this Court finds that the Government Agent persisted over a period of time in inducing and persuading the Defendant to commit the crime in question with sole motive and intention of overcoming the obvious reluctance of the Defendant to commit the alleged crime in question.
(d) The Government does not deny that its sole motive and the motive of the Government Agent Heintzinger was to obtain a conviction and in fact the Government is attempting to obtain a conviction of the defendant in this case and this Court so finds that the above described actions of the Government and the Government's Agent in this case was solely and entirely motivated by a desire to convict the defendant of a crime that was encouraged and supported by criminal activities of the said Government Agent since the Government was the one and only customer of the Defendant Gardner.
8. The defendant is entitled to the granting of his Motion to Dismiss the Indictment against him since the Court finds that the conduct of the law enforcement officials is so outrageous that due process of law principles would bar the government from securing a conviction. See United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973); United States v. Jannotti, 673 F.2d 578, 606 (3rd Cir. 1982); United States v. Twigg, 588 F.2d 373, 379 (3rd Cir. 1978).
9. This Court has exercised scrupulous restraint before [denouncing] this law enforcement conduct as constitutionally impermissible Jannotti, 673 F.2d at 607. This judicial restraint is particularly appropriate in the narcotics-prosecution context. However, the undisputed facts spell out outrageous governmental conduct in this case which shocks the conscience of this Court. This Court is particularly persuaded to come to this conclusion by the Government's action in asking this Court to strike off the record all of its evidence and by the Government's refusal to submit its agent Heintzinger to the defendant's cross-examination.
10. However, in United States v. John Ward, 793 F.2d 549, 554 (3rd Cir. 1986), our Court of Appeals, as late as June of last year, stated "thus far the precise nature of the Twigg defense remains unclear" citing United States v. Jannotti, 673 F.2d 578, 606 (3rd Cir.) (en banc) cert. den., 457 U.S. 1106, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (1982).
It is the legal conclusion of this Court that the undisputed conduct of the Government Agent in this case reached a demonstrable level of outrageousness which compels this Court to grant the Defendant's Motion to Dismiss the indictment.
This is not an entrapment case. The question here is whether -- regardless of the Defendant's predisposition to commit a crime -- the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. See United States v. Russell, 411 U.S. 423, 431, 432, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). Thus, the focus of this approach is not on the propensities and predisposition of the specific defendant, but on "whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power." See Sherman v. United States, 356 U.S. 369, 382, 2 L. Ed. 2d 848, 78 S. Ct. 819 (1958). Under this approach, the determination of the lawfulness of the government's conduct must be made -- as it is on all questions involving the legality of law enforcement methods -- by the trial judge, not the jury.
In the instant case, regardless of whether the subjective or objective approach is used, it is clear that Mr. Gardner's rights were violated. There has not been a scintilla of evidence submitted by the government that shows any predisposition on the part of Mr. Gardner, the Defendant in this case. Rather, what is clearly shown is that Defendant Gardner repeatedly told Heintzinger, the Government Agent, that he did not know where to get cocaine and, in fact, tried to return money given him by Heintzinger which Heintzinger refused. Defendant Gardner has no prior criminal record. He was honorably discharged from the Marines, and has been gainfully employed for seven years by the United States Post Office. The testimony presented at the hearing on this matter almost entirely goes to the shocking conduct of the government in creating a crime just for the sake of obtaining the conviction of an otherwise innocent individual. The Government refused to offer direct evidence or rebuttal evidence.
A number of courts have analyzed the conduct of the government in determining whether such conduct constituted a due process violation. In Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976), a majority of the court recognized the potential availability of an outrageous police conduct defense no matter what the defendant's criminal disposition. Id. at 497.
The Eighth Circuit Court of Appeals in United States v. Lard, 734 F.2d 1290 (8th Cir. 1984) noted, in reversing the defendant's convictions on the ground that they may have been entrapped as a matter of law, observed:
"Finally, we should add that, apart from the entrapment defense, Agent Anderson's over-involvement in conceiving and contriving the crimes here approached being 'so outrageous that due process principles should bar the government from invoking judicial process to obtain a conviction.' See United States v. Russell supra, at 431-32; United States v. Twigg supra, at 379; United States v. McCaghren, 666 F.2d 1227, 1230-31 (8th Cir. 1981). Anderson's conduct was not aimed at facilitating discovery or suppression of ongoing illicit dealings in unregistered firearms. Rather, it was aimed at creating new crimes for the sake of bringing criminal charges against Lard, who before being induced, was lawfully and peacefully minding his own affairs. See United States v. Twigg, supra. The government's agent over-zealous efforts to instigate crime also involved rather extreme and questionable measures, including smoking of marijuana to gain Lard's confidence and lure him into committing a crime he was not otherwise ready and willing to commit. Concepts of fundamental fairness preclude us from putting our imprimature on law enforcement overreaching conduct designed to instigate "a criminal act by persons 'otherwise innocent in order to lure them to its commission and to punish them.'" Russell, 411 U.S. 423 at 428-9, 36 L. Ed. 2d 366 [93 S. Ct. 1637] . . . Id. at 1296-97."
The history of the "due process defense" begins with U.S. v. Russell, 411 U.S. 423 at 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637. There the Court did not set forth a definitive outline of this defense but noted that a court could be presented with a situation in which "the conduct of law enforcement is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction."
The Court of Appeals for the Third Circuit in U.S. v. Twigg, 588 F.2d 373 (3rd Cir. 1978), said ". . . 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."
Other cases in this Circuit, when presented with the question involving the due process defense have failed to find any due process violation and have noted that the Court of Appeals for this Circuit have not delineated the defense: See U.S. v. Jannotti, 673 F.2d 578 (3rd Cir. 1982); U.S. v. Beverly, 723 F.2d 11 (3rd Cir. 1983); U.S. v. Ward, 793 F.2d 559 (3rd Cir. 1986), decided June 20, 1986; U.S. v. Gambino, 788 F.2d 938 (3rd Cir. 1986); U.S. v. Chavez, 620 F. Supp. 1516 (D.C. Pa. 1985); U.S. v. Kinkle, 631 F. Supp. 423 (E.D. Pa. 1986).
Subsequent to Twigg, in United States v. Beverly, 723 F.2d at 13 (3rd Cir. 1983) (per curiam), the Court stated that it was not prepared to conclude that the police conduct in that case "shocked the conscience" so as to mandate acquittal to protect the Constitution. However, Beverly is clearly distinguishable from the instant case. There, the defendant had boasted to a federal agent that he was an experienced arsonist and the agent offered him $ 3,000 to burn a building. There are no such indications present in this instance, and as Twigg has never been overruled in this Circuit, dismissal of the indictment under the outrageous and shocking circumstances presented here is appropriate.
The Court of Appeals for the Ninth Circuit has outlined the test for the defense of violation of due process. In U.S. v. Bogart, 783 F.2d, 1428 (9th Cir. 1986), the Court of Appeals reviewed the law on the due process defense and concluded:
We have not accepted the view that this highly discreet group of extreme cases of police brutality defines the limits of unconstitutional outrageous governmental conduct. We have held that law enforcement conduct also becomes constitutionally unacceptable 'where government agents engineer and direct the criminal enterprise from start to finish, '. . . or when governmental conduct constitutes 'in effect, the generation by police of new crimes merely for the sake of pressing criminal charges against the defendant.' . . . . our view, shared by Justice Brandeis, that a crime manufactured by the government 'from whole cloth' would constitute outrageous conduct also has a firm jurisprudential basis . . . . where the police control and manufacture a victimless crime, it is difficult to see how anyone is actually harmed, and thus punishment ceases to be a response, but becomes an end in itself -- to secure the conviction of a private criminal . . . . under such circumstances, the criminal justice systems infringes upon personal liberty and violates due process".