United States v. Russell 8212 1585, No. 71

• Court: United States Supreme Court
• Writing for the Court: REHNQUIST
• Citation: 36 L.Ed.2d 366,93 S.Ct. 1637,411 U.S. 423
• Parties: UNITED STATES, Petitioner, v. Richard RUSSELL. —1585
• Docket Number: No. 71
• Decision Date: 24 April 1973

411 U.S. 423 93 S.Ct. 1637 36 L.Ed.2d 366 UNITED STATES, Petitioner,

v.

Richard RUSSELL.

No. 71—1585. Argued Feb. 27, 1973. Decided April 24, 1973.

Syllabus

An undercover narcotics agent investigating respondent and his confederates for illicitly manufacturing a drug, offered them an essential ingredient which was difficult to obtain, though legally available. After the agent had observed the process and contributed the ingredient in return for a share of the finished product, respondent was found guilty by a jury which had been given the standard entrapment instruction. The Court of Appeals reversed, concluding that there had been 'an intolerable degree of governmental participation in the criminal enterprise.' Held: The entrapment defense, which, as explicated in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, prohibits law enforcement officers from instigating criminal acts by otherwise innocent persons in order to lure them to commit crimes and punish them, did not bar the conviction of respondent in view of the evidence of respondent's involvement in making the drug before and after the agent's visits, and respondent's concession 'that he may have harbored a predisposition to commit the charged offenses.' Nor was the agent's infiltration of the drugmaking operation of such a nature as to violate fundamental principles of due process. Pp. 428—436.

459 F.2d 671, reversed.

Philip A. Lacovara, Washington, D.C., for petitioner.

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Thomas H. S. Brucker, Seattle, Wash., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Respondent Richard Russell was charged in three counts of a five-count indictment returned against him and codefendants John and Patrick Connolly. ¹ After a jury trial in the District Court, in which his sole defense was entrapment, respondent was convicted on all three counts of having unlawfully manufactured and processed methamphetamine ('speed') and of having unlawfully sold and delivered that drug in violation of 21 U.S.C. §§ 331(q)(1), (2), 360a(a), (b) (1964 ed., Supp. V). He was sentenced to concurrent terms of two years in prison for each offense, the terms to be suspended on the condition that he spend six months in prison and be placed on probation for the following three years. On appeal, the United States Court of Appeals for the Ninth Circuit, one judge dissenting reversed the conviction solely for the reason that an undercover agent supplied an essential chemical for manufacturing the methamphetamine which formed the basis of respondent's conviction. The court concluded that as a matter of law 'a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.' 459 F.2d 671, 673 (1972). We granted

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certiorari, 409 U.S. 911, 93 S.Ct. 226, 34 L.Ed.2d 172 (1972), and now reverse that judgment.

There is little dispute concerning the essential facts in this case. On December 7, 1969, Joe Shapiro, an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs, went to respondent's home on Whidbey Island in the State of Washington where he met with respondent and his two codefendants, John and Patrick Connolly. Shapiro's assignment was to locate a laboratory where it was believed that methamphetamine was being manufactured illicitly. He told the respondent and the Connollys that he represented an organization in the Pacific Northwest that was interested in controlling the manufacture and distribution of methamphetamine. He then made an offer to supply the defendants with the chemical phenyl-2-propanone, an essential ingredient in the manufacture of methamphetamine, in return for one-half of the drug produced. This offer was made on the condition that Agent Shapiro be shown a sample of the drug which they were making and the laboratory where it was being produced.

During the conversation, Patrick Connolly revealed that he had been making the drug since May 1969 and since then had produced three pounds of it.² John Connolly gave the agent a bag containing a quantity of methamphetamine that he represented as being from 'the last batch that we made.' Shortly thereafter, Shapiro and Patrick Connolly left respondent's house to view the laboratory which was located in the Connolly house on Whidbey Island. At the house, Shapiro observed an empty bottle bearing the chemical label phenyl-2-propanone.

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By prearrangement, Shapiro returned to the Connolly house on December 9, 1969, to supply 100 grams of propanone and observe the manufacturing process. When he arrived he observed Patrick Connolly and the respondent cutting up pieces of aluminum foil and placing them in a large flask. There was testimony that some of the foil pieces accidentally fell on the floor and were picked up by the respondent and Shapiro and put into the flask.³ Thereafter, Patrick Connolly added all of the necessary chemicals, including the propanone brought by Shapiro, to make two batches of methamphetamine. The manufacturing process having been completed the following morning, Shapiro was given one-half of the drug and respondent kept the remainder. Shapiro offered to buy, and the respondent agreed to sell, part of the remainder for $60.

About a month later, Shapiro returned to the Connolly house and met with Patrick Connolly to ask if he was still interested in their 'business arrangement.' Connolly replied that he was interested but that he had recently obtained two additional bottles of phenyl-2-propanone and would not be finished with them for a couple of days. He provided some additional methamphetamine to Shapiro at that time. Three days later Shapiro returned to the Connolly house with a search warrant and, among other items, seized an empty 500-gram bottle of propanone and a 100-gram bottle, not the one he had provided, that was partially filled with the chemical.

There was testimony at the trial of respondent and Patrick Connolly that phenyl-2-propanone was generally difficult to obtain. At the request of the Bureau of

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Narcotics and Dangerous Drugs, some chemical supply firms had voluntarily ceased selling the chemical.

At the close of the evidence, and after receiving the District Judge's standard entrapment instruction,⁴ the jury found the respondent guilty on all counts charged. On appeal, the respondent conceded that the jury could have found him predisposed to commit the offenses, 459 F.2d at 672, but argued that on the facts presented there was entrapment as a matter of law. The Court of Appeals agreed, although it did not find the District Court had misconstrued or misapplied the traditional standards governing the entrapment defense. Rather, the court in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been 'an intolerable degree of governmental participation in the criminal enterprise.' In this case the court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense.

This new defense was held to rest on either of two alternative theories. One theory is based on two lower court decisions which have found entrapment, regardless of predisposition, whenever the government supplies contraband to the defendants. United States v. Bueno, 447

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F.2d 903 (CA5 1971); United States v. Chisum, 312 F.Supp. 1307 (CDCal.1970). The second theory, a nonentrapment rationale, is based on a recent Ninth Circuit decision that reversed a conviction because a government investigator was so enmeshed in the criminal activity that the prosecution of the defendants was held to be repugnant to the American criminal justice system. Greene v. United States, 454 F.2d 783 (CA9 1971). The court below held that these two rationales constitute the same defense, and that only the label distinguishes them. In any event, it held that '(b)oth theories are premised on fundamental concepts of due process and evince the reluctance of the judiciary to countenance 'overzealous law enforcement." 459 F.2d, at 674, quoting Sherman v. United States, 356 U.S. 369, 381, 78 S.Ct. 819, 825, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring in result).

This Court first recognized and applied the entrapment defense in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).⁵ In Sorrells, a federal prohibition agent visited the defendant while posing as a tourist and engaged him in conversation about their common war experiences. After gaining the defendant's confidence, the agent asked for some liquor, was twice refused, but upon asking a third time the defendant finally capitulated, and was subsequently prosecuted for violating the National Prohibition Act.

Mr. Chief Justice Hughes, speaking for the Court, held that as a matter of statutory construction the defense of entrapment should have been available to the defendant. Under the theory propounded by the Chief Justice, the entrapment defense prohibits law enforcement officers from instigating a criminal act by persons 'otherwise in-

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nocent in order to lure them to its commission and to punish them.' 287 U.S., at 448, 53 S.Ct., at 215. Thus, the thrust of the entrapment defense was held to focus on the intent or predisposition of the defendant to commit the crime. '(I)f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.' Id., at 451, 53 S.Ct., at 216.

Mr. Justice Roberts concerred but was of the view 'that courts must be closed to the trial of a crime instigated by the government's own agents.' Id., at 459, 53 S.Ct., at...