HAMPTON v. UNITED STATES

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Argument of David A. Lang

Chief Justice Warren E. Burger: We will hear arguments first this morning in No. 74-5822, Hampton against the United States.

Mr. Lang, you may proceed whenever you are ready.

Mr. David A. Lang: Thank you.

Mr. Chief Justice and may it please the Court.

My name is David Lang and I am the counsel for the petitioner in this case, Charles Hampton, Jr.

This case is before this Court on writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

That Court affirmed a judgment a jury verdict finding, the defendant guilty of two counts of distributing heroin in violation of Federal Law.

The facts of this case are as follows: Petitioner Charles Hampton was initially charged in a two-count indictment with violation of Section 84191 of Title 21 of the United States Code, with knowingly and intentionally distributing approximately three grams of heroin.

At the trial, the government introduced testimony of five witnesses in this case in chief and three witnesses in rebuttal.

Only three of the government’s witnesses’ testimonies are presently before this Court.

Hampton likewise also introduced the testimony of five witnesses including himself, and only his testimony appears in the record.

Basically, without, to think the facts are fairly well set out in the brief, but just to give some background on them.

Basically, the government’s first witness was a Jules Hutton who was a special employee of the Drug Enforcement Administration.

He testified that he had been involved in some 80 or 90 drug cases in Wichita, Kansas, Lawrence, Kansas and St. Louis area.

He had just gotten into St. Louis and his job was to make contact with the persons who were involved in drug trafficking and to set up sales with agents of the Drug Enforcement Administration.

He testified that in business that he was approached by the defendant Hampton who initiated the scheme for selling drugs, and basically there were two sales that occurred.

One occurred on February 25, 1974; the other occurred on February 26, the following day.

The first sale took place and at that sale a second sale was set up.

On date of the following sale February 26, the sale was consummated and the two persons who purchased the drugs then identified themselves as being Federal Narcotics Agents and placed, both the defendant and Jules Hutton, the informant, under arrest at that particular time.

That was basically the story that was given by Hutton.

Now, the contradiction came in with respect Hampton’s testimony.

His testimony was basically that all of the drug transactions were initiated not be himself but by Hutton, the government’s informant.

He has further testified that at no time did any of the substances which he sale -- rather all the substances which he sold had been supplied to him by Hutton.

That he had no independent source of supply of these drugs.

The question basically was a question of credibility between the two witnesses.

At the trial, we moved for a special jury entrapment, a special jury instruction on the defense of entrapment.

This was based upon the so-called government conduct theory of entrapment.

And the focus of that theory is that one does not focus of course upon the predisposition of the defendant but rather upon the extent of the governmental participation in the crime.

The District Court refused to give the requested instruction on the ground that this Court’s opinion in United States versus Russell precluded any entrapment defense based upon any principle other than predisposition.

The Court of Appeals affirmed that decision on the ground that it felt it was also precluded.

There was one dissenting opinion.

Therefore the basic issue is whether the Due Process Clause of the Fifth Amendment forbids the conviction of an accused for selling contraband if the contraband was supplied to him by an agent acting in behalf of the United States Government.

Previous opinions of this Court starting with Sorrells and culminating with the Russell decision in 1973, we believe not to reach the specific issue.

We believe this issue neither was nor reached in Russell and Russell is distinguishable and this is a totally different situation.

Justice Harry A. Blackmun: Mr. Lang, you are basing your entire case on due process, I take it?

Mr. David A. Lang: That is correct Your Honor.

Justice Harry A. Blackmun: Not on any entrapment defense as such?

Mr. David A. Lang: That is correct Your Honor.

There had been a number of cases in which this precise issue has been raised both in State Court cases and Federal cases.

Prior to this Court’s decision in Russell, every Court that it passed on the issue of contraband being supplied to the defendant and that was subject of the offense had ruled that that constituted entrapment as a matter of law.

Now a careful analysis of those cases I believe, the courts used various languages.

Some cases use the term entrapment; some cases -- the Court did not specify what exactly, what doctrine they were purporting to utilize on those cases.

I think this cases can best be analyzed if they are viewed a due process cases.

And --

Justice Harry A. Blackmun: I understand that no specific entrapment instruction was requested of Judge Meredith?

Mr. David A. Lang: This was Judge Nangle.

We did not request the traditional predisposition entrapment instruction; that is correct Your Honor.

We only requested this so-called government conduct, theory of entrapment or whatever one wants to term it.

The reason for that in this particular instance was that the offense was knowingly and intentionally distributing heroin.

So the issue of scienter was already before the jury.

If they believe that this defendant never knew he was distributing heroin, they had ample ground to find form on that.

We did not feel that we should confuse the jury with another predisposition issue.

In other words, the issue of scienter goes to both predisposition and knowledge.

Justice William J. Brennan: Do you think the record would have supported the instruction on predisposition?

Mr. David A. Lang: On the question of knowledge, yes the record could have supported that Your Honor.

But as I say it was strategic move at that point not to confuse the jury by bringing in this predisposition when if they believe the defendant’s testimony, they would necessarily have acquitted him on the grounds that he did not know that he was distributing heroin, because all along he thought the substance he was distributing was a counterfeit substance.

That was the story that had been given to him by the informant.

Chief Justice Warren E. Burger: Mr. Lang, the theory, which you are advancing to us, would it make any difference whether for the purposes of your case, whether the government had provided the money to buy or the contraband to sell?

Mr. David A. Lang: Your Honor, we are limiting the standard that we are asking this Court to adapt specifically to cases in which the government supplies contraband.

Chief Justice Warren E. Burger: Is there any difference in principle?

Mr. David A. Lang: Yes.

Chief Justice Warren E. Burger: Would that not be the next step providing the marked money to buy, which does much of obtent (ph) in the transaction in the government’s role as providing the contraband to sell?

Mr. David A. Lang: No, Your Honor and I will answer that by approaching it this way, I like to approach it by stating it this way.

When the government supplies contraband to a defendant, it is necessarily assuming that this man has some criminal propensity that he is going to commit and offense involving the contraband in the future.

There is an implicit presumption.

That is the only presumption that can justify supply and contraband.

If the man does not want to sell contraband in the government has no right to test him or to aid him under the traditional doctrine.

So there is a finding; there is a necessary relied on presumption when the contraband is supplied that he was going to sell it anyway.

He was going to get his own source of the contraband and sell it.

Chief Justice Warren E. Burger: When they supply the money, is there not just as realistic notion that he is familiar with the ways of the drug traffic and that he is going to use the money?

Mr. David A. Lang: Well.

Chief Justice Warren E. Burger: The way that he agreed to use it that is to buy some narcotics?

Mr. David A. Lang: Well, no Your Honor.

I am saying that there is a distinct difference between contraband first of all because an item has been labeled contraband by Congress, there should be a presumption that that item is not generally revealed that is why it is contraband.

Indeed, Congress is trying to keep it off the street, which if taken hypothetical for example.

Let us say, someone wants to make a time bomb and let us assume that a necessary element in a time bomb is a clock or some type of time-keeping device.

If the government provide it, a clock I will have no problems with that.

It is necessary but we can assume that the defendant can go out and purchase a clock anyway.

It does not have to be supplied.

I am saying we cannot necessary, as a matter of logic, make that inference when the contraband is supplied.

It does not necessarily follow that contraband is available just because one has a predisposition to want to engage in a contraband crime that he would be able to get contraband.

There was no evidence in this case that the defendant had any source of heroin other than the government.

That was never brought at trial what his source of the supply was.

Chief Justice Warren E. Burger: How about his testimony which held predisposition?

Mr. David A. Lang: Well, I am saying Your Honor, certainly at some point when a crime is committed, there is always predisposition.

We are talking about a consummated criminal act.

When the act was consummated, certainly, his predisposition was one element what one calls as a criminal act.

Another element was the inducement by the government.

There is another element that caused a consummated act was supply of the contraband.

All of these things caused factually the consummated criminal act.

Now, I am saying that the bigger question, if we look the fact of the sale of the contraband is saying he was predisposed.

Yes, assuming he was predisposed and does not necessarily follow that he could have gotten contraband from any of his source.

It does not follow as a matter of logic.

If he could not obtain contraband despite his predisposition, he may have been deterred from engaging in a particular criminal activity, as it is a stake possibility.

The fact that it is contraband means that it is difficult or ought to be difficult to obtain.

It is not as available as many other substances.

In the Russell case, the substance involved was propanone which was an essential ingredient to making “speed” which was a drug that was involved there in that particular case.

Now in that particular case there are some factual distinctions there.

First of all, it was clear in that case that the defendant had a source of propanone both before and after it was supplied by the government.

Secondly, that was a crime involving manufacture of “speed”, and manufacturing involved some type of affirmative action on part of the person engaging in crime.

You just do not take this substance assuming indispensable, that does create a crime in and of itself, he had to do something actively to be guilty of manufacturing.

Justice Potter Stewart: Well, the Russell case was can not be your hypothetical case of the time bomb in the furnishing by the government of the clock?

Mr. David A. Lang: That is correct Your Honor.

But in that instance as I say, with the clock there was no problem because everyone knows you can go to buy a clock.

In the Russell case, there was no problem because we know both before and after the sale the defendant had its own source of the propanone.

I have no problem joining if for instance he could have gotten those.

I have no problem with that government supplied it.

It was inconsequential, but that is not case here.

We are talking about the presumption that the government is relying on and that is presumption that this man was going to obtain contraband because he was predisposed to engage in this type of offense.

I am saying it does not follow as a matter of logic that just because one is predisposed, if the contraband is unavailable that you would therefore engaged in that crime.

Justice Lewis F. Powell: Mr. Lang?

Mr. David A. Lang: Yes, Your honor?

Justice Lewis F. Powell: Assume a case in which the evidence is undisputed that the defendant had been engaged in selling heroin, say, for months or years, but the particular batch of heroin that he was being prosecuted for having sold, had been supplied by government agent.

Would your position be different?

Mr. David A. Lang: My position in that case would not be different Your Honor, because the defendant is on charge for the sale -- we are not charging the man or holding him responsible for his past conduct.

The crime which could be before the Court in that instances, the one that he engaged then, and in that case whenever the supply or whenever the subject of the offense was supplied by the government, I would say that regardless of what he had done in the past, regardless of his predisposition, that in that case we cannot allow his prosecution to stand or he cannot be prosecuted.

Justice Lewis F. Powell: Are you advocating a per se rule regardless of all other facts and circumstances if, and only if, the contraband that is involved in the particular prosecution was supplied by the government?

Mr. David A. Lang: That is right Your Honor; that is a very narrow standard.

Indeed, we have to set some outer limits on the government’s conduct.

I think that it is necessary to an extent to set out of limits on what type of law enforcement activities are permissible in the society.

If I can set up another hypothetical that comes to mind.

Let us assume we have situation where a defendant is engaged in making a bomb, he is going to blow up some federal buildings.

He is a member of some type of revolutionary group, and his group was infiltrated by an agent of the government, and this man, the defendant’s of demolition expert and he gets into the building and plants the bomb and has a change of heart.

He decides maybe innocent people will be hurt and he does not want to go ahead and do it.

And the government agent pulls out a pistol and tells him, well, you know, for the cause you must do this.

And he goes ahead and fuses the bomb.

He is subsequently charged of some type of crime relating or rising out the incident.

Now if we just focus on the fact that he was predisposed in the past, there would be room for a jury to make that factual finding.

I am saying that as a matter of policy we might want to have some situation where we do not want those types of cases going to the jury.

Chief Justice Warren E. Burger: Your hypothetical, however, is quite a long way off in the case that we have here.

Your hypothetical is one where he is compelled or coerced?

Mr. David A. Lang: Well, Your Honor I am saying that that is.

I agree with you that that hypothetical may be quite far off from what is in reality, but I am saying that the only thing that, the thing the most closely approximates that is government supply a contraband and from what I have seen, that is the greatest extent to which the government is involved in a crime is actually supply the contraband.

I do not think that that is, therefore, a difference and we are going to talk about joining some limits.

Justice William H. Rehnquist: Well, in your hypothetic, although the defendant would surely have a defense of the rest available to him.

Mr. David A. Lang: He would have the rest but he should also have the defense of government conduct.

I am saying it might be in that particular instance that he would not have engaged -- we still have the fact that he effused the bomb.

That is a different fact, just like we have in the case before the fact that the drugs were sold, they were sold.

But I am saying, we have no problems in the hypothetical.

We are saying that we do not know for a fact that he did it because of coercion or because of his predisposition.

I am saying it is too great a danger to we cannot say -- it is too great a danger to allow that type of cases going to the jury.

I am saying the same thing is true when we are talking about this contraband offense, when the contraband has been supplied by the government.

It is just too great.

Justice Thurgood Marshall: I am assuming that the government gives a known pusher, contraband heroin, and a known pusher showed it to your man, would you still have the same effect?

Mr. David A. Lang: Yes, Your Honor.

I would have the same conclusion.

Anytime that the person --

Justice Thurgood Marshall: Well, suppose the government just leaves a package of heroin on the doorstep and the pusher picks it up.

Will the government then be guilty?

Mr. David A. Lang: Yes, Your Honor, they will be.

I wold say so, because what the government is doing is manufacturing crime.

What interest does a government have -- if the government’s interest is in keeping heroin off the street, what interest do they have?

Justice Thurgood Marshall: The government was the manufacturing crime, because I said this was a known pusher?

Mr. David A. Lang: Well, I understand it was a known pusher but then why -- the question comes up is why is it necessary for the government to supply him with the heroin if he is a known pusher.

Why do they not just wait until he gets his own heroin?

That is where we have to look at the problem.

If the man is a known pusher, if he has his own source, why can the government not just wait until he comes up with his own source?

I do not see the necessity for the government intervening in that case.

Justice William H. Rehnquist: Well, I suppose one reason why the government might not want to wait is that if they do not know its source and cannot apprehend him in other ways, that might be a year or two afterward that they were able to convict him?

Mr. David A. Lang: Well, that is the possibility Your Honor, I will not argue that.

However, when they do convict him for that particular crime, we still get back to the question of whether or nor he would have sold the heroin without their intervention.

In other words, I am still saying that I think that our system of justice says that we have to give a man benefit of the doubt in this instance.

We are talking about in effect -- we are looking at another -- we are talking about cause and relation.

We thought about it in tort terms of cause and relation and criminal terms.

We have several acts which contribute to the consummated criminal act which is subject of the offense.

We have several things to contribute to a one thing as a criminal propensity of the defendant.

Another thing is the inducement from the government agents.

Another thing is the supply of the contraband.

Under the Tort Law and Criminal Law, there is instance wherein we make act superseding and the terminology that used there, superseding intervening causes and so forth and relieve liability despite factual causation.

Justice William H. Rehnquist: Under no conceivable tort theory that I have ever heard of, would your men in this case, be freed on the ground of superseding cause?

Mr. David A. Lang: Well, I am saying that I am only making the analogy insofar abd saying that what we are talking about is the fact that we have several causes which contribute to the consummated act.

I am saying as a matter of logic, we do not know that the defendant would have been able to complete this crime but for the government supply of the contraband.

And we have to use a more exacting standard because we are talking about a man’s liberty in this case.

We are talking about the criminal justice system, and I think the standards that we set out from the presumption cases that we cited, I think the standard is that there must be the presumed, the ultimate fact must follow logically from the proven fact and must exist beyond reasonable doubt.

I think that we apply that standard where it cannot certainly be said beyond the reasonable doubt that assuming that Hampton was disposed to commit the offense that he would have committed it, had the government not supply the contraband.

Justice William J. Brennan: Is your proposed instruction framed under the Bueno, actual instruction under the Bueno in the Fifth Circuit?

Mr. David A. Lang: Yes, it was I believe Your Honor.

The second aspect of due process Your Honor that we urge this Court to adapt, deals with the question of the fundamental fairness of the government’s conduct by supplying the contraband in this case.

And this instance, we believe that it is fundamentally unfair for the government to provide the contraband.

The government has no legitimate interest.

The government’s interest is only in apprehending those engaged in criminal activity by the mere offer of a neutral opportunity.

That is the standard that this Court has adapted in Sorrells and Sherman.

There is no governmental interest in intervening in the contraband trade based upon anything other than opportunity.

And if the government supplies contraband and indeed not acting within the bounds of this legitimate interest, and what we have here in that situation that the government is bringing about a conviction by the method of law enforcement that offense a general sense of justice.

We have the evidence which has been supplied by the government on one hand and then they obtain a conviction based upon contraband.

This is one of the impressions of a shame trial.

It encourages law enforcement officials to participate in current.

It permits overzealous law enforcement officers to selectively set up defendants for prosecution.

Indeed, this is just what Hampton is alleging in this case.

I believe these evils result in an upfront to our basic notions of justice in the society, and I believe that applying the standard from the Rochin case shock into the cons of this Court.

I believe that this type of conduct should shock the cons of this Court.

The Court should hold that is fundamentally unfair to allow prosecution in this instance.

I would like to at this time reserve my remaining time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Jones.

Argument of Jones

Mr. Jones: Mr. Chief Justice and may it please the Court.

This here in this case as Mr. Lang stated is whether to say per se denial of due process to convict the defendant for the sale of narcotics that he procured from the informant or government agent.

There is a conflict among the Courts of Appeals on this issue.

United States Court of Appeals for the Fifth Circuit has held that for an informant or government agent supplies a defendant with narcotics for which the -- for the sale of which the defendant is subsequently arrested and indicted, the defendant is immune from prosecution for that offense.

Now without regard to any of the surrounding circumstances including the fact that the defendant may have been predisposed to deal in the cons of narcotics for which he was arrested for selling.

The Court of Appeals below, the Eighth Circuit, rejected this per se test and held that the petitioner in this case was properly convicted, notwithstanding the fact that he might have procured his heroin here from a government informant.

Because of the importance of this issue to the administration under narcotics laws, the United States acquiesced in the granting of the petition.

AT the outset, I would like to briefly recapitulate the relevant facts in this case.

I think there are four of them.

First, the petitioner did make two sales of heroin to government undercover agents.

Second, it has now been established that the petitioner knew at the time he was making the sales that the substance he was selling was heroin.

Third, it is unquestioned that the petitioner was introduced to the government undercover agents by an informant who described them as potential narcotics buyers, and fourth, it was also established by petitioner’s counsel in the Court of Appeals, the petitioner was at all relevant times predisposed to deal on heroin.

Some of the remaining facts are still controverted.

In particular, the petitioner testified a trial that it was the informant who originated the scheme of selling heroin.

Whereas the informant testified to the contrary that the scheme originated with the petitioner.

The petitioner also testified that he obtained his heroin from the informant.

The informant denied this and testified that he had no knowledge concerning the petitioner’s source of heroin.

Justice Potter Stewart: But none of these things are really important or material to the basic question in this case, is it Mr. Jones?

Is it not the question only whether or not the instructions, set out on Page 9 of petitioner’s brief, then was required?

Mr. Jones: That is correct and I would like to read that instruction just for the benefit of the Court so we will know exactly what we are talking about here.

The petitioner requested instruction at trial as follows: “If you find that the defendant sales of narcotics or sales in narcotics supplied to him by an informer and he employ of or acting on behalf of the government, and you must have acquit the defendant, because the law, as a matter of policy, forbids his conviction in such a case.

Furthermore, under this particular defense, we need not consider the predisposition of the defendant to commit the offense charge.”

Under this instruction if the jury had concluded that the petitioner had in fact obtained the heroin that he sold from the government informant and it would have been required to acquit petitioner.

And this would have been true no matter what other kinds of findings the jury might have made.

For example, if the jury had concluded that petitioner was an established heroin dealer with many sources of supply of heroin who had originated the scheme of selling heroin and in fact demanded heroin from the informant as a sign of good faith or as a means of involving the informant in a criminal transaction.

Nevertheless, the jury would have been required to acquit the petitioner if it found that in fact the informant did comply with the demand, did furnish the contraband in question.

Justice Thurgood Marshall: Indeed there was no dispute about the fact.

Mr. Jones: Pardon?

Justice Thurgood Marshall: There was no dispute that the informant did furnish it?

Mr. Jones: Oh no, that was disputed.

The informant denied that he furnished the heroin, so that the matter is in dispute and the jury made no finding on that point.

Justice Potter Stewart: It was a fact in dispute in this --

Mr. Jones: I was only responding to Mr. Justice Marshall’s question.

Justice Potter Stewart: But you originally spend a good deal a few minutes talking about the dispute and in fact, that has nothing to be with the basic issue in this case.

Mr. Jones: That is correct.

I only wanted to point out to the Court that what is involved here is a dispute matter and if the Court decided that the instruction should have been given, of course, the proper relief would be a new trial, because that question is in dispute.

I would like first to describe the relationship that the petitioners proposed due process defense bears to the standard defensive entrapment and then I will elaborate a greater length upon the reasons for rejecting that or any similar defense.

The availability of the traditional defense of entrapment turns upon a question of predisposition, i.e., it turns upon the question that whether the defendant, at the time of the alleged entrapment, was predisposed to commit the kind of offense for which he did in fact commit.

Now the petitioner here has conceded that he was predisposed to commit the heroin offense with which he was charged.

And he has not attempted to assert the traditional defense of entrapment in this case.

But the defense that he does assert bears a strong resemblance to an entrapment defense.

The proper scope and correct formulation of the defense of entrapment has been much mooted by the members of this Court over the years.

In the United States against Russell, three members of the present Court expressed the view that the defensive entrapment should turn not upon the subjective factor of the defendant’s predisposition or rather upon the objective consideration of the particular law enforcement conduct.

The entrapment test propounded by the minority in Russell was whether the government’s conduct -- and I quote here -- “whether the government’s conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it.”

Now we think it is fairly clear that that test would not avail petitioner in this case either.

What he seeks is recognition of an absolute defense based upon the presence of a single alleged fact the provision of heroin by an informant.

Justice Potter Stewart: That has been the rule of the Circuit, has it not?

Mr. Jones: That has been the rule in the Fifth Circuit.

Justice Potter Stewart: I am just reading Judge Ronnie’s (ph) opinion for unanimous Court in Bueno case in 1971.

Mr. Jones: That was the rule in the Fifth Circuit.

Yes, Mr. Justice Stewart --

Justice Potter Stewart: And --

Mr. Jones: It also may now be the rule in the Third Circuit.

Justice Potter Stewart: And in some of the State Courts?

Mr. Jones: It is clearly not the rule in the Seventh Circuit or the Eighth Circuit.

Justice Potter Stewart: Now it is totally not in the Eighth, as this case.

Mr. Jones: It is not in the Seventh either where the McGrath decision applied Russell and the context in a similar context to preclude an absolute defense.

But we feel that an informant’s offer to supply heroin to an individual simply not the kind of offer, not the kind of law enforcement activity but is likely to induce an otherwise innocent law abiding individual to enter the Narcotics Trade.

It is simply not the kind of objective law enforcement conduct that is likely to turn an innocent individual into the path of crime.

This kind of offer, this kind of law enforcement conduct, may prove useful on apprehending criminals.

But it poses little or no risk by itself of trapping unwary innocence.

We therefore think that under either view of the proper scope of the entrapment test, petitioner was not entrapped.

But indeed the petitioner seems to concede as much in this case because he has repeatedly characterized this is not an entrapment case.

But this concession, this acknowledgment that this is not a case of entrapment creates for petitioner what appears to be an insoluble paradox.

The due process test that he advocates is analogous to the test advocated by the minority in Russell and that each of those tests focuses on the conduct of the government agents, but whereas the minorities test in Russell entailed an evaluation of the governmental conduct in its entirety.

The test proposed by petitioner focuses exclusively on a single aspect of that conduct, the furnishing of narcotics.

His contention is that an informant’s supply of narcotics to a suspect for controlled resale to government agents is somehow shocking an offensive per se.

But, as I have just indicated, that kind of law enforcement conducts standing alone carries so little risk of inveigling an innocent law-abiding individual into crime, that it does not even constitute entrapment.

Almost by definition therefore, the governmental furnishing of narcotics is not shocking and offensive in any sense that pertains to the essential concerns underlying the entrapment doctrine.

It is not shocking and offensive that it is in any sense that pertains to the values underlying the traditional defense of entrapment.

The paradox is that those are exactly the values and concerns adduce by petitioner here.

Those are the only concerns he raises.

The only kind of complaint that he makes about the governmental conduct here is that it is the kind of conduct -- and quote here from this Court Sherman decision -- “The place on the weaknesses of an innocent party, beguiles him into committing crimes which he otherwise would not have committed.”

This is not a kind of case like Rochin against California where other kinds of due process values are involved.

In that case, the value was the protection of the citizenry against governmental brutality.

Nothing of that kind is involved here.

Petitioners only claim is that he was unfairly assisted in his own criminal activities.

That is a claim that smacks solely and simply of entrapment addressed in this case in due process clothing simply to conceal petitioner’s own criminal predisposition.

Now these considerations suggest to us that an allegation of governmental furnishing of narcotics is merely one factor to be considered in connection with the standard defense of entrapment.

Such an allegation should not be treated as giving rise to a separate and preclusive due process defense.

Now we would of course concede that in some hypothetical circumstances, the governmental furnishing of narcotics could be part of a course of law enforcement conduct that, considered in its entirety, might entail the entrapment of an innocent individual.

But our point here is that an allegation of such governmental furnishing by itself in essence raises only a partial claim of entrapment.

And it is such a claim must be rejected if the other requisites of an entrapment defense are lacking, and those requisites are lacking here and we think that disposes the petitioner’s case.

With this much said however, I would now turn to a closer analysis of petitioner’s specific contention that somehow the governmental provision of narcotics to a suspect for controlled resale is shocking to the universal sense of justice, shocking to the conscience of the Court.

Of necessity, the application of a due process test, such as this, depends on large measure upon the individual subjective judgments of the members of the court.

But we believe that, to the extent that analysis and experience may be brought to bear in making these judgments, that the governmental conduct alleged here cannot be viewed as so outrageous -- and I quote here from the majority opinion in Russell -- “cannot be viewed as so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.”

Our submission on this point is two-fold.

First, as an analytical matter we see no constitutionally significant difference between the providing of narcotics alleged by petitioner here and the furnishing of other indispensable means of committing crime, such as the phenol 2-propanone that was supplied to the defendants in United States against Russell.

Second, as a matter of law enforcement experience, we are concerned that the adoption of a per se due process rule of the kind advocated by petitioner, could seriously hamper enforcement of the narcotics laws, and I will discuss these two pointes in turn.

First, as an analytical matter, the only distinction between the heroin allegedly supplied the petitioner here and the phenol 2-propanone supplied in Russell is that heroin is contraband whereas phenol 2-propanone is not.

That is the only distinction we see and that is the only distinction that the petitioner has suggested.

Justice Potter Stewart: Well that is a distinction the criminal law makes to, is it not?

Mr. Jones: That is the distinction that criminal law makes --

Justice Potter Stewart: As per the criminal law it would have not been a criminal offense?

Mr. Jones: Our submission here however, Mr. Justice Stewart is that it is a distinction which in this context has no constitutional force.

Justice Potter Stewart: The whole point is that what is criminal is selling the contraband.

It is not criminal as selling an alarm clock?

Mr. Jones: Well, once again, the distinction between contraband and an alarm clock or the distinction from contraband and phenol 2-propenone is that one is illegal and the other legal.

But regrettably, regrettably there is no distinction between the two as to the relative obtainability of the two substances.

That seems to us is the crux of petitioner’s submission.

He claims that one substance is obtainable and the other is not, but that is simply not the as phenol 2-propenone was difficult to obtain, but it was obtainable and the same may be a set of heroin.

Indeed, it is very likely true that heroin is more readily obtainable, more easily obtained by persons familiar with our narcotics trade, such as petitioner, than is phenol 2-propenone.

Petitioner by his own admission in this case was testified that he had had no difficulty in obtaining heroin in the past.

He was an acknowledged heroin addict and he had had contact with heroin with the four months preceding his trial.

We quote on Page 4 of our brief.

Petitioner’s admission that “The heroin I have seen since I have been back since I have been out of the penitentiary has been brown.

Before that it was usually white, white powdery flower-like substance.”

So that heroin was obtainable by him, he had familiarity with it.

Since the distinction between the heroin here and lawful substances that may also be indispensable elements and crime does not bear upon obtainability.

We think it has no constitutional force here.

Heroin was otherwise obtainable by petitioner and he, by his own admission, was predisposed to commit heroin offenses.

He was willing to commit such offenses and he was able to do so.

The governmental conduct alleged here, was therefore nothing more than the simple provision of the opportunities and facilities for the commission of a particular crime of a type with which the petitioner was willing and able to commit, and that is the kind of governmental law enforcement conduct that has long been sanctioned by this Court.

As to the law enforcement experience and the wisdom that it can provide in this case, we do feel as I have suggested earlier that adoption of a per se rule might seriously hamper enforcement of the narcotics laws.

And this is so for two different kinds of reasons.

First, governmental furnishing of contraband may in some circumstances be necessary to effective law enforcement.

Now this obviously is not a wholly happy state of affairs but neither is the fact of substantial narcotics trade in this country.

The fact that governmental furnishing of narcotics sometimes is necessary to catch narcotic criminals is a fact, and it is one that we think must be squarely faced.

This Court in its much recognized fact in Russell, Court observed that the infiltration of drug rings and a limited participation in their unlawful activities is one of the only practical means of detecting narcotics criminals.

We think that that consideration does play some part here.

As we indicated in our brief, this is not a common law enforcement practice, that it is not common for the government, qua government to provide narcotics, but we think that when it does occur it is not shocking and offensive per se.

Secondly, we are perhaps more concerned that a due process rule of the kind urged by petitioner would lead to acquittals in circumstances where the government’s conduct, qua government was completely innocent.

In some cases for example, a narcotics carrier may become an informant and may reveal to the government the identity of the individuals to whom he makes deliveries.

Under the rule adapted in the Fifth Circuit and under the instruction offered by petitioners here, the government would be barred from prosecuting those individuals and that is a result which seems to us to be manifestly improper.

The government has done absolutely nothing at all offensive or in any way unfair in circumstance such as that.

We see absolutely no reason to bar prosecution of such narcotics criminals.

Justice Thurgood Marshall: Mr. Jones, you would have no opposition to instruction that you said contain considerably whole matter etcetera, etcetera, etcetera.

Mr. Jones: Well --

Justice Thurgood Marshall: Which you mentioned some time ago.

Mr. Jones: Yes, Mr. Justice Marshall.

What I was suggested was that the governmental furnishing of narcotics was a factor to be considered in connection with an entrapment defense, but that no due process rule bearing focusing exclusively upon that fact should be adapted.

Justice Thurgood Marshall: But if it was broad enough you would not have any objection?

Mr. Jones: Well, we might then get in broiled in a discussion of the proper consequences of entrapment defense; that is correct.

Justice Thurgood Marshall: I was thinking about one in New York where they have the Sullivan Law for possession of a weapon and a undercover police officer solely got weapon and then arrested.

Mr. Jones: There might be circumstances --

Justice Thurgood Marshall: I mean those are some kinds of things that would be a little --

Mr. Jones: -- unsavory.

One kind of situation in which governmental furnishing of contraband might well be offensive is, for example, where the Congress had outlawed the possession of a particular kind of military weapon.

And such weapons were not in private possession.

And the government through undercover agents offered to furnish a defendant such a weapon.

I think that his possession in such a case may well not be subject to prosecution.

But I would make one more point which bears upon why we think that a rule like this is inadvisable.

In many situations, the government simply has no knowledge whatsoever of where the defendant obtained the narcotics or the other contraband that he is accused of selling.

In such cases, the government will have no affirmative evidence with which to rebut a claim that the supplier was an informant.

But more than that, there may well be situations in which the supplier was in fact an informant but was acting without the knowledge or sanction of the government.

That is it may well be the case sometimes that an individual involved in a drug trade will also be doubling as an informant and will sometimes tip-off the government as to the activities of some of his associates.

And we feel that the fact that the defendant obtained narcotics from an informant who was acting illegally without the knowledge or approval of the government, plainly does not warrant a due process defense that would bar prosecution and conviction.

In short, we think that the ordinary rules of entrapment amply protect the unwary innocent in circumstances such as that.

And then no additional protection should be afforded the unwary criminal.

The due process rule advocated by petitioner here would do just that it would afford additional protection to the unwary criminal.

We think that this Court should reject that per se due process rule and affirm the judgment below.

Justice William H. Rehnquist: Mr. Jones, in the argot of the trade is there an established difference between an undercover agent for the government and an informer?

Mr. Jones: I am not an expert in the argot of the trade, but as I have been using the terms here I have been thinking of a government agent as an employee of the government and an informant as a person who may, from time to time, cooperate with the government, sometimes for pay sometimes not.

The distinction tends to break down in a middle gray area, because the informant here for example did receive a per diem.

He was not paid for specific information but simply paid $25.00 a day, I think it was, for his activities, but he is not an agent of the government because he was not subject to the control of the government.

He just provided information when and if he had it.

Justice Potter Stewart: Well, he could be subject to control if he was being paid by the government.

He could have been --

Mr. Jones: He could have been --

Justice Potter Stewart: Told to confine his duty to supply contraband to people and then turn them in for the sale of that contraband.

Mr. Jones: Of course we do not –-

Justice Potter Stewart: We do not have control over his situation and certainly instructions could be framed to exonerate the government from any rule as propose by the petitioner in the event that there was not a deliberate conscious act on the part of the government or its agent.

Many undercover informants are full time police officers.

Mr. Jones: That is correct.

Some are full time police officers and some are not.

The fact is that that the government does not have complete control over the activities of many of its informants, whereas the government agents are people who are subject to the day to day control and that is the distinction that I meant to be implicit in my use of those terms.

Thank you Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. Lang, do you have anything?

Rebuttal of David A. Lang

Mr. David A. Lang: Yes, I do Your Honor.

On the last issue that was brought up to distinction between informer and an agent.

Let us make it clear that the person involved for the government in this case was an agent.

He is an agent provocateur.

His job is to go out and find people who might be interested in drug trafficking and gets them to make sales of heroin and that is what his job is.

Justice Potter Stewart: And he gets paid on a piece of --

Mr. David A. Lang: And he gets paid per deal.

Justice Potter Stewart: Per deal?

Mr. David A. Lang: Right.

Now an informant is typically one whom we think of a stoolpigeon.

This is somebody who has already himself engaged in a criminal activity and for whatever reason he decides that he is going to inform the government about it.

It might be because he has another case which is hanging over his head and he decides it might be his way out if he informs on his friends.

That is what an informant does.

This man involved here is not an informant.

He is an agent acting on behalf of the government actively going out and seeking persons to engage in the drug traffic.

He is an agent provocateur.

And as an agent provocateur, I see no real distinction between him and the normal government agent.

That is what their job is too, and the government certainly can exercise controls over both of this types of person.

Secondly, Mr. Jones mentioned that there might have situation where one is acting -- one might be engaged in criminal enterprise, let us say, involved in drugs and he decides that he does want to be an informant.

And since the word that I have used, he wants to turn state evidence for his benefit.

Well, I am saying certainly, in that instance there would be no bar of persecution to the defendant who is charged because the government has not supplied any contraband there.

We are not going to simply say this was a supply of contraband because this person has changed his status.

Those cases would not be affected at all by the standards that were urged.

Justice Potter Stewart: Alright.

Mr. David A. Lang: Now, another thing that was mentioned here had to do with the question of indispensable means versus contraband.

And Mr. Jones used the term indispensable means and said that that was involved in the Hampton case here that the indispensable means were provided to this crime.

Well, I do not think that indispensable means is the correct terminology.

I think there is a distinction between providing something such as a clock in the hypothetical I gave or the propanone in Russell case which were necessary and contraband per se.

In the Russell case, the offense was manufacturing “speed” and in that particular instance, yes it was necessary to have propanone to do that but it also requires some further active affirmative action on the part of defendant.

He had to take that ingredient that was given and mix it up.

There is the evidence of real predisposition such as I have no problem within informer that he would have done it anyway and also we have, as I indicated before, the fact that he did have his own propanone both before and after.

Here we do not have that.

If I can go back to my original argument or my chief argument involving statutory presumptions, the proven fact in this case is that Hampton sold heroin, and yes it is true that from that one can logically infer that he was predispose to sell heroin.

I have not problems with that, fine.

But assuming that he was predisposed does then follow as a matter of logic or rationality that despite his predisposition he would have sold heroin, had the government not supplied him.

I say we do not know that; I say we certainly do not know that beyond the reasonable doubt, and I say that we cannot say that beyond the reasonable doubt.

The Due Process Clause forbids conviction of any defendant in these circumstances.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.