U.S. v. Bradley, s. 86-1024

• Citation: 820 F.2d 3
• Decision Date: 26 May 1987
• Docket Number: 86-1075 and 86-1076,Nos. 86-1024,s. 86-1024
• Parties: UNITED STATES of America, Appellee, v. John C. BRADLEY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Howard F. GREENBERG, Defendant, Appellant. UNITED STATES of America, Appellee, v. John R. BROOKS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 3

820 F.2d 3

55 USLW 2703

UNITED STATES of America, Appellee, v. John C. BRADLEY, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Howard F. GREENBERG, Defendant, Appellant.

UNITED STATES of America, Appellee, v. John R. BROOKS, Defendant, Appellant.

Nos. 86-1024, 86-1075 and 86-1076.

United States Court of Appeals, First Circuit.

Argued Feb. 2, 1987.

Decided May 26, 1987.

Robert A. George, Boston, Mass., with whom Balliro, Mondano & Balliro, was on brief, for defendant, appellant Bradley.

Howard F. Greenberg, submitted on the brief for defendant, appellant Bradley.

Stuart A. Steinberg, Concord, N.H., for defendant, appellant Brooks.

Mitchell D. Dembin, Asst. U.S. Atty., San Diego, Cal., with whom Robert S. Mueller, III, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, ALDRICH and BREYER, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

Defendants, John Bradley, Howard Greenberg, John Brooks, and James Brenner, were indicted and charged in two counts with conspiracy to possess cocaine with intent to distribute, and possession with intent to distribute and aiding and abetting, in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 846 and 841(a)(1). Following a joint trial, Bradley and Greenberg were convicted on both counts, Brooks was convicted of the substantive violation only, and Brenner was acquitted altogether, presumably on his special defense of entrapment. The most serious claim is that raised by Bradley to the court's denying him the right to claim entrapment. We conclude that the denial was proper, and affirm the convictions of all defendants.

The nature of Bradley's rejected entrapment defense requires that the facts, including the evidence favorable to defendants, be set forth in some detail. One Michael Constanza was a state prison inmate who offered to name a cocaine seller in return for a recommendation to reduce his sentence. He gave to C.H. Bradley, a local police officer assigned to a regional narcotics force, the name of defendant Brenner. C.H. Bradley made contact with Brenner on July 9 or 10, 1985.

According to C.H. Bradley, Brenner immediately indicated a willingness to sell cocaine, but his initial attempts to arrange a deal fell through. Eventually, a transaction was arranged through defendant John Bradley. In the evening of July 16, the suppliers apparently contacted by John Bradley drove up to the New England Shopping Center in Saugus, Massachusetts, in a stretch limousine. Having arrived in two separate automobiles, Brenner, John Bradley, C.H. Bradley, and Kathleen Bennett, an undercover agent posing as C.H. Bradley's girlfriend, were waiting outside to meet them. Inside the limousine were Greenberg and one Tello; ¹ Brooks was the driver. John Bradley and Bennett entered the limo, and Greenberg produced approximately a pound of cocaine and showed it to Bennett. Bennett approved it and, emerging, allegedly to get the money, gave a signal. Government autos approached, and Brooks damaged two of them in an unsuccessful attempt to drive away. The arrests were then made.

On this basis, the government would appear to have proved its case to the hilt against all defendants, with the possible exception of Brooks. However, defendants Brenner and John Bradley countered with claims of entrapment. ² According to Brenner, his apparent willingness to deal with C.H. Bradley was due to pressure that had been put upon him by Constanza, who had threatened to have him beaten up if he did not obtain a pound of cocaine for a person named "Charlie." ³ Among other things, Constanza told him, "You got no choice in the matter. Either you do this or I am going to have you hurt." He begged Constanza to let him off, but Constanza was obdurate. Thus pressured, he agreed to try to set up the deal, and when "Charlie" (Officer C.H. Bradley) called him shortly thereafter, he said he would "[t]ry to get it within an hour." He was unable to do so. "[W]ithin minutes" he appealed to his "close friend" John Bradley, who was a former user, to supply the drug. Bradley told him he was crazy and refused to help. ⁴

His first contact with John Bradley, according to Brenner, was made on either Tuesday, July 9, or Wednesday, July 10. Brenner tried calling others, but his attempts to set up a deal did not work out. He called Bradley again on Thursday, and, again, Bradley refused to help. On Friday, increasingly nervous about his ability to pull off the deal, Brenner visited Constanza in prison, asking to let the matter drop, but Constanza again threatened him, saying he would "break his ... head" if he did not complete the deal by the following Tuesday. That same day, Brenner once again called Bradley, allegedly telling him for the first time that he was trying to arrange this deal only because he was being threatened by someone he had known in prison. Upon hearing this, Bradley finally succumbed, saying he would make some phone calls on Brenner's behalf. Eventually Bradley told Brenner the deal could go through on July 16, and it did.

Defendant Bradley testified to the same purport. He was distressed, he said, and could not bear to think of harm coming to his friend Brenner. This solicitude was matched by his generosity: he would not expect any payment. In spite of this account, the court refused to allow John Bradley to claim an entrapment defense.

Since, in view of his arrangement with C.H. Bradley, Constanza is considered an "agent" whose actions are properly chargeable to the government, see United States v. Annese, 631 F.2d 1041, 1047 (1st Cir.1980), we can agree with defendant Bradley that the evidence of Constanza's conduct towards Brenner supported the jury's acceptance of Brenner's claim of entrapment. Bradley asks, why should not this conduct equally apply to him, to whom it was relayed, and who was influenced accordingly? The government counters, citing cases from many circuits, that it is a commonly accepted principle that a defendant cannot claim entrapment by acts of third parties. See, e.g., United States v. Leroux, 738 F.2d 943, 947-48 (8th Cir.1984) (collecting cases). But cf. United States v. Valencia, 645 F.2d 1158, 1168 (2d Cir.1980) (2-1 decision), post. Both answers are simplistic, and are best viewed after an analysis of the reasons why entrapment is recognized as a defense. On so doing it is readily apparent that the basic components may be as diverse as Bradley's and the government's contentions suggest. In part this is because there are practicalities as well as what might be termed ethical principles.

We start with a given: The defendant would not have committed this particular crime had it not been for the government activity. It is offensive that the government should turn law-abiding citizens into criminals. At the same time, the defendant did commit a crime and, depending upon the degree of the inducement, his character fell short of what is socially mandated. Most crimes are the result of an inducement of one sort or another; from Adam onward temptation has not been a per se excuse. Is what is peculiarly repugnant about entrapment the government agent's own conduct, or that an apparently innocent citizen has become a criminal at government instigation? Into this mix must, of course, be put the fact that certain serious crimes, "victimless" in the sense that no party wishes disclosure, cannot be effectively investigated without significant governmental involvement in illegal activities. See, e.g., Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring); United States v. Porter, 764 F.2d 1, 8 (1st Cir.1985).

The tension among these various concerns is reflected in the complexity of the courts' analyses of the entrapment question. With respect to the entrapment defense per se, the focus is clearly on " 'the intent or predisposition of the defendant to commit the crime.' " Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976) (plurality opinion) (quoting United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973)). Only after the defendant has made a threshold showing that "a government agent turned him from a righteous path to an iniquitous one" does the burden of disproving entrapment shift to the government. United States v. Coady, 809 F.2d 119, 122 (1st Cir.1987).

To this there is one exception. Even a willing defendant may claim a violation of due process if the government's conduct has reached a " 'demonstrable level of outrageousness.' " United States v. Porter, ante (collecting cases and quoting Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring)). ⁵ Mainly these cases involve alleged overinvolvement on the government's part in manufacturing the crime. E.g., Hampton, ante; United States v. Twigg, 588 F.2d 373 (3d Cir.1978). Even here, a defendant may be barred from claiming outrageousness if he has been too active himself. See United States v. Arteaga, 807 F.2d 424, 427 (5th Cir.1986). But, of course, outrageous conduct may take other forms, and might well be found in a threat of serious physical harm. No such threat, however, was directed to John Bradley, and he has no claim.

Bradley argues, whether with respect to due process, or to entrapment, that the government, having started improper activity, should be responsible for its continuation, to the extent that anyone further was corrupted. He overstates his case, however, when he says that the "government's highly improper inducement ... could be expected to coerce (if indirectly) parties other than the intermediary into criminal involvement." Apart from what is comprehended in the words "if indirectly," instructing Brenner to obtain drugs for Charlie neither orders him to entrap someone, or, in itself, expects it. A quite different case would be presented if...