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July 18, 1989


The opinion of the court was delivered by: SAROKIN


 It cannot be refuted that undercover operations are a necessary and accepted means for discovering and prosecuting criminal activities. In addition, it must be recognized that those who participate in such activities on behalf of the government place themselves at great personal risk. However, there is a concomitant peril to those who are the subject of such undercover operations, if the zeal of the agents to discover criminal activity causes them to create it.

 In this case, the defendant made an inquiry about a legal transaction for which he had a license from the federal government. In making the inquiry, he disclosed his name, address, and telephone number. Those circumstances alone launched the undercover investigation. There is no evidence that the defendant would have or could have pursued the purchase of the illegal item for which he was eventually charged, but for the intervention of the government agent. Indeed, the jury verdict reflects a conviction of the defendant primarily for what he said, rather than for what he did.

 Although the actions of the agent clearly raised the issue of entrapment, the jury rejected that defense and the court will not interfere with the jury's finding in this regard. However, the court fears that the absence of any established minimum standard for the commencement of an undercover operation places innocent persons in jeopardy and dilutes every citizen's right of privacy.

 Should a government agent acting in an undercover capacity be permitted to attempt to engage someone in criminal activity when the government possesses no information that such person ever was, is now, or intends to be engaged in any criminal activity? Should our government be permitted, through subterfuge and deceit, to seek out a law-abiding citizen for the sole purpose of testing whether or not such person will engage in illegal conduct?


 On January 20, 1989 defendant Yun was indicted on two charges. Count One charged that Yun conspired to export from the United States the defense article Sarin, or nerve gas, without obtaining a license or other written approval from the government in violation of 22 U.S.C. Sections 2778(b)(2) and (c), 22 C.F.R. Section 127.1, and 18 U.S.C. Section 371. Count Two charged that Yun attempted to export Sarin without obtaining a license or other written approval.

 After a three-week trial by jury, Yun was acquitted of the attempt charge but was convicted of the conspiracy charge. Yun now moves for an order entering a judgment of acquittal on the conspiracy count pursuant to Fed.R.Crim.P. 29 or, in the alternative, for a new trial pursuant to Fed.R.Crim.P. 33.


 Legal Standard.

 On a post-verdict motion for acquittal, this court

must view the evidence in the light most favorable to the verdict, and must presume that the jury has properly carried out its functions of evaluating credibility of witnesses, finding the facts, and drawing justifiable inferences. A verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt.

 United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (citations omitted).

 A motion for a new trial may be granted if necessary to prevent injustice or to correct a verdict that was against the weight of the evidence. American Bearing Co., Inc. v. Litton Industries, 729 F.2d 943, 946 (3d Cir. 1984), cert. denied, 469 U.S. 854, 83 L. Ed. 2d 112, 105 S. Ct. 178 (1984).

 Yun's Due Process Argument.

 Yun renews his contention that the government's undercover investigation was so outrageous that it constituted a violation of his due process rights and warrants the entry of a judgment of acquittal by this court. *fn1" Yun relies heavily upon the decision of the Third Circuit Court of Appeals in United States v. Twigg, 588 F.2d 373 (3d Cir. 1978).

 In Twigg, a jury convicted defendants Neville and Twigg on charges stemming from the illegal manufacture of a controlled substance. The Drug Enforcement Administration (DEA) obtained the cooperation of a convicted felon named Kubica in connection with a plea agreement on a drug charge. Kubica contacted Neville and proposed setting up a methamphetamine laboratory. Neville subsequently invited Twigg to join in the operation. Kubica, the government agent, was completely in charge of the entire laboratory, and furnished all of the laboratory expertise. Neither defendant had the know-how with which to actually manufacture the drug. Assistance by Neville and Twigg was minor and at the specific direction of Kubica. The government supplied much of the necessary chemicals and equipment, as well as an isolated farmhouse well-suited for the location of an illegally operated laboratory, all at no cost to the defendants. Id. at 375-76, 380-81.

The court concluded as follows:
Using Kubica, and actively participating with him, the DEA agents deceptively implanted the criminal design in Neville's mind. They set him up, encouraged him, provided the essential supplies and technical expertise, and when he and Kubica encountered difficulties in consummating the crime, they assisted in finding solutions. This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully and peacefully minding his own affairs. Fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred.

 Id. at 381. The court also reversed the conviction of Twigg, who ran errands for the criminal enterprise, because he contributed nothing in terms of expertise, money, supplies, or ideas and would not even have shared in the proceeds of the sale of the drug. Id. at 382.

 Yun points to one other decision of this jurisdiction in support of his due process defense. *fn2" In United States v. Gardner, 658 F. Supp. 1573 (W.D.Pa. 1987), the district court granted a defendant's motion to dismiss an indictment on drug charges. The court found that an undercover government agent "undeniably badgered, cajoled, induced, inveigled and utilized his position as a postal employee to acquire Gardner's friendship and utilized promises of assisting him in repairing his car to induce Gardner's cooperation in obtaining [drugs]." Id. at 1576. The court also concluded, as a matter of law, that the defendant had no previous predisposition of any kind to violate the law. Id. at 1577. After a hearing on defendant's motion, at which the government elected not to present any evidence, the court concluded that the conduct of the law enforcement officials was so outrageous that due process of law principles would bar the government from securing a conviction. Id.

 Yun argues that the facts adduced at trial demonstrate that the government agent violated his due process rights. Yun contends that the government lacked a sufficient basis to initiate any investigation; that he knew nothing about Sarin prior to the government's investigation; and that the government agent consistently misrepresented facts about his identity and intention to perform a legitimate deal which Yun had guaranteed with a performance bond. In Yun's view, the scheme to obtain a phony export license for Sarin by bribing officials originated with the government agent, rather than Yun. Yun catalogs a litany of inducements, ranging from the government agent's promises of future partnerships and profits to his dismissing as unfounded Yun's worries about the legal consequences of their dealings. In essence, Yun argues that the government's promise to deliver a legal commodity induced his reliance (his posting of a performance bond), and that the government sought first to link the legal and illegal deals, and then to insist that the illegal deals be consummated prior to the shipment of the legal commodity. He insists that he was an "obvious novice," and that is is inconceivable that he would have engaged in such illegal arms dealings without the knowledge and assistance of the government. Yun submits that the conduct of the government agents violated his due process rights, necessitating a judgment of acquittal. *fn3"

 Prior to discussing Jannotti and its progeny, the court notes that an examination of the Supreme Court's pronouncements in this area reveals that the scope of Twigg is indeed limited. In United States v. Russell, 411 U.S. 423, 431-33, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973), the Supreme Court traced the history of the entrapment doctrine and concluded that the key inquiry was properly focused on the defendant's state of mind, and not the government's conduct. The Court did state, however, 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." Id. at 431-32. Because the defendant in Russell was an "active participant in an illegal drug manufacturing enterprise," id. at 436, the Court held that the due process defense was not a bar to his conviction.

 In Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976), the defendant attempted to set aside his conviction on drug charges, relying upon the due process defense recognized in Russell. Although conceding that the government "obviously played a more significant role in enabling petitioner to sell contraband in this case than it did in Russell," a plurality of the Court stated that the remedy of a criminal defendant with respect to the acts of governments agents, with whom the defendant acts in concert, "lies solely in the defense of entrapment." Id. at 489-90. Because a jury had rejected the defendant's entrapment defense, implicitly finding predisposition, the due process defense was unavailable. Id.

 In Jannotti, the Third Circuit interpreted the Hampton plurality opinion as hinting that the due process defense might not be available at all. 673 F.2d at 607. At the same time, the appellate court noted that a majority of the Hampton Court, composed of the three dissenting Justices and the two concurring Justices, rejected the view that the entrapment defense was the only doctrine available to a defendant alleging governmental misconduct. However, the court noted that the due process defense was extremely narrow in cases in which entrapment is at issue, highlighting Justice Powell's observation that "the cases, if any, in which proof of predisposition is not dispositive will be rare," and that "police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction." 425 U.S. at 495, n. 7 (concurring opinion).

 Jannotti, which arose out of the ABSCAM investigation, demonstrates that the due process defense is simply not available except in the most egregious instances of governmental misconduct. Jannotti was convicted by a jury of conspiring to obstruct interstate commerce. The district court entered an order setting aside the verdict in its entirety based, in part, on a finding that the government's overreaching amounted to a violation of due process of law. The Third Circuit reversed the district court's order, concluding that the district court had "usurped the function of the jury to decide contested issues of fact," id. at 581, and directed the reinstatement of the jury's verdict.

 In so holding, the Third Circuit instructed that the entrapment defense is separate and distinct from the due process defense. Id. at 606. The appellate court stated that a successful due process defense must be predicated on "intolerable government conduct which goes beyond that necessary to sustain an entrapment defense." Id. at 607. The court continued:


 Applied to the facts in Jannotti, the Third Circuit determined that the government's inducements (cash bribes) were not so "exceedingly generous" as to negate the evidence of predisposition as a matter of law. Id. at 608. Therefore, it was error for the district court to focus on the nature of the government's inducements in finding a due process violation, because the extent of such inducement "necessarily was considered by the factfinder in its rejection of the entrapment defense." Id. The court held that where a jury rejects the entrapment defense, a successful due process defense must be predicated on other grounds.


 The Jannotti court factually distinguished Twigg as follows:

. . . in Twigg, it was the DEA agents who "set up" the defendant, "encouraged him" and "provided the essential supplies and technical expertise". . . . In contrast, in this case, the F.B.I. provided neither material nor technical assistance to the defendants; it merely created the fiction that it sought to buy the ...

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