Warren E. Burger: We’ll hear arguments next in 71-1585, United States against Russell. Mr. Lacovara you may proceed whenever you’re ready.
Philip A. Lacovara: Mr. Chief Justice and may it please the Court. This case, United States against Russell involves a very important issue in the criminal justice system. Basically, whether a new defense to criminal liability is to be created that will focus exclusively on the nature of the conduct of an investigative agent in uncovering and detecting the criminal enterprise. The Court of Appeals for the Ninth Circuit from which this case comes has held that such a defense should be created. The facts are basically simple and they are very few and probably no relevant controversies about the facts. On December 7, 1969, an undercover agent for the Bureau of Narcotics and Dangerous Drugs accompanied by an informant, went to the home of the respondent, Richard Russell and there met with Mr. Russell and two other co-defendants in this case, John Connolly and Patrick Connolly. The agent in his testimony, set forth on page 4 of the appendix, explained what happened when he went to Mr. Russell’s home. I told Richard Russell and the two Connollys that I represented an organization interested in controlling the manufacture of methamphetamine, that is the dangerous drug involved here. And then I represented the organization in the northwest area and I wanted to meet with the people who were manufacturing the methamphetamine and I wanted to obtain methamphetamine from them. The agent later explained that the terms of this business proposition to these people whom he said he understood to be manufacturing methamphetamine was that he would supply one of the chemical ingredients in the manufacture of the drug, phenyl-2-propanone in return for half of the output and he would like to buy the rest of the output for cash. Without any attempt to disabuse him of his understanding that they were currently manufacturing methamphetamine or to express any reluctance whatsoever to the business proposition the undercover agent put, Patrick Connolly said, “we’ve been manufacturing methamphetamine since at least May of 1969 and have manufactured about three pounds of it.” I might say for purposes of illustration that I've been told by the Bureau of Narcotics that the average medically recommended dose of methamphetamine is five milligrams according to the U.S. Pharmacopeia. The average illicit dose on the street is 10 milligrams which means that each gram of methamphetamine will produce approximately 100 illicit doses.
Potter Stewart: How many grams in a pound?
Philip A. Lacovara: 453 grams in a pound. As we will see Mr. Justice Stewart, the amount of methamphetamine involved in this case would be enough for approximately 3,500 illicit doses and perhaps 7,000 illicit doses.
William O. Douglas: Is this the drug that is commonly known as “Speed”?
Philip A. Lacovara: Yes sir. Methamphetamine is Speed. It’s a stimulant drug. The prosecution in this case arises under the Food, Drug, and Cosmetic Act. That Act is now been superseded by the 1970 Comprehensive Drug Abuse and Control Act. Speed remains a control of drug under the new statute as well. The agent however insisted that he would not provide any of this important ingredient unless and until the three-man partnership whom he confronted provided him with both the sample of the methamphetamine they had already manufactured, and also showed him the laboratory. Patrick Connolly then with the agent left Mr. Russell’s house, brought the agent to his own home where he showed him some items of laboratory equipment. Before they left Russell’s house, John Connolly gave the agent a sample which he said “Had come from the last batch that had been manufactured.” I emphasize that at no time did Richard Russell in whose presence that’s all occurred attempt to dissociate himself from the enterprise. Pursuant to the arrangement, the agent return to Russell’s house the next, December 8th, but was told by Russell that Russell and Patrick Connolly had been unable to get the other chemicals necessary to manufacture the methamphetamine because they had arrived too late at the chemical supply store on the afternoon of the 8th. Now, the respondent’s brief indicates that the record shows that Russell and Patrick Connolly had tried to get phenyl-2-propanone and had it had been refused to them. I believe the record on pages 17 and 18 shows that they were going to get the other chemicals and simply arrived too late to get them. In any event, they said they would get the chemicals the following day, December 9th, and when the agent return to Mr. Russell’s home, the home of the respondent on the afternoon of December 9th waited for Mr. Russell and Mr. Connolly. The group then set out for Patrick Connolly’s home with the laboratory was located and after Patrick Connolly and Richard Russell began the chemical process by adding a variety of other chemicals to a flask, the agent then upon their request provided them with a bottle of 100 grams of phenyl-2-propanone. The reaction process took about two hours according to the agent’s testimony from about 7:30 until 9:30. After that began the separate phase, the drying and crystallization phase which was done on a hot plate with the ladies home hair dryer. At about 12:40, 1/4 of the methamphetamine had been dried; that is after the beaker or flask had been chemically treated. Mr. Connolly poured the liquid into four separate flasks and each flask was then dried on a Pyrex baking dish separately. So at 12:40, the first transfer actually took place and that was approximately 10 grams or enough for about a thousand doses, illicit doses. Agent Shapiro, the undercover agent left the Connolly home, left Mr. Connolly and Russell there and unbeknown to them secured the methamphetamine that it been given in his office in Seattle. He returned the next morning at about 8 o’clock. The respondent and Pat Connolly where still there drying the rest of the Speed. After Russell succeeded in scraping off the remainder or the crystalline form of the drug into three more bags of methamphetamine, Patrick Connolly said to the agent, “You may have the rest of the batch” and Russell according to the testimony interjected after I get my half. So, the agent was given one of the remaining three bags. Richard Russell, the respondent took the other two bags. The agent offered to buy the two bags for cash and Russell said, “That he already made arrangements to sell one of those bags for cash.” In the course of the drive back to the respondent's home, Russell agreed to sell the remaining bag, the fourth bag to the undercover agent for cash and at his home, the agent paid him $60.00 and purchased approximately 9 1/2 grams of methamphetamine.
Potter Stewart: This is the same agent all the way through Shapiro?
Philip A. Lacovara: Same agent all the way through.
Potter Stewart: There is only one Government agent involved?
Philip A. Lacovara: Only one agent involved in the actual transaction, yes sir. About three weeks later, Agent Shapiro contacted Patrick Connolly again at Connolly’s home which was where the laboratory was located, asked him if he was still interested in the business arrangement and Connolly replied that he was still interested, but in the interim, he had obtained two more bottles of phenyl-2-propanone which was the commodity of the agent was willing to supply and that he wouldn’t be finished with those for a few days. A few days later along with the search warrant and an arrest warrant, Agent Shapiro and other Federal Agents raided Mr. Connolly’s home laboratory and seized over a 100 items that were admitted at the trial, included were chemical supply company catalogs, a variety of chemicals, laboratory equipment, and three bottles of phenyl-2-propanone. One was the 100-gram bottle the agent had supplied and which he was able identify. His second empty bottle was 500-gram bottle labeled to P2P which chemical analysis showed had actually contain the drug and the third bottle, a 100-gram bottle of P2P was still half full. Mr. Connelly was indicted on five counts involving violations of the Food, Drug and Cosmetic Act. Mr. Russell was charged with three violations; manufacturing, processing and compounding as one count, delivering the controlled the drug at the time the first transfer had taken place, and the third count, selling a control of drug at the time that the agent purchased the final bag from him. Now, the defense at the trial was entrapment, that was the only defense. Respondent, however, did not testify of Patrick Connelly did. The jury found him guilty, however, on all counts. Mr. Connelly in his testimony admitted having told the agent that they have manufactured at least three pounds of it before the agent appeared on the scene. He also acknowledged that he had told the agent that he, Patrick, handled the chemical reaction phase of the business that his brother John normally did the drying and crystallization phase and that Richard Russell, the respondent here took care of the sales in return from 50% of the profits. The case was submitted to the jury under standard entrapment instructions.
Thurgood Marshall: You already mentioned that. Did Shapiro do anything when this was being made other than to furnish it?
Philip A. Lacovara: No sir, he didn’t --
Thurgood Marshall: I understand, he did nothing else --
Philip A. Lacovara: He was asked on cross-examination, what do have you done?
Thurgood Marshall: That’s what I think.
Philip A. Lacovara: He said, he may have picked up some pieces of aluminum foil, aluminum being one of the ingredients after they have fallen to floor and put them into flask, but he said he did not provide any other resistance and he did not advise or instruct the man how to go about completing the reaction or in any other way not assist in the crystallization either. So his only participation, I believe this is agreed, was to supply the 100-grams of phenyl-2-propanone. The jury under the standard entrapment instructions which focus on whether there is a reasonable doubt that the defendant may have been pre-disposed to commit the crime before the undercover agent appeared on the scene, and the jury returned the verdicts of guilty on all counts against both of the defendants who appeared at the trial.
Potter Stewart: Are the instructions, they were actually given by the trial (Voice Overlap) on page 17?
Philip A. Lacovara: Yes sir, they are on page 17.
Potter Stewart: 17 and carrying over on the page 18?
Philip A. Lacovara: Yes, the first two paragraphs were contained both in the defendant’s proposed instructions and in the -- a Government’s proposed instructions. They are for the standard Mathes and Devitt.
Potter Stewart: The first two paragraphs --
Philip A. Lacovara: Yes.
Potter Stewart: -- don’t say anything. Now, this is the entrapment obstruction and it is quite simple that appellants assert they were victims of entrapment as to the crime charged. Are you talking about those?
Philip A. Lacovara: No, the first three paragraphs beginning where a person has no previews intent and on the other hand where a person already has the willingness and readiness to break the law. The mere fact that the Government agent provides what appears to be a favorable opportunity is not entrapment.
Potter Stewart: Those are agreed upon instructions?
Philip A. Lacovara: Yes sir.
Potter Stewart: By the parties?
Philip A. Lacovara: Yes sir. The objection on the part of the defense at trial as I read the record anyway is that the government -- the judge did not sufficiently defined that the Government had the burden of showing propensity beyond the reasonable doubt.
Potter Stewart: We don’t seem to have that here in the appendix, do we?
Philip A. Lacovara: The objections?
Potter Stewart: Or any offered instructions, any --
Philip A. Lacovara: That’s not in the appendix. It is in the record, however, and the case as it comes to this Court does not rest on the instructions. The --
Potter Stewart: Well, except that they were erroneous to Court of Appeals held?
Philip A. Lacovara: No, no, sir.
Potter Stewart: Suppose --
Philip A. Lacovara: The Court of Appeals held that the instructions correctly stated that the traditional law of entrapment and I’ll come now to the holding of the Court of Appeals.
Warren E. Burger: Well, the Court Appeals added another layer of doctrine as an independent doctrine.
Philip A. Lacovara: Exactly. The Court of Appeals took --
Warren E. Burger: Before you go on with that, may I ask you a factual -- about a factual matter. Do I understand correctly from what you said that on the second day or on the later day when the agent, the undercover agent came back, he stood by and witnessed the activity of making this drug from ingredients which the respondent here had secured from an independent source?
Philip A. Lacovara: Yes sir.
Warren E. Burger: And on that day, he was witnessing illegal activity in which he had no participation of any kind?
Philip A. Lacovara: That’s right. I should also point out that the Food, Drug, and Cosmetic Act specifically provides that federal and state agents are not covered by the normal prohibitions against possession or dispensing or even manufacturing controlled drug. So, nothing that the agent did was in anyway illegal and the only thing that he did was deliver one of the ingredients in the manufacture of the drug.
Warren E. Burger: But that was in the first batch, not in the second batch?
Philip A. Lacovara: Well, it was all manufactured from the same ingredient. As I say, the process took a series of hours at about he arrived in the evening of the night and the chemical reaction began at that time. Shortly after midnight, 12:40 AM on the 10th, he got the first quarter of the batch which had been dried and he left and brought that to his office. He came back the following morning and Russell and Pat Connelly were still working on the remainder of the methamphetamine and at that point, the agent was given a second bag and purchased the third bag and the records shows that the respondent would up with the fourth bag.
Warren E. Burger: But some of these was made from this one essential ingredient which the respondent had obtained on his own from some other source?
Philip A. Lacovara: Well, no. There was delivered to the agent before he provided them with any phenyl-2-propanone, a sample which one of the partnership said had come from the last batch they’d manufactured. Then after the batch had been manufactured with the ingredient that the agent supplied, the agent returned to Connelly’s home about three or four weeks later to renew the business arrangement and was told that they had since come upon a new source of phenyl-2-propanone and did need any of his at that time. But all of the methamphetamine involved in this prosecution comes from a chemical reaction which included the phenyl-2-propanone that the agent provided. That’s the posture in which the case is before the Court.
Potter Stewart: As I understand the -- now, this respondent, Richard Russell was indicted under three counts only.
Philip A. Lacovara: Yes sir.
Potter Stewart: All having to do with activities on December 10, 1969?
Philip A. Lacovara: That’s right.
Potter Stewart: And that concededly those activities all had to do with the batch so-called --
Philip A. Lacovara: That have been --
Potter Stewart: -- that was manufactured from the chemical provided by Mr. Shapiro?
Philip A. Lacovara: That’s right.
Potter Stewart: Right.
Philip A. Lacovara: No, question about that. The evidence of the subsequent availability of phenyl-2-propanone was admitted at the trial because it showed among other things the availability of this ingredient from other sources. It was received without objection I believe.
William H. Rehnquist: Mr. Lacovara, did the respondent tender any instruction in the District Court on a factual issue of whether or not this phenyl-2-propanone was or was not available from sources other than the Government agent?
Philip A. Lacovara: No sir. The basic argument in the instructions was over who had the burden of proving propensity or lack of propensity to commit the crime. After the trial and a memorandum for a new trial, the respondent’s counsel argued as a matter of law that the delivery of an ingredient and the manufacture of the methamphetamine constituted entrapment as a matter of law. That was the position ultimately upheld by the Ninth Circuit in this case. So, the case comes to this Court, Mr. Justice Stewart on a holding as a matter of law on what are essentially undisputed facts. The Ninth Circuit saying that the standard entrapment standards would not be met in this case because Mr. Russell’s predisposition amply shown by the record had been virtually conceded and in the opinion which is set forth in the appendix to the petition, the dissenting judge, Judge Trask (ph) actually quotes the portion of respondent’s brief in the Court of Appeals conceding that the jury could find under the standard entrapment defense that he was pre-disposed to the offense.
Potter Stewart: Judge -- the Court’s opinion, Judge Elli’s opinion for a majority of the Court of Appeals sets out by talking about two theories of law and then --
Philip A. Lacovara: Yes.
Potter Stewart: -- ends up by saying it does not give a label to it, in any event, we reversing the conviction.
Philip A. Lacovara: His two theories in a nutshell are these. First of all, his focus is generally on the some of the statements made in the separate opinions of the minority in the Sorrells and Sherman cases which are of course the two leading entrapment cases. In those opinions, Justices Roberts and Frankfurter said that the entrapment offense really ought to focus not on the subjective guilt or innocence of the defendant or on his predisposition to commit the crime, but rather ought to focus only on the nature of the officer’s conduct and if that conduct is intolerable, then there ought to be a bar to the prosecution. We’ll show in a few moments that that rationale is not applicable to this kind of case anyway. But the Ninth Circuit said under one of two theories of the defendant is entitled as a matter of law to dismissal of the indictment. First, they said, it is intolerable Government conduct to supply contraband to a defendant and then prosecute him for possession of the contraband. Now, the Court said by some process of extension that even though the phenyl-2-propanone was not contraband is not and was not a regulated to the chemical, nevertheless, without the delivery of that contraband could’ve been made and therefore what happened here was intolerable. That the Court said was a kind of extension of the traditional entrapment doctrine. Alternatively, the Ninth Circuit, Judge Elli’s opinion said, there is a separate kind of Due Process defense that ought to be recognized where the Government engages in too much of the continuing criminal enterprise. When the Government becomes enmeshed in the enterprise for a reason similar to the reasons that support the entrapment defense, the Government ought to be precluded from prosecuting. Here, the Court said, because the undercover agent had supplied one of the ingredients and had been present during the manufacture, that precluded the Government from prosecuting.
Potter Stewart: So, that one of these theories was -- the latter theory was a constitutional theory and the first theory was a non-constitutional theory?
Philip A. Lacovara: Yes sir.
Potter Stewart: Because entrapment is nothing about entrapment so far either is Sorrells or Sherman, either the court opinion or the concurring opinion that that was based on the constitution.
Philip A. Lacovara: That’s right, that -- I’d like to approach now for Sorrells and Sherman to say why under either of the views presented in those cases, the indictment in this case ought to be reinstated. The -- both parties to the case of rather or extensively quoted from all of the opinions in those two cases and I won’t take the time of the Court to read extensively from them except to say that the difference in philosophy is basic. Chief Justice Hughes’ opinion in Sorrells and Chief Justice Warren’s opinion in Sherman say basically what we’re talking about is a defense to criminal liability. And the basic issue in terms of normal criminal law standards of culpability is, did the intent with which the defendant did the physical acts that in apparent violation of the statute arise on his own or was that criminal design manufactured by the Government? In analogy to standard insanity or duress from the state concept, the man is just not criminally liable or culpable if the Government manufactured the criminal intent. And the Court in both to those cases said, this is consistent with what we would understand the Congressional intent to be, and both Chief Justices said Congress didn’t want its criminal statutes enforced against people who did not intend to violate them until the Government came along. The separate opinions of Justice Roberts and Justice Frankfurter put a wholly different cast on it and said, the focus ought to be on whether the conduct of the investigators is tolerable or not irrespective of normal guilt or innocence under criminal law principles. But even those separate opinions and this is basic, state what is to called the objective test rather than the subjective test and it is not the kind of this rule or subjective test that the Court of Appeals applied here terming the conduct intolerable or repugnant or excessive for overzealous. The standard stated by Justice Frankfurter and we quote the language on page 19 of our main brief is this, this test he says, shifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood objectively considered that it would entrap only those ready and willing to commit the crime. It is as -- this has been proposed in the Model Penal Code and the proposed Federal Code and the introduction Senate One in the 93rd Congress which is the official senate bill, Mclellans, Senator Mclellans bill for revamping the whole criminal -- Federal Criminal Code, the test would be an objective one. Is it likely that the conduct that the agent engaged in might seduce an innocent person into committing a crime. If it’s that kind of conduct, we don’t care under this test whether the defendant actually had a criminal design. We just won’t allow the Government to engage in that kind of conduct. If however, it's conduct that would not likely ensnared the innocent as well as the guilty looking only at the agent’s conduct, then there is to be no defense. That’s the objective standard. Now, in this case of course applying that standard, there can be no question, but that objectively considered and offered to someone to supply an ingredient in the manufacture of an illegal drug is not likely to tempt or to seduce the ordinary law abiding citizen about whom Justice Frankfurter was speaking as well into committing the crime. These statements by Justice Roberts and Justice Frankfurter came up in the context of cases where it might be thought that a normally law abiding citizen might have fallen from grace because of the over bearing of the Government agent. In Sorrells, it was a request to get some liquor during prohibition for an old army buddy and it might have been thought that normal social behavior might ultimately cause a person, a normally law abiding person to yield and supply a kind of liquor. In Sherman of course, the undercover informant attempted another former narcotics addict who was undergoing treatment with him to get him heroine for his personal use saying that he couldn’t suffer the pain of withdrawal and finally, the perspective defendant yielded. Those are holes apart from the kind of conduct here, which presents no risk in the Frankfurter formulation or the formulation of Model Penal Code, the Federal, Proposed Federal Code or S-1, creates no risk that the Government conduct will ensnare the otherwise innocent or tempt the normally law abiding citizen as in the Federal -- Proposed Federal Code.
Potter Stewart: It’s a little hard to square the language in the Sorrells either the Court’s language or the concurring opinion's language with the facts in Sorrells that I frankly have never known until I read the American Civil Liberties Union brief, amicus brief in this case. Sorrells was the professional bootlegger apparently, wasn’t he?
Philip A. Lacovara: Well, there were some indications in the record that he was a rum runner, but the --
Potter Stewart: Rum runner, yes.
Philip A. Lacovara: All the Court held in Sorrells was that if you -- if the jury had credited the defense testimony which was that he didn’t deal in liquor and had a good reputation in the community, they might have entertained a reasonable doubt which is the current standard about whether he had to pre-disposition. So, in Sorrells all that happened was the case was sent back for a new trial because the trial court it held that it would not even submit the entrapment question to the jury. All that court held was that under one view of the evidence, there might have been entrapment.
Potter Stewart: Chief Justice Hughes talks about an industrious man -- innocent man who has no previews record of any kind of --
Philip A. Lacovara: I’ll have to leave to the Court of the analysis. The theory is what we’re concerned about here.
Potter Stewart: He may have been industrialist?
Philip A. Lacovara: [Laughter Attempt] The --
Warren E. Burger: Well, if the jury believes the defendant’s version of the facts in that case, that would be what Chief Justice Hughes was talking about, would it not?
Philip A. Lacovara: Yes, that’s exactly right, but the judge, the trial judge refused to let the jury consider that. He had not given any entrapment instruction.
Warren E. Burger: So everything that Hughes said was purpose by the -- and if that was either (Voice Overlap)
Philip A. Lacovara: Right. He -- what he said and we quote this language, the record in this case would permit the jury to infer that the man was otherwise industrious, that’s the language you’re referring to, but he wasn’t talking that as proving. We have raised in our brief the question whether the creation of this new kind of defense is even an appropriate exercise of judicial power. To the best of our knowledge, neither under the Due Process Clause nor under what is called the Court’s supervisory power over the administration of criminal justice has the Court ever asserted or exercise the power to create a new defense to criminal liability. Now, Chief Justice Hughes in the Sorrells’ opinion specifically rejects this proposition, saying the courts have no power once a valid statute applicable according to its construction is involved and the executive chooses to prosecute, the courts have no power to create a new defense to exonerate the defendant which would be the effect of the holding in this case. We’ve argued at some length in our brief that whether you regard this as an extension of the entrapment case or as a proposal to establish a new Due Process defense, there’s no basis for doing it. Now first of all, the technique here given one of the ingredients to be used in the manufacture of the drug fits within the traditional law enforcement technique which has been reaffirmed by this Court as recently as in Osborn against the United States in 385 U.S. and that is, it is not unlawful entrapment to provide the opportunity or facility for commission of a crime, if the criminal intent which is the underlying premise of criminal prosecution inheres in the defendant before the agent appears on the scene. Similarly, there’s no inherent, unfairness here in this kind of activity we believe. I think we’ve shown in our brief that there are countervailing reasons from law enforcement purposes for infiltrating criminal groups, not only drug groups, but organized crime, smuggling and espionage groups, but nothing that was done here violated any specific provision of the constitution. The Court in Hoffa, Osborn and Lewis has specifically rejected Fourth, Fifth, and Sixth Amendment challenges to undercover operations and in Hoffa specifically rejected the notion that this violates the Fifth Amendment Due Process as inherently unfair. We therefore request that the judgment follow should be reversed and the indictment reinstated.
Potter Stewart: Mr. Lacovara, how much of a concession do you mean to be making in your brief on page 32 where you say that it maybe the Due Process preclude that criminal conviction for engaging in conduct that would not have been possible without the participation and assistance for the Government agent who supplied indispensable means to the commission of the crime, that could not have been obtained otherwise through the illegal transaction?
Philip A. Lacovara: That’s would I would call a minimal concession, Mr. Justice. What we’re talking about there is, if the only thing that translated a fantasy into a crime was the appearance of the Government agent, well then, it might be said that there couldn’t been a crime, but for the Government agent. For example, if some people at college smoker decided that they would like to loot Fort Knox and there was an undercover agent present and he stimulated the scheme and because of his official position, got the keys to the vault and had all the guards taken away and have the search lights turn off and the men walk in --
Byron R. White: (Inaudible)
Philip A. Lacovara: Well, yes sir. The -- what I --
Potter Stewart: Well, I suppose if a Government agent and his friend were together and a friend said, gee, if I had a gun, I like to -- I’d kill that man, agent had him a gun, said, here go ahead, that would be example of your concession, wouldn't it?
Philip A. Lacovara: There are practical constraints on the occasions in which undercover agents become involved in schemes. They don’t apply to violent crimes, even the proposed formulations would not allow even in entrapment defense where badly injury is threatened. But to illustrate Mr. Justice if I may, the -- what I would to call our basic theory is that if the Government provides a fungible commodity, there is no entrapment as a matter of law. That would be phenyl-2-propanone here because it could be obtained from other sources. It was difficult to obtain, it would even apply to heroine or the counterfeit bills because if the agent isn’t there infiltrating the scheme, monitoring it by his presence in participation, it’s very probable under the realities of the criminal world that the heroine or the counterfeit bills or the P2P in this case or the gun in your case will come from someone else. And that is a legitimate law enforcement objective to stay right close to the transaction, including cooperating with the scheme to the extent necessary in order to track it all the way to the conclusion, to find out all of the participants and then nip it before it goes any further.
Thurgood Marshall: Plus in this case on the second occasion, he had got the materials some place else?
Philip A. Lacovara: Yes sir, the -- Patrick Connelly had apparently 600-gram jars of P2P. Thank you.
Warren E. Burger: Mr. Brucker.
Thomas H. S. Brucker: Mr. Chief Justice and may it please the Court. I would like to address myself briefly if I might as to what I think this case is all about. I would then like to emphasize some matters in the factual aspects of this case which I feel are very important. And then I would like to proceed on to what I feel is the law, the applicable law that should be applied in this case. I think this case what this case is all about first of all can be summarized in the phrase entrapment as a matter of the law. And the analysis must focus on what law, what are we talking about? Many courts use that phrase and I think it’s going to be helpful to us if this Court will tell us what law we’re talking about. Now, we have suggested in our brief three possible laws which this Court can use. First of all, is the Due Process Clause. Now, this would come from statements that were contained in the Sorrells, Sherman and Reilly versus Ohio.
Warren E. Burger: In the majority or dissenting or concurring opinion?
Thomas H. S. Brucker: In the majority opinion, the majority opinion in Sorrells we’ve quoted in our brief. Mr. Justice Roberts makes a suggestion that it has been -- excuse me Mr. Justice Hughes makes a suggestion that it has been the activities of the law enforcement officer are such that Due Process consideration is applied. Mr. Justice -- Chief Justice Warren clearly makes that statement in the Sherman case where he says that when the intolerable activities then becomes so bad that they rise to the level of Due Process consideration just as the Fourth Amendment search and seizure or the Fifth Amendment coerced confession, as well as --
Warren E. Burger: Would you suggest there’s nothing new in the Court of Appeals' approach to this problem here?
Thomas H. S. Brucker: I am not -- I am suggesting there is nothing new in the Court of Appeals, that is correct Your Honor. What I am saying in this case that this is the way that courts have analyzed these cases, but they have not really articulated the basic problem that they are taking about. And that is the reaction to overzealous law enforcement activities. This type of case has been considered by the Courts of the Fifth Circuit, the Seventh Circuit, the Ninth Circuit, Pre-District Courts, the Highest Courts of the State of Illinois, of Arizona, the Appellate Court of New Mexico and they have all agreed with our view I believe. That’s why I'm saying there is nothing new. This is one -- this is the articulation, this is what we’re talking entrapment as a matter of law.
Byron R. White: What law?
Thomas H. S. Brucker: The second --
Byron R. White: Is the entrapment concept as applied by this Court applicable to state convictions?
Thomas H. S. Brucker: Sir no, no, but and all this -- most of the states to my knowledge all of the states (Voice Overlap)
Byron R. White: Oh! Yes but that your answer is that so far the entrapment defense has not been constitutionalized so as to be applicable to the states?
Thomas H. S. Brucker: That is correct.
Byron R. White: So, there is something new in the Ninth Circuit approach? But its approach would be applicable to the states on a habeas corpus state here?
Thomas H. S. Brucker: Well, it would be no - not necessary you’re talking, - yes, in the future, it certainly would be yes, but not, you mean, not as far as opening as the Government says in its reply brief by opening up the gates (Voice Overlap)
Byron R. White: Well, no. That would be applicable --
Thomas H. S. Brucker: That is correct, that’s right, that’s right because what I'm saying here is the Government has going far further.
Byron R. White: But the entrapment defense, however, it’s been spoken about you know our past cases, has not been constitutionalized to the extent that it’s applicable to the state.
Thomas H. S. Brucker: That is correct, but there is one suggestion of course in Mr. Justice Frankfurter's separate opinion in Sherman where he does suggest an equal protection argument where there is with treating classes of individual differently whether or not they have a predisposition. He questioned whether that was the equal protection, but certainly the holdings have not risen to that level.
Potter Stewart: And by the same token, Congress could repeal the entrapment defense or it could provide with respect to any particular criminal statute, there should be no entrapment defense allowed, in defense of charge under this statute, couldn’t it?
Thomas H. S. Brucker: Yes it could.
Potter Stewart: Under the existing law?
Thomas H. S. Brucker: Yes.
Byron R. White: But it couldn’t do way with the defense as, whatever the defense is as proceed by the Ninth Circuit?
Thomas H. S. Brucker: That is correct.
Potter Stewart: To the extent that it depends upon Due Process?
Thomas H. S. Brucker: Yes, it could do. Certainly what I am suggesting is that this is for purposes of analysis that this is really what we’re talking about because the level of Government activity has going too far.
Thurgood Marshall: Just how -- what particular act went too far in this case?
Thomas H. S. Brucker: The providing of phenyl-2-propanone without --
Thurgood Marshall: Which is -- which he could’ve obtained any place up?
Thomas H. S. Brucker: No Your Honor, absolutely not.
Thurgood Marshall: Well, doesn’t the record show you did (Voice Overlap)
Thomas H. S. Brucker: Excuse me, absolutely not. We --
Thurgood Marshall: (Voice Overlap) show that on the second occasion, he did obtained it from some place out?
Thomas H. S. Brucker: No.
Thurgood Marshall: Well, what was in that extra bottle?
Thomas H. S. Brucker: There was no laboratory analysis of that extra bottle, first of all despite what the Government says, the record is clear about that. The second bottle was obtained in a search on January 10, 1970. Richard Russell, my client, the respondent in this case had nothing to do with that. This was in Connelly (Voice Overlap)
Thurgood Marshall: I didn’t say so either. What I said it was obtained?
Thomas H. S. Brucker: It was obtained somebody else. What difference --
Thurgood Marshall: So, it was obtainable. You said it wasn’t obtainable?
Thomas H. S. Brucker: No, I misunderstood Your Honor. What I'm -- I'm saying two things; One, if all we’ve -- we don’t know although I'm not pressing this. We don’t know that it was in fact phenyl-2-propanone. It was not analyzed by the Government agent who testified at this trial.
Thurgood Marshall: Well, is there anything the record to show that there was no way for them to obtain this except through a Government agent?
Thomas H. S. Brucker: No.
Thurgood Marshall: Of course not.
Thomas H. S. Brucker: What it shows is that the Government agents, the Government B and D --
Thurgood Marshall: Facilitated it.
Thomas H. S. Brucker: They had dried up the supply.
Thurgood Marshall: And they facilitated it. Suppose the agent gave the paper for counterfeit money, would that be entrapment?
Thomas H. S. Brucker: Yes, that’s what McGrath held, that’s what McGrath held.
Thurgood Marshall: That would be guaranteed?
Thomas H. S. Brucker: Certainly. The Government --
Thurgood Marshall: And the reason is you can obtain that paper any place else except from the Government?
Thomas H. S. Brucker: Oh! But that doesn’t prevent counterfeit bills from being (Voice Overlap)
Thurgood Marshall: Easily, easily at this term and to be counterfeit bills unless they have the right papers?
Thomas H. S. Brucker: Well, from the point -- if you -- from that point of view, if you have the right waive of paper in that type of thing, the only way that come is from the Government.
Thurgood Marshall: Well, is all that the Speed in this country that we read about outside to this record, is that all obtained from the Government?
Thomas H. S. Brucker: No, Your Honor.
Thurgood Marshall: So, it is obtainable, isn’t it?
Thomas H. S. Brucker: Speed is yes.
Thurgood Marshall: No, I mean this ingredient is obtainable?
Thomas H. S. Brucker: Well, propanone is not necessary for all types of manufacture of Speed Your Honor. There was just in this particular type of manufacture.
Thurgood Marshall: Well, does the record show that this man had been manufacturing it before?
Thomas H. S. Brucker: No, and that is something --
Thurgood Marshall: Where did he get that Speed tablet that he gave Shapiro on the first trip?
Thomas H. S. Brucker: He did not give it to Shapiro.
Thurgood Marshall: Who did he give it to?
Thomas H. S. Brucker: He didn’t -- Mr. Russell did not give it anybody, it was Patrick Connelly. There were many people in this room where agent Shapiro came in. They were the two Connelly brothers, there was Richard Russell, there was the Government informant, there was another man and there were two girls (Voice Overlap)
Thurgood Marshall: There was Speed there in this room, and it was there before the Government furnished anything?
Thomas H. S. Brucker: Yes, but not -- but Richard Russell had -- the only thing Richard Russell had to do with that, I’ve suggested in my --
Thurgood Marshall: It is your position that Richard Russell wouldn’t gotten involved because agent hadn’t talked to?
Thomas H. S. Brucker: It is my from an argument that there is no evidence that the crime for which he was convicted would have gone ahead without Shapiro giving the phenyl-2-propanone.
Warren E. Burger: Well, the way you’ve described it, it look like quite of production line there with four, five or six people involved?
Thomas H. S. Brucker: Your Honor, this is the way, this is on Whidbey Island which is North of Seattle and was a home and these people are not particularly organizing people come and go. This is the common way of life for an authorize --
Warren E. Burger: No, I'm speaking of production line for the production of the Speed.
Thomas H. S. Brucker: Oh! No Your Honor. This was as the record reflects, this was in the kitchen then and in the --
Warren E. Burger: Oh! Like a home-made stew?
Thomas H. S. Brucker: That’s right, sure.
Warren E. Burger: Yes, but it’s a production line nevertheless?
Thomas H. S. Brucker: Well --
Warren E. Burger: And did produce?
Thomas H. S. Brucker: Yes it did.
Warren E. Burger: Before the agent’s appearance, during the agent’s participation and at times after he had left?
Thomas H. S. Brucker: That’s not to suggest that Richard Russell had anything to do with that. That’s --
Warren E. Burger: I see. He just lived, in your view, he is just living there?
Thomas H. S. Brucker: No, Your Honor. This was not his house. This was Patrick Connelly’s house which is 15 miles away from Richard Russell’s house. Unless I get the point across to this Court that Richard Russell did not do the acts both before and after, we’re going to have to get to the predisposition argument.
Warren E. Burger: Well, then what you’re doing in that if I'm going to suggest Mr. Brucker, you’re arguing the sufficiency of the evidence?
Thomas H. S. Brucker: Absolutely, I am yes. I am arguing --
Warren E. Burger: That’s a different question from the legal question you’d agree, wouldn’t you?
Thomas H. S. Brucker: Well, that I have suggested three grounds in which this -- the Court of Appeals could be affirmed. One of which is to accept their Due Process consideration. The second of which is to state that under Sorrells and Sherman, the activities of the Government arise to create of activity and manufacturing. And the third ground is that under the supervisory prior to this Court to adopt the separate opinion in Sherman and Sorrells, but I do believe that there is a great of question as to the sufficiency of the evidence to carry the issue of entrapment to the jury. The important facts that I think this Court must pay attention to are for: one, I believe -- first of all is that the proposal to a supply the propanone came from Shapiro. Now, Shapiro was the only agent that testified, but there were four or five surveiling agents outside the house at all time; this was wasn’t a one man operation. They knew where they -- that same day determine where the laboratory was, but I think it’s important that the offer to supply came from a Government agent. This is not a situation like United States versus Lopez where the defendant made a non-solicited offer to the IRS agent for a bribe. So, that I think and I think there is no dispute on that point. The second aspect that I think is important in the factual record in this matter is the critical aspect to the chemical involved. This was a catalyst, the propanone and it was impossible to produce Speed without it. You could have all the laboratory, all the flasks, all the spoons, all the bottles as everything else and without phenyl-2-propanone, you get nothing. As a record reflects here and you can have everything else and if you don’t have the propanone, you could not manufacture methamphetamines, answer is no. Without the phenyl-2-propanone, you could not get the reaction to get methamphetamine. Absent of propanone, you put everything else in there described by Mr. Shapiro, what would you get? And this was a chemist testifying. Not a great deal of any kind of products you see because the product depends upon the reaction of phenyl-2-propanone, that is the whole idea. The other things that are in there are simply for solvents or for the generation of hydrogen for condensation. So, this is not as the Government would attempt to characterize, this is just an isolated drug which they just happened to provide. It was absolute hard of the manufacture of Speed in this case, and it is perfectly clear that the Speed, that the chemical provided by the Government was used to manufacture the Speed.
William H. Rehnquist: Isn’t that true though with lots of chemical formulas that may have four or five ingredients that absent anyone of them, you wouldn’t get the end product?
Thomas H. S. Brucker: Not from the state -- that may will be, but I don’t think that that is true in this case just from the testimony of the chemist. The one critical item is a phenyl-2-propanone and the others he apparently, he said, are simply for solvents, but you don’t get Speed unless you have phenyl-2-propanone.
Warren E. Burger: Well, suppose it was black carbonated soda that they needed to complete this process and they didn’t have any in the house that day and the stores were closed and the agents had supplied one for them. He said, he had some at home and went home and got it and brought it back. Would you think situation would be there?
Thomas H. S. Brucker: I find that as a different case Your Honor.
Warren E. Burger: Different case factually from this?
Thomas H. S. Brucker: Yes it is.
Warren E. Burger: This substance was obtainable from other sources as Justice Marshall has pointed out --
Thomas H. S. Brucker: But it was -- the Government at least concedes it was difficult to obtain. I mean that’s the (Voice Overlap)
Warren E. Burger: When the stores are closed, it’s difficult to get that black carbonated soda unless you some borrow some from the neighbor?
Thomas H. S. Brucker: That maybe, although I just -- to me, there’s a vast distinction between something which is available in every drug store and a chemical which one -- you can only get by having a license in the first place and two, which agents of the Bureau of Dangerous Drugs have gone around to the drug supply houses and say, please, don’t sell it at all even to very one with a license. So, I think that that is a between -- what the Government agents have done is to dry up the supply, make it difficult obtain knowing that as very critical item and then say here.
Warren E. Burger: In other words, when the man goes around to five or six places and can’t give any, then, his appetite is whetted, he is an extreme situation.
Thomas H. S. Brucker: No, but the other point might also be true, Your Honor and that is if can't get it perhaps he wouldn’t even have completed the manufacturing at all.
Thurgood Marshall: And of course it also follows that you wouldn’t want it for something else, would you?
Thomas H. S. Brucker: No.
Thurgood Marshall: It only wanted to make an illegal drug?
Thomas H. S. Brucker: That’s correct.
Thurgood Marshall: And so the Government makes you difficult. Suppose the Government froze it up and only had it available at one address and they have been all under surveillance, would that be entrapment?
Thomas H. S. Brucker: There is a difference because the Government is not in fact -- the agent is not in fact providing, but I don’t see meaningful distinction between that because what they have made it only then from one source. And that’s in it, you always have the --
Thurgood Marshall: I think your position is that the Government makes it possible in anyway for them to get it, they can’t prosecute.
Thomas H. S. Brucker: No, that’s not true Your Honor. I'm not taking that position at all. I'm saying what the facts of this case show that what the Government is doing is promoting crime.
Thurgood Marshall: (Inaudible)
Thomas H. S. Brucker: Absolutely Your Honor because what they are doing in this case is to provide something that without which for all the record shows.
Thurgood Marshall: Did they promote this first batch before Shapiro got that?
Thomas H. S. Brucker: No, Your Honor, but what did Richard Russell --
Thurgood Marshall: Did the Government promote that?
Thomas H. S. Brucker: No.
Thurgood Marshall: Was that a crime?
Thomas H. S. Brucker: Not for which Richard Russell is charged and which this --
Thurgood Marshall: Would somebody guilty of that crime whoever made that Speed, Russell or somebody?
Thomas H. S. Brucker: Somebody, yes I would agree with that.
Thurgood Marshall: The Government did promote that, did it?
Thomas H. S. Brucker: No, but that’s not the charge for which Richard Russell is here before this Court and when he was convicted out.
Thurgood Marshall: Did the Government persuaded Russell to go in Speed business?
Thomas H. S. Brucker: For all, Your Honor?
Thurgood Marshall: For all intents and purposes that’s your position?
Thomas H. S. Brucker: Yes, because there is no evidence --
Thurgood Marshall: (Inaudible)
Thomas H. S. Brucker: Your Honor, Richard Russell had never been convicted of any crime before. There was no evidence said he had ever been involved in the manufacturing. There was not even the evidence as to the involvement of Russell to the extent of Mr. Sorrells. The record -- the opinion of this Court in Sorrells states that the Government produced three witnesses that showed that Mr. Sorrells was rum-runner, but there’s absolutely nothing in this record that shows Richard Russell was anything other than a law abiding citizen. They’re just isn’t any, Richard Russell. I would also like to say this in the replied brief of I suggested in my brief that the Government show where there was such a evidence in the record and in the reply brief they declined to do that and also make an error stating that it was Richard Russell who made statements about having the Speed and that was corrected this morning because that did not happen.
Potter Stewart: You said it’s a factual error in the Government’s brief?
Thomas H. S. Brucker: Yes, it is Your Honor and Mr. Lacovara spoke actively this morning on page 4 of the reply brief in the second paragraph about 10 lines from the bottom talk about that he meaning Richard Russell, but obviously was one of the Connelly brothers and Mr. Lacovara so argued this morning.
William H. Rehnquist: As I recall Mr. Lacovara’s argument, he referred to some exchange where Richard Russell said, “After I get my half.”
Thomas H. S. Brucker: Yes, that was after the -- that was under 10th of December 1969, that was after Shapiro had provided the chemical and the drug was produced.
William H. Rehnquist: Well, in the light of that, do you still say there’s nothing in the record that shows he was anything other than a law abiding citizen?
Thomas H. S. Brucker: Oh! I'm taking about prior to.
Potter Stewart: You’re talking about his prior record?
Thomas H. S. Brucker: Prior record, oh, absolutely.
Potter Stewart: Contrasted with Sorrells?
Thomas H. S. Brucker: Oh! That’s correct, right, right. He clearly committed the acts in this case; no question about that. What I am basically saying and what I basically argue to this Court is that this Court has not heretofore have the opportunity to consider a case that on the facts where the Government has provided the indispensable ingredient, the contraband. I'm going to assume now that Richard Russell has all kind of pres-disposition that he was involved before and after, although, I don’t think the record supports, I’m going to assume that now. But no case that this Court has been called upon to decide has going to the extent where the Government intrudes itself to this extent in the prosecution -- the investigation and prosecution of crimes. The history of entrapment has been basically set out in our brief. The first federal case on was as recent as 1915 and it was basically -- defense of entrapment has been basically caused by the growth of the statutory crimes where there is a clandestine operations and it is hard to find out what is going on. By the time of 1932 when Sorrells was decided, Mr. Justice Roberts characterized the entrapment defenses as an amazing total. All the Circuits had agreed that the entrapment defense was available and then in this Court agreed. What I am suggesting is, is that we have a parallel situation today. This different factual situation where the Government intrudes into the criminal process to the extent that it has, has been considered by many courts, the lower courts. Every single and one of them has found that the Government activity is intolerable and has reversed the convictions, every single on them without dissent except in my case in the Ninth Circuit here. McGrath, Bueno, Fifth Circuit, Seventh Circuit, District Court cases Southern District of New York, California, Highest Court of Illinois, Highest Court of Arizona, they have considered problems where the Government has intruded to this extent. They’ve all found them bad and that’s why I'm saying that we have a different case that is not been considered by this Court.
Potter Stewart: These decisions been based on constitutional foundation?
Thomas H. S. Brucker: No, they have not Your Honor, but they have -- except this case.
Potter Stewart: This case to extent it was (Voice Overlap) with the exception of this case have the others?
Thomas H. S. Brucker: No, but what I'm saying is that the courts below have tortured their reasoning, tortured their opinions because they are outraged by what the Government does, but can’t find a handle on which to articulate what the basis is, what law they’re talking about is to why its bad. They are talking about enlarging the holding of Sorrells and Sherman. They talk about that the really that because this Court has invited review of this the -- what really now is the law is its separate opinion in Sherman and Sorrells but nobody -- they are unanimous and reversing, but they are not unanimous in their reasoning and we all look to this Court for its reasoning. What I am saying that this type of thing had never been considered before. It is alright for the Government to provide a substitute crime. That’s what entrapment is; providing a substitute crime, but it is not alright for the Government to go further. There’s no legitimate state interest in the Government going further and providing the one means by which that crime could be committed and that is what this case is all about; without Shapiro providing that phenyl-2-propanone. The evidence does not support the fact that this crime would be committed, and I got to look at that problem in deciding this case. The evils to be countenanced are set fort in my brief. Mr. Justice Frankfurter has articulated them in the separate opinion of Sherman. I don’t like to go with slogans, but I would only suggest to the Court that at this type of activity is upheld, it would be the ends justifying the means which is really not sanctioned in our system and for those reasons, I asked that the opinion of the Court of Appeals be affirmed.
Warren E. Burger: Thank you Mr. Brucker. Mr. Brucker you appeared here at our request and by appointment of the Court and we thank you for your assistance to not only of your client, but to the Court.
Thomas H. S. Brucker: Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.