HAMPTON, aka BYERS v. UNITED STATES
No. 74-5822.
Argued December 1, 1975
Decided April 27, 1976
Rehnquist, J., announced the Court’s judgment and delivered an opinion, in which Burger, C. J., and White, J., joined. Powell, J., filed an opinion concurring in the judgment, in which Blackmun, J., joined, post, p. 491. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 495. Stevens, J., took no part in the consideration or decision of the case.
David A. Lang, by appointment of the Court, 421 U. S. 945, argued the cause and filed a brief for petitioner pro hac vice.
Deputy Solicitor General Jones argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Jerome M. Feit.
Mr. Justice Kehnquist
announced the judgment of the Court in an opinion in which The Chief Justice and Mr. Justice White join.
This case presents the question of whether a defendant may be convicted for the sale of contraband which he procured from a Government informant or agent. The Court of Appeals for the Eighth Circuit held he could be, and we agree.
I
Petitioner was convicted of two counts of distributing heroin in violation of 21 U. S. C. §841 (a)(1) in the United States District Court for the Eastern District of Missouri and sentenced to concurrent terms of five years’ imprisonment (suspended). The case arose from two sales of heroin by petitioner to agents of the Federal Drug Enforcement Administration (DEA) in St. Louis on February 25 and 26, 1974. The sales were arranged by one Hutton, who was a pool-playing acquaintance of petitioner at the Pud bar in St. Louis and also a DEA informant.
According to the Government’s witnesses, in late February 1974, Hutton and petitioner were shooting pool at the Pud when petitioner, after observing “track” (needle) marks on Hutton's arms told Hutton that he needed money and knew where he could get some heroin. Hutton responded that he could find a buyer and petitioner suggested that he “get in touch with those people.” Hutton then called DEA Agent Terry Sawyer and arranged a sale for 10 p. m. on February 25.
At the appointed time, Hutton and petitioner went to a prearranged meetingplace and were met by Agent Sawyer and DEA Agent McDowell, posing as narcotics dealers. Petitioner produced a tinfoil packet from his cap and turned it over to the agents who tested it, pronounced it “okay,” and negotiated a price of $145 which was paid to petitioner. Before they parted, petitioner told Sawyer that he could obtain larger quantities of heroin and gave Sawyer a phone number where he could be reached.
The next day Sawyer called petitioner and arranged for another “buy” that afternoon. Petitioner got Hutton to go along and they met the agents again near where they had been the previous night.
They all entered the agents’ car, and petitioner again produced a tinfoil packet from his cap. The agents again field-tested it and pronounced it satisfactory. Petitioner then asked for $500 which Agent Sawyer said he would get from the trunk. Sawyer got out and opened the trunk which was a signal to other agents to move in and arrest petitioner, which they did.
Petitioner’s version of events was quite different. According to him, in response to his statement that he was short of cash, Hutton said that he had a friend who was a pharmacist who could produce a nonnarcotic counterfeit drug which would give the same reaction as heroin. Hutton proposed selling this drug to gullible acquaintances who would be led to believe they were buying heroin. Petitioner testified that they successfully duped one buyer with this fake drug and that the sales which led to the arrest were solicited by petitioner in an effort to profit further from this ploy.
Petitioner contended that he neither intended to sell, nor knew that he was dealing in heroin and that all of the drugs he sold were supplied by Hutton. His account was at least partially disbelieved by the jury which was instructed that in order to convict petitioner they had to find that the Government proved “that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.” Thus the guilty verdict necessarily implies that the jury rejected petitioner's claim that he did not know the substance was heroin, and petitioner himself admitted both soliciting and carrying out sales. The only relevance of his version of the facts, then, lies in his having requested an instruction embodying that version. He did not request a standard entrapment instruction but he did request the following:
“The defendant asserts that he was the victim of entrapment as to the crimes charged in the indictment.
“If you find that the defendant’s sales of narcotics were sales of narcotics supplied to him by an informer in the employ of or acting on behalf of the government, then you must acquit the defendant because the law as a matter of policy forbids his conviction in such a case.
“Furthermore, under this particular defense, you need not consider the predisposition of the defendant to commit the offense charged, because if the governmental involvement through its informer reached the point that I have just defined in your own minds, then the predisposition of the defendant would not matter.” Brief for Petitioner 9.
The trial court refused the instruction and petitioner was found guilty. He appealed to the United States Court of Appeals for the Eighth Circuit, claiming that if the jury had believed that the drug was supplied by Hutton he should have been acquitted. The Court of Appeals rejected this argument and affirmed the conviction, relying on our opinion in United States v. Russell, 411 U. S. 423 (1973). 507 F. 2d 832 (1974).
II
In Russell we held that the statutory defense of entrapment was not available where it was conceded that a Government agent supplied a necessary ingredient in the manufacture of an illicit drug. We reaffirmed the principle of Sorrells v. United States, 287 U. S. 435 (1932), and Sherman v. United States, 356 U. S. 369 (1958), that the entrapment defense “focus[es] on the intent or predisposition of the defendant to commit the crime,” Russell, supra, at 429, rather than upon the conduct of the Government’s agents. We ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established.
In holding that “[i]t is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play,” 411 U. S., at 436, we, of course, rejected the contrary view of the dissents in that case and the concurrences in Sorrells and Sherman. In view of these holdings, petitioner correctly recognizes that his case does not qualify as one involving “entrapment” at all. He instead relies on the language in Russell that “we 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, cf. Rochin v. California, 342 U. S. 165 (1952) . . . .” 411 U. S., at 431-432.
In urging that this case involves a violation of his due process rights, petitioner misapprehends the meaning of the quoted language in Russell, supra. Admittedly petitioner’s case is different from Russell’s but the difference is one of degree, not of kind. In Russell the ingredient supplied by the Government agent was a legal drug which the defendants demonstrably could have obtained from other sources besides the Government. Here the drug which the Government informant allegedly supplied to petitioner both was illegal and constituted the corpus delicti for the sale of which the petitioner was convicted. The Government obviously played a more significant role in enabling petitioner to sell contraband in this case than it did in Russell.
But in each case the Government agents were acting in concert with the defendant, and in each case either the jury found or the defendant conceded that he was predisposed to commit the crime for which he was convicted. The remedy of the criminal defendant with respect to the acts of Government agents, which, far from being resisted, are encouraged by him, lies solely in the defense of entrapment. But, as noted, petitioner's conceded predisposition rendered this defense unavailable to him.
To sustain petitioner’s contention here wo Id run directly contrary to our statement in Russell that the defense of entrapment is not intended “to give the federal judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.” 411 U. S., at 435.
The limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant. Here, as we have noted, the police, the Government informant, and the defendant acted in concert with one another. If the result of the governmental activity is to “implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission . . . ,” Sorrells, supra, at 442, the defendant is protected by the defense of entrapment. If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under' the applicable provisions of state or federal law. See O’Shea v. Littleton, 414 U. S. 488, 503 (1974); Imbler v. Pachtman, 424 U. S. 409, 428-429 (1976). But the police conduct here no more deprived defendant of any right secured to him by the United States Constitution than did the police conduct in Bussell deprive Russell of any rights.
Affirmed.
Mr. Justice Stevens took no part in the consideration or decision of this case.
Petitioner was placed on five years’ probation which, was to run concurrently with the remainder of a 28- to 30-year. state armed robbery sentence from which petitioner had escaped.
The testimony of Hutton is confused as to the dates. At one point he indicated that the initial conversation and the sale both occurred on February 25. At another point he testified that they occurred on two separate days.
On appeal, petitioner’s counsel, who was also his counsel at trial, conceded that petitioner was predisposed to commit this offense. 507 F. 2d 832, 836 n. 5 (CA8 1974).
The Court of Appeals treated the proffered instruction on its merits, rather than inquiring as to whether its refusal, in light of the other instructions given and of the jury’s verdict, may have been harmless error. We therefore do likewise.
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