Rivera v. State

CARDINE, Justice.

Calik Rivera appeals his conviction for possession of a controlled substance with intent to deliver, in violation of W.S. 35-7-1031(a)(ii) (1988). Most of his challenges center on the propriety of the reverse sting operation which led to his conviction. He also challenges the transactional immunity given to a witness who testified against him. Finding no error in the issues he presents, we affirm.

Appellant states the issues as follows:

I. Whether the trial court erred in instructing the jury on the entrapment issue based upon the assumption that Wyoming had adopted the subjective theory as the sole rationale for the entrapment defense?
II. Whether the trial court erred in denying defendant’s motions to dismiss on the grounds of the objective theory or due process where the evidence of the prosecution demonstrated the police creation of crime, an overzealousness in developing cases, and the disregard of state statutes and regulations?
III. Whether the conviction of the appellant must be reversed because it was obtained by the police violating applicable statutes and regulations forbidding the importation and transfer of contraband except in the course of the investigation of ongoing crime?
IV. Whether testimony produced pursuant to a grant of transactional immunity in disregard of applicable statutes was critical to the prosecution’s case and its wrongful admission requires reversal?

The State adds one issue for our consideration:

Whether appellant has standing to challenge the grant of immunity to Frank Compton?

Appellant was apprehended as part of an undercover “reverse sting” operation in which Jackson, Wyoming police officers *3sold marijuana to persons they had targeted as drug dealers. To conduct the operation, the officers obtained about 100 pounds of marijuana from the Colorado Springs, Colorado police department. They placed the marijuana in a motel room at the 49’er Motel in Jackson and set up a video camera and a hard wire microphone for surveillance in an adjoining room.

To lure suspects into the motel room to make purchases, the police employed an informant named Frank Compton. Compton, a drug addict, had been arrested after attempting to unlawfully obtain cough syrup with codeine at two drug stores in Jackson. After his arrest, Compton agreed to help ferret out drug traffic in Jackson in exchange for having the charges against him dropped. As part of his duties for the police, Compton was to introduce suspected dealers to undercover officers.

Acting under police supervision, Compton introduced undercover officer John Bowers to appellant at appellant’s residence'. Appellant agreed to meet Officer Bowers and Frank Compton at the 49’er Motel to transact a drug deal. At the motel, Bowers, posing as a drug dealer, offered three pounds of marijuana to appellant for $800.00 a pound. This was $400.00 per pound less than the going rate. Appellant had only $1,350.00, so Bowers agreed to “front” him another $1,150.00 worth of marijuana, for a total of three pounds.1 The two men exchanged the money and marijuana, and appellant left the motel room. Appellant was apprehended shortly thereafter with the marijuana.

Failure to Instruct on Objective Theory of Entrapment

In his first issue, appellant argues that the trial court committed reversible error when it failed to instruct the jury on an objective, as well as subjective, theory of entrapment. He assigns as error the omission of the following requested statement from the jury instruction on entrapment:

[Entrapment occurs only when the criminal conduct was the product of the creative activity of the law enforcement officials. It does not arise if one is ready to commit the offense given but the opportunity.

The subjective theory of entrapment focuses on a particular defendant’s intent or predisposition to commit the crime charged, while the objective theory focuses on the effect of the State’s tactics on the hypothetical “reasonable law-abiding citizen.” See LaFleur v. State, 533 P.2d 309, 314 (Wyo.1975); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249 (1932) (subjective theory); United States v. Russell, 411 U.S. 423, 439, 93 S.Ct. 1637, 1646, 36 L.Ed.2d 366 (1973) (objective approach advocated by Stewart, J., dissenting). See also Laura Gardner Webster, Building a Better Mousetrap: Reconstructing Federal Entrapment Theory from Sorrells to Matthews, 32 Ariz.L.Rev. 605, 607 (1990).

The language appellant requested can be found in our entrapment cases. See e.g., Noetzelmann v. State, 721 P.2d 579, 581 (Wyo.1986). However, it is not “objective theory” language, as appellant claims. Although the first of the two statements appellant requested mentions the “creative activity of law enforcement officials,” it does not adopt the objective theory. Even in subjective theory, there is a threshold question whether the police merely offered the defendant an opportunity to commit the crime or whether they somehow induced the defendant to act illegally. Once it has been determined that inducement is involved, the defendant’s predisposition comes into question. This first sentence merely restates the threshold question of the subjective inquiry. Its origin is Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), a case which took the subjective view of entrapment. See Dycus v. State, 529 P.2d 979, 981 (Wyo.1974).

The second sentence which appellant requested actually concerns predisposition, and so it is difficult to understand how it could support the objective theory. In fact, *4both sentences are standard, subjective entrapment language. Even had they been included, they would not have presented the objective theory of entrapment to the jury. In any case, appellant was not entitled to present that theory, because we do not recognize the objective theory of entrapment in Wyoming.2

A review of our past cases on this subject shows that Wyoming follows the subjective approach to entrapment. See Noetzelmann, 721 P.2d at 581; Wright v. State, 670 P.2d 1090, 1102 (Wyo.1983) (Rose, J., dissenting), reh’g denied, cert, granted, opinion modified and remanded, 707 P.2d 153 (Wyo.1985); Janski v. State, 538 P.2d 271, 274-76 (Wyo.1975); Dycus, 529 P.2d at 980-81; Montez v. State, 527 P.2d 1330, 1331-32 (Wyo.1974); Jackson v. State, 522 P.2d 1286, 1288-89 (Wyo.1974); Higby v. State, 485 P.2d 380, 384 (Wyo.1971). See also W. Michael Kleppinger, Note, Criminal Procedure—The Entrapment Defense—The Determination of Predisposition. Janski v. State, 538 P.2d 271 (Wyo.1975), XI Land and Water L.Rev. 265, 270 (1976). But see La-Fleur, 533 P.2d at 314 (taking no position on the subjective/objective issue).

As a part of his argument, appellant urges us to either abandon the subjective theory or supplement it with the objective. We note that the subjective theory has been adopted by the majority of the states. Kleppinger, supra, at 270. That fact alone, of course, is no reason to retain it, and certainly does not argue against supplementing it with the objective standard. However, there are other, more practical reasons for remaining with the subjective test. This court, in the absence of constitutional violations, should not attempt to exercise a “chancellor’s foot” veto over law enforcement practices. See Russell, 411 U.S. at 435, 93 S.Ct. at 1644. Presently existing entrapment law serves the purpose of ensuring that a defendant is not punished who, but for government encouragement, would not have committed an offense. The subjective test is an adequate vehicle to achieve that end.

We have reviewed the instruction the trial court did give, and while it did not use the language found in our cases, it did present an acceptable version of the subjective entrapment defense. The requested language would not have added anything to the instruction the court gave; it would merely have been cumulative. Therefore, it was properly rejected. See Prime v. State, 767 P.2d 149, 154 (Wyo.1989).

Since this case was argued, we have recognized a defense of "outrageous government conduct.” See Mondello v. State, 843 P.2d 1152 (Wyo.1992). Although it bears some similarity to the objective theory of entrapment, this defense should not be confused with either of the traditional approaches to the entrapment defense. It examines neither the defendant’s predisposition to commit the crime nor the likely effect of police conduct on a hypothetical reasonable man. Instead, the defense focuses purely upon the conduct of the police. The outrageous government conduct defense is available only in circumstances where the police conduct is “violat[ive of] that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment [to the United States Constitution].” Mondello, at 1158, quoting United States v. Russell, 411 U.S. at 432, 93 S.Ct. at 1643.

A jury instruction on this theory would not have been appropriate, because whether the government’s conduct was outrageous is a question the trial court must decide. It is “the court’s” conscience which is “shocked.” The trial court considered, and rejected, a due process defense in this case. Whether it did so properly is the subject of appellant’s next issue.

*5 Outrageous Government Conduct

As mentioned above, this court recognized a defense of “outrageous government conduct,” separate and distinct from the subjective entrapment defense, in Mon-dello v. State. Our recognition of this defense in Mondello came with an acknowl-edgement of its narrow parameters:

[Although state and federal courts have at least paid lip service to the doctrine, the defense referred to in Russell and Hampton [v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113] has not had broad application. In the words of the Tenth Circuit Court of Appeals, the defense is “often raised but is almost never successful.” United States v. Gamble, 737 F.2d 853, 857 (10th Cir. 1984). The murky bottom of the judicial seascape is littered with the wrecks of hopeful appeals in which defendants have launched claims of outrageous government conduct (in some cases much more egregious than that contended here) only to watch them sink after running aground on the difficult hurdle of proving the requisite level of outrageous conduct.

Mondello, at 1159.

Appellant argues that the conduct of the police in his case rose (or “sank”) to the level envisioned in this defense, and his conviction must therefore be reversed. The trial court found that the government’s conduct did not shock the court’s conscience. We agree.

It should be noted that although we adopted the outrageous conduct defense in Mondello, we held in that case that the government’s conduct was not sufficiently outrageous to justify reversal. The facts of Mondello were more egregious than those of this case. Mondello wanted one ounce of cocaine for his personal use, and the police tricked him into buying an extra ounce for resale purposes. He showed marked reluctance to deal in the large quantities the police were pushing, but they continually pursued him.

Here, appellant willingly entered into a transaction for three pounds of marijuana. It is difficult to believe appellant’s contention that he intended that quantity of marijuana only for himself or a few close friends. He told the officers that he wanted at least two or three pounds and that he could possibly sell more later or arrange to have more sold later. While the police did “front” a portion of the purchase price, “fronting” is quite prevalent in the illegal drug business, and that alone is not enough to show outrageous government conduct.

Nor does the fact that the marijuana was offered for lower than the going rate shock our conscience. We might someday be presented with a case where the price offered for drugs was so low that the inducement would violate due process. Here, however, appellant was willing to pay two thirds of the street value.3

Violation of the Wyoming Controlled Substances Act

Appellant next argues that the possession and sale of the marijuana by the police violated the Wyoming Controlled Substances Act, W.S. 35-7-1001 et seq. Appellant contends that the violation of the Act by the police should lead to reversal of his conviction. While complaining that information about the alleged illegality was kept from the jury by a motion in limine, appellant concedes that the information was irrelevant to his subjective entrapment defense. We might add that it was also irrelevant to any other issue before the jury. We shall therefore ignore that portion of appellant’s argument which addresses the motion in limine and concentrate on his claim that the police infraction of the law to obtain his conviction is relevant to the issue of whether the police violated his right to due process by engaging in extreme and outrageous conduct.

*6Specifically, appellant contends that the officers violated W.S. 35-7-1024 (1988) and 35-7-1031 (1988). Section 35-7-1024 reads in part:

(a) Every person who manufactures, distributes or dispenses any controlled substance within this state or who proposes to engage in the manufacture, distribution or dispensing of any controlled substance within this state, must obtain annually, on or before July 1, a registration issued by the board in accordance with its rules.

W.S. 35-7-1031 (1988) states:

(a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

“Person” is defined in the statute as:

[any] individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

W.S.35-7-1002(a)(xviii) (1988).

As the State points out, however, exception is made in this statute for law enforcement officers while in the course of their duties:

All duly authorized peace officers including any special agents or other personnel appointed by the commissioner, while investigating violations of this act in performance of their official duties, shall be immune from prosecution under this act.

W.S. 35-7-1043 (1988).

Appellant, however, contends that the immunity provisions of this statute did not apply here because there was no pre-exist-ing “violation” to investigate when the police obtained and sold the marijuana. He also argues that while immunized, the possession was still illegal, and this illegality should factor into a due process analysis.

We must first construe the statute to determine whether investigative immunity extends to the circumstances of this case. When enforcing or construing a statute, this court looks only to the intent of the legislature. Allied-Signal, Inc. v. State Bd. of Equalization, 813 P.2d 214, 219 (Wyo.1991). When the words used are clear and unambiguous, that language establishes the rule of law. Id. A statute is ambiguous only where its meaning is vague or ambiguous and subject to varying interpretations. Id., at 219-20. Only if the wording is ambiguous or unclear to the point of demonstrating obscurity with respect to the legislative purpose or mandate do we resort to additional construction. Id., at 219.

The scope of the words “while investigating violations of this act in performance of their official duties” is sufficiently ambiguous that we must resort to further statutory construction beyond their plain meaning. Appellant argues that only a pre-existing violation may be investigated within the meaning of the statute. Thus, in appellant’s view, officers may not possess and distribute controlled substances where that possession and distribution is designed merely to result in a violation of the Act. Appellant’s view assumes a legislative intent to restrict police activities connected with narcotics enforcement.

Often, the only method of catching violators of the narcotics laws is to employ the deception or ruse of setting up a “sting.” A controlled sale is as legitimate a tactic as a controlled buy, and may be more effective in putting drug dealers behind bars. A drug retailer will obviously be willing to purchase in larger quantities than he intends to sell in any given transaction. A controlled sale gives the police an opportunity to catch him with wholesale, rather than retail amounts, which more realistically reflects the volume of his drug business.

In order to run such an operation, the police need controlled substances to sell to its targets. Absent immunity, no reasonable officer would engage in such an operation. Considering the comprehensive nature of the Wyoming Controlled Substances Act of 1971, see 1971 Wyo.Sess. Laws ch. 246, we believe that had the legislature wished to exclude controlled sales of narcotics designed to snare drug dealers, it would have explicitly prohibited such sales.

Furthermore, where suspected dealers are targeted, as in this case, their suspected pre-existing violations provide the inves*7tigatory rationale for running the operation. Thus, a suspected “violation” of the Controlled Substances Act is being “investigated” at the same time as a new violation is “occurring.” Accordingly, the statute expressly or implicitly allows such operations, and the intent of this statute is to allow the police to be exempt from prosecution for technical violations of the controlled substance law which are incurred during their legitimate investigations of violations of the Controlled Substances Act.

Turning to appellant’s second contention that the quantity of marijuana involved should have been registered, § 3.26(a)(ii) of the Regulations of the Board of Pharmacy provides exemption from registration for “any officer or employee of any state, or any political subdivision or agency thereof who is engaged in the enforcement of any state or local law relating to controlled substances and is duly authorized to possess controlled substances in the course of his official duties.” For the same reasons as those favoring immunity, we believe that had the Board of Pharmacy intended to preclude enforcement activities involving reverse sting operations, it would have done so expressly. Even if the possession was unregistered or otherwise illegal, this does not implicate a violation of due process. The California Court of Appeals recently faced a similar situation. That court stated:

The possession of the rock cocaine by Officer Qualls was not legal, but we conclude there was no violation of the statutes governing the disposition of the contraband. In any case, we fail to perceive in what manner the source of the cocaine, or Qualls’ illegal possession of the contraband would have affected defendant’s criminal conduct or had a bearing on his due process rights.

People v. Wesley, 224 Cal.App.3d 1130, 274 Cal.Rptr. 326, 331 (1990), review denied (1991).

The outrageous government conduct defense focuses on police conduct. We might someday be faced with illegal conduct by the police, immunized or not, serious enough to infringe on a defendant’s right to due process. However, in this case, even if the actions of the police were illegal in a technical sense, they were not of the caliber to constitute an infringement of the defendant’s due process rights. Accordingly, we hold that the acquisition and use for investigatory purposes without registration of the marijuana did not violate appellant’s right to due process.

Grant of Immunity to Frank Compton

Finally, appellant challenges the grant of full transactional immunity to Frank Compton. The general rule is that absent some showing of improper coercion of the witness or tainted testimony arising from the grant of immunity, a defendant lacks standing to contest the State’s grant of immunity to a witness against him. See e.g., United States v. Lewis, 456 F.2d 404, 409-10 (3rd Cir.1972); State v. Rice, 411 N.W.2d 260, 262 (Minn.App.1987). Appellant has shown no such coercion or taint derived from the grant of immunity. Therefore, he lacks standing to contest it.

Conclusion

Appellant has presented no reversible error to this court. His conviction is affirmed.

. Officer Bowers admitted at trial that math was not his strongest subject.

. A very recent United States Supreme Court case, Jacobson v. United States, — U.S. -, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), appears to implicitly combine the subjective and objective approaches. This new method is not of constitutional dimension, and therefore is not binding on this court. We await more developments of this new theoretical approach before considering it for adoption in this state.

. Appellant’s argument brings to mind the story of the French noblewoman who remarked one day to the philosopher Voltaire that she would prostitute herself, but only for a million francs each time. When Voltaire offered her a much lower price, she objected that he had impugned her character. Voltaire responded that her character was no longer at issue, only her price. Appellant’s character is obvious; he saw a good deal, and he took it.