No. 86-1427

   In the Supreme Court of the United States

   October Term, 1986

   On petition for a writ of certiorari to the United States Court of
Appeals for the First Circuit

   Brief for the United States in opposition

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Questions Presented
   Statement
   Argument
   Conclusion

                            Opinions Below

   The opinion of the court of appeals (Pet. App. 1a-13a) is reported
at 807 F.2d 262.  The order of the district court (Pet. App. 15a-17a)
is unreported.

                             Jurisdiction

   The judgment of the court of appeals (Pet. App 14a) was entered on
December 11, 1986.  The petition for a writ of certiorari was filed on
March 3, 1987, and is therefore substantially out of time under Rule
20.1 of the Rules of this Court.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether a sexual relationship that a law enforcement agent
carried on with petitioner's female companion, while investigating
petitioner's activities, constituted outrageous government misconduct
requiring dismissal of the indictment on due process grounds.

   2. Whether the district court should have suppressed evidence that
was obtained as a result of court-authorized electronic surveillance,
because the government's application for the surveillance order failed
to reveal that a law enforcement officer was engaged in a romantic
affair with petitioner's female companion and had access to
petitioner's residence.

                               STATEMENT

   Petitioner was convicted, on a conditional plea of guilty, of
conspiracy to possess cocaine with intent to distribute it, in
violation of 21 U.S.C. 846;  possession of cocaine with intent to
distribute it, in violation of 21 U.S.C. 841(a)(1);  and three counts
of using a telephone to facilitate a drug conspiracy, in violation of
21 U.S.C. 843.  He was sentenced to seven years' imprisonment and a
$25,000 fine on the conspiracy count, to a concurrent seven-year term
and a six-year special parole term on the possession count, and to
concurrent two-year terms on the telephone facilitation counts.  The
court of appeals affirmed.

   1. As summarized in the opinion of the court of appeals (Pet. App.
3a-4a), the pertinent facts are that, in January 1985, Drug
Enforcement Administration (DEA) agents, acting in conjunction with
the Police Department of Northboro, Massachusetts, began an
investigation of petitioner's suspected cocaine-trafficking
activities.  One of the officers involved in the investigation was
Detective Charles Bradley, a member of the Northboro Police
Department.

   As part of the investigation, Detective Bradley regularly
telephoned petitioner's apartment, which petitioner shared with Joan
Adamson, his live-in girlfriend.  Adamson took messages for petitioner
when he was not at home, and after a period of time, Detective Bradley
developed a telephone acquaintance with Adamson.  In April 1985,
Bradley asked Adamson to meet him in person, both because he enjoyed
speaking with her and because he wanted to cultivate her as a possible
source of information about petitioner's activities.  He informed his
superiors and his fellow officers about his plans and advised Adamson
of his identity as a detective investigating petitioner.  Adamson,
however, told Bradley that she was unaware of petitioner's involvement
with drugs and would not assist in the investigation.

   Early in May 1985, a romantic relationship developed between
Bradley and Adamson, and the two engaged in sexual liaisons in
petitioner's apartment on 12 to 15 occasions.  While in the apartment,
Bradley had the opportunity to observe petitioner's sophisticated
security systems, consisting of surveillance cameras, television video
monitors, and a sequential relay board.  On none of the occasions,
however, did he observe drugs or drug-related paraphernalia.  As the
affair continued, Bradley repeatedly questioned Adamson about
petitioner's drug-trafficking activities.  She insisted that she knew
nothing about them and declined to assist in the investigation.

   In early August 1985, a DEA agent who was involved in the
investigation began preparing an affidavit for electronic surveillance
of petitioner's telephone, pursuant to Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq.  Bradley,
who then stopped seeing Adamson, did not tell the DEA agent of his
affair with her.  Consequently, information concerning the affair and
Bradley's entries into petitioner's apartment to meet with Adamson was
not included in the wiretap application, although the application
contained a great deal of other information supplied by Bradley.  A
surveillance order was issued on September 9, 1985.

   On September 24, 1985, on the basis of information derived from
electronic interceptions conducted pursuant to the court's order, DEA
agents obtained a warrant to search petitioner's apartment.  Execution
of the warrant resulted in the seizure of cocaine, scales, and other
drug-related paraphernalia and led to the eventual arrest and
indictment of petitioner, Adamson, and others.  /1/

   Following Adamson's indictment and petitioner's imprisonment,
Adamson and Detective Bradley renewed their affair.  During this
period, Bradley made disparaging remarks to Adamson concerning the
attorneys who were representing petitioner and her (Pet. App. 6a-7a).

   2. Before trial, petitioner moved to dismiss the indictment on the
ground that Bradley's affair with Adamson constituted such egregious
misconduct that it should bar his prosecution and that Bradley, by
virtue of his disparaging remarks concerning petitioner's attorney,
had interfered with petitioner's Sixth Amendment right to counsel.  He
also moved to suppress the fruits of the electronic interceptions on
the ground that omission from the wiretap application of the fact that
Bradley had been inside his apartment on 12 to 15 occasions violated
18 U.S.C. 2518(1)(c) and (3)(c), which require the government to
establish, and the court to find, that alternative investigative
means, other than electronic surveillance, would not succeed or would
be too dangerous.

   The district court rejected both of petitioner's arguments that,
because of Bradley's activities, the indictment should be dismissed.
Addressing the argument that Bradley's conduct with Adamson was so
outrageous as to warrant dismissal of the indictment, the court held
that, despite its impropriety, Bradley's conduct did not amount to a
"coldblooded" effort to exploit Adamson and that no violation of due
process occurred (2 H. Tr. 60-61).  /2/

   As to the argument that Bradley's disparaging remarks interfered
with petitioner's right to counsel, the court stated that, based on
the affidavits and other papers, it was prepared to infer that during
the postindictment period, Bradley pursued a course of action designed
to interfere with the Sixth Amendment rights of petitioner and
Adamson.  The court concluded, however, that because the government
had avoided the use of any evidence derived from those conversations,
petitioner was not prejudiced by Bradley's conduct, and he therefore
was not entitled to dismissal of the indictment or any other form of
relief (Pet. App. 16a).  /3/

   Before ruling on the claim relating to the omissions from the Title
III application, the district court conducted a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978), to determine whether the
omission was material and, if so, whether the electronic surveillance
order still should have issued.  The trial judge, who was also the
judge who had issued the surveillance order, found that the
information concerning Bradley's liaison with Adamson was "not
insubstantial" and was "intentionally omitted" from the warrant
application.  Nevertheless, the judge concluded that the information
about Bradley's relationship with Adamson was not material to the
issuance of the order.  He reasoned that, because of Adamson's
inability or unwillingness to furnish information about the drug
conspiracy, he still would have issued the warrant even if the
application had contained information concerning the affair (Pet. App.
11a;  2 H. Tr. 59, 61-67).

   3. The court of appeals affirmed.  Addressing petitioner's due
process claim based on allegedly outrageous government conduct, the
court held that, although Bradley's conduct in carrying on a sexual
affair with Adamson could not be condoned, it was not a due process
violation (Pet. App. 6a).  Addressing petitioner's claim that
Bradley's disparaging remarks to Adamson concerning their counsel
interfered with petitioner's right to counsel, the court noted that
the attorney had capably represented petitioner throughout the
proceedings and that the disparagement did not result in any prejudice
to petitioner.  The court also held that, in the wake of United States
v. Morrison, 449 U.S. 361 (1981), dismissal of the indictment as a
prophylactic measure was impermissible even though the violation may
have been deliberate (Pet. App. 8a-9a).  Finally, with respect to the
omission from the wiretap application of any reference to Bradley's
activities with Adamson, the court of appeals held that the district
court's finding that the omission did not involve material facts was
not "clearly erroneous" and therefore should be sustained on appeal
(id. at 11a-12a).

                               Argument

   1. Relying on United States v. Russell, 411 U.S. 423 (1973),
petitioner contends (Pet. 4-6) that Detective Bradley's conduct in
carrying on a sexual relationship with Adamson while investigating the
activities of her boyfriend was so egregiously improper that it should
bar his prosecution.  Petitioner does not claim that there is a
conflict in the circuits on this issue, and in fact several courts of
appeals have rejected similar (or more substantial) claims.

   In Russell, this Court rejected the claim that an undercover agent
entrapped the defendant as a matter of law by furnishing an essential
ingredient for the manufacture of a controlled substance.  The Court
acknowledged, however, that it "may 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"
(411 U.S. at 431-432).  In Hampton v. United States, 425 U.S. 484
(1976), a majority of the Court subsequently agreed that, in certain
circumstances, the government's actions in conducting an investigation
may be so outrageous as to violate due process.  See 425 U.S. at
491-495 (Powell & Blackmun, JJ., concurring);  id. at 496 (Brennan,
Stewart & Marshall, JJ., dissenting).  In his concurring opinion,
however, Justice Powell pointed out that the issue in Russell was
whether police overinvolvement in a crime was so outrageous that it
violated considerations of due process and that, when the defendant is
predisposed to commit the offense, instances where such action would
bar a conviction would be rare (id. at 492-495 & n.7).

   In the wake of Hampton, the courts of appeals that have addressed
the defense of outrageous government conduct have emphasized that
"'the due process channel which Russell kept open is a most narrow
one'" and that "(t)he outrageous government conduct defense is
available only where 'the government is so involved in the criminal
endeavor that it shocks (the) sense of justice.'" United States v.
Stenberg, 803 F.2d 422, 429 (9th Cir. 1986)(citations omitted);  see,
e.g., United States v. Nations, 764 F.2d 1073, 1077 (5th Cir.
1985)(emphasis in original)("the outrageous government conduct defense
is available only upon proof of government overinvolvement in the
charged crime");  United States v. Tobias, 662 F.2d 381, 386 (5th Cir.
1981)(same) cert. denied, 457 U.S. 1108 (1982);  see also United
States v. Kelly, 707 F.2d 1460, 1468 (D.C. Cir.), cert. denied, 464
U.S. 908 (1983);  United States v. Myers, 692 F.2d 823 (2d Cir. 1982),
cert. denied, 461 U.S. 961 (1982).  In this case there is no evidence
that Detective Bradley's liaison with Adamson resulted in any
involvement whatsoever by government agents in petitioner's ongoing
cocaine operation.  Under the reasoning of these authorities, the
defense is therefore simply unavailable.

   Although in Rochin v. California, 342 U.S. 165, 172 (1952), the
Court held that evidence may be supressed on due process grounds when
the manner in which the government obtains the evidence offends the
decencies of a civilized society, the application of that principle
has properly been limited to instances in which the government's
conduct directly invades some personal right of the defendant.  See
United States v. Kelly, 707 F.2d at 1468 n.49;  United States v.
Alexandro, 675 F.2d 34, 40-41 (2d Cir.), cert. denied, 459 U.S. 835
(1982);  see also United States v. Simpson, No. 84-5301 (9th Cir. Apr.
3, 1987), slip op. 9 ("outrageous conduct" defense limited to cases of
"brutality and coercion").  In this case, Bradley's relationship with
Adamson not only failed to infringe petitioner's personal integrity so
as to deprive him of due process of law, but, as the court below
reasoned, it was not of such a nature as to offend contemporary
standards of decency.  Accord Simpson, slip op. 9-10 (even "the
deceptive creation and/or exploitation of an intimate relationship"
with the suspect himself -- something considerably more troublesome
than the nondeceptive relationship at issue here -- "does not exceed
the boundary of permissible law enforcement tactics").

   As the district court found, Bradley initiated his relationship
with Adamson for the purpose of gathering evidence against petitioner,
but the continuation of the affair was not a calculated effort to
develop information.  Rather, the affair developed into a mutual
romance so that "it (was) not at all clear * * * who was seducing
whom" (2 H. Tr. 56-57, 60).  Indeed, Bradley pursued the affair long
after it became apparent to him that Adamson would not be a fruitful
source of information and in complete disregard of its potential
adverse impact on the ongoing investigation.  /4/ In these
circumstances, the courts below properly concluded, that, despite the
impropriety of the relationship, no due process violation occurred.
Cf. United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978) (use
of prostitute by government to ensnare drug dealer not violative of
due process);  United States v. Simpson, supra (same).  /5/

   2. Petitioner also claims (Pet. 6-7) that the government's
application for an electronic surveillance order was fatally deficient
because it failed to disclose to the district judge who issued the
order that, because of his relationship with Adamson, Bradley had
access to petitioner's residence.  More specifically, petitioner
maintains that that information, if available to the issuing judge,
would have demonstrated that alternative means of investigation were
available to law enforcement authorities.  This claim was also
properly rejected by the courts below.

   The statute that provides procedures for the interception of wire
or oral communications requires that a wiretap application include,
among other things, "a full and complete statement as to whether or
not other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be too
dangerous" (18 U.S.C. 2518(1)(c).  It also provides that a judge may
issue an ex parte order for a wiretap if he determines on the basis of
the facts submitted that, among other things, "normal investigative
procedures have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous" (18 U.S.C.
2518(3)(c)).  When the wiretap application fails to discuss certain
alternative available means of conducting an investigation, the
touchstone for determining whether wiretap evidence should be
suppressed is whether the omissions were material to the issuance of
the order, i.e., whether, if the omitted information had been included
in the wiretap application, the order still would have issued.  See
Franks v. Delaware, 438 U.S. 154, 171-172 (1978);  United States v.
Ippolito, 774 F.2d 1482, 1484-1486 (9th Cir. 1985);  United States v.
Brooklier, 685 F.2d 1208, 1221 (9th Cir. 1982), cert. denied, 459 U.S.
1206 (1983).

   In this case, the trial judge determined that, even if he had been
apprised of Bradley's access to petitioner's residence as a result of
his affair with Adamson, he still would have issued the interception
order.  He would have done so, the judge explained, because Adamson
either lacked the information necessary to reveal the operation of the
conspiracy or demonstrated her unwillingness to share information
concerning the scheme with law enforcement authorities (Pet. App.
10a-11a).  Consequently, even if Bradley's relationship with Adamson
constituted the type of alternative investigative procedure
contemplated by Section 2518(1)(c), the failure to refer to its
availability in this case was not a material omission from the
surveillance application.

                              Conclusion

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   Charles Fried

      Solicitor General

   William F. Weld

      Assistant Attorney General

   John F. De Pue

      Attorney

   MAY 1987

   /1/ When the government learned of the affair between Adamson and
Bradley, it dropped the charges against Adamson (Pet. App. 2a).

   /2/ "H. Tr. refers to the transcript of the pretrial hearing in the
district court.

   /3/ The district court recognized, however, that evidence of such
prejudice might arise during the course of the trial.  The court
therefore left it open to the defense to reassert the Sixth Amendment
claim at a later point in the proceedings.

   /4/ Petitioner argues (Pet. 6) that reversal of his conviction is
warranted as a prophylactic measure to discourage the recurrence of
such behavior in future cases.  As the Court has repeatedly
emphasized, however, in the absence of prejudice to the defendant, the
appropriate means of deterring misconduct by law enforcement officers
is to initiate disciplinary proceedings against them.  See United
States v. Hasting, 461 U.S. 499, 506 & n.4(1983);  United States v.
Payner, 447 U.S. 727, 733-734 & n.5 (1980);  Hampton v. United States,
425 U.S. at 490 (plurality opinion);  see also United States v.
Morrison, 449 U.S. 361, 365 (1981).

   /5/ Nor is petitioner entitled to relief as the result of Bradley's
disparaging remarks to Adamson concerning the attorneys representing
Adamson and petitioner.  See Pet. 5.  As the Court explained in United
States v. Morrison, 449 U.S. at 365 (footnote omitted), in rejecting
an identical claim, "absent demonstrable prejudice, or substantial
threat thereof, dismissal of the indictment is plainly inappropriate,
even though the violation (of the defendant's right to counsel) may
have been deliberate." In this case, the government introduced no
evidence derived from Bradley's postindictment conversations with
Adamson, and petitioner failed to point to any prejudice that he
suffered as a result of Bradley's remarks (Pet. App. 9a, 15a).  There
was therefore no basis for relief.

   PATRICK COLE, PETITIONER V. UNITED STATES OF AMERICA