U.S. v. Johnson, 77-1147

Decision Date09 November 1977
Docket NumberNo. 77-1147,77-1147
PartiesUNITED STATES of America, Appellee, v. Clarke D. JOHNSON, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

William C. Madden, Boston, Mass., by appointment of the court, for appellant.

Charles E. Chase, Asst. U. S. Atty., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and TUTTLE, Circuit Judge. *

LEVIN H. CAMPBELL, Circuit Judge.

Clarke D. Johnson appeals his conviction by a jury on one count of conspiracy to distribute cocaine and three counts of possession with intent to distribute and distribution of cocaine. Appellant's main defense at trial was entrapment. He contends that government agents, acting under cover, badgered him over a period of months, and occasionally even threatened him, finally inducing him to arrange a sale of $100,000 worth of cocaine to them.

On appeal, two actions of the district court are assigned as error: 1 (1) its refusal to give the "fundamental fairness" entrapment instruction requested by appellant; (2) its denial of appellant's motion for a new trial based on the contention that appellant was denied a fair opportunity to meet the Government's allegedly false rebuttal testimony.

Appellant claims that in addition to giving the standard entrapment instructions, 2 which focus on a defendant's predisposition to commit the unlawful act, the court should have charged the jury that in some cases the depth of government involvement in the crime committed will be so great as to require a dismissal as a matter of due process, regardless of the defendant's predisposition. 3 He asserts that the substance of the instruction requested was drawn from Justice Powell's concurring opinion in Hampton v. United States, 425 U.S. 484, 493, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976).

Hampton is not an easy case to interpret in view of the lack of a majority opinion. The plurality opinion maintaining that predisposition was the only issue to consider in assessing an entrapment defense commanded only three votes. Since both Justice Powell and Justice Blackmun, in a separate concurring opinion, took the position that fundamental fairness might in extreme circumstances require dismissal of a prosecution because of outrageous police conduct, it can be said counting the three dissenters that a majority of the Justices would go at least that far. But while, in this sense, Justice Powell's views may be taken as reflecting a current consensus, appellant still must fail in his contentions here, since there is no support in Hampton and its predecessors for placing the question of fundamental fairness before the jury. To the contrary, in his dissent in Hampton, Justice Brennan quoted Justice Stewart, also dissenting, in United States v. Russell, 411 U.S. 423, 441, 93 S.Ct. 1637, 1647, 36 L.Ed.2d 366 (1973), as follows:

"(T)he 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."

It is true, of course, that only the dissenters in Hampton focus on whether the fundamental fairness defense should go to the jury. The plurality opinion simply holds that there is no such defense, while the concurring Justices, who point to the exceptional case that has not yet been decided, do not discuss whether judge or jury is to pass on the issue when it properly arises. It is possible that the exceptional case, now recognized by a majority of the Court, may be hotly disputed on the facts. For example, the defendant may testify that he was directly threatened by government agents that if he did not commit the crime his wife or daughter might be arrested, or some such thing as that. The government agents might testify that no such conversation ever occurred. Is this issue a fact to be resolved by the trial court or is it to be resolved by the jury? Quite possibly, it should be decided by the trial court just as is a disputed fact issue concerning an allegedly illegal search or seizure. On the other hand, Justice Stewart's language that "the determination of the lawfulness of the government's conduct must be made . . . by the trial judge, not the jury" may contemplate only a ruling on the effect of particular conduct once it has been established.

But we need not attempt to resolve this issue here. Under any view, it is the court's province to decide whether defendant's case was such that, if believed, it would fall into the exceptional category mentioned by Justice Powell. If such a determination were left to a jury's unguided discretion, as under the instruction proposed here, the entrapment defense as now understood would be transformed into an invitation to twelve jurors to consider in virtually any case whether defendant was treated "fairly". Whatever its possible role in resolving contested factual issues raised by an entrapment defense, the jury is not equipped and should not be permitted to speculate on whether particular facts do or do not amount to fundamental fairness. We hold that the court properly rejected the proposed instruction.

While this ends the precise issue framed by appellant on appeal, we think it appropriate to consider the related question of whether, on this record, the district court should, as a matter of law, have found the existence of such shocking police conduct as to preclude a conviction. Appellant filed a "motion for judgment of acquittal on the ground of entrapment", which argued that "as a matter of law on the evidence in this case the defendant was entrapped by government agents." This motion was denied by the district court, and while appellant does not now contest this disposition we are inclined to treat appellant as having preserved on appeal the question of fundamental fairness in view of his having raised it in the context of the requested instruction.

We do not believe the Government's conduct was so outrageous as to render Johnson's conviction unconstitutional. Government involvement in the offense was less than in Hampton, supra, or its forebear, Russell v. United States, supra. In Hampton, the Court upheld a conviction for distribution of narcotics that government agents had both supplied to defendant and bought from him. In Russell, government agents had supplied defendants with a somewhat scarce but not contraband chemical that was necessary to manufacture the illicit substance.

In the instant case, the drug was not furnished by the Government. Johnson relied on his own sources to procure $100,000 worth of cocaine for sale to Agents Staffieri and Doyle. To be sure, Johnson testified that he...

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