Summary Case Law: United States v. Russel

Comparative Criminal Law (2016/2017): Case Law Summary: United States v. Russel 

United States v. Russel

Introduction

This case is about incitement in drugs offence and the concept of entrapment.

Facts

Russel was charged in three counts of a five-count indictment returned against him and co-defendants Connolly. He was convicted of all three counts of having unlawfully manufactured and processed speed and of having unlawfully sold and delivered that drug in violation of the US law. On appeal, the United States Court of Appeals reversed the conviction solely for the reason that an undercover agent supplied an essential chemical for manufacturing the speed which formed the basis for respondent’s conviction.

The undercover agent had visited the home of the respondent. The assignment of the agent was to locate a laboratory where the speed was manufactured illicitly. He told the respondent that he was from a company that was interested in controlling the manufacture and distribution of speed. He made an offer to supply the defendants with an essential chemical ingredient in the manufacture of the speed, in return of half the drugs produced. Connolly gave the agent a big sample of the speed and they viewed the agent the laboratory. The day after, the agent supplied Russel and Connolly with the ingredient, and the morning after the manufacturing of the speed was finished.

Sometime later, the agent returned to the house with a search warrant and arrested Russel and Connolly. Russel was found guilty by the Court.

Appeal

The respondent went on appeal and conceded that the jury could have found him predisposed to commit the offences, but argued that on the facts represented there was entrapment as a matter of law. The Court of Appeals agreed, although it did not find that the District Court had misconstrued or misapplied the traditional standards governing the entrapment defence. Rather, the Court 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 criminal enterprise’. In this case the Court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defence.

The respondent asks the US Supreme Court to reconsider the theory of the entrapment defence. He argues that the level of the agent’s involvement in the manufacture of the speed was so high that a criminal prosecution for the drug’s manufacture violates the fundamental principles of due process. He would have the Court go further in deterring undesirable official conduct by requiring that any prosecution be barred absolutely because of the police involvement in criminal activity.

Decision

The defendants admitted making the drug before and after those batches made with the propanone supplied by the agent. The agent testified that he saw an empty bottle on his first visit to the laboratory, and when this was searched, two additional bottles were seized. Thus, the facts in the record amply demonstrate that the ingredient used in the illicit manufacture of the speed not only could have been obtained without the intervention of the agent but was in fact obtained by these defendants. The contribution of the agent of propanone to the criminal enterprise already in process was scarcely objectionable. The chemical by itself is a harmless substance and its possession legal. The law enforcement conduct here stops far short of violating the fundamental fairness, shocking to the universal sense of justice.

The respondent was an active participant in an illegal drug manufacturing enterprise which began before the Government agent appeared on the scene, and continued after the Government agent had left the scene. He was not an unwary innocent, but an unwary criminal. The Court of Appeals was wrong, we believe, when it sought to broaden the principle laid down in Sorrels & Sherman. The judgment is therefore reversed.