425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976)
Charles Hampton 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.1 He received concurrent terms of five years' imprisonment that were suspended.2
He was placed on five years' probation running concurrently with the remainder of a 28- to 30-year state armed robbery sentence from which he had escaped.3 The case arose from two sales of heroin by Hampton to agents of the Federal Drug Enforcement Administration in St. Louis on February 25 and 26, 1974.4 The sales were arranged by Hutton, a pool-playing acquaintance of Hampton at the Pud bar in St. Louis who also served as a DEA informant.5
According to the Government's witnesses, in late February 1974 Hutton and Hampton were shooting pool at the Pud.6 After observing needle marks on Hutton's arms, Hampton told Hutton that he needed money and knew where he could get some heroin.7 Hutton responded that he could find a buyer, and Hampton suggested that he "get in touch with those people."8 Hutton then called DEA Agent Terry Sawyer and arranged a sale for 10 p.m. on February 25.9
At the appointed time, Hutton and Hampton went to a prearranged meeting place and were met by Agent Sawyer and DEA Agent McDowell, who were posing as narcotics dealers.10 Hampton produced a tinfoil packet from his cap and turned it over to the agents.11 The agents tested it, pronounced it "okay," and negotiated a price of $145 that was paid to Hampton.12 The next day Sawyer called Hampton and arranged for another "buy" that afternoon.13 Hampton got Hutton to go along, and they met the agents again near where they had been the previous night.14 They all entered the agents' car.15 Hampton again produced a tinfoil packet from his cap.16 The agents field-tested it and pronounced it satisfactory.17 Hampton then asked for $500, which Agent Sawyer said he would get from the trunk.18 Sawyer got out and opened the trunk, signaling other agents to move in and arrest Hampton.19
Hampton's version differed. 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 non-narcotic counterfeit drug giving the same reaction as heroin.20 Hutton proposed selling this drug to gullible acquaintances led to believe they were buying heroin.21 Hampton testified that they successfully duped one buyer with this fake drug and that the sales leading to arrest were solicited by him to profit further from the ploy.22 Hampton contended that he neither intended to sell nor knew he was dealing in heroin and that all drugs sold were supplied by Hutton.23
The jury 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." Hampton did not request a standard entrapment instruction but requested a special instruction asserting that if the jury found the narcotics sold were supplied to him by an informer in the employ of or acting on behalf of the Government they must acquit and that predisposition would not matter if governmental involvement had reached that point.24 The trial court refused the instruction, and Hampton was found guilty.25 He appealed to the United States Court of Appeals for the Eighth Circuit, claiming that if the jury had believed the drug was supplied by Hutton he should have been acquitted.26 The Court of Appeals rejected this argument and affirmed the conviction, relying on United States v. Russell, 411 U.S. 423 (1973).27
Whether a defendant may be convicted for the sale of contraband which he procured from a Government informant or agent?28
The entrapment defense focuses on the intent or predisposition of the defendant to commit the crime rather than upon the conduct of the Government's agents.29 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.30
Yes. The jury's guilty verdict after receiving an instruction requiring proof that the defendant knowingly did an act which the law forbids purposely intending to violate the law establishes that Hampton was predisposed.31 The verdict necessarily implies that the jury rejected petitioner's claim that he did not know the substance was heroin.32 Petitioner himself admitted both soliciting and carrying out sales.33
The government informant's role in supplying the contraband and arranging the transactions therefore does not bar conviction when the facts show the defendant's active initiation and participation.34
A defendant may be convicted for the sale of contraband procured from a Government informant or agent when predisposition to commit the offense is shown.35
Related opinions on this issue
Joined by Justice Blackmun
Justice Powell concurred in the judgment but declined to join the plurality's broader statements.36 As I do not accept this proposition, I concur in the judgment of the Court and much of the plurality opinion directed specifically to Hampton's contention.37 I am not able to join the remainder of the plurality opinion, as it would unnecessarily reach and decide difficult questions not before us.38
Given the characteristics of phenyl-2-propanone, this is a distinction without a difference and Russell disposes of this case.39 Nor have we had occasion yet to confront Government overinvolvement in areas outside the realm of contraband offenses.40 In these circumstances, I am unwilling to conclude that an analysis other than one limited to predisposition would never be appropriate under due process principles.41
Whether the conduct of law enforcement agents in supplying the contraband was so outrageous that due process principles would bar the government from obtaining a conviction?42
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.43 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 state or federal law.44
No. The police, the Government informant, and the defendant acted in concert with one another.45 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 Russell deprive Russell of any rights.46 Although the government allegedly supplied the illegal contraband that formed the corpus delicti, the defendant's established predisposition means the due process claim does not bar conviction, and any remedy lies elsewhere.47
The conduct of law enforcement agents in supplying the contraband was not so outrageous that due process principles bar the government from obtaining a conviction.48
Related opinions on this issue
Joined by Justices Stewart And Marshall
Justice Brennan dissented, arguing that the government's role here was more pervasive than in Russell because the agents supplied the contraband itself rather than a legal precursor and because the sales began and ended with government involvement.49 First, the chemical supplied in that case was not contraband.50 It is legal to possess and sell phenyl-2-propanone and, although the Government there supplied an ingredient that was essential to the manufacture of methamphetamine, it did not supply the contraband itself.51
In contrast, petitioner claims that the very narcotic he is accused of selling was supplied by an agent of the Government.52 Where the Government's agent deliberately sets up the accused by supplying him with contraband and then bringing him to another agent as a potential purchaser, the Government's role has passed the point of toleration.53 The Government is doing nothing less than buying contraband from itself through an intermediary and jailing the intermediary.54
It would be sufficient to adopt this rule under our supervisory power and leave to another day whether it ought to be made applicable to the States under the Due Process Clause.55