United States v. Russell

411 U.S. 423 (1973).

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Nature of the Case

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Facts

Shapiro, an undercover agent went to Russell's (D) home where he met with D and his two co-defendants, John (D1) and Patrick (D2). Shapiro's assignment was to locate a laboratory where it was believed that methamphetamine was being manufactured illicitly. He told Ds that he represented an organization in the Pacific Northwest that was interested in controlling the manufacture and distribution of methamphetamine. He then made an offer to supply Ds with the chemical phenyl-2-propanone, an essential ingredient in the manufacture of methamphetamine, in return for one-half of the drug produced. This offer was made on the condition that Shapiro be shown a sample of the drug which they were making and the laboratory where it was being produced. D2 revealed that he had been making the drug since May 1969 and since then had produced three pounds of it. D1 gave the agent a bag containing a quantity of methamphetamine that he represented as being from 'the last batch that we made.' Shapiro and D2 left D's house to view the laboratory which was located in the Connolly house on Whidbey Island. At the house, Shapiro observed an empty bottle bearing the chemical label phenyl-2-propanone. Shapiro supplied 100 grams of propanone and observed the manufacturing process. He observed D2 and D cutting up pieces of aluminum foil and placing them in a large flask. There was testimony that some of the foil pieces accidentally fell on the floor and were picked up by D and Shapiro and put into the flask. D2 added all of the necessary chemicals, including the propanone and made two batches of methamphetamine. Shapiro was given one-half of the drug and D kept the remainder. Shapiro offered to buy, and D agreed to sell, part of the remainder for $60. Shapiro returned a month later asked D2 if he was still interested in their 'business arrangement.' D2 replied that he was interested but that he had recently obtained two additional bottles of phenyl-2-propanone and would not be finished with them for a couple of days. D2 gave additional methamphetamine to Shapiro. Three days later Shapiro returned to the Connolly house with a search warrant and, among other items, seized an empty 500-gram bottle of propanone and a 100-gram bottle, not the one he had provided, that was partially filled with the chemical. Testimony at trial showed that phenyl-2-propanone was generally difficult to obtain. The jury found D guilty on all counts charged. On appeal, D conceded that the jury could have found him predisposed to commit the offenses, but argued that on the facts presented there was entrapment as a matter of law. The Court of Appeals agreed. The court in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been 'an intolerable degree of governmental participation in the criminal enterprise.' It ruled that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense. It was reasoned that lower court decisions found entrapment, regardless of predisposition, whenever the government supplies contraband to the defendants. A second theory was that it was entrapment when a government investigator was so enmeshed in the criminal activity that the prosecution of the defendants was held to be repugnant to the American criminal justice system. The government (P) appealed.