Undercover Agents' Urging of Defendants to Cook Powder into Crack Cocaine Is Not Sentence Entrapment; Crack Cocaine Mandatory Minimum Is Not Cruel or Unusual Punishment, DC Circuit Court of Appeals Rules

IN THE COURTS February 1996

The U.S. Court of Appeals for the District of Columbia Circuit ruled on December 8 that undercover DEA agents' demands that the defendants to cook powder cocaine into crack was not "sentencing" entrapment (U.S. v. Walls, 70 F.3d 1322 (DC Cir. 1995), reversing the trial court in part, (841 F.Supp. 24); 58 CrL 1247).

Riley Walls and Jerome Jackson were arrested after undercover Drug Enforcement Administration (DEA) agents made numerous controlled buys of crack cocaine from Walls. After having sold heroin to some DEA agents, Walls was set up again by other agents posing as crack dealers. Walls said that he would have no problem providing them with crack. He obtained powder cocaine from Jackson, but could not find anyone to cook it into crack. The agents told Walls that they would not buy the cocaine unless it was in the form of crack. Walls then found Karen Blakney to cook it, and the agents purchased the crack. Walls and Jackson were sentenced to mandatory life sentences, but appealed the sentence, arguing that they should have been sentenced for powder cocaine, not crack. The trial judge, in sentencing Blakney, a drug addict, found the 10-year mandatory minimum sentence violated the Eighth Amendment prohibition against cruel and unusual punishment.

During the trial, DEA agent Mark Ross testified that he insisted that Walls have the powder cocaine cooked into crack because "crack cocaine is less expensive than [powder] cocaine, and we felt like through our investigation, that it takes fifty grams of crack cocaine to get any target over the mandatory ten years." Ross' answer was struck after the government objected.

The court found that Walls and Jackson were predisposed to be participants in drug dealing -- whether that meant dealing in powder or crack cocaine -- and therefore were ineligible to claim any kind of sentence entrapment defense.

The Circuit Court of Appeals concluded that if the DEA agents' conduct had any significance, it would only be if "the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from involving judicial processes to obtain a conviction" (citing dictum in U.S. v. Russell, 411 U.S. 423, 431-32 (1973)). The court expressed doubt that this defense has much vitality, and found that it presents no basis to justify a reduction in sentence. Walls and Jackson faced a mandatory life sentence by the statute, and a departure is justified only if required by the Constitution. The defendants rely upon the due process clause. The due process clause, if violated by outrageous police conduct ("coercion, violence or brutality to the person," U.S. v. Kelly, 707 F.2d 1460 (D.C. Cir.), cert. denied 464 U.S. 1460 (1983)), would require a dismissal of the charges. That does not exist here since the court upheld the conviction. There is no authority for a lesser remedy of reduced sentence.

This opinion appears to establish a rule in the D.C. Circuit that disallows sentencing departures on the basis of alleged sentence manipulation. This opinion has the effect of severely limiting any further applicability of U.S. v. Shepherd, 857 F.Supp. 105 (DDC 1994) (see "Judge Rules that DEA Agent Unfairly Manipulated Cocaine Case to Obtain Harsher Prison Sentence," NewsBriefs, August 1994, p. 1).

The Court of Appeals found no government misconduct (including no "emanations" of racism) in the mandatory penalty to be imposed on Blakney. Congress' "enactment of higher penalties for crack offenses dd not result from any discriminatory purpose." The Court of Appeals rejected the approach that an Eighth Amendment cruel and unusual punishment analysis might be warranted when a defendant to a charge of possessing (or manufacturing or distributing) drugs is an addict. The Eighth Amendment did not authorize departing from a mandatory 10-year sentence to impose a 30-month sentence upon Karen Blakney.