author: Mr. Justice Rehnquist Mr. Justice Douglas, Mr. Justice Stewart,

text:
    UNITED STATES v. RUSSELL
    No. 71-1585.
    Argued February 27, 1973
    Decided April 24, 1973
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 436. Stewart, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 439.

      Deputy Solicitor General Lacovara argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Petersen, Edward R. Korman, Jerome M. Feit, and Roger A. Pauley.

      Thomas H. S. Brucker, by appointment of the Court, 409 U. S. 946, argued the cause for respondent. With him on the brief was Robert E. Prince.

         Paul G. Chevigny and Melvin L. Wvlf filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

Respondent Richard Russell was charged in three counts of a five-count indictment returned against him and codefendants John and Patrick Connolly. After a jury trial in the District Court, in which his sole defense was entrapment, respondent was convicted on all three counts of having unlawfully manufactured and processed methamphetamine (“speed”) and of having unlawfully sold and delivered that drug in violation of 21 U. S. C. §§ 331 (q) (1), (2), 360a (a), (b) (1964 ed., Supp. V). He was sentenced to concurrent terms of two years in prison for each offense, the terms to be suspended on the condition that he spend six months in prison and be placed on probation for the following three years. On appeal, the United States Court of Appeals for the Ninth Circuit, one judge dissenting, reversed the conviction solely for the reason that an undercover agent supplied an essential chemical for manufacturing the methamphetamine which formed the basis of respondent's conviction. The court concluded that as a matter of law “a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.” 459 P. 2d 671, 673 (1972). We granted certiorari, 409 U. S. 911 (1972), and now reverse that judgment.

There is little dispute concerning the essential facts in this case. On December 7, 1969, Joe Shapiro, an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs, went to respondent’s home on Whidbey Island in the State of Washington where he met with respondent and his two codefendants, John and Patrick Connolly. Shapiro’s assignment was to locate a laboratory where it was believed that methamphetamine was being manufactured illicitly. He told the respondent and the Connollys that he represented an organization in the Pacific Northwest that was interested in controlling the manufacture and distribution of methamphetamine. He then made an offer to supply the defendants with the chemical phenyl-2-propanone, an essential ingredient in the manufacture of methamphetamine, in return for one-half of the drug produced. This offer was made on the condition that Agent Shapiro be shown a sample of the drug which they were making and the laboratory where it was being produced.

During the conversation, Patrick Connolly revealed that he had been making the drug since May 1969 and since then had produced three pounds of it. John Connolly gave the agent a bag containing a quantity of methamphetamine that he represented as being from “the last batch that we made.” Shortly thereafter, Shapiro and Patrick Connolly left respondent’s house to view the laboratory which was located in the Connolly house on Whidbey Island. At the house, Shapiro observed an empty bottle bearing the chemical label phenyl-2-propanone.

By prearrangement, Shapiro returned to the Connolly house on December 9, 1969, to supply 100 grams of propanone and observe the manufacturing process. When he arrived he observed Patrick Connolly and the respondent cutting up pieces of aluminum foil and placing them in a large flask. There was testimony that some of the foil pieces accidentally fell on the floor and were picked up by the respondent and Shapiro and put into' the flask. Thereafter, Patrick Connolly added all of the necessary chemicals, including the propanone brought by Shapiro, to make two batches of methamphetamine. The manufacturing process having been completed the following morning, Shapiro was given one-half of the drug and respondent kept the remainder. Shapiro offered to buy, and the respondent agreed to sell, part of the remainder for $60.

About a month later, Shapiro returned to the Connolly house and met with Patrick Connolly to ask if he was still interested in their “business arrangement.” Connolly replied that he was interested but that he had recently obtained two additional bottles of phenyl-2-propanone and would not be finished with them for a couple of days. He provided some additional methamphetamine to Shapiro at that time. Three days later Shapiro returned to the Connolly house with a search warrant and, among other items, seized an empty 500-gram bottle of propanone and a 100-gram bottle, not the one he had provided, that was partially filled with the chemical.

There was testimony at the trial of respondent and Patrick Connolly that phenyl-2-propanone was generally difficult to obtain. At the request of the Bureau of Narcotics and Dangerous Drugs, some chemical supply firms had voluntarily ceased selling the chemical.

At the close of the evidence, and after receiving the District Judge’s standard entrapment instruction, the jury found the respondent guilty on all counts charged. On appeal, the respondent conceded that the jury could have found him predisposed to commit the offenses, 459 F. 2d, at 672, but argued that on the facts presented there was entrapment as a matter of law. The Court of Appeals agreed, although it did not find the District Court had misconstrued or misapplied the traditional standards governing the entrapment defense. Rather, the court in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been “an intolerable degree of governmental participation in the criminal enterprise.” In this case the court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense.

This new defense was held to rest on either of two alternative theories. One theory is based on two lower court decisions which have found entrapment, regardless of predisposition, whenever the government supplies contraband to the defendants. United States v. Bueno, 447 F. 2d 903 (CA5 1971); United States v. Chisum, 312 F. Supp. 1307 (CD Cal. 1970). The second theory, a nonentrapment rationale, is based on a recent Ninth Circuit decision that reversed a conviction because a government investigator was so enmeshed in the criminal activity that the prosecution of the defendants was held to be repugnant to the American criminal justice system. Greene v. United States, 454 F. 2d 783 (CA9 1971). The court below held that these two rationales constitute the same defense, and that only the label distinguishes them. In any event, it held that “[b]oth theories are premised on fundamental concepts of due process and evince the reluctance of the judiciary to countenance ‘overzealous law enforcement.’ ” 459 F. 2d, at 674, quoting Sherman v. United States, 356 U. S. 369, 381 (1958) (Frankfurter, J., concurring in result).

This Court first recognized and applied the entrapment defense in Sorrells v. United States, 287 U. S. 435 (1932). In Sorrells, a federal prohibition agent visited the defendant while posing as a tourist and engaged him in conversation about their common war experiences. After gaining the defendant’s confidence, the agent asked for some liquor, was twice refused, but upon asking a third time the defendant finally capitulated, and was subsequently prosecuted for violating the National Prohibition Act.

Mr. Chief Justice Hughes, speaking for the Court, held that as a matter of statutory construction the defense of entrapment should have been available to' the defendant. Under the theory propounded by the Chief Justice, the entrapment defense prohibits law enforcement officers from instigating a criminal act by persons “otherwise innocent in order to lure them to its commission and to punish them.” 287 U. S., at 448. Thus, the thrust of the entrapment defense was held to focus on the intent or predisposition of the defendant to commit the crime. “[I]f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.” Id., at 451.

Mr. Justice Roberts concurred but was of the view "that courts must be closed to the trial of a crime instigated by the government’s own agents.” Id., at 459. The difference in the view of the majority and the concurring opinions is that in the former the inquiry focuses on the predisposition of the defendant, whereas in the latter the inquiry focuses on whether the government “instigated the crime.”

In 1958 the Court again considered the theory underlying the entrapment defense and expressly reaffirmed the view expressed by the Sorrells majority. Sherman v. United States, supra. In Sherman the defendant was convicted of selling narcotics to a Government informer. As in Sorrells, it appears that the Government agent gained the confidence of the defendant and, despite initial reluctance, the defendant finally acceded to the repeated importunings of the agent to commit the criminal act. On the basis of Sorrells, this Court reversed the affirmance of the defendant’s conviction.

In affirming the theory underlying Sorrells, Mr. Chief Justice Warren for the Court, held that "[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” 356 U. S., at 372. Mr. Justice Frankfurter stated in an opinion concurring in the result that he believed Mr. Justice Roberts had the better view in Sorrells and would have framed the question to be asked in an entrapment defense in terms of “whether the police conduct revealed in the particular case falls below standards ... for the proper use of governmental power.” Id., at 382.

In the instant case, respondent asks us to reconsider the theory of the entrapment defense as it is set forth in the majority opinions in Sorrells and Sherman. His principal contention is that the defense should rest on constitutional grounds. He argues that the level of Shapiro’s involvement in the manufacture of the methamphetamine was so high that a criminal prosecution for the drug’s manufacture violates the fundamental principles of due process. The respondent contends that the same factors that led this Court to apply the exclusionary rule to illegal searches and seizures, Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961), and confessions, Miranda v. Arizona, 384 U. S. 436 (1966), should be considered here. But he would have the Court go further in deterring undesirable official conduct by requiring that any prosecution be barred absolutely because of the police involvement in criminal activity. The analogy is imperfect in any event, for the principal reason behind the adoption of the exclusionary rule was the Government’s “failure to observe its own laws.” Mapp v. Ohio, supra, at 659. Unlike the situations giving rise to the holdings in Mapp and Miranda, the Government’s conduct here violated no independent constitutional right of the respondent. Nor did Shapiro violate any federal statute or rule or commit any crime in infiltrating the respondent’s drug enterprise.

Respondent would overcome this basic weakness in his analogy to the exclusionary rule cases by having the Court adopt a rigid constitutional rule that would preclude any prosecution when it is shown that the criminal conduct would not have been possible had not an undercover agent “supplied an indispensable means to the commission of the crime that could not have been obtained otherwise, through legal or illegal channels.” Even if we were to surmount the difficulties attending the notion that due process of law can be embodied in fixed rules, and those attending respondent’s particular formulation, the rule he proposes would not appear to be of significant benefit to him. For, on the record presented, it appears that he cannot fit within the terms of the very rule he proposes.

The record discloses that although the propanone was difficult to obtain, it was by no means impossible. The defendants admitted making the drug both before and after those batches made with the propanone supplied by Shapiro. Shapiro testified that he saw an empty bottle labeled phenyl-2-propanone on his first visit to the laboratory on December 7, 1969. And when the laboratory was searched pursuant to a search warrant on January 10, 1970, two additional bottles labeled phenyl-2-propanone were seized. Thus, the facts in the record amply demonstrate that the propanone used in the illicit manufacture of methamphetamine not only could have been obtained without the intervention of Shapiro but was in fact obtained by these defendants.

While 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, cf. Rochin v. California, 342 U. S. 165 (1952), the instant case is distinctly not of that breed. Shapiro’s contribution of propanone to the criminal enterprise already in process was scarcely objectionable. The chemical is by itself a harmless substance and its possession is legal. While the Government may have been seeking to make it more difficult for drug rings, such as that of which respondent was a member, to obtain the chemical, the evidence described above shows that it nonetheless was obtainable. The law enforcement conduct here stops far short of violating that “fundamental fairness, shocking to the universal sense of justice,” mandated by the Due Process Clause of the Fifth Amendment. Kinsella v. United States ex rel. Singleton, 361 U. S. 234, 246 (1960).

The illicit manufacture of drugs is not a sporadic, isolated criminal incident, but a continuing, though illegal, business enterprise. In order to obtain convictions for illegally manufacturing drugs, the gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task. Thus in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation; if that be so, then the supply of some item of value that the drug ring requires must, as a general rule, also be permissible. For an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them. Law enforcement tactics such as this can hardly be said to violate “fundamental fairness” or “shocking to the universal sense of justice,” Kinsella, supra.

Respondent also urges, as an alternative to his constitutional argument, that we broaden the nonconstitutional defense of entrapment in order to sustain the judgment of the Court of Appeals. This Court’s opinions in Sorrells v. United States, supra, and Sherman v. United States, supra, held that the principal element in the defense of entrapment was the defendant’s predisposition to commit the crime. Respondent conceded in the Court of Appeals, as well he might, “that he may have harbored a predisposition to commit the charged offenses.” 459 F. 2d, at 672. Yet he argues that the jury’s refusal to find entrapment under the charge submitted to it by the trial court should be overturned and the views of Justices Roberts and Frankfurter, in Sorrells and Sherman, respectively, which make the essential element of the defense turn on the type and degree of governmental conduct, be adopted as the law.

We decline to overrule these cases. Sorrells is a precedent of long standing that has already been once reexamined in Sherman and implicitly there reaffirmed. Since the defense is not of a constitutional dimension, Congress may address itself to the question and adopt any substantive definition of the defense that it may find desirable.

Critics of the rule laid down in Sorrells and Sherman have suggested that its basis in the implied intent of Congress is largely fictitious, and have pointed to what they conceive to be the anomalous difference between the treatment of a defendant who' is solicited by a private individual and one who is entrapped by a government agent. Questions have been likewise raised as to whether “predisposition” can be factually established with the requisite degree of certainty. Arguments such as these, while not devoid of appeal, have been twice previously made to this Court, and twice rejected by it, first in Sorrells and then in Sherman.

We believe that at least equally cogent criticism has been made of the concurring views in these cases. Commenting in Sherman on Mr. Justice Roberts’ position in Sorrells that “although the defendant could claim that the Government had induced him to commit the crime, the Government could not reply by showing that the defendant’s criminal conduct was due to his own readiness and not to the persuasion of government agents,” Sherman v. United States, 356 U. S., at 376-377, Mr. Chief Justice Warren quoted the observation of Judge Learned Hand in an earlier stage of that proceeding:

“ ‘Indeed, it would seem probable that, if there were no reply [to the claim of inducement], it would be impossible ever to secure convictions of any of-fences which consist of transactions that are carried on in secret.’ United States v. Sherman, 200 F. 2d 880, 882.” Sherman v. United States, 356 U. S., at 377 n. 7.

Nor does it seem particularly desirable for the law to grant complete immunity from prosecution to one who himself planned to commit a crime, and then committed it, simply because government undercover agents subjected him to inducements which might have seduced a hypothetical individual who was not so predisposed. We are content to leave the matter where it was left by the Court in Sherman:

“The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, ‘A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ ” Id., at 372, quoting Sorrells v. United States, 287 U. S., at 442.

Several decisions of the United States district courts and courts of appeals have undoubtedly gone beyond this Court’s opinions in Sorrells and Sherman in order to bar prosecutions because of what they thought to be, for want of a better term, “overzealous law enforcement.” But the defense of entrapment enunciated in those opinions was not intended to give the federal judiciary a “chancellor’s foot” veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations. We think that the decision of the Court of Appeals in this case quite unnecessarily introduces an unmanageably subjective standard which is contrary to the holdings of this Court in Sorrells and Sherman.

Those cases establish that entrapment is a relatively limited defense. It is rooted, not in any authority of the Judicial Branch to dismiss prosecutions for what it feels to have been “overzealous law enforcement,” but instead in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.

Sorrells and Sherman both recognize “that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,” 287 U. S., at 441; 356 U. S., at 372. Nor will the mere fact of deceit defeat a prosecution, see, e. g., Lewis v. United States, 385 U. S. 206, 208-209 (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.

Respondent’s concession in the Court of Appeals that the jury finding as to predisposition was supported by the evidence is, therefore, fatal to his claim of entrapment. He was an active participant in an illegal drug manufacturing enterprise which began before the Government agent appeared on the scene, and continued after the Government agent had left the scene. He was, in the words of Sherman, supra, not an “unwary innocent” but an “unwary criminal.” The Court of Appeals was wrong, we believe, when it sought to broaden the principle laid down in Sorrells and Sherman. Its judgment is therefore

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs,

dissenting.

A federal agent supplied the accused with one chemical ingredient of the drug known as methamphetamine (“speed”) which the accused manufactured and for which act he was sentenced to prison. His defense was entrapment, which the Court of Appeals sustained and which the Court today disallows. Since I have an opposed view of entrapment, I dissent.

My view is that of Mr. Justice Brandeis expressed in Casey v. United States, 276 U. S. 413, 421 (dissent), that of Mr. Justice Frankfurter stated in Sherman v. United States, 356 U. S. 369, 378 (concurring in result), and that of Mr. Justice Roberts contained in Sorrells v. United States, 287 U. S. 435, 453 (concurrence).

In my view, the fact that the chemical ingredient supplied by the federal agent might have been obtained from other sources is quite irrelevant. Supplying the chemical ingredient used in the manufacture of this batch of “speed” made the United States an active participant in the unlawful activity. As stated by Mr. Justice Brandeis, dissenting in Casey v. United States, supra, at 423:

“I am aware that courts — mistaking relative social values and forgetting that a desirable end cannot justify foul means — have, in their zeal to punish, sanctioned the use of evidence obtained through criminal violation of property and personal rights or by other practices of detectives even more revolting. But the objection here is of a different nature. It does not rest merely upon the character of the evidence or upon the fact that the evidence was illegally obtained. The obstacle to the prosecution lies in the fact that the alleged crime was instigated by officers of the Government; that the act for which the Government seeks to punish the defendant is the fruit of their criminal conspiracy to induce its commission. The Government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature.”

Mr. Justice Frankfurter stated the same philosophy in Sherman v. United States, supra, at 382-383: “No matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society.” And he added: “The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime . . . .” Id., at 384.

Mr. Justice Roberts in Sorrells put the idea in the following words:

“The applicable principle is that courts must be closed to the trial of a crime instigated by the government’s own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.” 287 U. S., at 459.

May the federal agent supply the counterfeiter with the kind of paper or ink that he needs in order to get a quick and easy arrest? The Court of Appeals in Greene v. United States, 454 F. 2d 783, speaking through Judges Hamley and Hufstedler, said “no” in a case where the federal agent treated the suspects “as partners” with him, offered to supply them with a still, a still site, still equipment, and an operator and supplied them with sugar. Id., at 786.

The Court of Appeals in United States v. Bueno, 447 F. 2d 903, speaking through Judges Roney, Coleman, and Simpson, held that where an informer purchased heroin for the accused who in turn sold it to a federal agent, there was entrapment because the sale was made “through the creative activity of the government.” Id., at 906.

In United States v. Chisum, 312 F. Supp. 1307, the federal agent supplied the accused with the counterfeit money, the receipt of which was the charge against him. Judge Ferguson sustained the defense of entrapment saying, “When the government supplies the contraband, the receipt of which is illegal, the government cannot be permitted to punish the one receiving it.” Id., at 1312.

The Court of Appeals in the instant case relied upon this line of decisions in sustaining the defense of entrapment, 459 F. 2d 671. In doing so it took the view that the “prostitution of the criminal law,” as Mr. Justice Roberts described it in Sorrells, 287 U. S., at 457, was the evil at which the defense of entrapment is aimed.

Federal agents play a debased role when they become the instigators of the crime, or partners in its commission, or the creative brain behind the illegal scheme. That is what the federal agent did here when he furnished the accused with one of the chemical ingredients needed to manufacture the unlawful drug.

Mr. Justice Stewart,

with whom Mr. Justice Brennan and Mr. Justice Marshall join,

dissenting.

It is common ground that “[t]he conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents.” Lopez v. United States, 373 U. S. 427, 434 (1963). For the Government cannot be permitted to instigate the commission of a criminal offense in order to prosecute someone for committing it. Sherman v. United States, 356 U. S. 369, 372 (1958). As Mr. Justice Brandeis put it, the Government “may not provoke or create a crime and then punish the criminal, its creature.” Casey v. United States, 276 U. S. 413, 423 (1928) (dissenting opinion). It is to prevent this situation from occurring in the administration of federal criminal justice that the defense of entrapment exists. Sorrells v. United States, 287 U. S. 435 (1932); Sherman v. United States, supra. Cf. Masciale v. United States, 356 U. S. 386 (1958); Lopez v. United States, supra. But the Court has been sharply divided as to the proper basis, scope, and focus of the entrapment defense, and as to whether, in the absence of a conclusive showing, the issue of entrapment is for the judge or the jury to determine.

I

In Sorrells v. United States, supra, and Sherman v. United States, supra, the Court took what might be called a “subjective” approach to the defense of entrapment. In that view, the defense is predicated on an unexpressed intent of Congress to exclude from its criminal statutes the prosecution and conviction of persons, “otherwise innocent,” who have been lured to the commission of the prohibited act through the Government’s instigation. Sorrells v. United States, supra, at 448. The key phrase in this formulation is “otherwise innocent,” for the entrapment defense is available under this approach only to those who would not have committed the crime but for the Government’s inducements. Thus, the subjective approach focuses on the conduct and propensities of the particular defendant in each individual case: if he is “otherwise innocent,” he may avail himself of the defense; but if he had the “predisposition” to commit the crime, or if the “criminal design” originated with him, then — regardless of the nature and extent of the Government’s participation — there has been no entrapment. Id,, at 451. And, in the absence of a conclusive showing one way or the other, the question of the defendant’s “predisposition” to the crime is a question of fact for the jury. The Court today adheres to this approach.

The concurring opinion of Mr. Justice Roberts, joined by Justices Brandeis and Stone, in the Sorrells case, and that of Mr. Justice Frankfurter, joined by Justices Douglas, Harlan, and Brennan, in the Sherman case, took a different view of the; entrapment defense. In their concept, the defense is not grounded on some unexpressed intent of Congress to exclude from punishment under its statutes those otherwise innocent persons tempted into crime by the Government, but rather on the belief that “the methods employed on behalf of the Government to bring about conviction cannot be countenanced.” Sherman v. United States, supra, at 380. Thus, the focus of this approach is not on the propensities and predisposition of a specific defendant, but on “whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.” Id., at 382. Phrased another way, the question is whether — regardless of the predisposition to crime of the particular defendant involved — the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. Under this approach, the determination of the lawfulness of the Government’s conduct must be made — as it is on all questions involving the legality of law enforcement methods — by the trial judge, not the jury.

In my view, this objective approach to entrapment advanced by the Roberts opinion in Sorrells and the Frankfurter opinion in Sherman is the only one truly consistent with the underlying rationale of the defense. Indeed, the very basis of the entrapment defense itself demands adherence to an approach that focuses on the conduct of the governmental agents, rather than on whether the defendant was “predisposed” or “otherwise innocent.” I find it impossible to believe that the purpose of the defense is to effectuate some unexpressed congressional intent to exclude from its criminal statutes persons who committed a prohibited act, but would not have done so except for the Government’s inducements. For, as Mr. Justice Frankfurter put it, “the only legislative intention that can with any show of reason be extracted from the statute is the intention to make criminal precisely the conduct in which the defendant has engaged.” Sherman v. United States, supra, at 379. See also Sorrells v. United States, supra, at 456 (Roberts, J., concurring). Since, by definition, the entrapment defense cannot arise unless the defendant actually committed the proscribed act, that defendant is manifestly covered by the terms of the criminal statute involved.

Furthermore, to say that such a defendant is “otherwise innocent” or not “predisposed” to commit the crime is misleading, at best. The very fact that he has committed an act that Congress has determined to be illegal demonstrates conclusively that he is not innocent of the offense. He may not have originated the precise plan or the precise details, but he was “predisposed” in the sense that he has proved to be quite capable of committing the crime. That he was induced, provoked, or tempted to do so by government agents does not make him any more innocent or any less predisposed than he would be if he had been induced, provoked, or tempted by a private person — which, of course, would not entitle him to cry “entrapment.” Since the only difference between these situations is the identity of the tempter, it follows that the significant focus must be on the conduct of the government agents, and not on the predisposition of the defendant.

The purpose of the entrapment defense, then, cannot be to protect persons who are “otherwise innocent.” Rather, it must be to prohibit unlawful governmental activity in instigating crime. As Mr. Justice Brandeis stated in Casey v. United States, supra, at 425: “This prosecution should be stopped, not because some right of Casey’s has been denied, but in order to protect the Government. To protect it from illegal conduct of its officers. To preserve the purity of its courts.” Cf. Olmstead v. United States, 277 U. S. 438, 470 (1928) (Holmes, J., dissenting); id., at 485 (Brandeis, J., dissenting). If that is so, then whether the particular defendant was “predisposed” or “otherwise innocent” is irrelevant; and the important question becomes whether the Government’s conduct in inducing the crime was beyond judicial toleration.

Moreover, a test that makes the entrapment defense depend on whether the defendant had the requisite predisposition permits the introduction into evidence of all kinds of hearsay, suspicion, and rumor — all of which would be inadmissible in any other context — in order to prove the defendant’s predisposition. It allows the prosecution, in offering such proof, to rely on the defendant’s bad reputation or past criminal activities, including even rumored activities of which the prosecution may have insufficient evidence to obtain an indictment, and to present the agent’s suspicions as to why they chose to tempt this defendant. This sort of evidence is not only unreliable, as the hearsay rule recognizes; but it is also highly prejudicial, especially if the matter is submitted to the jury, for, despite instructions to the contrary, the jury may well consider such evidence as probative not simply of the defendant’s predisposition, but of his guilt of the offense with which he stands charged.

More fundamentally, focusing on the defendant’s innocence or predisposition has the direct effect of making what is permissible or impermissible police conduct depend upon the past record and propensities of the particular defendant involved. Stated another way, this subjective test means that the Government is permitted to entrap a person with a criminal record or bad reputation, and then to prosecute him for the manufactured crime, confident that his record or reputation itself will be enough to show that he was predisposed to commit the offense anyway.

Yet, in the words of Mr. Justice Roberts:

“Whatever may be the demerits of the defendant or his previous infractions of law these will not justify the instigation and creation of a new crime, as a means to reach him and punish him for his past misdemeanors. ... To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction.” Sorrells v. United States, supra, at 458-459.

And as Mr. Justice Frankfurter pointed out:

“Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition. No more does it vary according to the suspicions, reasonable or unreasonable, of the police concerning the defendant’s activities.” Sherman v. United States, supra, at 383.

In my view, a person’s alleged “predisposition” to crime should not expose him to government participation in the criminal transaction that would be otherwise unlawful.

This does not mean, of course, that the Government’s use of undercover activity, strategy, or deception is necessarily unlawful. Lewis v. United States, 385 U. S. 206, 208-209 (1966). Indeed, many crimes, especially so-called victimless crimes, could not otherwise be detected. Thus, government agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime an opportunity to do so. Osborn v. United States, 385 U. S. 323, 331-332 (1966). See also Sherman v. United States, supra, at 383-384 (Frankfurter, J., concurring).

But when the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced— I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.

II

In the case before us, I think that the District Court erred in submitting the issue of entrapment to the jury, with instructions to acquit only if it had a reasonable doubt as to the respondent’s predisposition to committing the crime. Since, under the objective test of entrapment, predisposition is irrelevant and the issue is to be decided by the trial judge, the Court of Appeals, I believe, would have been justified in reversing the conviction on this basis alone. But since the appellate court did not remand for consideration of the issue by the District Judge under an objective standard, but rather found entrapment as a matter of law and directed that the indictment be dismissed, we must reach the merits of the respondent’s entrapment defense.

Since, in my view, it does not matter whether the respondent was predisposed to commit the offense of which he was convicted, the focus must be, rather, on the conduct of the undercover government agent. What the agent did here was to meet with a group of suspected producers of methamphetamine, including the respondent; to request the drug; to offer to supply the chemical phenyl-2-propanone in exchange for one-half of the methamphetamine to be manufactured therewith; and, when that offer was accepted, to provide the needed chemical ingredient, and to purchase some of the drug from the respondent. It is undisputed that phenyl-2-propanone is an essential ingredient in the manufacture of methamphetamine; that it is not used for any other purpose; and that, while its sale is not illegal, it is difficult to obtain, because a manufacturer’s license is needed to purchase it, and because many suppliers, at the request of the Federal Bureau of Narcotics and Dangerous Drugs, do not sell it at all. It is also undisputed that the methamphetamine which the respondent was prosecuted for manufacturing and selling was all produced on December 10, 1969, and that all the phenyl-2-propanone used in the manufacture of that batch of the drug was provided by the government agent. In these circumstances, the agent’s undertaking to supply this ingredient to the respondent, thus making it possible for the Government to prosecute him for manufacturing an illicit drug with it, was, I think, precisely the type of governmental conduct that the entrapment defense is meant to prevent.

Although the Court of Appeals found that the phenyl2-propanone could not have been obtained without the agent’s intervention — that “there could not have been the manufacture, delivery, or sale of the illicit drug had it not been for the Government’s supply of one of the essential ingredients,” 459 F. 2d 671, 672 — the Court today rejects this finding as contradicted by the facts revealed at trial. The record, as the Court states, discloses that one of the respondent’s accomplices, though not the respondent himself, had obtained phenyl-2-propanone from independent sources both before and after receiving the agent’s supply, and had used it in the production of methamphetamine. This demonstrates, it is said, that the chemical was obtainable other than through the government agent; and hence the agent’s furnishing it for the production of the methamphetamine involved in this prosecution did no more than afford an opportunity for its production to one ready and willing to produce it. Cf. Osborn v. United States, supra, at 331-332. Thus, the argument seems to be, there was no entrapment here, any more than there would have been if the agent had furnished common table salt, had that been necessary to the drug’s production.

It cannot be doubted that if phenyl-2-propanone had been wholly unobtainable from other sources, the agent’s undercover offer to supply it to the respondent in return for part of the illicit methamphetamine produced therewith — an offer initiated and carried out by the agent for the purpose of prosecuting the respondent for producing methamphetamine — would be precisely the type of governmental conduct that constitutes entrapment under any definition. For the agent’s conduct in that situation would make possible the commission of an otherwise totally impossible crime, and, I should suppose, would thus be a textbook example of instigating the commission of a criminal offense in order to prosecute someone for committing it.

But assuming in this case that the phenyl-2-propanone was obtainable through independent sources, the fact remains that that used for the particular batch of methamphetamine involved in all three counts of the indictment with which the respondent was charged — i. e., that produced on December 10, 1969 — was supplied by the Government. This essential ingredient was indisputably difficult to obtain, and yet what was used in committing the offenses of which the respondent was convicted was offered to the respondent by the Government agent, on the agent’s own initiative, and was readily supplied to the respondent in needed amounts. If the chemical was so easily available elsewhere, then why did not the agent simply wait until the respondent had himself obtained the ingredients and produced the drug, and then buy it from him? The very fact that the agent felt it incumbent upon him to offer to supply phenyl-2-propanone in return for the drug casts considerable doubt on the theory that the chemical could easily have been procured without the agent’s intervention, and that therefore the agent merely afforded an opportunity for the commission of a criminal offense.

In this case, the chemical ingredient was available only to licensed persons, and the Government itself had requested suppliers not to sell that ingredient even to people with a license. Yet the Government agent readily offered, and supplied, that ingredient to an unlicensed person and asked him to make a certain illegal drug with it. The Government then prosecuted that person for making the drug produced with the very ingredient which its agent had so helpfully supplied. This strikes me as the very pattern of conduct that should be held to constitute entrapment as a matter of law.

It is the Government’s duty to prevent crime, not to promote it. 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.”

In the words of Mr. Justice Roberts:

“The applicable principle is that courts must be closed to the trial of a crime instigated by the government’s own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.” Sorrells v. United States, supra, at 459.

I would affirm the judgment of the Court of Appeals.

       John Connolly did not appear for trial. Patrick Connolly was tried with the respondent and found guilty of all five counts against him. The validity of his conviction is not before us in this proceeding.

       At trial Patrick Connolly admitted making this statement to Agent Shapiro but asserted that the statement was not true.

       Agent Shapiro did not otherwise participate in the manufacture of the drug or direct any of the work.

       The District Judge stated the governing law on entrapment as follows: “Where a person already has the willingness and the readiness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment.” He then instructed the jury to acquit respondent if it had a “reasonable doubt whether the defendant had the previous intent or purpose to commit the offense . . . and did so only because he was induced or persuaded by some officer or agent of the government.” No exception was taken by respondent to this instruction.

       The first case to recognize and sustain a claim of entrapment by government officers as a defense was apparently Woo Wai v. United States, 223 F. 412 (CA9 1915).

       Justices Brandéis and Stone concurred in this analysis.

       Justices Douglas, Harlan, and Brennan shared the views of entrapment expressed in the Frankfurter opinion.

       The language quoted above first appeared in the Government’s brief at 32, but was subsequently adopted by the respondent. Brief for Respondent 20-21.

       A bill currently before the Congress contemplates an express statutory formulation of the entrapment defense. S. 1, 93d Cong., 1st Sess., § 1-3B2 (1973).

       Both the Proposed New Federal Criminal Code (1971), Final Report of the National Commission on Reform of Federal Criminal Laws § 702, and the American Law Institute's Model Penal Code §2.13 (Proposed Official Draft, 1962), adopt this objective approach.

       See Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L. J. 1091, 1111 (1951):
      “Clearly entrapment is a facet of a broader problem. Along with illegal search and seizures, wire tapping, false arrest, illegal detention and the third degree, it is a type of lawless law enforcement. They all spring from common motivations. Each is a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals or the 'criminal classes/ justifies the employment of illegal means.”

       Several federal courts have adopted the objective test advanced by Mr. Justice Roberts and Mr. Justice Frankfurter, or a variant thereof, focusing on the conduct of the government agents, rather than the “predisposition” of the particular defendant. See, e. g., United States v. McGrath, 468 F. 2d 1027, 1030-1031 (CA7 1972); Greene v. United States, 454 F. 2d 783, 786-787 (CA9 1971); Carbajal-Portillo v. United States, 396 F. 2d 944, 948 (CA9 1968) ; Smith v. United States, 118 U. S. App. D. C. 38, 44, 46, 331 F. 2d 784, 790, 792 (1964) (en banc); United States v. Chisum, 312 F. Supp. 1307 (CD Cal. 1970). Cf. United States v. Morrison, 348 F. 2d 1003, 1004 (CA2 1965); Accardi v. United States, 257 F. 2d 168, 172-173, n. 5 (CA5 1958); United States v. Kros, 296 F. Supp. 972, 979 (ED Pa. 1969). Moreover, this objective approach is the one favored by a majority of the commentators. In addition to the Proposed New Federal Criminal Code and the Model Penal Code, supra, n. 1, see Williams, The Defense of Entrapment and Related Problems in Criminal Prosecution, 28 Fordham L. Rev. 399 (1959); Cowen, The Entrapment Doctrine in the Federal Courts, and Some State Court Comparisons, 49 J. Crim. L. C. & P. S. 447 (1959); Donnelly, supra, n. 2; Comment, Entrapment in the Federal Courts, 1 U. San Francisco L. Rev. 177 (1966).

       Some federal courts have ordered indictments for receipt, possession, or sale of contraband to be dismissed, upon a showing that Government agents themselves had supplied the contraband. See United States v. McGrath, supra; Greene v. United States, supra; United States v. Bueno, 447 F. 2d 903 (CA5 1971); United States v. Chisum, supra; United States v. Dillet, 265 F. Supp. 980 (SDNY 1966). The same considerations obtain here.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    TONASKET v. WASHINGTON et al.
    No. 71-1031.
    Argued December 12-13,1972
    Decided April 24,1973

      Robert L. Pirtle argued the cause and filed briefs for appellant.

      Slade Gorton, Attorney General of Washington, argued the cause for appellees. With him on the brief were Timothy R. Malone, Senior Assistant Attorney General, and William D. Dexter, Assistant Attorney General.

      Alvin J. Ziontz argued the cause and filed a brief for Confederated Tribes of the Colville Reservation et al. as amici curiae.

      Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Frizzell, Harry R. Sachse, and Edmund B. Clark for the United States; by Charles A. Hobbs and Richard A. Baenen for the National Congress of American Indians; by David H. Getches for the Native American Rights Fund; and by Pearson, Yurok Indian and Trader on the Hoopa Reservation.

        William D. Dexter, Assistant Attorney General of Washington, and Eugene F. Corrigan filed a brief for Multistate Tax Commission as amicus curiae urging affirmance.

   Per Curiam.

The judgment of the Supreme Court of Washington is vacated, and the case is remanded to that Court for reconsideration in light of §§ 6 and 7 of c. 157, 1972 Extraordinary Session Laws of the State of Washington, and this Court’s decision in McClanahan v. Arizona State Tax Comm’n, ante, p. 164.


author: Mr. Chief Justice Burger

text:
    BROWN, SECRETARY OF STATE OF CALIFORNIA v. CHOTE
    No. 71-1583.
    Argued February 22, 1973
    Decided May 7, 1973
    Burger, C. J., delivered the opinion for a unanimous Court.

      Henry O. Ullerich, Deputy Attorney General of California, argued the cause for appellant. With him on the brief were Evelle J. Younger, Attorney General, and Iver E. Skjeie, Assistant Attorney General.

      Philip Elman, by appointment of the Court, 409 U. S. 1035, argued the cause and filed a brief for appellee.

         Melvin L. Wulf, Sanford, J. Rosen, Marguerite Buckley, A. L. Wirin, Fred Okrand, and Laurence R. Sperber filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

This case arises under 28 U. S. C. § 1253 on direct appeal from a three-judge district court in the Northern District of California. The court was convened pursuant to 28 U. S. C. § 2281 when appellee called into question the constitutionality of those provisions of the California Elections Code which require candidates in a primary election to pay a filing fee prior to having their names listed on the primary ballot. Cal. Elections Code §§ 6552 and 6553 (Supp. 1973). Under these provisions, candidates for the Federal House of Representatives must pay $425 (1% of the annual salary of the office); candidates for the Federal Senate must pay $850 (2% of the salary of the office). Those wishing to run for statewide offices must pay similar fees ranging in amount from $192 for State Assemblyman (1% of the annual salary) to $982 for Governor (2% of the annual salary). Other portions of the California Elections Code, not challenged in the present suit, require prospective candidates to file with appropriate state officials a declaration of candidacy and sponsor certificates. Cal. Elections Code §§ 6490-6491, 6494-6495 (1961 and Supp. 1973).

Appellee commenced this class action on March 3,1972. He moved, and was granted permission by, a single district judge, to proceed in forma pauperis and as his own attorney. In his complaint, appellee asserted that he wished to become a candidate for the Federal House of Representatives from the 17th District of California, and had taken the following steps to place his name in nomination in the June 6, 1972, California primary election. On February 17, 1972, appellee called the Registrar of Voters of Santa Clara County, an official designated by state law to dispense those forms necessary to place a name in nomination. Appellee was purportedly told.by the Registrar or a member of his office that he was required to pay $425 in advance in order to secure blank copies of the necessary papers. According to appellee, the Registrar’s Office also advised him that the papers would be delivered in exchange for a worthless check.

Appellee proceeded immediately to the Registrar’s Office where he presented a personal check for $425 and requested copies of the necessary forms. Across the face of the check, appellee had typed “Written under protest for filing fee.” The Registrar issued the requisite papers to appellee and informed him that his check would be forwarded to the California Secretary of State when his completed papers were submitted. Subsequently, a Deputy Secretary of State informed appellee that his name would not be placed on the ballot if his check was not honored.

Citing Bullock v. Carter, 405 U. S. 134 (1972), appellee asserted that California’s filing-fee system was unconstitutional since it barred indigents, such as himself, from seeking elective office and from voting for the candidate of his choice. In addition to requesting declaratory and permanent injunctive relief, appellee moved the District Court to issue a preliminary injunction so as to allow him to participate as a candidate in the upcoming primary. Under state law, the final date on which appellee could submit nominating papers for that primary was March 10, 1972, one week away.

Because of the impending filing deadline, the District Court proceeded quickly to set the case for argument. On March 3, 1972, the same date on which the suit was filed, the single District Judge to whom the case was assigned entered an order requiring appellant to show cause why interlocutory relief should not be granted. The State was given five days in which to respond. It was not until March 7 that the Chief Judge of the Ninth Circuit was notified of the application for a three-judge court. On March 8, he designated the judges who were to compose the panel. On the same day, the court convened and heard oral argument. Because of the speed with which the case had developed, neither the court nor appellee had an opportunity prior to the hearing to consider appellant’s return to the order to show cause, the only paper which the State had been able to prepare.

On March 9, 1972, one day after oral argument and one day before the deadline for filing nomination papers, the District Court granted appellee’s motion for a preliminary injunction, stating:

“Since no . . . showing has been made by the State, concerning either the necessity, the purpose or the reasonableness of the filing fee statutes in question, we conclude that within the rationale and holding of Bullock [v. Carter, 405 U. S. 134 (1972)], plaintiff may prevail on the merits and that, absent a preliminary injunction, his constitutional right may be irreparably lost.” 342 F. Supp. 1353, 1355— 1356. (Emphasis added.)

Under the terms of the preliminary injunction, the State was required to allow appellee and others similarly situated to place their names on the ballot without paying the required fee, so long as they were otherwise eligible for the applicable state or federal office and had deposited with an appropriate state official an affidavit attesting to their indigency.

The State appealed directly to this Court under 28 U. S. C. § 1253. Its Jurisdictional Statement posed two questions:

“Under the decision of this Court in Bullock v. Carter, 405 U. S. 134 (1972), when a state statute requiring a candidate’s filing fee of one per cent (1%) of the first year’s salary for the office is challenged on Equal Protection grounds does the ‘rational basis’ or ‘close scrutiny’ standard of judicial review apply?
“Do California Elections Code sections 6552 and 6553 deny voters or indigent prospective candidates equal protection of the laws?”

Thus, the State of California, for reasons not clear to us in light of the limited record, asked the Court to address itself to the ultimate merits of appellee’s constitutional claim, a question which the District Court did not reach. In the present posture of the case, there is no occasion to consider any issues beyond those addressed by the District Court.

The issuance of the requested preliminary injunction was the only action taken by the District Court. In determining whether such relief was required, that court properly addressed itself to two relevant factors: first, the appellee’s possibilities of success on the merits; and second, the possibility that irreparable injury would have resulted, absent interlocutory relief. As the District Court opinion clearly evidences, issuance of the injunction reflected the balance which that court reached in weighing these factors and was not in any sense intended as a final decision as to the constitutionality of the challenged statute. In the exigent circumstances, the grant of extraordinary interim relief was a permissible choice; but on the very limited record before the District Court a decision on the merits would not have been appropriate.

In reviewing such interlocutory relief, this Court may only consider whether issuance of the injunction constituted an abuse of discretion. Alabama v. United States, 279 U. S. 229 (1929); United States v. Corrick, 298 U. S. 435 (1936); United Fuel Gas Co. v. Public Service Comm’n of West Virginia, 278 U. S. 322 (1929); National Fire Insurance Co. of Hartford v. Thompson, 281 U. S. 331 (1930). In light of the arguments presented by appellee and the fact that appellee’s opportunity to be a candidate would have been foreclosed, absent some relief, we cannot conclude that the court’s action was an abuse of discretion. We therefore affirm the action taken by the District Court in granting interim relief.

In doing so, we intimate no view as to the ultimate merits of appellee’s contentions. The record in this case clearly reflects the limited time which the parties had to assemble evidence and prepare their arguments. While the District Court’s swift action is understandable in view of the deadline which it faced, the resulting record was simply insufficient to allow that court to consider fully the grave, far-reaching constitutional questions presented.

The specific deadline which led the District Court to grant equitable relief has now passed. Nothing precludes appellee from seeking a trial on the merits, if he chooses to proceed. The case is therefore remanded to the District Court for further proceedings consistent with this opinion.

Affirmed and remanded.

       The State denies that such advice was ever communicated to appellee. In an affidavit submitted to the District Court, the Registrar of Voters of Santa Clara County stated that it was the policy of his office not to distribute the required forms to anyone who represented to the Registrar that the check submitted was worthless. The Registrar further stated that, to his knowledge, neither he nor anyone in his office had ever informed appellee that forms would be issued upon presentation of a worthless check.

       When the case was argued before the District Court, appellee claimed that he had also told the Registrar or a member of his office that the account on which the cheek was drawn did not contain sufficient funds to cover it. However, this fact is not alleged in the complaint.

       Appellant submitted to the District Court an affidavit from the Deputy Secretary of State to whom appellee had spoken, disputing appellee’s claim that he had been informed that his name would not be placed on the ballot if his cheek was not honored.

       Although the June 6 primary election has passed, the question raised is one “capable of repetition, yet evading review.” Consequently, the case is not moot. Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911); Moore v. Ogilvie, 394 U. S. 814, 816 (1969).

       We have granted certiorari in No. 71-6852, Lubin v. Allison, post, p. 964, in order to consider conflicts in holdings regarding the constitutionality of state filing-fee statutes.


author: Me. Justice Douglas

text:
    FEDERAL POWER COMMISSION v. MEMPHIS LIGHT, GAS & WATER DIVISION et al.
    No. 72-486.
    Argued March 27, 1973
    Decided May 7, 1973

    Douglas, J., delivered the opinion for a unanimous Court.

      Samuel Huntington argued the cause for petitioner in No. 72-486. With him on the brief were Solicitor General Griswold, Leo E. Forquer, and George W. McHenry, Jr. Christopher T. Boland argued the cause for petitioner in No. 72-488. With him on the briefs were Melvin Richter and Robert O. Koch.

      George E. Morrow argued the cause for respondent Memphis Light, Gas & Water Division in both cases. With him on the brief was Reuben Goldberg. Richard A. Solomon argued the cause and filed a brief for respondent Public Service Commission for the State of New York in both cases. Charles F. Wheatley, Jr., and
      William T. Miller filed a brief for respondent American public Gas Assn, in both cases.

       Together with No. 72-488, Texas Gas Transmission Corp. v. Memphis Light, Gas & Water Division et al., also on certiorari to the same court.

       Briefs of amici curiae urging reversal in both cases were filed by Jerome J. McGrath for the Independent Natural Gas Association of America, and by Thomas M. Debevoise for Jersey Central Power & Light Co. et al.

   Me. Justice Douglas

delivered the opinion of the Court.

We granted certiorari in these cases to determine whether § 441 of the Tax Reform Act of 1969, 26 U. S. C. § 167 (l), circumscribes the authority of the Federal Power Commission under the Natural Gas Act, 52 Stat. 821, as amended, 15 U. S. C. § 717 et seg., to permit a regulated utility to change its method of computing depreciation for ratemaking purposes from “flow-through” to “normalization” with respect to property acquired prior to 1970 as well as “replacement” property.

Since the resolution of this issue depends largely on the background and history of § 441 and the Commission’s regulatory powers, a brief review is in order at the outset. Section 167 of the Internal Revenue Code authorized taxpayers, including regulated utilities, to use accelerated or liberalized depreciation in calculating their federal income taxes. The Commission retained jurisdiction to prescribe the depreciation method to be used by regulated utilities in calculating their federal income tax expense for ratemaking purposes. Initially, the Commission required utilities to compute their cost of service, which includes federal income taxes, as if they were using straight-line depreciation. This method, referred to as “normalization,” was designed to avoid giving the present customers of a utility the benefits of tax deferral attributable to accelerated depreciation. If a utility used accelerated depreciation in determining its actual tax liability, the difference between the taxes actually paid and the higher taxes reflected as a cost of service for ratemaking purposes was required to be placed in a deferred tax reserve account. See Amere Gas Utilities Co., 15 F. P. C. 760.

It soon became apparent that accelerated depreciation in practice resulted in permanent tax savings. Because most utilities had growing or at least stable plant investments, the depreciation allowances from additional and replacement equipment offset the declining depreciation allowance on existing property. Accordingly, the Commission required utilities using accelerated depreciation for tax purposes to use the same method for calculating their cost of service and, thus, to “flow through” any tax savings to their customers. Alabama-Tennessee Natural Gas Co., 31 F. P. C. 208, aff'd sub nom. Alabama-Tennessee Natural Gas Co. v. FPC, 359 F. 2d 318 (CA5). Subsequently, the Commission decided that it would impute the use of accelerated depreciation for ratemaking purposes regardless of the method used for computing actual taxes. Midwestern Gas Transmission Co., 36 F. P. C. 61, aff’d sub nom. Midwestern Gas Transmission Co. v. FPC, 388 F. 2d 444 (CA7).

When the House and Senate considered tax reform legislation in 1969, both were concerned with the loss of tax revenues that stemmed from the combined effect of accelerated depreciation for computing federal taxes (leading to higher deductions) and flow-through for fixing rates (leading to lower rates and thus lower gross revenues) . Section 441 of the Tax Reform Act, which added § 167 (l) to the Internal Revenue Code, was designed in general to “freeze” existing depreciation practices. As passed by the House, § 441 would have established three rules with respect to existing depreciable property:

“(1) If straight line depreciation is presently being taken, then no faster depreciation is to be permitted as to that property.
“(2) If the taxpayer is taking accelerated depreciation and is 'normalizing’ its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property.
“(3) If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property.”

The Senate bill as passed was similar to that of the House, except that utilities on flow-through were given the right to elect within 180 days “to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or . . . with the permission of the regulatory agency to shift to the normalization method . This election was to apply both to new and existing property. In conference, however, it was agreed that this right of election would apply only to property acquired by the utility after 1969 to expand its facilities.

Thus, as added to the Internal Revenue Code in 1969, § 167 (Z) distinguishes between two basic types of “public utility property”: “pre-1970 property,” which is property acquired by the taxpayer before January 1, 1970 (§ 167 (l)(3)(B)), and all other property, referred to as “post-1969 property” (§ 167 (Z) (3) (C)). A further distinction is drawn between post-1969 property “which increases the productive or operational capacity of the taxpayer” (expansion property) and post-1969 property which merely replaces existing property (§ 167 (l) (4) (A)). With respect to pre-1970 property, a utility may use (1) straight-line depreciation, (2) the method used prior to August 1969 if it also employs normalization, or (3) accelerated depreciation with flow-through, but only if that method was used prior to August 1969 (§167 (J)(l)). With respect to post-1969 property, a utility may use (1) straight-line depreciation, (2) accelerated depreciation with normalization, or (3) accelerated depreciation with flow-through if the utility used flow-through prior to August 1969 (§ 167 (l) (2)). In addition, under § 167 (1) (4) (A), a utility may elect to abandon accelerated depreciation with flow-through with respect to post-1969 expansion property.

The proceedings in issue here involve Texas Gas Transmission Corp., the operator of a major interstate pipeline system certificated by the Federal Power Commission. Although Texas Gas utilized accelerated depreciation with flow-through prior to the adoption of the Tax Reform Act, it filed a proposed rate increase with the Commission on June 27, 1969, based upon “the proposed discontinuance of the use of liberalized depreciation and the reversion to a straight-line method of tax depreciation.” After § 167 (l) was enacted, Texas Gas advised the Commission that it intended to exercise the election provided in § 167 (l) (4) (A) and sought permission to use accelerated depreciation with normalization with respect to its post-1969 expansion property. It also sought assurance, before it made the election, that it would be able to change from flow-through to straight-line or, preferably, accelerated depreciation with normalization with respect to its pre-1970 property and post-1969 replacement property.

The Commission, holding that its authority “to determine whether a company may effect such a change is not diminished” under the Tax Reform Act, permitted Texas Gas to change from flow-through to normalization for ratemaking purposes. Opinion No. 578, 43 F. P. C. 824, 828, rehearing denied, 44 F. P. C. 140. The Commission reasoned that the basis of its decisions in Alabama-Tennessee and Midwestern would no longer be applicable if Texas Gas were to switch to normalization with respect to post-1969 expansion property. In that event, the tax savings resulting from the deferral attributable to accelerated depreciation would not be permanent. Rather, if Texas Gas were required to continue flow-through for all but its new expansion property, it would be faced with a steadily increasing cost of service which would necessitate repeated rate increases. Under these circumstances, the Commission concluded: “Texas Gas is correct in contending that normalization in computing the tax allowance for rate purposes with respect to its pre-1970 facilities offers more hope for stability of rates for its customers and more assurance that the company can earn its fair rate of return without future rate increases. Further benefits of normalization are that it will improve the company’s before tax coverage of interest, thereby enhancing the quality of its securities, and that it will help alleviate present day cash shortages.” Id., at 829-830.

The Court of Appeals, on petitions for review, reversed the Commission’s order. 149 U. S. App. D. C. 238, 462 F. 2d 853, rehearing denied, id., at 250, 462 F. 2d, at 865. Although the Court recognized that the version of the Tax Reform Act passed by the House would have supported the Commission’s order, it held that the limited nature of the election provision as finally passed deprived the Commission of authority to permit regulated utilties to abandon flow-through with respect to their existing and replacement property. We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.

The present cases concern solely the depreciation methods used by utilities in calculating their federal income tax expenses for ratemaking purposes.

In § 441 of the Tax Reform Act of 1969, Congress dealt primarily with a revenue measure under the tax laws and only indirectly with the regulatory power of the Commission under the Natural Gas Act. We have had before us on numerous occasions cases arising under the Natural Gas Act. In the early case of FPC v. Hope Natural Gas Co., 320 U. S. 591, we emphasized two aspects of the power of the Commission to fix “just and reasonable” rates under 15 U. S. C. § 717. First, was the desire “to protect consumers against exploitation,” 320 U. S., at 610, and second, was the aim to promote the “financial integrity” of the natural gas companies as measured, not only by revenues sufficient to recover operating expenses and capital costs, id., at 603, but also by revenues “sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.” Ibid. We mention those matters because (1) the treatment of depreciation bears on rates and (2) there is no indication in the legislative history of this tax measure that Congress desired to modify, as respects the precise issue involved here, the broad discretion of the Commission delineated in Hope Natural Gas and in other rate cases.

Under § 4 (a) of the Natural Gas Act, 15 U. S. C. § 717c (a), all rates and charges made by a natural gas company subject to the Commission’s jurisdiction must be “just and reasonable.” Section 4 (e), 15 U. S. C. § 717c (e), sets forth the procedures whereby the Commission can determine whether a proposed rate schedule is lawful, and § 5, 15 U. S. C. § 717d, gives the Commission certain powers to fix rates and charges. Finally, under § 9 (a), 15 U. S. C. § 717h (a), the Commission may “require natural-gas companies to carry proper and adequate depreciation and amortization accounts in accordance with such rules, regulations, and forms of account as the Commission may prescribe.” In FPC v. United Gas Pipe Line Co., 386 U. S. 237, 243, the Court stated:

“One of [the Commission’s] statutory duties is to determine just and reasonable rates which will be sufficient to permit the company to recover its costs of service and a reasonable return on its investment. Cost of service is therefore a major focus of inquiry. Normally included as a cost of service is a proper allowance for taxes, including federal income taxes. The determination of this allowance, as a general proposition, is obviously within the jurisdiction of the Commission.”

The lower courts have allowed the Commission broad discretion in determining proper depreciation methods for ratemaking purposes. See, e. g., Alabama-Tennessee Natural Gas Co. v. FPC, 359 F. 2d 318; Midwestern Gas Transmission Co. v. FPC, 388 F. 2d 444.

Section 167 (l), to be sure, does not leave this discretion untouched. For example, a utility using straight-line depreciation with respect to its pre-1970 property could not switch to accelerated depreciation, nor could a utility be required to switch to flow-through with respect to pre-1970 property. See §167(i)(l). But § 167 (l) on its face does not preclude the Commission from éxercising its statutory powers to permit a utility to abandon flow-through. Section 167(1) (1)(B) provides that “[i]n the case of any pre-1970 public utility property, the taxpayer may use the applicable 1968 method for such property if — (i) the taxpayer used a flow-through method of accounting” prior to August 1969. (Emphasis added.)

The Court of Appeals, however, found error in the Commission’s action based on its detailed and considered analysis of the legislative history of § 167 (l). It concluded that “the final version of the bill limits the applicability of the right of election to post-1969 expansion (non-replacement) property alone.” 149 U. S. App. D. C., at 246, 462 F. 2d, at 861 (emphasis in original). It reasoned as follows. At the House stage the action of the Commission would have been justified to switch to normalization because, as already noted, the House Report stated:

“Your committee’s bill provides that, in the case of existing property, the following rules are to apply:
“(1) If straight line depreciation is presently being taken, then no faster depreciation is to be permitted as to that property.
“(2) If the taxpayer is taking accelerated depreciation and is 'normalizing’ its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property.
“(3) If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property.” (Emphasis added.)

The word “existing” property as used in that Report included “replacement” property in the mind of the Court of Appeals.

The Senate version of the bill would have permitted Texas Gas to shift from liberalized depreciation with flow-through either to straight-line depreciation or with the Commission’s approval to liberalized depreciation with normalization. 149 U. S. App. D. C., at 247, 462 F. 2d, at 862.

The Court of Appeals, however, concluded that because the right of election was restricted while the bill was in conference to apply only to post-1969 expansion property, the Commission could not permit a utility to change its method with respect to existing or replacement property. Ibid. It relied on the following four paragraphs from the Conference Report.

“The House bill provides that in the case of certain listed regulated industries (the furnishing or sale of . . . gas through a local distribution system, . . . and transportation of gas by pipeline) a taxpayer is not permitted to use accelerated depreciation unless it ‘normalizes’ the current income tax reduction resulting from the use of such accelerated depreciation. . . .
“This rule is not to apply in the case of a taxpayer that is at present flowing through the tax reduction to earnings for purposes of computing its allowable expenses on its regulated books of account. Also, if the taxpayer is now using straight line depreciation as to any public utility property it may not change to accelerated depreciation as to that property.
“The Senate amendment makes the following changes in the House bill: . . . (d) an election is permitted to be made within 180 days after the date of enactment by a company at present on flow-through to come under the rules of the bill . . . .
“The conference substitute (sec. 44-1 of the substitute and sec. 167 (l) of the code) follows the Senate amendment except that the special provision referred to in (e) above is stricken and the 180-day election (item (d), above) is modified to apply to new property and not to replacement property. Even in the case of new property, however, the right to change over from the flowthrough method is to be available only to the extent the new property increases the productive or operational capacity of the company” (Emphasis added.)

From these four paragraphs the Court of Appeals concluded that the second paragraph of the Conference Report prohibits Texas Gas from abandoning liberalized depreciation with flow-through and that the right of election was restricted to post-1969 expansion property only.

The second paragraph, however, as we read it, when it uses the words “This rule” refers, not to the final bill, but to the initial House bill. That initial bill, as summarized in the House Report, as already noted, had somewhat different provisions for depreciation. The first paragraph of the quotation from the Conference Report in our view summarized the House’s proposed second rule. The words “This rule” in the second paragraph, therefore, refer to the House’s proposed second rule. Only the third paragraph of the excerpt reached the changes made by the Senate. Only the fourth paragraph resolved the differences between the two bills. There is nothing in either the third or the fourth paragraph to indicate that the election authorized by the Conference Report was to limit or replace the three general rules proposed by the House, the third House-proposed rule authorizing precisely what the Commission allowed in this case. The second paragraph, read in the context of the Conference Report, does not state that the Commission-lacks authority to permit a company on flow-through to abandon it with respect to existing property. It only states that a company on flow-through may remain on flow-through. Thus, it is solely a limitation on the requirement that a company must normalize if it wants to continue accelerated depreciation with respect to pre-1970 property. This is entirely consistent with the structure of § 167 (l) (1).

Nor is the extension of the 180-day election to post-1969 expansion property a limiting factor. The “reasonable” allowance for depreciation of post-1969 property as used in § 167 (l)(2) includes in subparagraph (C) “the applicable 1968 method, if, with respect to its pre-1970 public utility property of the same (or similar) kind most recently placed in service, the taxpayer used a flow-through method of accounting for its July 1969 accounting period.” But § 167 (l) (4) (A) provides that where the taxpayer makes an election within the 180-day period, paragraph (2)(C) shall not apply with respect to any post-1969 public utility property “to the extent that such property constitutes property which increases the productive or operational capacity of the taxpayer” and does not represent “the replacement of existing capacity.”

Thus, the Act recognizes ways for a utility to abandon flow-through with respect to existing property. A utility cannot do so on its own; the overriding authority is in the Federal Power Commission. The staff of the Joint Committee on Internal Revenue Taxation prepared a General Explanation of this tax measure in which it stated:

“If the taxpayer was taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes as of August 1, 1969, then the taxpayer would continue to do so (except for a special election procedure discussed below), unless the appropriate regulatory agency permits a change as to that property.”

This document goes on to state that as respects new property a utility on flow-through must remain on flow-through “unless the regulatory agency permits it to change (or unless the election below applies).”

This document provides a compelling contemporary indication that the Federal Power Commission was not deprived of its authority to permit abandonment of flow-through, even though utilities had the right not to have flow-through apply to their expansion property.

The Court of Appeals relied on comments both in the House and in the Senate Reports of the desire of Congress to “freeze” the current practices relating to depreciation especially as respects “the more flourishing utility industries.”

As we read the Reports, the purpose was to forestall switches to faster methods of depreciation, to guard against widespread rate increases, and to avoid putting some utilities at a competitive disadvantage. But the “freeze” was not put in absolute terms. Shifts from straight-line to accelerated depreciation were outlawed, as were shifts from normalization to flow-through on existing property. We find no trace of a suggestion that the Federal Power Commission was denied authority to determine whether on particular facts the abandonment of flow-through by a utility within the parameter of the Tax Reform Act of 1969 would be in the public interest as envisaged by the Natural Gas Act, even though it might increase rates. The “freeze” certainly was designed to cover changes to faster methods of tax depreciation but not changes to slower methods of tax depreciation that the Commission might permit.

The Court of Appeals sustained the Commission as respects the post-1969 expansion property of Texas Gas, and reversed it as respects the pre-1970 and post-1969 nonexpansion property. The Court of Appeals did not reach the validity of the Commission’s order, assuming the Commission was correct in its reading of the Tax Reform Act of 1969, as we think it was. The Court of Appeals did, however, state that § 167 (l) “should not be construed to prevent” the Commission from finding in “extraordinary circumstances” that consumer interests “would be furthered by permitting the abandonment of flow-through.” But it added: “It is clear, however, that such consumer interests would not be furthered by permitting Texas Gas to abandon flow-through in the circumstances presented by the case at bar.” 149 U. S. App. D. C., at 250, 462 F. 2d, at 865. The Commission in its petition for certiorari states that in connection with the main question raised it would argue, if the petition were granted, that its decision on the merits was correct in all respects. And in its brief on the merits it urges us to decide the merits. But by statute the Court of Appeals is the tribunal where review must be sought; and we remand the cases to it for proceedings consistent with this opinion. We note in closing, however, that the judgment of the Court of Appeals is reversed in toto. Its holding that the consumer interests were not furthered by the Commission's action is short of the application of the appropriate standard for review. As already noted, under Hope Natural Gas rates are “just and reasonable” only if consumer interests are protected and if the financial health of the pipeline in our economic system remains strong.

Reversed and remanded.

       Section 167 (a) provides that “[t]here shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)” of qualified property. Section 167 (b) defines “reasonable allowance” to include an allowance computed under the declining balance method and the sum-of-the-years-digits method, as well as the straight-line method. Under the declining-balance and sum-of-the-years-digits method, both commonly referred to as accelerated or liberalized depreciation methods, depreciation allowances in the early years are higher than under the straight-line method, but steadily decrease over the useful life of the asset. Under the straight-line method, the depreciation allowance for an asset remains equal over its useful life.

       Federal income taxes are properly included as an expense under the cost-of-service ratemaking utilized by the Commission in the regulation of rates for sales of natural gas subject to its jurisdiction under the Natural Gas Act, 15 U. S. C. § 717 et seq. See FPC v. United Gas Pipe Line Co., 386 U. S. 237, 243.

       See H. R. Rep. No. 91-413, pt. 1, pp. 131-132; S. Rep. No. 91-552, p. 172.

       See H. R. Rep. No. 91-413, pt. 1, pp. 132-133; S. Rep. No. 91-552, p. 172.

       H R. Rep. No. 91-413, pt. 1, p. 133.

       S. Rep. No. 91-552, p. 173.

         See H. R. Conf. Rep. No. 91-782, p. 313.

       Section 167 (l) (3) (A) provides:
      “The term ‘public utility property’ means property used predominantly in the trade or business of the furnishing or sale of—
      “(i) electrical energy, water, or sewage disposal services,
      “ (ii) gas or steam through a local distribution system,
      "(in) telephone services, or other communication services if furnished or sold by the Communications Satellite Corporation for purposes authorized by the Communications Satellite Act of 1962 (47 U. S. C. [§] 701), or
      “(iv) transportation of gas or steam by pipeline,
      “if the rates for such furnishing or sale, as the case may be, have been established or approved by a State or political subdivision thereof, by any agency or instrumentality of the United States, or by a public service or public utility commission or other similar body of any State or political subdivision thereof.”

       In Order No. 404, 43 F. P. C. 740, rehearing denied, 44 F. P. C. 16, the Commission announced that as a general policy it would permit utilities making the election under § 167 (l) (4) (A) to use accelerated depreciation with normalization with respect to their expansion property. The Court of Appeals, in the same decision under review here, affirmed this order. 149 U. S. App. D. C. 238, 250, 462 F. 2d 853, 865. That part of the court’s decision is not before us.

       The Commission’s order reads:
      “ (A) In the computation of its Federal Income Tax allowance for ratemaking purposes as well as for accounting purposes, Texas Gas is permitted to use liberalized depreciation with normalization with respect to its property other than that subject to election under Section 167 (l) (4) (A) of the Internal Revenue Code as amended by Section 441 of the Tax Reform Act of 1969. Such election applies to property constructed or acquired on or after January 1, 1970, to the extent it increases the productive or operational capacity of the company and does not represent the replacement of existing capacity. Texas Gas may reflect any such change in its rates, as well as any change in costs arising from its proposed election. In computing its cost-of-service for ratemaking purposes balances in Account 282 [deferred tax reserve account] should continue to be deducted from the rate base.” 43 F. P. C. 824, 831.

       Memphis Light, Gas & Water Division, a municipally owned distributor of natural gas and a city-gate customer of Texas Gas, and the Public Service Commission of the State of New York petitioned the Court of Appeals for review of the Commission’s Opinion No. 578. Each had filed an application for rehearing before the Commission which was denied in Opinion No. 578-A. Both the Federal Power Commission (in No. 72-486) and Texas Gas (in No. 72-488) petitioned this Court for a writ of certiorari.

       H. R. Rep. No. 91-413, pt. 1, p. 133.

       S. Rep. No. 91-552, pp. 173-174
      “The [Senate] committee amendments, while in most respects the same as the House provisions, differ in one principal area. The amendments permit an election to be made within 180 days after the date of enactment of the bill for a utility covered by this provision to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or permit it with the permission of the regulatory agency to shift to the normalization method (that is, to come under general rules of the bill).

        “This election applies both as to new and existing property. . . . Since the company would no longer be permitted to use accelerated depreciation (unless the agency later permits it to normalize), the agency would not be able to impute the use of accelerated depreciation with flow-through.” (Emphasis added.)

       H. R. Conf. Rep. No. 91-782, pp. 312-313.

       H. R. Rep. No. 91-413, pt. 1, p. 133.

       The second rule, as noted, provided, “If the taxpayer is taking accelerated depreciation and is ‘normalizing’ its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property.” Ibid.

       The third rule, as noted, provided, “If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property.” Ibid.

       General Explanation of the Tax Reform Act of 1969, H. R. 13270, 91st Cong., p. 151.

        Ibid.

       H. R. Rep. No. 91-413, pt. 1, pp. 132-133.

       S. Rep. No. 91-552, p. 172

        Ibid.

       Section 19 (b) of the Natural Gas Act, 15 U. S. C. § 717r (b), provides:
      “Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia [Circuit] . . .