28 F.3d 1420 (6th Cir. 1994), 93-6028, United States v. Tucker

Docket Nº:93-6028.
Citation:28 F.3d 1420
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Brenda TUCKER and Barbara McDonald, Defendants-Appellees.
Case Date:July 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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28 F.3d 1420 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellant,


Brenda TUCKER and Barbara McDonald, Defendants-Appellees.

No. 93-6028.

United States Court of Appeals, Sixth Circuit

July 15, 1994

Argued March 17, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 26, 1994.

Devon L. Gosnell, Asst. U.S. Atty. (argued), Vivian R. Donelson, Asst. U.S. Atty. (briefed), Memphis, TN, for U.S.

William D. Massey, Memphis, TN (briefed), for Brenda Tucker.

Robert C. Brooks, Office of Federal Public Defender, W.D.Tenn., Memphis, TN (argued and briefed), for Barbara McDonald.

Before: MARTIN, SUHRHEINRICH, and SILER, Circuit Judges.

SUHRHEINRICH, Circuit Judge, delivered the opinion of the court, in which

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SILER, Circuit Judge, joined. MARTIN, Circuit Judge (pp. 1429-30), delivered a separate opinion concurring in the result.

SUHRHEINRICH, Circuit Judge.

Defendants were indicted for purchasing, and aiding and abetting the purchase of, food stamps in violation of 7 U.S.C. Sec. 2024(b)(1). Defendants moved to dismiss the indictment, claiming that the government's conduct in inducing defendants to commit their crimes was so "outrageous" that it violated their due process rights. The district court referred the matter to a magistrate judge for evidentiary hearings, findings and recommendations. The magistrate's report recommended dismissal, the district court accepted this recommendation and the government, pursuant to 18 U.S.C. Sec. 3731, appeals. Because we find no binding authority requiring or even authorizing this court to conduct a purely objective assessment of the government's conduct in this case, we decline to do so. Defendants' assertion of a "due process" defense based upon such an assessment is, in our view, nothing more than a claim of entrapment and, accordingly, we REVERSE and REMAND for trial.

I. Facts

Defendants' indictment arose out of a "reverse sting," i.e., an operation in which "the police pose as sellers of [contraband], set up deals with would-be buyers under carefully controlled conditions, and arrest the purchasers following the sham sale." Owen v. Wainwright, 806 F.2d 1519, 1520 (11th Cir.1986), cert. denied, 481 U.S. 1071, 107 S.Ct. 2466, 95 L.Ed.2d 875 (1987). The operative in this case, Linda Hancock, was hired by the United States Department of Agriculture to help "catch ... a lot of people that had been abusing the [food stamp] system." Hancock worked on a "commission" of sorts, keeping half the money collected from her sale of food stamps. She was not told whom she should approach, just that she should find people willing to buy the stamps below face value and secretly record the transactions.

In November of 1990, Hancock called defendant Tucker, a friend of more than ten years. Claiming that she was in dire financial need, Hancock told Tucker that she was going to have to sell her family's food stamps in order to provide a "proper Christmas" for her children. After first resisting, Tucker finally purchased the stamps when Hancock later appeared at her beauty salon dressed in a manner suggesting her financial distress. When Hancock asked who else Tucker thought might buy some stamps, Tucker sent Hancock to McDonald, one of Tucker's employees. McDonald also purchased food stamps from Hancock after listening to her tales of ill-health and financial need.

In accepting the magistrate judge's Report and Recommendation, the district court stated:

I don't think we are at a point in our criminal history where the government needs to lower itself into targeting sympathetic ploys on citizens that are not otherwise suspected of engaging in criminal conduct ... [Food stamp trafficking] is not such a terrible offense that the government, in my view, should be permitted to use agents under the totality of the facts of this case ... [C]ertainly there is no reason why the government cannot use undercover agents, cannot pay those undercover agents, cannot have undercover agents deal with friends, cannot use untrue ploys. All of those things individually are certainly useful techniques for investigation. But when they are employed in totality with people who are not otherwise suspected of engaging in crime, it seems to me that the conduct, as the Magistrate concluded, crosses [the constitutional] boundary.

(J.A. at 169-72).

We review the district court's dismissal de novo. 1 See United States v. Leja, 563 F.2d

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244, 245-46 (6th Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978).

II. The "Due Process" Defense

Defendants argue that this court may, indeed must, undertake an independent, objective assessment of the government's methods in this case and, if we find them to be "outrageous," affirm the district court's decision to dismiss. Before engaging in the highly suspect process of labeling the conduct of a co-equal branch of our government as either "outrageous" or "not outrageous," we are compelled to determine precisely upon what authority we would do so.

  1. Entrapment

    Any analysis of the so-called "due process" defense must, in our view, begin with the law of entrapment. The Supreme Court first recognized an entrapment defense in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). In doing so, the Court resolved a deep split of authority as to whether the focus of the defense was "objective" (looking to the government's conduct), or "subjective" (looking to the defendant's predisposition). The Court, siding squarely with the subjective theory, held that a "defendant [who] seeks acquittal by reason of entrapment ... cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue." Id. at 451, 53 S.Ct. at 216.

    The Court rejected an invitation to revitalize an "objective" entrapment defense in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), holding that entrapment was the "line ... between the trap for the unwary innocent and the trap for the unwary criminal." Id. at 372, 78 S.Ct. at 821 (emphasis added). Again, in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Court rejected the "objective" approach to entrapment, stating:

    [Sorrells and Sherman ] 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.

    Id. at 435, 93 S.Ct. at 1644 (emphasis added). 2

    To this point, therefore, it was absolutely clear that a defendant, whose predisposition to commit a particular crime was proved beyond a reasonable doubt, could not defend against prosecution on the basis that the government induced him to commit that crime, no matter how strong the inducement or "outrageous" the government's conduct.

  2. "Outrageous Conduct"

    In Russell, the defendant argued that the defense of entrapment should be founded on constitutional principles rather than congressional intent. He argued that the government's involvement in creating his crime, i.e., the means and degree of inducement, was so great "that a criminal prosecution for the [crime] violates the fundamental principles of due process," his predisposition to commit the crime notwithstanding. Russell, 411 U.S. at 430, 93 S.Ct. at 1642. The defendant argued that, just as with the exclusionary rule created in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), dismissal was an appropriate means of deterring future police misconduct.

    The Court soundly rejected this argument, stating that "the defense of entrapment ...

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    was not intended to give the federal judiciary a 'chancellor's foot' veto over law enforcement practices of which it did not approve." Russell, 411 U.S. at 435, 93 S.Ct. at 1644. Rather, 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." Id. Because the defense of entrapment lacks a constitutional foundation, the Court rejected the defendant's analogy to Weeks and Mapp on the ground that, unlike the Fourth Amendment violations in those cases, "the Government's conduct here violated no independent constitutional right of the respondent." Id. at 430, 93 S.Ct. at 1642.

    The Court, however, went on to note the following:

    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 [72 S.Ct. 205, 96 L.Ed. 183] (1952), the instant case is distinctly not of that breed.... 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.

    Russell, 411 U.S. at 431-32, 93 S.Ct. at 1643.

    Since this dicta was uttered, Russell has been cited more than two hundred times as authority for a defense based solely on an objective assessment of the government's conduct. Thus, the Court's dicta in Russell spawned the very defense which a majority of Justices in that case sought to foreclose.

    Recognizing the internal inconsistency...

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