Ainsworth v. Reed

¶4GODBOLD, Circuit Judge:

¶5This is an appeal from the denial of habeas corpus to a state prisoner. Petitioner was convicted of selling a small amount of marijuana to a long-time friend who was acting as a police informant. His defense was entrapment.

¶6Before the federal habeas court and this court he has contended that the police activity involved in connection with his offense was so outrageous that it violated due process.1

¶7Entrapment is not a constitutional doctrine. Rather it is a court-created limitation on governmental activity. See Sorrells v. U.S. 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Sherman v. U.S., 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). In U.S. v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Supreme Court expressly rejected a plea to raise to a constitutional status the doctrine of entrapment as a defense. In dictum in Russell the Court said that it might some day be faced with conduct by law enforcement officers so outrageous that due process might be violated.2 Certainly the present case, to borrow a phrase from Russell, “is distinctly not of that breed." The governmental activity, while aggressive and pursued through an informer who was a friend of the petitioner, cannot be fairly characterized as “outrageous.” While distasteful to petitioner, and perhaps distasteful in the sense that one wishes it were not necessary for police to fight drug traffic in this way, it hardly goes beyond routine procedures, with the possible exception of the evidence that the reserve police officer actively pushing the investigation was “bucking” for a permanent job, and this was neither illegal nor “outrageous.” Indeed, every officer aggressively pursuing his duties may be motivated in part by desire to improve his rank, pay, or efficiency rating. Petitioner *245argues that it is outrageously improper for the police to use an informer to make a buy before they have information sufficient to constitute probable cause. This novel argument is supported by no authority. Petitioner finds particularly offensive the fact that the informant made several unsuccessful attempts to buy and each time was told by petitioner that he had no marijuana. Petitioner draws from this the inference that he was overborne by his friend. But one can as well infer that petitioner was trying to hold on to his potential purchaser until he had marijuana on hand. All of this was factual grist for a jury to examine in considering all the facts of the offense, the governmental activity, and the accused’s predisposition.

¶8In short, petitioner has not established a claim of constitutional dimension. Our view is that the case was properly submitted to the jury. But even if we thought otherwise, a writ of habeas corpus could not issue.

¶9AFFIRMED.