United States v. Russell
411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed.2d 366 (1973)

  • Russell and the Connolly brothers were suspected of running a drug lab. An undercover policeman showed up and offered them a deal. He would supply propanone (which was hard to come by) in return for half the meth that they made using the rare chemical.
    • The undercover policeman took the chemical to the drug lab and watched them make the drugs. They then gave half of the batch to the policeman.
  • A month later, the undercover policeman came back and asked Russell and the brothers if they were interested in making more. They said that they already got some propanone from someone else, but that they could always use more. The policeman returned with a search warrant and found drugs and drug making equipment. Russell and the Connolly brothers were arrested.
  • At trial, Russell argued the defense of entrapment. The judge issued an order to the jury defined entrapment by the subjective approach.
    • “Where a person already has the willingness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment.”
  • Russell was convicted of various drug offenses. He appealed.
  • The Appellate Court overturned the conviction. The prosecution appealed.
    • The Appellate Court rejected the subjective approach in favor of an objective approach to defining entrapment.
      • The objective approach looks to whether there has been “an intolerable degree of governmental participation in the criminal enterprise,” regardless of the intentions of the accused.
        • In this case, Russell could not have made the drugs if the policeman hadn’t given him the propanone.
  • The US Supreme Court reversed and upheld the conviction.
    • The US Supreme Court found that Russell was predisposed to commit the crime, and therefore was barred from using the defense of entrapment.
      • The Court noted that propanone was hard to find, but it wasn’t impossible to find it, or illegal to possess it, so the police didn’t give Russell anything he couldn’t have gotten (and did get) himself anyway.
      • Russell had made meth before and after, so he was a willing criminal. The police involvement just made it easy to gather evidence against him.
        • Basically, the Court found that the crime would have happened anyway, even without the police involvement.
    • The Court found that when determining if there was entrapment the courts need to “draw a line between the unwary innocent and the unwary criminal.”
      • That’s the subjective approach.
      • If Russell had never been involved in drugs prior to the sting, maybe his entrapment defense would have worked.
    • The Court read the subjective approach into the criminal Statute by saying that Congress wouldn’t want the Statute to apply to innocent people.
      • Induced + non-predisposed = no crime.
    • The Court noted 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…But the instant case is distinctly not of that breed.”
      • That leaves open the possibility of a court ruling based on the objective approach.
  • In a dissent it was argued that the Court should adopt the objective approach.
    • “Supplying the chemical ingredient used in the manufacture of this batch of ‘speed’ made the United States an active participant in the unlawful activity.”
    • “Here, the Government’s agent asked that the illegal drug be produced for him, solved his quarry’s practical problems with the assurance that he could provide the one essential ingredient that was difficult to obtain, furnished that element as he had promised, and bought the finished product from the respondent, all so that the respondent could be prosecuted for producing and selling the very drug for which the agent had asked and for which he had provided the necessary component. Under the objective approach that I would follow, this respondent was entrapped, regardless of his predisposition or innocence.”
  • The difference between the subjective approach and the objective approach is that under the subjective approach the same government actions result in opposite verdicts depending on the mind of the accused.