At petitioner's trial in a Federal District Court for selling
narcotics in violation of 21 U.S.C. § 174, he relied on the defense
of entrapment. From the undisputed testimony of the Government's
witnesses, it appeared that a government informer had met
petitioner at a doctor's office where both were being treated to
cure narcotics addiction, the informer asked petitioner to help him
to obtain narcotics for his own use, petitioner seemed reluctant to
do so, the informer persisted, and finally petitioner made several
small purchases of narcotics and let the informer have half of each
amount purchased at cost plus expenses. By prearrangement, other
government agents then obtained evidence of three similar sales to
the informer, for which petitioner was indicted. Except for a
record of two convictions nine and five years previously, there was
no evidence that petitioner himself was in the trade, or that he
showed a "ready complaisance" to the informer's request. The
factual issue whether the informer had persuaded the otherwise
unwilling petitioner to make the sale or whether petitioner was
already predisposed to do so and exhibited only the natural
hesitancy of one acquainted with the narcotics trade was submitted
to the jury, which found petitioner guilty.
on the record in this case, entrapment was
established as a matter of law, and petitioner's conviction is
reversed. Pp. 356 U. S.
(a) Entrapment occurs only when the criminal conduct was "the
product of the creative activity" of law enforcement officials. P.
356 U. S.
(b) The undisputed testimony of the Government's witnesses
established entrapment as a matter of law. P. 356 U. S.
(c) Although the informer was not being paid, the Government
cannot disown him or disclaim responsibility for his actions, since
he was an active government informer who was himself awaiting trial
on narcotics charges, for which he was later given a suspended
sentence. Pp. 356 U. S.
Page 356 U. S. 370
(d) It make no difference that the sales for which petitioner as
convicted occurred after a series of sales, since they were not
independent acts subsequent to the inducement, but were part of a
course of conduct which was the product of the inducement. P.
356 U. S.
(e) The Government cannot make such use of an informer and then
claim disassociation through ignorance of the way in which he
operated. Pp. 356 U. S.
(f) The evidence was insufficient to overcome the defense of
entrapment by showing that petitioner evinced a "ready
complaisance" to accede to the informer's request. Pp. 356 U. S.
(g) This Court adheres to the doctrine of the Court's opinion in
Sorrells v. United States, 287 U.
, and declines to reassess the doctrine of
entrapment according to the principles announced in the separate
opinion Mr. Justice Roberts in that case, such issues not having
been raised by the parties either in this Court or in the lower
courts. Pp. 356 U. S.
240 F.2d 949 reversed, and cause remanded.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The issue before us is whether petitioner's conviction should be
set aside on the ground that, as a matter of law, the defense of
entrapment was established. Petitioner was convicted under an
indictment charging three sales of narcotics in violation of 21
U.S.C. § 174. A previous conviction had been reversed on account of
improper instructions as to the issue of entrapment. 200 F.2d 880.
In the second trial, as in the first, petitioner's defense was
Page 356 U. S. 371
a claim of entrapment: an agent of the Federal Government
induced him to take part in illegal transactions when otherwise he
would not have done so.
In late August, 1951, Kalchinian, a government informer, first
met petitioner at a doctor's office where apparently both were
being treated to be cured of narcotics addition. Several accidental
meetings followed, either at the doctor's office or at the pharmacy
where both filled their prescriptions from the doctor. From mere
greetings, conversation progressed to a discussion of mutual
experiences and problems, including their attempts to overcome
addiction to narcotics. Finally Kalchinian asked petitioner if he
knew of a good source of narcotics. He asked petitioner to supply
him with a source, because he was not responding to treatment. From
the first, petitioner tried to avoid the issue. Not until after a
number of repetitions of the request, predicated on Kalchinian's
presumed suffering, did petitioner finally acquiesce. Several times
thereafter, he obtained a quantity of narcotics which he shared
with Kalchinian. Each time petitioner told Kalchinian that the
total cost of narcotics he obtained was twenty-five dollars, and
that Kalchinian owed him fifteen dollars. The informer thus bore
the cost of his share of the narcotics plus the taxi and other
expenses necessary to obtain the drug. After several such sales,
Kalchinian informed agents of the Bureau of Narcotics that he had
another seller for them. On three occasions during November, 1951,
Government agents observed petitioner give narcotics to Kalchinian
in return for money supplied by the Government.
At the trial, the factual issue was whether the informer had
convinced an otherwise unwilling person to commit a criminal act,
or whether petitioner was already predisposed to commit the act and
exhibited only the natural hesitancy of one acquainted with the
Page 356 U. S. 372
The issue of entrapment went to the jury, [Footnote 1
] and a conviction resulted. Petitioner
was sentenced to imprisonment for ten years. The Court of Appeals
for the Second Circuit affirmed. 240 F.2d 949. We granted
certiorari. 353 U.S. 935.
In Sorrells v. United States, 287 U.
, this Court firmly recognized the defense of
entrapment in the federal courts. The intervening years have in no
way detracted from the principles underlying that decision. 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
287 U.S. at 287 U. S. 442
The stealth and strategy become as objectionable police methods as
the coerced confession and the unlawful search. Congress could not
have intended that its statutes were to be enforced by tempting
innocent persons into violations.
However, the fact that government agents "merely afford
opportunities or facilities for the commission of the offense does
not" constitute entrapment. Entrapment occurs only when the
criminal conduct was "the product of the creative
activity" of law-enforcement officials. (Emphasis supplied.)
287 U.S. at 287 U. S. 441
287 U. S. 451
To 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. The principles
Page 356 U. S. 373
by which the courts are to make this determination were outlined
On the one hand, at trial, the accused may
examine the conduct of the government agent; and, on the other
hand, the accused will be subjected to an "appropriate and
searching inquiry into his own conduct and predisposition" as
bearing on his claim of innocence. See
287 U.S. at
287 U. S.
We conclude from the evidence that entrapment was established as
a matter of law. In so holding, we are not choosing between
conflicting witnesses, nor judging credibility. Aside from
recalling Kalchinian, who was the Government's witness, the defense
called no witnesses. We reach our conclusion from the undisputed
testimony of the prosecution's witnesses.
It is patently clear that petitioner was induced by Kalchinian.
The informer himself testified that, believing petitioner to be
undergoing a cure for narcotics addiction, he nonetheless sought to
persuade petitioner to obtain for him a source of narcotics. In
Kalchinian's own words we are told of the accidental, yet
recurring, meetings, the ensuing conversations concerning mutual
experiences in regard to narcotics addiction, and then of
Kalchinian's resort to sympathy. One request was not enough, for
Kalchinian tells us that additional ones were necessary to
overcome, first, petitioner's refusal, then has evasiveness, and
then his hesitancy in order to achieve capitulation. Kalchinian not
only procured a source of narcotics, but apparently also induced
petitioner to return to the habit. Finally, assured of a catch,
Kalchinian informed the authorities so that they could close the
net. The Government cannot disown Kalchinian and insist it is not
responsible for his actions. Although he was not being paid,
Kalchinian was an active government informer who had but recently
been the instigatory of at least
Page 356 U. S. 374
two other prosecutions. [Footnote 2
] Undoubtedly the impetus for such achievements
was the fact that, in 1951, Kalchinian was himself under criminal
charges for illegally selling narcotics, and had not yet been
sentenced. [Footnote 3
makes to difference that the sales for which petitioner was
convicted occurred after a series of sales. They were not
independent acts subsequent to the inducement, but part of a course
of conduct which was the product of the inducement. In his
testimony, the federal agent in charge of the case admitted that he
never bothered to question Kalchinian about the way he had made
Page 356 U. S. 375
petitioner. The Government cannot make such use of an informer
and then claim disassociation through ignorance.
The Government sought to overcome the defense of entrapment by
claiming that petitioner evinced a "ready complaisance" to accede
to Kalchinian's request. Aside from a record of past convictions,
which we discuss in the following paragraph, the Government's case
is unsupported. There is no evidence that petitioner himself was in
the trade. When his apartment was searched after arrest, no
narcotics were found. There is no significant evidence that
petitioner even made a profit on any sale to Kalchinian. [Footnote 4
] The Government's
characterization of petitioner's hesitancy to Kalchinian's request
as the natural wariness of the criminal cannot fill the evidentiary
void. [Footnote 5
The Government's additional evidence in the second trial to show
that petitioner was ready and willing to sell narcotics should the
opportunity present itself was petitioner's record of two past
narcotics convictions. In 1942, petitioner was convicted of
illegally selling narcotics; in 1946, he was convicted of illegally
possessing them. However, a nine-year-old sales conviction and a
five-year-old possession conviction are insufficient to prove
petitioner had a readiness to sell narcotics at the time Kalchinian
approached him, particularly when we must
Page 356 U. S. 376
assume from the record he was trying to overcome the narcotics
habit at the time.
The case at bar illustrates an evil which the defense of
entrapment is designed to overcome. The government informer entices
someone attempting to avoid narcotics not only into carrying out an
illegal sale, but also into returning to the habit of use.
Selecting the proper time, the informer then tells the government
agent. The set-up is accepted by the agent without even a question
as to the manner in which the informer encountered the seller.
Thus, the Government plays on the weaknesses of an innocent party
and beguiles him into committing crimes which he otherwise would
not have attempted. [Footnote
] Law enforcement does not require methods such as this.
It has been suggested that, in overturning this conviction, we
should reassess the doctrine of entrapment according to principles
announced in the separate opinion of Mr. Justice Roberts in
Sorrells v. United States, 287 U.
, 287 U. S. 453
To do so would be to decide the case on grounds rejected by the
majority in Sorrells
and, so far as the record shows, not
raised here or below by the parties before us. We do not ordinarily
decide issues not presented by the parties, and there is good
reason not to vary that practice in this case.
At least two important issues of law enforcement and trial
procedure would have to be decided without the benefit of argument
by the parties, one party being the Government. Mr. Justice Roberts
asserted 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
Page 356 U. S. 377
agents. The handicap thus placed on the prosecution is obvious.
] Furthermore, it
was the position of Mr. Justice Roberts that the factual issue of
entrapment -- now limited to the question of what the government
agents did -- should be decided by the judge, not the jury. Not
only was this rejected by the Court in Sorrells,
where the issue has been presented to them, the Courts of Appeals
have, since Sorrells,
unanimously concluded that, unless
it can be decided as a matter of law, the issue of whether a
defendant has been entrapped is for the jury as part of its
function of determining the guilt or innocence of the accused.
To dispose of this case on the ground suggested would entail
both overruling a leading decision of this Court and brushing aside
the possibility that we would be
Page 356 U. S. 378
creating more problems than we would supposedly be solving.
The judgment of the Court of Appeals is reversed, and the case
is remanded to the District Court with instructions to dismiss the
Reversed and remanded.
The charge to the jury was not in issue here.
"Q. And it was your [Kalchinian's] job, was it not, while you
were working with these agents, to go out and try and induce
somebody to sell you narcotics, isn't that true?"
"* * * *"
"A. No, it wasn't my job at all to do anything of the kind."
"Q. Do you remember this question [asked at the first trial] --
. . . 'Q. And it was your job while working with these agents to go
out and try and induce a person to sell narcotics to you, isn't
that correct? A. I would say yes to that.' Do you remember
"A. If that is what I said, let it stand just that way."
"* * * *"
"Q. So when you testify now that it was not your job you are not
telling the truth?"
"A. I mean by job that nobody hired me for that. That is what I
inferred, otherwise I meant the same thing in my answer to your
"Q. But you had made a promise, an agreement, though, to
cooperate with the Federal Bureau of Narcotics before you received
a suspended sentence from the court?"
"A. [Kalchinian]. I had promised to cooperate in 1951."
"Q. And that was before your sentence?"
"A. Yes, that was before my sentence."
Kalchinian received a suspended sentence in 1952 after a
statement by the United States Attorney to the Judge that he had
been cooperative with the Government. R. 89, 98.
At one point, Kalchinian did testify that he had previously
received the same amount of narcotics at some unspecified lower
price. He characterized this other price as "not quite" the price
he paid petitioner. R. 80.
It is of interest to note that, on the first appeal in this
case, the Court of Appeals came to the same conclusion as we do as
to the evidence discussed so far. See United States v.
200 F.2d 880, 883.
Cf. e.g., Lutfy v. United States,
198 F.2d 760;
Wall v. United States,
65 F.2d 993; Butts v. United
273 F. 35.
In the first appeal of this case, Judge Learned Hand stated:
"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 offences which consist of transactions that are
carried on in secret."
United States v. Sherman,
200 F.2d 880, 882.
For example, in the following cases, the courts have, in
affirming convictions, held that the issue of entrapment had been
properly submitted to the jury. United States v.
142 F.2d 829; United States v.
162 F.2d 980; Demos v. United States,
205 F.2d 596; Nero v. United States,
189 F.2d 515;
United States v. Cerone,
150 F.2d 382; Louie Hung v.
111 F.2d 325; Ryles v. United States,
183 F.2d 944; Cratty v. United States,
236, 163 F.2d 844. And in the following cases, the courts have
reversed convictions where the issue of entrapment was either not
submitted to the jury or was submitted on improper instructions.
United States v. Sherman,
200 F.2d 880; United States
210 F.2d 169; Wall v. United States,
F.2d 993; Lutfy v. United States,
198 F.2d 760; Yep v.
83 F.2d 41.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE DOUGLAS, MR. JUSTICE
HARLAN, and MR. JUSTICE BRENNAN join, concurring in the result.
Although agreeing with the Court that the undisputed facts show
entrapment as a matter of law, I reach this result by a route
different from the Court's.
The first case in which a federal court clearly recognized and
sustained a claim of entrapment by government officers as a defense
to an indictment was, apparently, Woo Wai v. United
223 F. 412. Yet the basis of this defense, affording
guidance for its application in particular circumstances, is as
much in doubt today as it was when the defense was first recognized
over forty years ago, although entrapment has been the decisive
issue in many prosecutions. The lower courts have continued
gropingly to express the feeling of outrage at conduct of law
enforcers that brought recognition of the defense in the first
instance, but without the formulated basis in reason that it is the
first duty of courts to construct for justifying and guiding
emotion and instinct.
Today's opinion does not promote this judicial desideratum, and
fails to give the doctrine of entrapment the solid foundation that
the decisions of the lower courts and criticism of learned writers
have clearly shown is needed. [Footnote
] Instead, it accepts without reexamination the
Page 356 U. S. 379
theory espoused in Sorrells v. United States,
287 U. S. 435
over strong protest by Mr. Justice Roberts, speaking for Brandeis
and Stone, JJ., as well as himself. The fact that, since the
case, the lower courts have either ignored its
theory and continued to rest decision on the narrow facts of each
case or have failed after penetrating effort to define a
satisfactory generalization, see, e.g., United States v.
62 F.2d 1007 (L. Hand, J.), is proof that the
prevailing theory of the Sorrells
case ought not to be
deemed the last word. In a matter of this kind, the Court should
not rest on the first attempt at an explanation for what sound
instinct counsels. It should not forego reexamination to achieve
clarity of thought, because confused and inadequate analysis is too
apt gradually to lead to a course of decisions that diverges from
the true ends to be pursued. [Footnote
It is surely sheer fiction to suggest that a conviction cannot
be had when a defendant has been entrapped by government officers
or informers because "Congress could not have intended that its
statutes were to be enforced by tempting innocent persons into
violations." In these cases raising claims of entrapment, 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. That conduct includes
all the elements necessary to constitute criminality. Without
compulsion and "knowingly,"
Page 356 U. S. 380
where that is requisite, the defendant has violated the
statutory command. If he is to be relieved from the usual punitive
consequences, it is on no account because he is innocent of the
offense described. In these circumstances, conduct is not less
criminal because the result of temptation, whether the tempter is a
private person or government agent or informer.
The courts refuse to convict an entrapped defendant not because
his conduct falls outside the proscription of the statute, but
because, even if his guilt be admitted, the methods employed on
behalf of the Government to bring about conviction cannot be
countenanced. As Mr. Justice Holmes said in Olmstead v. United
States, 277 U. S. 438
277 U. S. 470
(dissenting), in another connection,
"It is desirable that criminals should be detected, and, to that
end, that all available evidence should be used. It also is
desirable that the government should not itself foster and pay for
other crimes when they are the means by which the evidence is to be
obtained. . . . [F]or my part, I think it a less evil that some
criminals should escape than that the government should play an
Insofar as they are used as instrumentalities in the
administration of criminal justice, the federal courts have an
obligation to set their face against enforcement of the law by
lawless means or means that violate rationally vindicated standards
of justice, and to refuse to sustain such methods by effectuating
them. They do this in the exercise of a recognized jurisdiction to
formulate and apply "proper standards for the enforcement of the
federal criminal law in the federal courts," McNabb v. United
States, 318 U. S. 332
318 U. S. 341
an obligation that goes beyond the conviction of the particular
defendant before the court. Public confidence in the fair and
honorable administration of justice, upon which ultimately depends
the rule of law, is the transcending value at stake.
Page 356 U. S. 381
The formulation of these standards does not in any way conflict
with the statute the defendant has violated, or involve the
initiation of a judicial policy disregarding or qualifying that
framed by Congress. A false choice is put when it is said that
either the defendant's conduct does not fall within the statute or
he must be convicted. The statute is wholly directed to defining
and prohibiting the substantive offense concerned and expresses no
purpose, either permissive or prohibitory, regarding the police
conduct that will be tolerated in the detection of crime. A statute
prohibiting the sale of narcotics is as silent on the question of
entrapment as it is on the admissibility of illegally obtained
evidence. It is enacted, however, on the basis of certain
presuppositions concerning the established legal order and the role
of the courts within that system in formulating standards for the
administration of criminal justice when Congress itself has not
specifically legislated to that end. Specific statutes are to be
fitted into an antecedent legal system.
It might be thought that it is largely an academic question
whether the court's finding a bar to conviction derives from the
statute or from a supervisory jurisdiction over the administration
of criminal justice; under either theory, substantially the same
considerations will determine whether the defense of entrapment is
sustained. But to look to a statute for guidance in the application
of a policy not remotely within the contemplation of Congress at
the time of its enactment is to distort analysis. It is to run the
risk, furthermore, that the court will shirk the responsibility
that is necessarily in its keeping, if Congress is truly silent, to
accommodate the dangers of overzealous law enforcement and
civilized methods adequate to counter the ingenuity of modern
criminals. The reasons that actually underlie the defense of
entrapment can too easily be lost sight of in the pursuit of a
wholly fictitious congressional intent.
Page 356 U. S. 382
The crucial question, not easy of answer, to which the court
must direct itself is whether the police conduct revealed in the
particular case falls below standards, to which common feelings
respond, for the proper use of governmental power. For answer, it
is wholly irrelevant to ask if the "intention" to commit the crime
originated with the defendant or government officers, or if the
criminal conduct was the product of "the creative activity" of law
enforcement officials. Yet ,in the present case, the Court repeats
and purports to apply these unrevealing tests. Of course, in every
case of this kind, the intention that the particular crime be
committed originates with the police, and, without their
inducement, the crime would not have occurred. But it is perfectly
clear from such decisions as the decoy letter cases in this Court,
e.g., Grimm v. United States, 156 U.
, where the police in effect simply furnished the
opportunity for the commission of the crime, that this is not
enough to enable the defendant to escape conviction.
The intention referred to, therefore, must be a general
intention or predisposition to commit, whenever the opportunity
should arise, crimes of the kind solicited, and, in proof of such a
predisposition, evidence has often been admitted to show the
defendant's reputation, criminal activities, and prior disposition.
The danger of prejudice in such a situation, particularly if the
issue of entrapment must be submitted to the jury and disposed of
by a general verdict of guilty or innocent, is evident. The
defendant must either forego the claim of entrapment or run the
substantial risk that, in spite of instructions, the jury will
allow a criminal record or bad reputation to weigh in its
determination of guilt of the specific offense of which he stands
charged. Furthermore, a test that looks to the character and
predisposition of the defendant, rather than the conduct of the
police, loses sight of the underlying reason for the defense of
Page 356 U. S. 383
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,
in the present case, it is clear that the Court in fact reverses
the conviction because of the conduct of the informer Kalchinian,
and not because the Government has failed to draw a convincing
picture of petitioner's past criminal conduct. 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 very according to the suspicions,
reasonable or unreasonable, of the police concerning the
defendant's activities. Appeals to sympathy, friendship, the
possibility of exorbitant gain, and so forth, can no more be
tolerated when directed against a past offender than against an
ordinary law-abiding citizen. A contrary view runs afoul of
fundamental principles of equality under law, and would espouse the
notion that, when dealing with the criminal classes, anything goes.
The possibility that, no matter what his past crimes and general
disposition, the defendant might not have committed the particular
crime unless confronted with inordinate inducements must not be
ignored. Past crimes do not forever outlaw the criminal and open
him to police practices, aimed at securing his repeated conviction,
from which the ordinary citizen is protected. The whole
ameliorative hopes of modern penology and prison administration
strongly counsel against such a view.
This does not mean that the police may not act so as to detect
those engaged in criminal conduct and ready and willing to commit
further crimes should the occasion arise. Such, indeed, is their
obligation. It does mean
Page 356 U. S. 384
that, in holding out inducements, they should act in such a
manner as is likely to induce to the commission of crime only these
persons, and not others who would normally avoid crime and, through
self-struggle, resist ordinary temptations. This test shifts
attention from the record and predisposition of the particular
defendant to the conduct of the police and the likelihood,
objectively considered, that it would entrap only those ready and
willing to commit crime. It is as objective a test as the subject
matter permits, and will give guidance in regulating police conduct
that is lacking when the reasonableness of police suspicions must
be judged or the criminal disposition of the defendant
retrospectively appraised. It draws directly on the fundamental
intuition that led in the first instance to the outlawing of
"entrapment" as a prosecutorial instrument. 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, and to bring
about the downfall of those who, left to themselves, might well
have obeyed the law. Human nature is weak enough and sufficiently
beset by temptations without government adding to them and
What police conduct is to be condemned, because likely to induce
those not otherwise ready and willing to commit crime, must be
picked out from case to case as new situations arise involving
different crimes and new methods of detection. The
case involved persistent solicitation in the face
of obvious reluctance, and appeals to sentiments aroused by
reminiscences of experiences as companions in arms in the World
War. Particularly reprehensible in the present case was the use of
repeated requests to overcome petitioner's hesitancy, coupled with
appeals to sympathy based on mutual experiences with narcotics
addiction. Evidence of the setting in which the inducement took
place is, of course, highly relevant in
Page 356 U. S. 385
judging its likely effect, and the court should also consider
the nature of the crime involved, its secrecy and difficulty of
detection, and the manner in which the particular criminal business
is usually carried on.
As Mr. Justice Roberts convincingly urged in the
case, such a judgment, aimed at blocking off
areas of impermissible police conduct, is appropriate for the court
and not the jury.
"The protection of its own functions and the preservation of the
purity of its own temple belongs only to the court. It is the
province of the court, and of the court alone, to protect itself
and the government from such prostitution of the criminal law. The
violation of the principles of justice by the entrapment of the
unwary into crime should be dealt with by the court no matter by
whom or at what stage of the proceedings the facts are brought to
287 U.S. at 287 U. S. 457
(separate opinion). Equally important is the consideration that a
jury verdict, although it may settle the issue of entrapment in the
particular case, cannot give significant guidance for official
conduct for the future. Only the court, through the gradual
evolution of explicit standards in accumulated precedents, can do
this with the degree of certainty that the wise administration of
criminal justice demands.
Excellent discussions of the problem can be found in Mikell, The
Doctrine of Entrapment in the Federal Courts, 90 U.Pa.L.Rev. 245;
Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and
Agent Provocateurs, 60 Yale L.J. 1091, 1098-1115; Note, Entrapment
by Government Officials, 28 Col.L.Rev. 1067.
It is, of course, not a rigid rule of this Court to restrict
consideration of a case merely to arguments advanced by counsel.
Presumably certiorari was not granted in this case simply to review
the evidence under an accepted rule of law. The solution, when an
issue of real importance to the administration of criminal justice
has not been argued by counsel, is not to perpetuate a bad rule,
but to set the case down for reargument with a view to reexamining