here stops far short of violating that “fundamental fairness, shocking to the universal sense of justice,” mandated by the Due Process Clause of the Fifth Amendment. Kinsella v. United States ex rel. Singleton, 361 U. S. 234, 246 (1960).

The illicit manufacture of drugs is not a sporadic, isolated criminal incident, but a continuing, though illegal, business enterprise. In order to obtain convictions for illegally manufacturing drugs, the gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task. Thus in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation; if that be so, then the supply of some item of value that the drug ring requires must, as a general rule, also be permissible. For an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them. Law enforcement tactics such as this can hardly be said to violate “fundamental fairness” or “shocking to the universal sense of justice,” Kinsella, supra.

Respondent also urges, as an alternative to his constitutional argument, that we broaden the nonconstitutional defense of entrapment in order to sustain the judgment of the Court of Appeals. This Court’s opinions in Sorrells v. United States, supra, and Sherman v. United States, supra, held that the principal element in the defense of entrapment was the defendant’s predisposition to commit the crime. Respondent conceded in the Court of Appeals, as well he might, “that he may have harbored a predisposition to commit the charged offenses.” 459 F. 2d, at 672. Yet he argues that the jury’s refusal to find entrapment under the charge submitted to it by the trial court should be overturned and the views of Justices Roberts and Frankfurter, in Sorrells and Sherman, respectively, which make the essential element of the defense turn on the type and degree of governmental conduct, be adopted as the law.

We decline to overrule these cases. Sorrells is a precedent of long standing that has already been once reexamined in Sherman and implicitly there reaffirmed. Since the defense is not of a constitutional dimension, Congress may address itself to the question and adopt any substantive definition of the defense that it may find desirable.⁹

Critics of the rule laid down in Sorrells and Sherman have suggested that its basis in the implied intent of Congress is largely fictitious, and have pointed to what they conceive to be the anomalous difference between the treatment of a defendant who' is solicited by a private individual and one who is entrapped by a government agent. Questions have been likewise raised as to whether “predisposition” can be factually established with the requisite degree of certainty. Arguments such as these, while not devoid of appeal, have been twice previously made to this Court, and twice rejected by it, first in Sorrells and then in Sherman.

We believe that at least equally cogent criticism has been made of the concurring views in these cases. Commenting in Sherman on Mr. Justice Roberts’ position in Sorrells that “although the defendant could claim that the Government had induced him to commit the crime, the Government could not reply by showing that the defendant’s criminal conduct was due to his own readiness and not to the persuasion of government agents,” Sherman v. United States, 356 U. S., at 376-377, Mr. Chief Justice Warren quoted the observation of Judge Learned Hand in an earlier stage of that proceeding:

“ ‘Indeed, it would seem probable that, if there were no reply [to the claim of inducement], it would be impossible ever to secure convictions of any of-fences which consist of transactions that are carried on in secret.’ United States v. Sherman, 200 F. 2d 880, 882.” Sherman v. United States, 356 U. S., at 377 n. 7.

Nor does it seem particularly desirable for the law to grant complete immunity from prosecution to one who himself planned to commit a crime, and then committed it, simply because government undercover agents subjected him to inducements which might have seduced a hypothetical individual who was not so predisposed. We are content to leave the matter where it was left by the Court in Sherman:

“The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, ‘A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ ” Id., at 372, quoting Sorrells v. United States, 287 U. S., at 442.

Several decisions of the United States district courts and courts of appeals have undoubtedly gone beyond this Court’s opinions in Sorrells and Sherman in order to bar prosecutions because of what they thought to be, for want of a better term, “overzealous law enforcement.” But the defense of entrapment enunciated in those opinions was not intended to give the federal judiciary a “chancellor’s foot” veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations. We think that the decision of the Court of Appeals in this case quite unnecessarily introduces an unmanageably subjective standard which is contrary to the holdings of this Court in Sorrells and Sherman.

Those cases establish that entrapment is a relatively limited defense. It is rooted, not in any authority of the Judicial Branch to dismiss prosecutions for what it feels to have been “overzealous law enforcement,” but instead in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.

Sorrells and Sherman both recognize “that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,” 287 U. S., at 441; 356 U. S., at 372. Nor will the mere fact of deceit defeat a prosecution, see, e. g., Lewis v. United States, 385 U. S. 206, 208-209 (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.

Respondent’s concession in the Court of Appeals that the jury finding as to predisposition was supported by the evidence is, therefore, fatal to his claim of entrapment. He was an active participant in an illegal drug manufacturing enterprise which began before the Government agent appeared on the scene, and continued after the Government agent had left the scene. He was, in the words of Sherman, supra, not an “unwary innocent” but an “unwary criminal.” The Court of Appeals was wrong, we believe, when it sought to broaden the principle laid down in Sorrells and Sherman. Its judgment is therefore

Reversed.

1 John Connolly did not appear for trial. Patrick Connolly was tried with the respondent and found guilty of all five counts against him. The validity of his conviction is not before us in this proceeding.

2 At trial Patrick Connolly admitted making this statement to Agent Shapiro but asserted that the statement was not true.

3 Agent Shapiro did not otherwise participate in the manufacture of the drug or direct any of the work.

4 The District Judge stated the governing law on entrapment as follows: “Where a person already has the willingness and the readiness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment.” He then instructed the jury to acquit respondent if it had a “reasonable doubt whether the defendant had the previous intent or purpose to commit the offense . . . and did so only because he was induced or persuaded by some officer or agent of the government.” No exception was taken by respondent to this instruction.

5 The first case to recognize and sustain a claim of entrapment by government officers as a defense was apparently Woo Wai v. United States, 223 F. 412 (CA9 1915).

6 Justices Brandéis and Stone concurred in this analysis.

7 Justices Douglas, Harlan, and Brennan shared the views of entrapment expressed in the Frankfurter opinion.

8 The language quoted above first appeared in the Government’s brief at 32, but was subsequently adopted by the respondent. Brief for Respondent 20-21.

9 A bill currently before the Congress contemplates an express statutory formulation of the entrapment defense. S. 1, 93d Cong., 1st Sess., § 1-3B2 (1973).