Essay on "Ethics in Decision-Making"

Quoted Instructions for "Ethics in Decision-Making" Assignment:

CASES:

What the Supreme Court says in these (and other ) cases should be the backbone of your essay.

Olmstead v. U.S., 277 U.S. 438 (1928)

Lewis v. U.S., 385 U.S. 2060 (1966)

Hoffa v. U.S., 385 U.S. 293 (1966)

U.S. v. Russell, 411 U.S. 423 (1973)

Mapp v. Ohio, 367 U.S. 643 (1971

Rochin v. California, 342 U.S. 165 (1952)

Bumper v. North Carolina, 391 U.S. 543 (1968)

Jacobson v. U.S. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=503&invol=540

Hampton v. U.S.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=425&invol=484

The Module Three essay should be written in the style of a formal essay, but it is directed to the Judge described in the Writing Assignment. Your essay should still have an Introduction (your Introduction might begin like this: This essay describes some of the issues raised in the case of U.S. v. Billy Bob and a proposed decision in the case. After describing the similarity in the concepts of *****outrageous governmental conduct***** and *****entrapment,***** the essay*****¦) and a Conclusion. Make sure that your essay describes a CLEAR proposed outcome in the case; make it very clear whether you believe Mr. Bob should go free or not. Since the Judge knows about the facts in the case, very little of your essay should be devoted to setting out the facts in the case; and make sure your essay analyzes the difference between outrageous governmental conduct and entrapment.

Entrapment--Certain criminal offenses, because they are consensual actions taken between and among willing parties, present police with difficult investigative problems. Some of that difficulty may be alleviated through electronic and other surveillance, which is covered by the search and seizure provisions of the Fourth Amendment, and in other respects informers may be utilized, which may implicate several constitutional provisions. Sometimes, however, police agents may ''encourage'' persons to engage in criminal behavior, by seeking to buy from them or to sell to them narcotics or contraband or by seeking to determine if public employees or officers are corrupt by offering them bribes. The Court has dealt with this issue in terms of the ''entrapment'' defense, though it is unclear whether the basis of the defense is one of statutory construction--the legislature would not have intended to punish conduct induced by police agents--one of supervisory authority of the federal courts to deter wrongful police conduct, or one of due process command.

The Court has employed the so-called ''subjective approach'' to evaluating the defense of entrapment. This subjective approach follows a two-pronged analysis. First, the question is asked whether the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, ''the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.'' If the defendant can be shown to have been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no matter the degree of inducement. On the other hand, ''[w]hen the Government's quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never run afoul of the law, the courts should intervene.'' An ''objective approach,'' while rejected by the Supreme Court, has been advocated by some Justices and recommended for codification by Congress and the state legislatures. The objective approach disregards the defendant's predisposition and looks to the inducements used by government agents. If the government employed means of persuasion or inducement creating a substantial risk that the person tempted will engage in the conduct, the defense is available. Typically, entrapment cases have risen in the narcotics area and the focus has sometimes been on public corruption and the offering of bribes to public officials.

Outrageous Governmental Conduct Defense

When the government's conduct during an investigation is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct. A defendant may challenge such conduct by means of the outrageous conduct defense, which is predicated on the Due Process Clause of the Fifth Amendment. The defense of outrageous conduct is distinct from the defense of entrapment in that the entrapment defense looks to the state of mind of the defendant to determine whether he was predisposed to commit the crime for which he is prosecuted. The outrageous conduct defense, in contrast, looks at the government's behavior. The outrageous conduct defense was first enunciated in United States v. Russell(1973): "[W]e 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 (citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). Several years later, in Hampton v. U.S., 425 U.S. 484 a majority of Justices left open the possibility that an outrageous conduct defense based on the Due Process Clause might be invoked successfully even if the entrapment defense is unavailable because of predisposition.

No federal court has defined the requirements of the outrageous conduct defense with any degree of precision. Rather, the inquiry appears to revolve around the totality of the circumstances in any given case. Ultimately, every outrageous conduct case must be resolved on its own particular facts. However, as the name of the defense implies, to warrant dismissal of an indictment, the government's conduct with respect to that indictment must be outrageous. Outrageousness must be determined by reference to " 'the universal sense of justice.' " See Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960)). Four factors that are deemed relevant to a determination of whether the government violated a defendant's constitutional due process rights: (1) the government's role in creating the crime; (2) the illegality or immorality of the police conduct; (3) the defendant's reluctance or lack of predisposition to commit the crime; and (4) whether the investigation was designed to prevent further crime.

Although the requirement of outrageousness has been stated in several different ways by various courts, the thrust of each of these formulations is that the challenged conduct must be shocking, outrageous, and clearly intolerable. See, e.g., Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (conduct must violate " 'fundamental fairness' " or " 'shock the universal sense of justice,' ") (quoting Kinsella, 361 U.S. at 246, 80 S.Ct. at 304). Conduct must be "shocking and outrageous and reach an 'intolerable level' " (quoting Russell, 411 U.S. at 431-32, 93 S.Ct. at 1643). The cases make it clear that this is an extraordinary defense reserved for only the most egregious circumstances. It is not to be invoked each time the government acts deceptively or participates in a crime that it is investigating. Nor is it intended merely as a device to circumvent the predisposition test in the entrapment defense.

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MODULE THREE WRITING ASSIGNMENT: *****Alabama v. Billy Bob*****

This is the story it should talk about:

The Fiction Police Department received complaints of drug trafficking from citizens in the city of Fiction, Alabama. The Police Department consulted with the Drug Enforcement Administration and the DEA assigned Officer Joe Friday to conduct an undercover investigation in the area. As part of this investigation, Friday frequently entered the Fictional Bar, posing as a high-stakes drug dealer in an attempt to attract the attention of anyone involved in drug trafficking in the area. While there, Friday became friendly with ***** Doe, a barmaid at the Fictional Bar. Over the course of the next month, Friday developed a personal relationship and then a sexual relationship with *****, who did not know Friday was an undercover officer. At one point, Friday asked ***** who among the Bar*****s patrons might be interested in buying drugs and ***** named three individuals who she thought would be interested. One of the three she named was Mr. Billy Bob, a Bar patron who had expressed interest in *****, asking for a date on numerous occasions. ***** had never agreed to date Bob, but he kept asking her out on a date. Friday encouraged ***** to mention to all three of the individuals she named that they could obtain drugs from Friday at very low prices. ***** did so.

Friday*****s undercover operation continued for approximately three months without any success at all. During that time however, Friday told his superiors at the DEA that he was *****developing promising leads.***** Then one night, Billy Bob (who appeared to be intoxicated) approached Friday and asked Friday if Friday he could sell him a bag of marijuana. Friday told Bob that he would try to find some marijuana, but the next night Friday informed Bob that he could not find anyone who wanted to sell such a small amount. Instead, Friday suggested that he could sell Bob ten pounds of marijuana for $4000. Bob declined, saying he had only $400 to spend.

The next night, Friday told Bob that he could sell Bob one pound of cocaine at what Friday said was the "phenomenal price" of Five Thousand Dollars ($5,000.00). Bob repeated that all he had was $400, but said he might be *****interested in buying *****$400 dollars worth***** of cocaine. Friday said he would think about it. Over the next few weeks Friday and Bob negotiated over the price and amount for the cocaine. Friday informed his superiors during this time that he had *****infiltrated a drug ring,***** but that Friday needed to haggle over the price in order to maintain his cover.

Then one night, Bob failed to show up for a meeting that he and Friday had scheduled at the Fictional Bar to discuss the amount of cocaine that Bob might purchase. Friday told ***** to telephone Bob and tell him she would like to see him at the Bar. Friday further urged ***** to tell Bob that if Bob had some cocaine she would *****go home with him.***** ***** made the call and Bob said he would be there immediately and he would take her up on her offer. Thereupon, Bob came down to the Bar, met with Friday, and the two struck a deal. Friday told Bob that the only way he would sell Bob $400.00 in cocaine was if Bob would take an additional amount of the drug on consignment ( on *****credit*****) and give Friday the proceeds after Bob sold it. Bob agreed and gave Friday $400. Friday gave Bob eight ounces of cocaine, four ounces sold outright for $400.00 and four more ounces on credit. As soon as Bob gave Friday the money and had the drugs in his hand, Friday arrested him. Bob was tried, convicted, and sentenced in federal court for possession of with intent to distribute eight ounces of cocaine under 21 U.S.C. § 841(a)(1), and conspiracy to distribute the same under 21 U.S.C. § 846. Bob appealed his conviction on two separate, but related grounds. The first was entrapment and the second was *****outrageous governmental conduct.***** The basis for both these appellate issues was Friday*****s conduct throughout the entire operation.

Assume that all the above facts were proved during the trial and these are facts that are assumed to be accurate for purposes of the appeal. You are a law clerk for an Appellate Judge assigned to prepare a decision on Bob*****s appeal. The Judge tells you to give him a proposed decision, of approximately three single-spaced pages. The Judge does not tell you the particular outcome he wants, but asks that you explain which way you believe the Appellate Court should rule on both issues in the case AND WHY. The Judge says it will do no good if you cannot come back with a clear decision, one way or the other on BOTH issues, and that the proposed decision you submit should be based on existing case law. The Judge says not to worry about putting the decision in the form of an appellate decision, just an essay will do. The Judge says that your decision must not be based on emotion, rather it should be based on logic and the law; and he says he does not want you to *****preach.***** The Judge emphasizes that the essay you submit should not be informal because it may be read by other appellate judges. The Judge says: *****IT SHOULD BE WRITTEN IN THE STYLE OF A FORMAL ESSAY.*****

The Judge also says he is very disturbed by the extent of the drug problem in America but that he greatly respects the philosophy expressed by Justice Brandeis in his dissent in Olmstead v. US:

*****Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.*****

Your assignment for Module Three is to prepare the ESSAY requested by the Judge.

Extra Directions:

 Three pages

 Only Half a page should be ethical, the rest of it pointing out the cases

 Make sure that your essay describes a CLEAR proposed outcome in the case; make it very clear whether you believe Mr. Bob should go free or not.

 Pick At least three Supreme Court cases from above and it should be the backbone of your essay.

 Since the Judge knows about the facts in the case, very little of your essay should be devoted to setting out the facts in the case; and make sure your essay analyzes the difference between outrageous governmental conduct and entrapment.

The Module Three essay should be written in the style of a formal essay, but it is directed to the Judge described in the Writing Assignment. Your essay should still have an Introduction (your Introduction might begin like this: This essay describes some of the issues raised in the case of U.S. v. Billy Bob and a proposed decision in the case. After describing the similarity in the concepts of *****outrageous governmental conduct***** and *****entrapment,***** the essay*****¦) and a Conclusion. Make sure that your essay describes a CLEAR proposed outcome in the case; make it very clear whether you believe Mr. Bob should go free or not. Since the Judge knows about the facts in the case, very little of your essay should be devoted to setting out the facts in the case; and make sure your essay analyzes the difference between outrageous governmental conduct and entrapment.