U.S. v. Parisi

• Decision Date: 29 March 1982
• Docket Number: Nos. 81-1721,81-1736,s. 81-1721
• Parties: UNITED STATES of America, Appellee, v. Louis PARISI, Defendant, Appellant, UNITED STATES of America, Appellee, v. Blaise MARFEO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 126

674 F.2d 126

UNITED STATES of America, Appellee, v. Louis PARISI, Defendant, Appellant, UNITED STATES of America, Appellee, v. Blaise MARFEO, Defendant, Appellant.

Nos. 81-1721, 81-1736.

United States Court of Appeals First Circuit.

Argued March 4, 1981.

Decided March 29, 1982.

Joseph F. Penza, Jr., Providence, R. I., for appellant Blaise Marfeo.

James E. O'Neil, Asst. U. S. Atty., Providence, R. I., with whom Lincoln C. Almond, U. S. Atty., Providence, R. I., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

Defendants were convicted of acquiring food stamp coupons at discount prices under circumstances violating 7 U.S.C. § 2024(b) ¹. This appeal raises two claims: that defendants were entrapped as matter of law, and that, if not, there was error in the charge. The record lacks a transcript, and is highly bobtailed. Except that it appears that the purchases were made from government agents, nothing is shown with respect to the circumstances of the transactions, the nature of the inducement, or the defendants' willingness. It is conceded that for the purposes of the motions for acquittal we must take defendants' predisposition as established. FRAP 10(b)(2).

Admitted predisposition means that the case "does not qualify as one involving 'entrapment' at all." Hampton v. United States, 1976, 425 U.S. 484, 489, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (Rehnquist, J., joined by Burger, C. J., and White, J.); see id. at 492 n.2, 96 S.Ct. at 1651 n.2 (Powell, J., joined by Blackmun, J., concurring in the judgment). The cases upon which defendants rely for a rule of entrapment per se when the government supplies the unlawfully possessed goods, e.g., United States v. Bueno, 5 Cir., 1971, 447 F.2d 903, cert. denied, 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 411; United States v. West, 3 Cir., 1975, 511 F.2d 1083, were effectively overruled by Hampton. See United States v. Hill, 5 Cir., 1980, 626 F.2d 1301, 1307. Nevertheless, according to a differently composed majority of the Hampton Court there remains the issue whether the government agents' participation in the offense was so "outrageous," or "offensive," as to require reversal under the due process clause, or by virtue of our supervisory powers. 425 U.S., ante, at 491-95, 96 S.Ct. at 1650-52 (Powell, J., joined by Blackmun, J.); id. at 495-500, 96 S.Ct. at 1652-55 (Brennan, J., joined by Stewart and Marshall, JJ.); see United States v. Caron, 1 Cir., 1980, 615 F.2d 920, 921; United States v. Johnson, 1 Cir., 1977, 565 F.2d 179, 181-82, cert. denied, 434 U.S. 1075, 98 S.Ct. 1264, 55 L.Ed.2d 780.

This issue is presented neat-the officers participated to the extent of supplying the food stamps, cumulatively worth some $20,000. ² We do not find this participation intolerable. In Hampton an undercover government agent supplied a predisposed defendant with heroin to sell to another undercover agent. Even the two justices, Justice Powell, joined by Justice Blackmun, who would not subscribe to the plurality opinion's assertion that, given predisposition, there never could be a violation of due process, declined to hold that merely supplying the drug was constitutionally offensive. At the same time, we note that Justice Powell felt, 425 U.S., ante, at 495 n.7, 96 S.Ct. at 1652 n.7, that possibly greater involvement was permissible in drug cases because of the seriousness of the traffic, and the difficulty of apprehending offenders. See also United States v. Russell, 1973, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366.

Food stamps are not drugs. However, from the very fact that they are freely possessed and redeemed, and go through many hands, apprehension of parties whose possession or transfer is unlawful only for perhaps non-obvious reasons may be particularly difficult. Under these circumstances the most effective way to catch and deter retailers or others who would deal in bulk in stolen food stamps may be for the government itself to provide the stamps to the willing buyers. A defendant who is predisposed to purchase stamps wholesale is a much more serious criminal than are individual misusers. We see...