United States v. Russell

The Facts

An undercover agent approach defendant and offered to supply a critical chemical for the making of meth.  The offer was made on the condition that defendant show the undercover officer a sample of the meth and where it was being made.  The agent later returned and observed defendant making meth and also gave him the promised chemical.  Defendant later gave the agent a sample of the produced meth.

Procedural History

Defendant pled entrapment at trial and convicted on all three counts.  On appeal the decision was reversed on the basis that an undercover agent “supplied an essential chemical for manufacturing the methamphetamine which formed the basis of respondent’s conviction.”  The court expanded the definition of entrapment to include the “whenever the court determines that there has been an intolerable degree of government participation in the criminal enterprise.”

The Issue

Whether police involvement of “an intolerable” degree in the commission of a crime violates due process so as to render the crime not prosecutable.

The Holding

No, reversed.  The purpose of entrapment at common law has been to exclude prosecution where the government fails to observe its own laws.  Here, the government did not violate any law.  The defendant would clearly have been able to obtain the chemical without the officer’s intervention; in fact, he did obtain the substance on multiple occasions as was demonstrated by the evidence.  The officer’s supply of a legal component does not “violate fundamental fairness” and is not “shocking to the universal sense of justice.”  Another purpose of the entrapment defense is to exculpate where the officer “implants the criminal design in the mind of the defendant.”  Here, defendant’s actions were self-propelled.

Dissent I

It is not relevant whether the ingredient supplied by the agent may have been obtained elsewhere.  The supply of the ingredient “made the United States an active participant in the unlawful activity.”  Here the officer was promoting, rather than detecting crime.  The federal agent was a partner, instigator, or creative brain behind the scheme.  He therefore entrapped the defendant.

Dissent II

The only rational approach to entrapment is to focus on the conduct of the agent, and totally ignore whether or not the defendant was “predisposed or otherwise innocent.”  The purpose of the entrapment defense is to prohibit unlawful governmental activity in instigating the crime.  The relevant question must always be whether the government’s conduct in inducing the crime went beyond a tolerable level.  A test that relies on the defendant’s predisposition to undertake the crime would rely on very shaky evidence regarding his past behavior and personal attributes.  “More fundamentally, focusing on the defendant’s innocence or predisposition has the direct effect of making what is permissible or impermissible police conduct depend upon the past record and propensities of the particular defendant involved.”

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