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John Murtha — Part 28
Page 134
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tion in our history. In this particular investigation,
howéver, the undercover agents were not acting on any prior
accusations of misconduct against any of these defendants.
8/ Although some courts have required the defendant to
admit commission of the crime before he can raise the entrap-
ment defense, e.g., Sylvia v. US, 312 F2d 145 (CA 1), cert.
denied, 374 US 809 (1963); US Vv. Johnston, 426 F2d 112
(CA7 1970); US v. Watson, 489 F2d 504 (CAS 1973),
the more recent view of the Second Circuit is that a defen-
dant may deny having committed the crime and simultaneously
claim that he was entrapped into the conduct which is claimed
to be criminal. US v. Valencia, No. 79-1365-66 (CA2 Mar.
5, 1981) (amending opinion of Sept. 18, 1981).
9/ This theory has been argued by the defendants here,
bolstered by the assertion that “every man has his pricet’.
No caselaw has been offered in support of this theory of
"objective" entrapment. Moreover, even assuming that "every
man has his price", that fact does not under any known
legal precedent require dismissal of charges against the
man whose "price" has been determined and illegally paid.
At least as to those who violate a public trust, if they
accept their "price" for being corrupt, they should also
pay the penalty when caught in the act. ,
10/ When invoked to dismiss an indictment, a federal dis- -
trict court's supervisory power over law enforcement appears
to be more theoretical than real. It is to be applied
with caution even when a defendant asserts a violation
of his own rights. Much- less may it be applied when a.
defendant relies upon the infringement of another person's
rights or on generalized incidents of "misconduct". US .
v. Payner, US __, 100 SCt 2439 (1980). Even "knowing
and bad faith hostility to another person's fundamental
constitutional rights" is insufficient to warrant dismissal
of an indictment. In short, there must be "a restrained:
application of supervisory power". Id. At 2446. "After
all, it is the defendant, and not the constable, who stands
trial." Id. ,
A further problem with the court's supervisory
power is that a district court is not granted power under
the Federal Rules of Criminal Procedure to dismiss an indict-
_ment-"in the interests of justice". That consideration
authorizes only a new trial. US v. Brown, 602 F2d 1073
(CA2 1979); US v. Lai Ming Tanu, 589 F2d 82 (CA2 1978).
1i/ As noted earlier, Sherman resulted in dismissal because
there was "entrapment" as a matter of law.
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