6 F.3d 1 (1st Cir. 1993), 93-1393, United States v. Santana

Docket Nº:93-1393.
Citation:6 F.3d 1
Party Name:UNITED STATES of America, Appellant, v. Rafael SANTANA and Francis Fuentes, Defendants, Appellees.
Case Date:September 16, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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6 F.3d 1 (1st Cir. 1993)

UNITED STATES of America, Appellant,


Rafael SANTANA and Francis Fuentes, Defendants, Appellees.

No. 93-1393.

United States Court of Appeals, First Circuit

September 16, 1993

Heard Aug. 2, 1993.

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Kevin O'Regan, Asst. U.S. Atty., Springfield, MA, with whom A. John Pappalardo, U.S. Atty., Boston, MA, and Andrew Levchuk, Asst. U.S. Atty., Springfield, MA, were on brief, for appellant.

Leonard H. Cohen, with whom William A. Rota, Nancy A. Lyon, and Cain, Hibbard, Myers & Cook, Pittsfield, MA, were on brief, for appellee Santana.

Peter L. Ettenberg, with whom Gould & Ettenberg, P.C., Worcester, MA, was on brief, for appellee Fuentes.

Wendy Sibbison, Greenfield, MA, Burton Shostak, and Moline, Ottsen, Mauze, Leggat & Shostak, St. Louis, MO, on consolidated brief, for amici curiae MA Ass'n of Crim. Defense Lawyers and Nat. Ass'n of Crim. Defense Lawyers.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

In the six decades since Justice Roberts noted that "[s]ociety is at war with the criminal classes," Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932) (Roberts, J., dissenting), hostilities have escalated and armaments have grown more destructive. Here, the government's weapon was 13.3 grams of heroin, 92% pure, delivered into the stream of commerce as part of an effort to gain the confidence of suspected drug traffickers. The district judge decided that the government's guerilla tactics impermissibly endangered civilians and dismissed the ensuing charge. See United States v. Santana, 808 F.Supp. 77 (D.Mass.1992). The United States appeals. Although law enforcement officers might well profit from reading the lower court's thoughtful opinion, we conclude that the court exceeded its authority. Consequently, we reverse.


In 1991, the federal Drug Enforcement Administration (DEA) mounted an elaborate reverse sting designed to bring a mammoth heroin distribution network to ground. The DEA believed that defendant-appellee Rafael Santana ran the ring from prison through various henchmen, including defendant-appellee Francis Fuentes. In the course of the sting, Fuentes asked an undercover agent, posing as a heroin supplier, to furnish a sample of his wares. The agent received a special dispensation from DEA hierarchs and delivered 13.3 grams of heroin, 92% pure, to Fuentes in August of 1991. 1 The authorities never recovered the sample.

There is a factual dispute over the size of the stakes. The government, based on its agent's testimony, claims that the deal under negotiation contemplated delivery of 141 kilograms of heroin. It further claims, based on an informer's account, that Santana's organization was capable of distributing up to 200 kilograms of heroin monthly. Appellees suggest that the negotiations concerned a considerably smaller quantity of narcotics, and that the organization, if it existed at all, was far less ambitious. We need not enter this thicket; for present purposes, the relevant finding is the reasonableness, at the time the sample was furnished, of the government's belief that the alleged organization had the capacity to manage widespread distribution of heroin. It is not seriously disputed that the government thought this to be the case;

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and, moreover, the government's belief, given both the information in its files and Santana's history--he had been convicted in 1990 of conspiracy to smuggle 1,000 kilograms of heroin--was objectively reasonable.

Having been made privy to the evidence collected in the course of the government's indagation, a federal grand jury returned a three-count indictment against seven defendants, including appellees, in October of 1991. The defendants filed pretrial motions seeking to dismiss the indictment on the ground that the government acted outrageously in fronting so much heroin and then losing track of it. A magistrate judge recommended that the motions be denied. The district court rejected the recommendation. Presuming that most of the unretrieved sample reached end users, see id. at 79, the court found that the government's actions exceeded the bounds of propriety, see id. at 81-84. It thereupon dismissed count 3 of the indictment (the count for which the 13.3-gram sample formed the corpus delicti). 2 See id. at 85-86. The court derived its authority from the due process clause of the Fifth Amendment, and, alternatively, from its supervisory power. See id. at 86. The government moved unsuccessfully for reconsideration 3 and now appeals. We have jurisdiction under 18 U.S.C. Sec. 3731 (1988).

There are two main legal points in contention. First, the government denies that its conduct was outrageous. Second, the government asseverates that the district court lacked authority under either the due process clause or the rubric of supervisory power to redress injuries to third parties by dismissing charges against appellees. On the facts of this case, we think that both points are well taken.


Outrageous misconduct is the deathbed child of objective entrapment, a doctrine long since discarded in the federal courts. See, e.g., Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958) (rejecting an objective entrapment approach in favor of a subjective approach). The doctrine's midwife was Chief Justice Rehnquist (then Justice Rehnquist), who, in the course of championing a subjective theory of entrapment, speculated that the Court might "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...." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). Seizing upon this dictum, the defendant in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), attempted to construct an outrageous misconduct defense rooted in the due process clause. Hampton lost his case but succeeded in legitimating the doctrine, albeit precariously. 4

Although it has a comfortably familiar ring, "outrageous misconduct" is surpassingly difficult to translate into a closely defined set of behavioral norms. The broadest hints as to the content of the outrageousness standard lie in the dictum that spawned the doctrine. Inasmuch as Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), is the case irrefragably linked with

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the legal rubric of fundamental fairness, one hint is found in Justice Rehnquist's citation to Rochin. See Russell, 411 U.S. at 431-32, 93 S.Ct. at 1642-43. A second hint is contained in Russell's explicit equation of outrageous misconduct with violations of "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 432, 93 S.Ct. at 1643 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303, 4 L.Ed.2d 268 (1960)). Picking up on these clues, most courts apply a variant on the fundamental fairness standard as a sounding line for outrageousness. See Mosley, 965 F.2d at 910 (collecting formulations). Although this standard lacks mathematical precision, we agree with Justice Frankfurter that imprecision of this nature does not leave courts without adequate guidance; rather, "[i]n dealing not with the machinery of government but with human rights, the absence of formal exactitude, or want of fixity of meaning, is not an unusual or even regrettable attribute of constitutional provisions." Rochin, 342 U.S. at 169, 72 S.Ct. at 208.

The banner of outrageous misconduct is often raised but seldom saluted. Even though one respected jurist contends that the doctrine belongs in the dustbin of history, see United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir.1989) (Easterbrook, J., concurring), 5 case after case confirms its continued existence. See Moran v. Burbine, 475 U.S. 412, 432, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986) ("We do not question that on facts more egregious than those presented here police deception might rise to a level of a due process violation."); United States v. Mosley, 965 F.2d 906, 909 (10th Cir.1992) (collecting cases from eleven circuits). Be that as it may, the doctrine is moribund; in practice, courts have rejected its application with almost monotonous regularity. See, e.g., United States v. Barnett, 989 F.2d 546, 560 (1st Cir.1993), petition for cert. filed (June 28, 1993) (No. 93-5018); United States v. Lilly, 983 F.2d 300, 309-10 (1st Cir.1992); United States v. Marino, 936 F.2d 23, 27 (1st Cir.1991); United States v. Rosen, 929 F.2d 839, 842 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 77, 116 L.Ed.2d 51 (1991); United States v. McDowell, 918 F.2d 1004, 1008-09 (1st Cir.1990); see also United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.1990) (collecting pre-1990 First Circuit cases declining to invoke the doctrine); United States v. Bogart, 783 F.2d 1428, 1434-38 (9th Cir.) (summarizing relevant case law), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir.1986); United States v. Warren, 747 F.2d 1339, 1342-43 & nn. 7-8 (10th Cir.1984) (collecting precedents from various circuits). Indeed, since the Supreme Court decided Hampton, a federal appellate court has granted relief to a criminal defendant on the basis of the outrageous misconduct defense only once. See United States v. Twigg, 588 F.2d 373, 382 (3d Cir.1978). The historical record makes it clear, therefore, that the outrageous misconduct defense is almost never successful. 6

There are two competing visions of the doctrine's role. One school of thought holds that the defense should be confined to cases involving extreme physical, and...

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