law of entrapment is not the law in this circuit; nevertheless, an examination of the cases may be in order.
In Greene the court applied the traditional "creative activity" standard of Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932), cited with approval in Klosterman, 248 F.2d at 194, and reversed the defendants' convictions. Greene, however, is distinguishable on the facts. Defendants there were convicted of operating an illegal still, conspiracy and illegal liquor sales. The entrapment occurred through the actions of a special investigator for the IRS. The court cited six reasons for finding entrapment, reasons wholly different from anything in the instant case. First, the agent initiated contact with the defendants. Second, the events involved covered a period of two-and-one-half years. Third, the agent treated defendants as partners, offering to buy the necessary still equipment. He ultimately provided 2,000 pounds of sugar crucial to making the liquor. Fourth, the agent applied considerable pressure to defendants which the court found to be a "veiled threat". Fifth, the agent began working with defendants prior to the operation of the still and aided in its establishment. Finally, the agent was the only customer of the still he helped create.
In Russell the Ninth Circuit reversed the defendant's conviction for manufacturing, possessing, delivering and selling methamphetamine. In that case, the government itself had provided defendant with a necessary chemical ingredient. In the instant case defendants claim Douglas was just such a "necessary ingredient," notwithstanding any predisposition on their part. There is a substantial distinction between providing a vital chemical in a drug manufacture case, and being an informer where the crime may be completed by merely delivering the letter to the go-between. It is not entrapment when the government "merely [affords] opportunity or facilities for the commission of the offense . . . . " Sorrells v. United States, supra.
It seems to this court that even if Russell were the law of this circuit, we could not find entrapment here as a matter of law. The intervention of Douglas did not constitute an "essential element" as defined within the context of Russell. True, no smuggling could be completed without some sort of courier system. In Russell the court decried the "intolerable degree of governmental participation in the criminal enterprise." In the context of that case, the governmental participation may well have been both intolerable and essential to the completion of the crime. But in Russell the government agent (then employed as a federal narcotics agent) approached the defendant and offered the crucial chemical needed to produce the narcotic.
In the instant case there was evidence that Berrigan first broached the subject of smuggling (Transcript, Vol. 6, p. 142). Even more important is the fact that no evidence points to Douglas as being a government agent or informer at the time he began his activities as the courier. Although a courier was crucial to a successful smuggling, contrasting the context of Russell and the instant case, "intolerable governmental participation" is simply absent here. Likewise, the entire question of "attempt," discussed, supra, substantially lessens the impact of Douglas in the activities of Berrigan and McAlister. Douglas was not an "essential element" in the completed crime of attempt.
Mr. Chief Justice Warren, in Sherman v. United States, 356 U.S. 369, 372, 78 S. Ct. 819, 821, 2 L. Ed. 2d 848 (1958), reaffirmed Sorrells, then clarified the balance between informer and provocateur:
"Entrapment occurs only when the criminal conduct was 'the product of the creative activity' of law-enforcement officials [citing Sorrells]. To 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." (Emphasis the Supreme Court's)