459 F.2d 671 (9th Cir. 1972), 26485, United States v. Russell

Docket Nº:26485.
Citation:459 F.2d 671
Party Name:UNITED STATES of America, Appellee, v. Richard RUSSELL, Appellant.
Case Date:April 06, 1972
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 671

459 F.2d 671 (9th Cir. 1972)

UNITED STATES of America, Appellee,

v.

Richard RUSSELL, Appellant.

No. 26485.

United States Court of Appeals, Ninth Circuit.

April 6, 1972

Page 672

Robert E. Prince, of Stern, Gayton, Neubauer & Brucker, Seattle, Wash., for appellant.

Stan Pitkin, U.S. Atty., Charles Pinnell, Asst. U.S. Atty., Seattle, Wash., for appellee.

Before KOELSCH, ELY and TRASK, Circuit Judges.

ELY, Circuit Judge.

Russell was convicted on three counts of violating the Federal Food and Drug Laws in manufacturing, processing, delivering, and selling a prohibited depressant or stimulant drug, methamphetamine. 21 U.S.C. §§ 331(q)(1), (2); 360a(b). In this appeal, Russell urges that the participation of a Government Agent in the crimes was so overreaching as to constitute entrapment as a matter of law.

In December, 1969, a Special Agent of the Bureau of Narcotics and Dangerous Drugs met with Russell and several of the latter's codefendants. The Agent claimed that he represented an organization anxious to control the manufacture and distribution of methamphetamine in the Pacific Northwest, and he offered to supply the chemical Phenyl-2-Propanone in exchange for one-half of the methamphetamine to be manufactured therewith. An agreement was reached, and several days later, the Agent provided the Phenyl-2-Propanone, and the methamphetamine was produced with the Agent's assistance. He received his share and also purchased an additional amount of the finished product from Russell.

The challenged conduct on the part of the Government's Agent was the supplying of the Phenyl-2-Propanone, a chemical essential to the manufacture of methamphetamine. The Agent himself testified that this chemical was difficult to obtain because one must have a manufacturer's license to purchase it at a chemical supply house and because many suppliers were, at the request of the Bureau of Narcotics, no longer selling it at all. Thus, there could not have been the manufacture, delivery, or sale of the illicit drug had it not been for the Government's supply of one of the essential ingredients.

While Russell candidly concedes that he may have harbored a predisposition to commit the charged offenses, he contends that he may still avail himself of the entrapment defense. Principally, he relies upon the concurring opinions of Justices Frankfurter and Roberts in Sherman v. United States, 356 U.S. 369, 378-385, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and Sorrells v. United States, 287 U.S. 435, 453-459, 53 S.Ct. 210, 77 L.Ed. 413 (1932) .

Page 673

These opinions propose a test for entrapment that focuses, not on the intent of the accused, but on the conduct of the Government:

"The crucial question, not easy of answer, to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power."

Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring).

The basic contention of the Government, in response to Russell's claim, is premised on the following statement of our court, drawn from the majority opinions in Sherman and Sorrells:

"Entrapment is shown where Government agents go beyond the mere affording of opportunities or facilities for the commission of the offense and exert persuasion of one kind or another which induces the commission of a crime by one who has no predisposition to do so."

United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969). The Government argues that the plain import of this language is that one altogether forfeits an entrapment defense if he is "predisposed" to commit the crime.

We need not resolve the precise issue apparently presented by the parties. For regardless of the significance of "predisposition" as an element in "entrapment," we conclude that there is merit in Russell's contention that a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise. Two theories for this defense have been advanced. Placing the defense within the ambit of the entrapment doctrine was the approach taken by our learned Brothers of the Fifth Circuit in...

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