decided: November 17, 1978.
UNITED STATES OF AMERICA
WILLIAM CHRISTOPHER TWIGG, III, APPELLANT. UNITED STATES OF AMERICA V. HENRY ALFRED NEVILLE, APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Crim. No. 77-111-2 and 77-111-1
Before Seitz, Chief Judge, and Adams and Rosenn, Circuit Judges.
Opinion OF THE COURT
These appeals are brought by Henry Neville and William Twigg from jury convictions on charges stemming from the illegal manufacture of methamphetamine hydrochloride ("speed"), a schedule II controlled substance. Specifically, defendant Neville was convicted of conspiracy to manufacture and possess with intent to distribute a controlled substance, 21 U.S.C. § 846, 18 U.S.C. § 2; manufacture of a controlled substance, 21 U.S.C. § 841(a)(1); nine counts of use of a telephone to facilitate in the manufacture of a controlled substance, 21 U.S.C. § 843(b), 18 U.S.C. § 2; possession of cocaine, 21 U.S.C. § 844(a); and possession of methamphetamine hydrochloride, 21 U.S.C. § 844(a). Twigg was convicted of: (1) conspiracy to manufacture and possess with intent to distribute a controlled substance and (2) manufacture of a controlled substance. He was acquitted of the substantive charge of possession of a controlled substance with intent to distribute. Both challenge their convictions on the ground that the extensive police involvement in the crime violated due process.*fn1 We reverse on all counts with the exception of Neville's conviction on possession of cocaine.
The odyssey of the defendants' entrepreneurial venture in the illegal manufacture of a controlled substance stems from the Drug Enforcement Administration's arrest of Robert Kubica in May 1976 for the illegal manufacture of methamphetamine hydrochloride. Kubica pleaded guilty to one felony count on the federal charge and the other two counts were dismissed. He subsequently received a four year sentence. This was not his first conviction Kubica had been convicted in state courts on similar charges on previous occasions. In connection with his guilty plea in this case, Kubica agreed to aid the Drug Enforcement Administration in apprehending illegal drug traffickers.
In October 1976, at the request of DEA officials, Kubica contacted an acquaintance of twenty years, Henry Neville, to discuss setting up a speed laboratory.*fn2 Neville expressed an interest and a discussion of the proposed operation ensued.*fn3 Over the next several months numerous discussions took place between the two parties as arrangements were made to set up the laboratory. Some of the telephone conversations were recorded by Kubica on equipment supplied by the DEA. The tapes, introduced as evidence at trial, indicate that Neville assumed primary responsibility for raising capital and arranging for distribution of the product, while Kubica undertook the acquisition of the necessary equipment, raw materials, and a production site.
The Government proved to be of considerable assistance to Kubica in carrying out his part of the operation. DEA agents supplied him with two and one-half gallons of phenyl-2-propanone a chemical essential to the manufacture of speed and the most difficult of the ingredients to obtain. The cost to the Government was $475.00, although the chemical could retail for twice as much. The DEA provided Kubica with about 20 percent of the glassware needed and a rented farmhouse in New Jersey in which to set up the laboratory.*fn4 In addition, the DEA officials made arrangements with chemical supply houses to facilitate the purchase of the balance of the materials by Kubica under the business name of "Chem Kleen." Kubica personally bought all of the supplies (with the exception of one separatory funnel) with approximately $1500.00 supplied by Neville.
On March 1, 1977, Neville introduced Kubica to William Twigg, who apparently got involved in the operation to repay a debt to Neville. Twigg accompanied Kubica on a trip to several chemical supply houses. Later that day, the laboratory was set up at the farmhouse. The laboratory operated for one week, producing approximately six pounds of methamphetamine hydrochloride. Kubica was completely in charge of the entire laboratory. Any production assistance provided by Neville and Twigg was minor and at the specific direction of Kubica. Twigg often ran errands for groceries or coffee, while Neville spent much of his time away from the farmhouse.
On March 7, Neville left the farmhouse with the drugs in a suitcase. Kubica notified the DEA agents, who arrested Neville driving down the road. A search of the car revealed, in addition to the suitcase containing six pounds of methamphetamine hydrochloride, a Lysol can containing cocaine and some more speed. Twigg was arrested at the farmhouse.
It should be made clear from the outset that our reversal is not based on the entrapment defense. The entrapment defense requires an absence of predisposition on the part of the defendant to commit the crime. See United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). Whether predisposition is present is a question of fact and was properly submitted to the jury in this case.*fn5 By convicting the defendants, the jury rejected the entrapment defense. On appeal, we must inquire: viewing the evidence most favorable to the Government, could a jury find predisposition? United States v. Townsend, 555 F.2d 152, 156 (7th Cir.), Cert. denied, 434 U.S. 897, 98 S. Ct. 277, 54 L. Ed. 2d 184 (1977); See Tzimopoulos v. United States, 554 F.2d 1216 (1st Cir.), Cert. denied, 434 U.S. 851, 98 S. Ct. 164, 54 L. Ed. 2d 120 (1977); United States v. Gurule, 522 F.2d 20, 23 (10th Cir. 1975), Cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976).
The evidence of Neville's predisposition came from Kubica's testimony. Kubica testified to Neville's apparent willingness to participate in the manufacturing venture. No reluctance was expressed and no inducements were needed. Kubica also said that he and Neville had engaged in the manufacture of speed a few years earlier. Neville did not take the stand and no evidence was presented to contradict the evidence of predisposition. Thus, a sufficient basis exists for allowing a jury finding of predisposition to stand.
Twigg did not raise the issue of entrapment on appeal. The defense would not be available to him because he was brought into the criminal enterprise by Neville, not a government agent. See United States v. Garcia, 546 F.2d 613, 615 (5th Cir.), Cert. denied, 430 U.S. 958, 97 S. Ct. 1608, 51 L. Ed. 2d 810 (1977); United States v. Mayo, 162 U.S.App.D.C. 171, 498 F.2d 713 (1974).
The contention that defendants raise which we find persuasive is that the nature and extent of police involvement in this crime was so overreaching as to bar prosecution of the defendants as a matter of due process of law. Although no Supreme Court decision has reversed a conviction on this basis, the police conduct in this case went far beyond the behavior found permissible in previous cases.
In United States v. Russell, supra, the defendant was convicted of the illegal manufacture and sale of methamphetamine. The facts revealed that an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs went to the defendant's home on an assignment to locate a methamphetamine laboratory. He said that he represented an organization interested in purchasing large quantities of speed. He offered to supply the defendants with phenyl-2-propanone in exchange for one-half of the drug produced. The offer was accepted and one of the parties revealed that they had been operating a speed laboratory for seven months.
The agent visited the laboratory on two occasions and on both visits saw significant quantities of P-2-P not supplied by the Government. In fact, the agent only supplied the defendants with a single 100-gram bottle of the chemical. The extent of his participation in the manufacturing process was that on one occasion he picked up some aluminum foil that had fallen to the floor.
The Court of Appeals for the Ninth Circuit, in reversing the defendant's conviction, seemingly relied on two theories. United States v. Russell, 459 F.2d 671 (9th Cir. 1972), Rev'd, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). First, the government supply of P-2-P constituted entrapment as a matter of law regardless of predisposition. Second, the police conduct was so repugnant that due process principles barred prosecution.
The Supreme Court reversed as to both theories. The Court held that the absence of predisposition is the focal point of the entrapment defense. Since the defendant conceded predisposition, that defense could not be raised.
On the second theory, the Court explicitly left the defense available, but decided that it was not applicable on the facts of the case:
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, . . . the instant case is distinctly not of that breed. (The agent's) contribution of propanone to the criminal enterprise Already in process was scarcely objectionable. . . . 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.
411 U.S. at 431-32, 93 S. Ct. at 1643 (emphasis supplied).
The Court went on to make an important point not present here that the defendant "was an active participant in an illegal drug manufacturing enterprise which began before the government agent appeared on the scene . . . ." Id. at 436, 93 S. Ct. at 1645.
The only other Supreme Court case to consider the fundamental fairness defense in this type of situation was Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976). Hampton was convicted of distributing heroin despite his contention that the heroin had been supplied by a government informer and sold by the defendant to an undercover agent. The trial court refused to instruct the jury that if those facts were believed then they must acquit, and the defendant appealed.
The Supreme Court affirmed the conviction, but wrote three separate opinions. Justice Rehnquist's plurality opinion, joined by Chief Justice Burger and Justice White, stated that predisposition, which the defendant conceded existed, should operate as a bar to the fundamental fairness defense as well as to the conventional entrapment defense. The opinion argued that the remedy of "the criminal defendant with respect to the acts of government agents . . . lies solely in the defense of entrapment." Id. at 490, 96 S. Ct. at 1650.
Justice Powell, joined by Justice Blackmun, concurred in the result but refused to foreclose reliance on the fundamental fairness defense even where predisposition is shown. Justice Powell would base the defense on due process principles or the Court's supervisory power. He warned, however, that instances where this defense would be successful will be rare. "Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction." Id. at 495 n. 7, 96 S. Ct. at 1653 n. 7 (Powell, J., concurring).
The dissenting justices argued that the defense of entrapment should focus on the police conduct. They believed that the behavior of the law enforcement officers in Hampton was sufficiently offensive to bar conviction.
Hampton was concerned with the sale of an illegal drug, a much more fleeting and elusive crime to detect than the operation of an illicit drug laboratory. In such a situation the practicalities of combating drug distribution may require more extreme methods of investigation, including the supply of ingredients which the drug ring needs.*fn6 Furthermore, a reading of the jury instruction requested by the defendant in Hampton reveals that he was concerned merely with the principle that if the narcotics were supplied to him by an informant acting on behalf of the Government, then he must be acquitted as a matter of law. Id. at 488, 96 S. Ct. 1646.*fn7 In this case, however, we are not only concerned with the supply by government agents of necessary ingredients for manufacture, but we also have before us a crime, unlike Hampton, conceived and contrived by government agents.
The rule that is left by Hampton is that although proof of predisposition to commit the crime will bar application of the entrapment defense, fundamental fairness will not permit any defendant to be convicted of a crime in which police conduct was "outrageous." See United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978); United States v. Johnson, 565 F.2d 179, 181 (1st Cir. 1977). Where the facts can easily be resolved, the validity of the defense is to be decided by the trial court. United States v. Graves, 556 F.2d 1319, 1322 (5th Cir. 1977).*fn8
The type of conduct that would be considered outrageous by Justice Powell or the Supreme Court is unclear. However, we find the reasoning in two cases decided prior to Hampton helpful in resolving this problem.
In United States v. West, 511 F.2d 1083 (3d Cir. 1975), this court reversed a conviction primarily on fundamental fairness grounds. On facts similar to Hampton, Judge Hastie wrote:
But when the government's own agent has set the accused up in illicit activity by supplying him with narcotics and then introducing him to another government agent as a prospective buyer, the role of government has passed the point of toleration. Moreover, such conduct does not facilitate discovery or suppression of ongoing illicit traffic in drugs. It serves no justifying social objective. Rather, it puts the law enforcement authorities in the position of creating new crime for the sake of bringing charges against a person they had persuaded to participate in wrongdoing.
Id. at 1085.
Although Hampton may have attenuated West's applicability in cases involving similar facts, we believe that the principles enunciated by Judge Hastie remain sound today.
In an earlier case, Greene v. United States, 454 F.2d 783 (9th Cir. 1971), the Ninth Circuit found sufficient government overinvolvement to preclude a conviction. Defendants were convicted of charges stemming from the illegal manufacture of alcohol. An undercover agent reestablished contact with the defendants after their previous arrest on bootlegging charges. For over two years the agent was involved in the defendants' operations offering to supply materials, an operator, and location for the still, and actually supplying sugar at wholesale prices. The agent was the sole purchaser of all the liquor produced by the illegal still.
The Ninth Circuit held that the entrapment defense was not available because the defendants were predisposed to commit the crime. However, the court ruled that the defendants could not be convicted because of overreaching by the Government:
We do not believe the Government may involve itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators. As pointed out in Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 . . . a certain amount of stealth and strategy "are necessary weapons in the arsenal of the police officer." But, although this is not an entrapment case, when the Government 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.
Id. at 787.
Our research has uncovered two cases which bear some resemblance to the facts in the instant case. In United States v. Leja, 563 F.2d 244 (6th Cir. 1977), the defendant Leja approached a government informant, Sawicki, and suggested that they set up a laboratory for the manufacture of phencyclidine, a controlled substance. Defendant Cody was brought into the plan and was responsible for supplying glassware and money while Sawicki contributed the chemicals and Leja the technical expertise. During the production period, a DEA laboratory analyst, brought in to insure against possible explosion, advised Leja on the process when he encountered difficulties. The Sixth Circuit rejected the fundamental fairness defense and affirmed the convictions of both defendants.
Leja, however, is distinguishable from the present case. Most significant is that in Leja, the criminal plan originated with the defendant. Although the DEA facilitated the operation, it did so only after the defendants formulated the plan and approached the DEA informer. In the instant case, however, the DEA and its informant, Kubica, plotted the venture and thereafter initiated contact with Neville.
In United States v. Smith, 538 F.2d 1359 (9th Cir. 1976), the Ninth Circuit refused to find that the Government's conduct was so outrageous as to violate due process. The facts also involved the illegal manufacture of methamphetamine. The informant provided necessary materials and actively participated in the manufacturing process.
Like Leja, but unlike the facts before us, Smith is a case where the defendant concocted the scheme and began implementing it before the DEA got involved. Unlike the instant case, the Government did not sow the seeds of criminality and lure the defendant into a conspiracy. Furthermore, the defendant in Smith, not the informer, was completely in charge of the operation. These two decisions provide no support for the Government's contention that outrageous conduct does not exist in this case.
Attempting to draw general principles of law from these cases is not a simple task. We are mindful of the difficulties of defining specific limits on law enforcement techniques. Recognition must be given to the many challenges confronting police agencies today, especially in the drug law enforcement area. Infiltration of criminal operations by informers and undercover agents is an accepted and necessary practice. Yet, this court cannot "shirk the responsibility that is necessarily in its keeping . . . to accommodate the dangers of overzealous law enforcement and civilized methods adequate to counter the ingenuity of modern criminals." Sherman v. United States, 356 U.S. 369, 381, 78 S. Ct. 819, 825, 2 L. Ed. 2d 848 (1958) (Frankfurter, J., concurring in result). "Prosecutors and their agents naturally tend to assign great weight to the societal interest in apprehending and convicting criminals; the danger is that they will assign too little to the rights of citizens to be free from government-induced criminality." United States v. Archer, 486 F.2d 670, 677 (2d Cir. 1973) (Friendly, J.).
Considering the cases and principles set forth above, we have no trouble in concluding that the governmental involvement in the criminal activities of this case has reached "a demonstrable level of outrageousness."
At the behest of the Drug Enforcement Agency, Kubica, a convicted felon striving to reduce the severity of his sentence, communicated with Neville and suggested the establishment of a speed laboratory. The Government gratuitously supplied about 20 percent of the glassware and the indispensable ingredient, phenyl-2-propanone. It is unclear whether the parties had the means or the money to obtain the chemical on their own. The DEA made arrangements with chemical supply houses to facilitate the purchase of the rest of the materials. Kubica, operating under the business name "Chem Kleen" supplied by the DEA, actually purchased all of the supplies with the exception of a separatory funnel. (The funnel was secured by Twigg at the direction of Kubica who was engaged in operating the laboratory.) When problems were encountered in locating an adequate production site, the Government found the solution by providing an isolated farmhouse well-suited for the location of an illegally operated laboratory. Again, there was no cost to the defendants. At all times during the production process, Kubica was completely in charge and furnished all of the laboratory expertise. Neither defendant had the know-how with which to actually manufacture methamphetamine. The assistance they provided was minimal and then at the specific direction of Kubica.
These instances of police involvement must be evaluated against the following backdrop. The only evidence that Neville was predisposed to commit the crime was his receptivity to Kubica's proposal to engage in the venture and the testimony of Kubica that he had worked with Neville in a similar laboratory four years earlier. Unlike other cases rejecting this defense, the police investigation here was not concerned with an existing laboratory, United States v. Russell, supra ; the illicit plan did not originate with the criminal defendants, United States v. Leja, supra ; United States v. Smith, supra ; and neither of the defendants were chemists an indispensable requisite to this criminal enterprise.*fn9
According to Justice Powell:
Due process in essence means fundamental fairness, and the Court's cases are replete with examples of judgments as to when such fairness has been denied an accused in light of all the circumstances. . . . The fact that there is sometimes no sharply defined standard against which to make these judgments is not itself a sufficient reason to deny the federal judiciary's power to make them when warranted by the circumstances. . . . Nor do I despair of our ability in an appropriate case to identify appropriate standards for police practices without relying on the "chancellor's" "fastidious squeamishness or private sentimentalism."
Hampton v. United States, supra, 425 U.S. at 494-95 n. 6, 96 S. Ct. at 1652 n. 6 (Powell, J., concurring).
When Kubica, at the instance of the DEA, reestablished contact with Neville, the latter was not engaged in any illicit drug activity. Using Kubica, and actively participating with him, the DEA agents deceptively implanted the criminal design in Neville's mind. They set him up, encouraged him, provided the essential supplies and technical expertise, and when he and Kubica encountered difficulties in consummating the crime, they assisted in finding solutions. This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own affairs. Fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred.*fn10
While the foregoing reasons mandate the reversal of Neville's conviction, Twigg's circumstances are somewhat different.
The traditional entrapment defense is only available to those defendants brought into the criminal enterprise directly by government agents. If a defendant is induced by a third party not connected with a law enforcement official to commit a crime, then the defendant cannot raise the defense. See United States v. Garcia, 546 F.2d 613, 615 (5th Cir.), Cert. denied, 430 U.S. 958, 97 S. Ct. 1608, 51 L. Ed. 2d 810 (1977); United States v. Conversano, 412 F.2d 1143, 1148 (3d Cir.), Cert. denied, 396 U.S. 905, 90 S. Ct. 219, 24 L. Ed. 2d 181 (1969). However, no case has been found that considers this issue when overreaching by the Government is the basis of the defense. The fundamental fairness defense compels us to resolve this question in light of all the circumstances. We are reluctant to establish a Per se rule barring the use of this defense to anyone who was not directly induced by a government agent.
Twigg did not become involved in this criminal enterprise until March 1, 1977 the day the laboratory went into operation. His reason for becoming involved was to repay a debt owed to Neville. Neville introduced Twigg to Kubica, and then Twigg and Kubica went shopping for additional supplies, which Kubica purchased. There is no evidence to suggest that Twigg was aware of the ultimate purpose of these errands until informed by Kubica after returning to the farmhouse. All actions taken by Twigg from that time until his arrest were at the specific direction of Kubica, the government agent. Twigg contributed nothing in terms of expertise, money, supplies, or ideas. It also appears that Twigg would not even have shared in the proceeds from the sale of the drug. In light of these facts, we hold that Twigg's conviction is also tainted by the conduct of the DEA agents and that fundamental fairness requires its reversal.*fn11
The judgment of the district court against Neville will be reversed on all counts except count XIV (possession of cocaine). The judgment of the district court against Twigg will be reversed.
ADAMS, Circuit Judge, dissenting.
For almost fifty years the legal community has been divided over what a court's attitude should be when law enforcement agents are accused of encouraging criminal activity so as to gather evidence for a prosecution. Such police activity is generally referred to as "entrapment" and historically there have been two basic views on how it should be treated. On one side, it has been argued that government activity of this nature should be evaluated on an "objective" basis that is, that a court should judge the propriety of the law enforcement techniques themselves and that official involvement that goes "too far" should not be tolerated.*fn1 On the other side, it has been said that only the "subjective" intent of the criminal should be weighed, and that he cannot be considered "entrapped" if he was "predisposed" to commit the crime regardless of the extent of governmental involvement.*fn2
It can no longer be doubted that the Supreme Court has resolved this debate in favor of those who wish to emphasize the accused's predisposition to commit the crime.*fn3 When, as in the case before us now, the defendants are found to have been willing participants in the crime, they may not avoid conviction by claiming that they were entrapped. Thus, although Neville argued the classical entrapment theory both at the trial and on appeal, the jury finding of predisposition, supported here by substantial evidence, effectively precludes reversal on such grounds.
But the defendants also contend that even if they are foreclosed from resorting to the traditional entrapment defense, the official involvement in this particular case was so extensive that they were denied due process of law. The possibility of scrutiny of law enforcement techniques under the due process clause has been left open by the Supreme Court.*fn4 The only issue in this appeal, therefore, is what margin, if any, is left by the case law for vindication under the due process clause of the policies voiced by those favoring the objective approach to analyzing a claim of entrapment.
Like the majority, I view the government involvement here with a certain degree of concern. Indeed, I do not personally approve of the level of official involvement in this particular case. Unlike the majority, however, I do not believe that the government's activity can be classified as unconstitutional, at least not under the most recent decisions of the Supreme Court. As I read those cases, the possibility of due process review of the activities of our law enforcement agencies was reserved only for truly "outrageous" cases. Due process analysis was not intended simply to reestablish the objective approach to entrapment under a new name. Because I do not believe this situation presents the intolerable set of facts necessary to warrant resort to the due process clause, I must dissent.
This case deals with the manufacture of drugs. As the majority notes, in the fall of 1976, the Drug Enforcement Agency (DEA) utilized a convicted drug offender, Robert Kubica, to suggest to Henry Neville that they reestablish an amphetamine manufacturing operation similar to that in which Kubica and Neville had previously been engaged in New York. The government thus suggested the illegal scheme, and Neville maintained at trial that he was entrapped.
In addition to taking this initiative, the DEA supplied the participants with eight kilograms of phenyl-2-propanone,*fn5 with certain other chemicals, and, in the person of Kubica, with the chemical expertise necessary to manufacture the contraband. The government also furnished some of the laboratory glassware and, ultimately, the farmhouse that served as the site for the laboratory. Neville provided eighty per cent of the capital needed for the operation and the "contacts" through which the illegal drugs would be sold. He also brought into the conspiracy the defendant Twigg, who assisted Kubica in obtaining materials and with the actual manufacture of the drug.
In sum then, the combination centered around Kubica's chemical expertise and Neville's financing and connections. Twigg appears to have been only an assistant. That the idea to renew the previously existing drug manufacturing and distribution team of Kubica and Neville can be traced to the government is beyond question; however, it is clear that Neville and Twigg were found to be previously disposed to participate in the venture and were active participants throughout. I do not understand the majority to disagree with this outline of the facts.
The majority and I differ only on the proper application of the remnant of the "objective" analysis left open by Mr. Justice Powell in Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976), the latest Supreme Court statement on the subject. In Hampton a plurality of three Justices the Chief Justice, Mr. Justice Rehnquist, and Mr. Justice White urged a Per se rule that would allow defenses based on the acts of government agents Only when defendants establish that they were not predisposed to commit the crime.*fn6 Such a rule would eliminate any possibility of judicial scrutiny of the law enforcement techniques themselves, and thus constitute a rejection of the objective approach.
Mr. Justice Powell, in a concurring opinion joined by Mr. Justice Blackmun, agreed that the typical entrapment defense should be focused entirely on the question of predisposition, and thus endorsed the dominant "subjective" approach. But Justice Powell declined to adopt a rule forswearing Ever overturning a conviction because of the extent or nature of the governmental overinvolvement in the crime. He therefore left open some possibility of use of an "objective" analysis based on governmental conduct, at least in certain extreme cases:
The plurality thus says that the concept of fundamental fairness inherent in the guarantee of due process would never prevent the conviction of a predisposed defendant, regardless of the outrageousness of police behavior in light of the surrounding circumstances.
I do not understand Russell or earlier cases delineating the predisposition-focused defense of entrapment to have gone so far, and there was no need for them to do so. In those cases the Court was confronted with specific claims of police "overinvolvement" in criminal activity involving contraband. Disposition of those claims did not require the Court to consider whether overinvolvement of Government agents in contraband offenses could ever reach such proportions as to bar conviction of a predisposed defendant as a matter of due process. Nor have we had occasion yet to confront Government overinvolvement in areas outside the realm of contraband offenses. In these circumstances, I am unwilling to conclude that an analysis other than one limited to predisposition would never be appropriate under due process principles.*fn7
The three dissenting Justices Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall agreed with Justice Powell that the possibility of a due process test of governmental overinvolvement remained open.*fn8 Because five members of the Court thus expressed support for this possibility, it may fairly be assumed to constitute the prevailing rule.
It seems apparent, however, that the remnant of the objective analysis left standing by Hampton may be applied only to truly "outrageous" cases. As a matter of logic this must be true if the decisions of the Supreme Court in Sorrells, Sherman, Russell and Hampton are to have any force. For, once the Supreme Court has decided to eschew close scrutiny of law enforcement techniques under the objective approach to entrapment, it would seem somewhat inconsistent for it to announce a new doctrine allowing just such a review. Had a majority of the Court intended that due process review of government involvement in crime should constitute anything more than a seldom used judicial weapon reserved for the most unusual cases, it would have been more forthright for it to have adopted the position eloquently urged by the minority voices in Sorrells, Russell and Hampton, instead of seeking to reach the same result under a different rubric.
Not surprisingly, the language used in both Russell and Hampton indicates that no such back-door reincarnation of the objective approach was intended. Russell speaks of conduct "so outrageous" that it would violate "fundamental fairness" and be "shocking to the universal sense of justice" mandated by the due process clause.*fn9 Justice Powell, in his Hampton concurrence, is more direct in explaining that this approach is only rarely if ever to be resorted to by a court:
I emphasize that the cases, If any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach A demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses, which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic, . . . which is one of the major contributing causes of escalating crime in our cities. . . . Enforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity.*fn10
We must therefore inquire whether the facts of this case reach that "demonstrable level of outrageousness" necessary to warrant judicial interference.
Admittedly, it is difficult to know what standards to apply in order to conclude that a given course of action is "outrageous." Nonetheless it is necessary to begin somewhere, and perhaps the best place to start is with Hampton itself. Although a majority of the Court in Hampton concluded that it was possible to reverse an exceptional case on grounds of government "overinvolvement," a different majority also concluded that on the actual facts of Hampton such an extraordinary intervention by the Court was unwarranted.
Yet the government involvement in Hampton was extensive. Hampton was arrested for the distribution of heroin. Government agents apparently provided the contraband, arranged for the sale, and purchased the drug. As Justice Brennan noted in dissent: "The Government is doing nothing less than buying contraband from itself through an intermediary and jailing the intermediary."*fn11 But the hard truth is that the Supreme Court did not find Hampton to reach that "demonstrable level of outrageousness" required by Mr. Justice Powell.
The facts in this case are less persuasive for reversal than were those in Hampton. Here, none of the chemicals, glassware, money, or skill provided by the government was itself contraband. Ultimately these items were used to create amphetamines, and this was done with the active participation of the government, but by that time both defendants were themselves taking an active part in the criminal conspiracy. It is true that the government, through Kubica, suggested the operation, but that is the situation in many undercover operations, and was the case in Hampton. As for the decision to provide the farmhouse as a laboratory site, it appears not only not to have been "outrageous," but to have been a justifiable response under the circumstances.*fn12
I do not mean to suggest that the government activity in this case was not substantial. The wisdom of using agents provocateurs in this fashion and at such expense in time and money is open to serious question, both on ethical and tactical grounds. Although many courts have allowed such undercover activity, few have done so with specific approval or encouragement.*fn13 But it is entirely another matter, in the light of Russell and Hampton, to conclude that this case, unlike others involving the use of comparable tactics, is in someway "shocking" or "outrageous." In short, this does not appear to be the extreme case contemplated by Mr. Justice Powell in Hampton.
The majority's argument to the contrary relies primarily on pre-Hampton cases. Like the majority, I admire Judge Hastie's excellent opinion for this Court in United States v. West,*fn14 and regret in many ways that the Supreme Court did not find it more persuasive in Hampton. But whatever its merits may have been, I cannot, unfortunately, join the majority in their belief that that opinion or its "principles" can survive Hampton. The facts of West, as the majority notes, are virtually indistinguishable from Hampton. I do not see how we can rely on West to tell us what is "outrageous" if the Supreme Court has determined in a subsequent opinion, and after specifically considering West, that government involvement in a similar perhaps even more questionable situation, is not "outrageous" enough to justify a reversal.*fn15
In finding a demonstrable level of outrageousness on the facts here, the majority is particularly conscious of the government's role in instigating the crime. Admittedly, this element of provocation was not present in either Russell or the recent decisions of other circuits distinguished in the majority opinion.*fn16 But I do not believe that government incitement, however much I question its advisability, can be seen as the crucial element establishing the level of outrageousness necessary to find a violation of the due process clause. I am so convinced for three reasons.
First, there was government instigation in Hampton and it did not lead to a reversal.*fn17 The majority distinguishes Hampton by suggesting that "extreme methods" may be more justifiable in cases involving the sale of drugs, "a much more fleeting and elusive crime to detect than the operation of an illicit drug laboratory." Majority opinion, Supra at 378. Whether or not laboratories are, in fact, easier to detect, I am reluctant to embrace a rule that allows otherwise "outrageous" conduct in the pursuit of small-time pushers but forbids these tactics when aimed at manufacturers of drugs and their financiers. If instigation of the crime is permissible in the former case, I do not see how we can invoke the due process clause to forbid it in the latter.
Second, a claim of instigation or incitement appears to be logically connected to the question of predisposition. Government instigation is important because it raises questions about the defendant's intent: it must be determined whether he was predisposed to commit the crime or whether the governmental activity "deceptively implanted the criminal design" in his mind. United States v. Russell, 411 U.S. 423, 436, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). This is the traditional entrapment defense. The defendants here argued that they were lured, in effect, into the criminal scheme by government agent Kubica. Entrapment might have been found on such facts, but the jury concluded that Neville and Twigg were predisposed to commit the crime. Once one credits this finding, the problem of instigation, although it remains an element of the government activity, should assume a much less important position in the analysis of this appeal.*fn18
Third, instigation of a crime may be "outrageous" in the context of some forms of criminal activity but acceptable in the context of others. One can hardly disagree with Judge Friendly that it would be "unthinkable, for example, to permit government agents to instigate robberies and beatings merely to gather evidence to convict other members of a gang of hoodlums."*fn19 But, as Justice Powell recognized in Hampton,*fn20 contraband offenses present a different question. In the field of drug enforcement, instigation is quite common. Indeed, the use of instigation as a primary technique in large part distinguishes the DEA from other law enforcement agencies.*fn21 To place so heavy an emphasis on instigation as an important element of "outrageous" conduct might well make effective enforcement of our drug laws most difficult. Under these circumstances, I am unable to join the Court in relying on the government's "instigation" of this conspiracy as support for the conclusion that the government involvement here was "outrageous."*fn22
It is true, of course, that the government did more here than "suggest" the operation. Through Kubica it provided chemicals, some laboratory equipment, money, and chemical expertise. But it must be remembered that Kubica was re-creating the partnership he had had with Neville a few years earlier. He would inevitably be expected to perform the same duties he had undertaken then. If the government were unable to do as much as it in fact did, the entire operation directed against Neville would have been impossible.
Why the government was willing to use Kubica in this way in order to reach Neville is unclear. The majority appears to be of the view that Kubica, with his chemical expertise, was the more valuable catch and the more logical target for hard nosed prosecution.*fn23 This may well be the case. But I am reluctant to second-guess the DEA choice of target. Neville, after all, was able to provide both money and "contacts." It cannot be said with any certainty that such a person may not ultimately prove more important than a chemist in breaking up the network of drug manufacturers and suppliers in this country.
Whatever our judgment of their wisdom may be, DEA officials chose to utilize Kubica to pursue Neville. Given this decision, as a practical matter, they had to furnish through Kubica the same skills and materials Kubica had provided in the earlier conspiracy. This they did; and Neville, and through Neville, Twigg, willingly participated in the conspiracy. Although there is reason to question this sort of law enforcement, I cannot say that it shocks my conscience or that it reaches a demonstrable level of outrageousness beyond my toleration. This is so in part because I recognize the difficulties faced by the DEA in combatting the spread of illegal drugs. But, more importantly, I am particularly mindful of Russell "s warning that the federal judiciary is not to exercise " "a Chancellor's foot' veto over law enforcement practices of which it (does) not approve."*fn24 To broaden the limited exception fashioned by Mr. Justice Powell in Hampton may well have just such an effect. Because I believe that that opinion authorizes judicial intervention under the due process clause only in extreme cases, I must respectfully dissent from the majority's reversal of the convictions of both Neville and Twigg.