United States v. William Christopher Twigg, Iii, United States of America v. Henry Alfred Neville

ADAMS, Circuit Judge,

dissenting.

For almost fifty years the legal community has been divided over what a court’s attitude should be when law enforcement agents are accused of encouraging criminal' activity so as to gather evidence for a prosecution. Such police activity is generally referred to as “entrapment” and historically there have been two basic views on how it should be treated. On one side, it has been argued that government activity of this nature should be evaluated on an “objective” basis — that is, that a court should judge-the propriety of the law enforcement techniques themselves — and that official involvement that goes “too far” should not be tolerated.1 On the other side, it has been said that only the “subjective” intent of the criminal should be weighed, and that he cannot be considered “entrapped” if he was “predisposed” to commit the crime regardless of the extent of governmental involvement.2

It can no longer be doubted that the Supreme Court has resolved this debate in *383favor of those who wish to emphasize the accused’s predisposition to commit the crime.3 When, as in the case before us now, the defendants are found to have been willing participants in the crime, they may not avoid conviction by claiming that they were entrapped. Thus, although Neville argued the classical entrapment theory both at the trial and on appeal, the jury finding of predisposition, supported here by substantial evidence, effectively precludes reversal on such grounds.

But the defendants also contend that even if they are foreclosed from resorting to the traditional entrapment defense, the official involvement in this particular case was so extensive that they were denied due process of law. The possibility of scrutiny of law enforcement techniques under the due process clause has been left open by the Supreme Court.4 The only issue in this appeal, therefore, is what margin, if any, is left by the case law for vindication under the due process clause of the policies voiced by those favoring the objective approach to analyzing a claim of entrapment.

Like the majority, I view the government involvement here with a certain degree of concern. Indeed, I do not personally approve of the level of official involvement in this particular case. Unlike the majority, however, I do not believe that the government’s activity can be classified as unconstitutional, at least not under the most recent decisions of the Supreme Court. As I read those cases, the possibility of due process review of the activities of our law enforcement agencies was reserved only for truly “outrageous” cases. Due process analysis was not intended simply to reestablish the objective approach to entrapment under a new name. Because I do not believe this situation presents the intolerable set of facts necessary to warrant resort to the due process clause, I must dissent.

I.

This case deals with the manufacture of drugs. As the majority notes, in the fall of 1976, the Drug Enforcement Agency (DEA) utilized a convicted drug offender, Robert Kubica, to suggest to Henry Neville that they reestablish an amphetamine manufacturing operation similar to that in which Kubica and Neville had previously been engaged in New York. The government thus suggested the illegal scheme, and Neville maintained at trial that he was entrapped.

*384In addition to taking this initiative, the DEA supplied the participants with eight kilograms of phenyl-2-propanone,5 with certain other chemicals, and, in the person of Kubica, with the chemical expertise necessary to manufacture the contraband. The government also furnished some of the laboratory glassware and, ultimately, the farmhouse that served as the site for the laboratory. Neville provided eighty per cent of the capital needed for the operation and the “contacts” through which the illegal drugs would be sold. He also brought into the conspiracy the defendant Twigg, who assisted Kubica in obtaining materials and with the actual manufacture of the drug.

In sum then, the combination centered around Kubica’s chemical expertise and Ne-ville’s financing and connections. Twigg appears to have been only an assistant. That the idea to renew the previously existing drug manufacturing and distribution team of Kubica and Neville can be traced to the government is beyond question; however, it is clear that Neville and Twigg were found to be previously disposed to participate in the venture and were active participants throughout. I do not understand the majority to disagree with this outline of the facts.

II.

The majority and I differ only on the proper application of the remnant of the “objective” analysis left open by Mr. Justice Powell in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the latest Supreme Court statement on the subject. In Hampton a plurality of three Justices — the Chief Justice, Mr. Justice Rehnquist, and Mr. Justice White— urged a per se rule that would allow defenses based on the acts of government agents only when defendants establish that they were not predisposed to commit the crime.6 Such a rule would eliminate any possibility of judicial scrutiny of the law enforcement techniques themselves, and thus constitute a rejection of the objective approach.

Mr. Justice Powell, in a concurring opinion joined by Mr. Justice Blackmun, agreed that the typical entrapment defense should be focused entirely on the question of predisposition, and thus endorsed the dominant “subjective” approach. But Justice Powell declined to adopt a rule forswearing ever overturning a conviction because of the extent or nature of the governmental overinvolvement in the crime. He therefore left open some possibility of use of an “objective” analysis based on governmental conduct, at least in certain extreme cases:

The plurality thus says that the concept of fundamental fairness inherent in the guarantee of due process would never prevent the conviction of a predisposed defendant, regardless of the outrageousness of police behavior in light of the surrounding circumstances.
I do not understand Russell or earlier cases delineating the predisposition-focused defense of entrapment to have gone so far, and there was no need for them to do so. In those cases the Court was confronted with specific claims of police “overinvolvement” in criminal activity involving contraband. Disposition of those claims did not require the Court to consider whether overinvolvement of Government agents in contraband offenses could ever reach such proportions as to bar conviction of a predisposed defendant as a matter of due process. Nor *385have we had occasion yet to confront Government overinvolvement in areas outside the realm of contraband offenses. In these circumstances, I am unwilling to conclude that an analysis other than one limited to predisposition would never be appropriate under due process principles.7

The three dissenting Justices — Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall — agreed with Justice Powell that the possibility of a due process test of governmental overinvolvement remained open.8 Because five members of the Court thus expressed support for this possibility, it may fairly be assumed to constitute the prevailing rule.

It seems apparent, however, that the remnant of the objective analysis left standing by Hampton may be applied only to truly “outrageous” cases. As a matter of logic this must be true if the decisions of the Supreme Court in Sorrells, Sherman, Russell and Hampton are to have any force. For, once the Supreme Court has decided to eschew close scrutiny of law enforcement techniques under the objective approach to entrapment, it would seem somewhat inconsistent for it to announce a new doctrine allowing just such a review. Had a majority of the Court intended that due process review of government involvement in crime should constitute anything more than a seldom used judicial weapon reserved for the most unusual cases, it would have been more forthright for it to have adopted the position eloquently urged by the minority voices in Sorrells, Russell and Hampton, instead of seeking to reach the same result under a different rubric.

Not surprisingly, the language used in both Russell and Hampton indicates that no such back-door reincarnation of the objective approach was intended. Russell speaks of conduct “so outrageous” that it would violate “fundamental fairness” and be “shocking to the universal sense of justice” mandated by the due process clause.9 Justice Powell, in his Hampton concurrence, is more direct in explaining that this approach is only rarely — if ever — to be resorted to by a court:

I emphasize that the cases, if any, in which proof of predisposition is not dis-positive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses, which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic, which is one of the major contributing causes of escalating crime in our cities. . Enforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity.10

We must therefore inquire whether the facts of this case reach that “demonstrable level of outrageousness” necessary to warrant judicial interference.

III.

Admittedly, it is difficult to know what standards to apply in order to conclude that a given course of action is “outrageous.” Nonetheless it is necessary to begin somewhere, and perhaps the best place to start is with Hampton itself. Although a majority of the Court in Hampton concluded that it was possible to reverse an exceptional case on grounds of government “overinvolvement,” a different majority also concluded *386that on the actual facts of Hampton such an extraordinary intervention by the Court was unwarranted.

Yet the government involvement in Hampton was extensive. Hampton was arrested for the distribution of heroin. Government agents apparently provided the contraband, arranged for the sale, and purchased the drug. As Justice Brennan noted in dissent: “The Government is doing nothing less than buying contraband from itself through an intermediary and jailing the intermediary.”11 But the hard truth is that the Supreme Court did not find Hampton to reach that “demonstrable level of outrageousness” required by Mr. Justice Powell.

The facts in this case are less persuasive for reversal than were those in Hampton. Here, none of the chemicals, glassware, money, or skill provided by the government was itself contraband. Ultimately these items were used to create amphetamines, and this was done with the active participation of the government, but by that time both defendants were themselves taking an active part in the criminal conspiracy. It is true that the government, through Kubica, suggested the operation, but that is the situation in many undercover operations, and was the case in Hampton. As for the decision to provide the farmhouse as a laboratory site, it appears not only not to have been “outrageous,” but to have been a justifiable response under the circumstances.12

I do not mean to suggest that the government activity in this case was not substantial. The wisdom of using agents provocateurs in this fashion and at such expense in time and money is open to serious question, both on ethical and tactical grounds. Although many courts have allowed such undercover activity, few have done so with specific approval or encouragement.13 But it is entirely another matter, in the light of Russell and Hampton, to conclude that this case, unlike others involving the use of comparable tactics, is in someway “shocking” or “outrageous.” In short, this does not appear to be the extreme case contemplated by Mr. Justice Powell in Hampton.

The majority’s argument to the contrary relies primarily on pre-Hampton cases. Like the majority, I admire Judge Hastie’s excellent opinion for this Court in United States v. West,14 and regret in many ways that the Supreme Court did not find it more persuasive in Hampton. But whatever its merits may have been, I cannot, unfortunately, join the majority in their belief that that opinion or its “principles” can survive Hampton. The facts of West, as the majority notes, are virtually indistinguishable from Hampton. I do not see how we can rely on West to tell us what is “outrageous” if the Supreme Court has determined in a subsequent opinion, and after specifically considering West, that government involvement in a similar perhaps even more questionable situation, is not “outrageous” enough to justify a reversal.15

In finding a demonstrable level of outrageousness on the facts here, the majority is particularly conscious of the government’s role in instigating the crime. Admittedly, *387this element of provocation was not present in either Russell or the recent decisions of other circuits distinguished in the majority opinion.16 But I do not believe that government incitement, however much I question its advisability, can be seen as the crucial element establishing the level of outrageousness necessary to find a violation of the due process clause. I am so convinced for three reasons.

First, there was government instigation in Hampton and it did not lead to a reversal.17 The majority distinguishes Hampton by suggesting that “extreme methods” may be more justifiable in cases involving the sale of drugs, “a much more fleeting and elusive crime to detect than the operation of an illicit drug laboratory.” Majority opinion, supra at 378. Whether or not laboratories are, in fact, easier to detect, I am reluctant to embrace a rule that allows otherwise “outrageous” conduct in the pursuit of small-time pushers but forbids these tactics when aimed at manufacturers of drugs and their financiers. If instigation of the crime is permissible in the former case, I do not see how we can invoke the due process clause to forbid it in the latter.

Second, a claim of instigation or incitement appears to be logically connected to the question of predisposition. Government instigation is important because it raises questions about the defendant’s intent: it must be determined whether he was predisposed to commit the crime or whether the governmental activity “deceptively implanted the criminal design” in his mind. United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). This is the traditional entrapment defense. The defendants here argued that they were lured, in effect, into the criminal scheme by government agent Kubica. Entrapment might have been found on such facts, but the jury concluded that Neville and Twigg were predisposed to commit the crime. Once one credits this finding, the problem of instigation, although it remains an element of the government activity, should assume a much less important position in the analysis of this appeal.18

Third, instigation of a crime may be “outrageous” in the context of some forms of criminal activity but acceptable in the context of others. One can hardly disagree *388with Judge Friendly that it would be “unthinkable, for example, to permit government agents to instigate robberies and beatings merely to gather evidence to convict other members of a gang of hoodlums.” 19 But, as Justice Powell recognized in Hampton,20 contraband offenses present a different question. In the field of drug enforcement, instigation is quite common. Indeed, the use of instigation as a primary technique in large part distinguishes the DEA from other law enforcement agencies.21 To place so heavy an emphasis on instigation as an important element of “outrageous” conduct might well make effective enforcement of our drug laws most difficult. Under these circumstances, I am unable to join the Court in relying on the government’s “instigation” of this conspiracy as support for the conclusion that the government involvement here was “outrageous.”22

It is true, of course, that the government did more here than “suggest” the operation. Through Kubica it provided chemicals, some laboratory equipment, money, and chemical expertise. But it must be remembered that Kubica was re-creating the partnership he had had with Neville a few years earlier. He would inevitably be expected to perform the same duties he had undertaken then. If the government were unable to do as much as it in fact did, the entire operation directed against Neville would have been impossible.

Why the government was willing to use Kubica in this way in order, to reach Neville is unclear. The majority appears to be of the view that Kubica, with his chemical expertise, was the more valuable catch and the more logical target for hard nosed prosecution.23 This may well be the case. But I am reluctant to second-guess the DEA choice of target. Neville, after all, was able to provide both money and “contacts.” It cannot be said with any certainty that such a person may not ultimately prove more important than a chemist in breaking up *389the network of drug manufacturers and suppliers in this country.

Whatever our judgment of their wisdom may be, DEA officials chose to utilize Kubica to pursue Neville. Given this decision, as a practical matter, they had to furnish through Kubica the same skills and materials Kubica had provided in the earlier conspiracy. This they did; and Neville, and through Neville, Twigg, willingly participated in the conspiracy. Although there is reason to question this sort of law enforcement, I cannot say that it shocks my conscience or that it reaches a demonstrable level of outrageousness beyond my toleration. This is so in part because I recognize the difficulties faced by the DEA in com-batting the spread of illegal drugs. But, more importantly, I am particularly mindful of Russell’s warning that the federal judiciary is not to exercise “ ‘a Chancellor’s foot’ veto over law enforcement practices of which it [does] not approve.”24 To broaden the limited exception fashioned by Mr. Justice Powell in Hampton may well have just such an effect. Because I believe that that opinion authorizes judicial intervention under the due process clause only in extreme cases, I must respectfully dissent from the majority’s reversal of the convictions of both Neville and Twigg.

. See United States v. Russell, 411 U.S. 423, 439, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (Stewart, J., dissenting); Sherman v. United States, 356 U.S. 369, 378, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring); Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 77 L.Ed. 413 (1932) (Roberts, J., separate opinion). In Sorrells, Justice Roberts clearly stated the objective view:

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, 53 S.Ct. at 219. The objective view has, in differing forms and degrees, continued to command the allegiance of a minority of the Supreme Court. In each of the cases cited above, however, it was rejected by the majority of the Court.

. “ . [Tjhe entrapment defense ‘focuses on the intent or predisposition of the defendant to commit the crime,’ rather than upon the conduct of the Government’s agents.” Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976). “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.” United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366 (1973). See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

. See note 2 supra.

The objective position, however, appears to remain the more popular among the commentators and in the academic community. See Park, The Entrapment Controversy, 60 Minn.L. Rev. 163, 167 n. 13 (collecting authorities; Professor Park himself prefers a modified subjective approach). The objective approach was endorsed by the American Law Institute in 1962. Model Penal Code § 2.13 (Official Draft, 1962).

There also appears to be a greater willingness on the part of some states to accept the objective view, despite its rejection by the federal courts. See State v. Mullen, 216 N.W.2d 375 (Iowa 1974); People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973); Grossman v. State, 457 P.2d 226 (Alaska 1969). See also State v. Talbot, 71 N.J. 160, 364 A.2d 9 (1976); Note, 8 Seton Hall L.Rev. 316 (1977).

In Talbot the New Jersey Supreme Court recognized that its view of the proper contours of the entrapment defense differed from that expressed by the Supreme Court in Hampton but noted that it was free to reach its own conclusion within the confines of New Jersey law. Needless to say a federal appeals court enjoys no such freedom.

. Hampton v. United States, 425 U.S. 484, 491, 96 S.Ct. 1646, 48 L.Ed.2d 113 (Powell, J. concurring); Id. 495, 96 S.Ct. 1653 (Brennan, J., dissenting). The Hampton decision is fully discussed infra.

It has often been suggested that, as an alternative to use of the due process clause, courts may base their refusal to countenance outrageous law enforcement practices upon their supervisory powers. These powers generally have been used to regulate the conduct of judicial proceedings, and their extension to the governance of law enforcement agencies traditionally “supervised by the executive branch or by passage of laws by Congress,” United States v. Leja, 563 F.2d 244, 247 (6th Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978), raises serious questions about the power and role of the federal judiciary in our society. Because I question the authority of a federal court to regulate the conduct of DEA agents, 1 believe the question of government overinvolvement should be considered in terms of the constitutional duty of the courts to protect individual rights under the due process clause.

. Phenyl-2-propanone is an ingredient indispensible to the manufacture of amphetamines, or “speed.” Although p-2-p is not contraband, it is difficult to obtain. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1978).

. In his plurality opinion in Hampton, Justice Rehnquist stated:

“In [Russel/,] [w]e ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a cáse, such as this one, where the predisposition of the defendant to commit the crime was established. . . . The remedy of the criminal defendant with respect to the acts of Government agents, which . . . are encouraged by him, lies solely in the defense of entrapment.” 425 U.S. at 488-90, 96 S.Ct. at 1649-50. (Emphasis supplied.)

. Id. at 492-93, 96 S.Ct. at 1651-52 (Powell, J. concurring) (citations omitted).

. The dissenters endorsed the traditional objective position for entrapment cases generally, but they also specifically agreed with Justice Powell’s position on the possibility of use of the due process clause, or the Court’s supervisory powers, to overturn convictions secured through “sufficiently offensive” official conduct. Id. 497, 96 S.Ct. 1653 (Brennan, J., dissenting). In the view of the dissenters, Hampton itself was such a case.

Mr. Justice Stevens did not participate in Hampton.

. 411 U.S. at 431-32, 93 S.Ct. at 1643.

. 425 U.S. at 495 n. 7, 96 S.Ct. at 1653 n. 7 (emphasis supplied).

. Id. at 498, 96 S.Ct. at 1654 (Brennan, J., dissenting).

. Neville had announced his intention of standing guard with a loaded shotgun while the laboratory was in operation. The government’s decision to guide the lab site to a relatively isolated area in order to avoid possible danger to innocent people was thus a safety measure. See Brief for Appellee at 7-8.

. See, e. g., United States v. Leja, 563 F.2d 244, 246 (6th Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978) (“We cannot affirmatively approve of the government’s activity in this case. . . . Our guardianship of constitutional principles, however, is not measured by personal distaste”).

. 511 F.2d 1083 (3d Cir. 1975).

. The other case noted by the majority, Greene v. United States, 454 F.2d 783 (9th Cir. 1971), concerned government involvement to my mind less extensive than the activity complained of in either this case or Hampton. There the government provided only a market for the contraband, and money for one easily obtainable ingredient, sugar. It did not assist in the production of the contraband itself. In Greene the most troubling element of the government’s involvement — continued persuasion of defendants to produce the contraband— seems to go to defendants’ predisposition or lack of it. In my view, therefore, that opinion, too, is of doubtful validity after Russeli and Hampton. But see 425 U.S. at 493 n. 3, 96 *387S.Ct. 1646 (Powell, J., concurring). Nor has the Ninth Circuit in more recent years read Russell to allow anything other than the most limited type of due process claim. See United States v. Smith, 538 F.2d 1359 (9th Cir. 1976); United States v. Lue, 498 F.2d 531 (9th Cir.), cert. denied 419 U.S. 1031, 95 S.Ct. 513, 42 L.Ed.2d 306 (1974).

Both Greene and West provoked dissents, by Judge Merrill in the former case and by Judge Weis in the latter. The conclusion is inescapable that the views expressed in those opinions better reflect those of the majority of the Supreme Court.

. Majority opinion, supra, at 379-380.

. Nor is Hampton the only case of actual inducement ever confronted by the Supreme Court. Most consensual crime investigation involves elements of inducement. Even an offer to purchase heroin from a suspect may be described as an instigation of the sale.

That the “idea” for the crime originated with the government is not, at least in and of itself, fatal to a prosecution. As Justice Holmes noted in a drug-related case fifty years ago:

. Casey according to the story, was in no way induced to commit the crime beyond the simple request of Cicero to which he seems to have acceded without hesitation and as a matter of course. . . . We are not persuaded that the conduct of the officials was different from or worse than ordering a drink of a suspected bootlegger.

Casey v. United States, 276 U.S. 413, 419, 48 S.Ct. 373, 374, 72 L.Ed. 632 (1928).

. The majority opinion, despite its acceptance of the jury’s finding of predisposition, seems at times reluctant to fully accept its rejection of the entrapment claim. Thus the majority notes that “[T]he only evidence that Neville was predisposed to commit the crime was his receptivity to Kubica’s proposal to engage in the venture and the testimony of Kubica that he had worked with Neville in a similar laboratory four years earlier.” Majority opinion, supra, at 381. Later it is stated: “Using Kubica . . . the DEA agents deceptively implanted the criminal design in Neville’s mind.” Id. at 381. And later still, the government is criticized for pursuing Neville when, “as far as the record reveals, he was lawfully and peacefully minding his own affairs.” Id.

But the majority agrees that the evidence was sufficient to support a finding of predisposition and a rejection of the entrapment argument. Given the jury’s findings, the defendants cannot properly be described as innocents lured into this criminal enterprise. They were *388“unwary criminals,” not “unwary innocents.” See United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (quoting Sherman); Willis v. United States, 530 F.2d 308 (8th Cir. 1976).

It is the entrapment defense, not the due process clause, that comes into play if the government “implant[s] the criminal design in the mind of the defendant.” 411 U.S. at 436, 93 S.Ct. at 1645. See note 2 supra. But that defense was unsuccessful here. Although Kubica suggested the renewal of their previous activity, there is no evidence that he needed to persuade Neville, through continued blandishments or appeals to personal friendship. The “instigation” complained of here seems no greater than that discussed by Mr. Justice Holmes in Casey, supra n. 17. Kubica’s phone call was “a simple request” to which Neville “seems to have acceded without hesitation and as a matter of course.” Id.

. United States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973).

. 425 U.S. at 495 n. 7, 96 S.Ct. at 1653.

. See J. Wilson, The Investigators (1978). A recent commentator summarized one of Professor Wilson’s observations:

Professor Wilson shows that the work of the FBI agents, differs sharply from that of their DEA counterparts. Because the former, for the most part, investigate crimes already committed and reported, their prime task is interviewing. DEA agents, on the other hand, have jurisdiction over consensual crimes, illegal drug transactions, which are rarely reported. Therefore the DEA agent must work under cover to instigate transactions under circumstances where evidence of the transaction can be produced. Skills needed by DEA agents are, therefore, not the same as those that best serve the FBI. DEA agents must learn to blend into the drug culture with the aid of criminals compensated by either cash or promise of prosecutive leniency.

Silberman, Manager’s Journal, the Wall Street Journal, Sept. 11, 1978, at 24.

. Moreover, even if I were persuaded by the majority’s argument as to defendant Neville, I would reject their conclusion as to defendant Twigg. There was no government inducement of Twigg at all. He was brought into the crime by Neville. Instigation by a private person has never been a defense to criminal charges. Nor have the other facts stressed by the majority, Twigg’s relative unimportance to the overall scheme, the likelihood that he would not share in the proceeds and his motives for undertaking the crime, traditionally been thought to constitute defenses to charges of criminal activity. On these facts I cannot believe that Twigg has even a colorable claim of either entrapment or overinvolvement.

. Majority opinion, supra at 381 n. 9.

. 411 U.S. at 435, 93 S.Ct. at 1644.