(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court.
Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 28, 1993 -- Decided January 27, 1994
HANDLER, J., writing for a unanimous Court.
These appeals involve questions of entrapment and the use of informants. Alex Florez and Harold
Garcia were arrested as a result of their purchase of one kilogram of cocaine from a paid informant, who,
with the participation of another informant, helped to negotiate and consummate the sale. The paid
informant was the State's primary witness.
In this case the police used a "reverse sting" in which they posed, not as buyers, but as sellers.
Their purpose was to identify and arrest mid-level cocaine dealers in the New York metropolitan area. To
implement the sting, the Somerset County Prosecutor's Office hired Nicholas Copola as a confidential
informant. Copola's responsibility was to pass the word that a large-quantity seller was in the area. He was
then to arrange a meeting at which the buyers would purchase cocaine from an undercover police agent.
At that time the buyers would be arrested. For his services, Copola was to receive a fee of ten percent of
all cash seized up to $100,000 and fifteen percent in excess of $100,000. As a result of Copola's efforts, he
earned over $130,000.
On January 2, 1990, Orizon De LaRoche also became an informer after having been arrested during
a drug transaction arranged by Copola. De LaRoche was not a paid informer but instead worked as an
informant in the hope of receiving a favorable disposition of his criminal case. On January 4th, De LaRoche
provided Copola with the name of defendants Florez and Garcia as potential cocaine buyers. Copola and
De LaRoche met with Florez and Garcia to discuss the sale of cocaine. Thereafter, another meeting in which
the drugs and money were exchanged, Garcia and Florez were arrested and subsequently indicted on drug
charges.
Before trial, Garcia and Florez brought motions to require the State to disclose the true identity of
the primary informant as well as to furnish an unredacted report of his criminal record. The court denied
these motions. Garcia and Florez were convicted by a jury of second-degree conspiracy to possess cocaine
with intent to distribute. Garcia and Florez then renewed earlier motions for judgments of acquittal and also
moved for a new trial, all of which were denied. Garcia and Florez were then sentenced to eight years in
prison and certain fines.
Florez appealed his conviction to the Appellate Division. That court ruled that the conviction must
be reversed on the ground that the State should have been required to disclose the principal informant's
true identity, and further indicated that Florez's discovery rights had been violated and that the trial court
had not properly resolved the entrapment defense.
This Court granted the State's petition for certification and also granted a motion for direct
certification filed by Garcia. The Court also grants Florez's cross-petition for certification as within time.
The issues before the Court are whether the State was required to disclose the true identity of the
paid informant; whether, under the circumstances, Garcia and Florez were entrapped as a matter of due
process; whether the State violated Garcia's and Florez's right to discovery by failing to disclose the fact
that the other participant in the drug sale was also an informant; and whether the trial court's failure to
instruct the jury on the weight of the cocaine as a necessary element of the underlying offense of possession
with intent to distribute constituted error.
HELD: A defendant's constitutional right to a proper confrontation may not be sacrificed for the safety of a highly-paid informer who is an active participant in the crime. Here, the defense has demonstrated the
necessity for the disclosure of the true identity of the primary informant. In addition, the trial court must
conduct further analysis and hearings to determine whether the State's actions constituted due process
entrapment.
1. The State cannot invoke the informant's privilege when the informer is an essential witness on a
basic issue in the case, when the informer is an active participant in the crime to which the defendant is on
trial, when the defendant may reasonably assert the defense of entrapment, or when fundamental principles
of fairness to the accused mandate disclosure. Here, the disclosure of the informant's identity is necessary.
Copola was an active participant in the crime, he was a key witness, and defendants used the defense of
entrapment. Copola's credibility was a significant issue and bears materially on the basic question of
whether the crime was committed and on the affirmative defenses of statutory and due process entrapment.
(pp. 4-12)
2. Even if the safety of the informant would be put in danger by the disclosure of his true identity, the
safety of the informant cannot overcome the need for trial fairness when disclosure is material to the defense
and to a balanced presentation of all the issues. Florez's and Garcia's constitutional right to a proper
confrontation may not be sacrificed for the safety of a highly paid informer who was an active participant
in the crime, and who testified as the State's primary witness. The defense adequately demonstrated the
necessity for the disclosure of the true identity of the primary informant. (pp. 12-14)
3. Due process entrapment is an issue of law that must be resolved by the court though a defendant
fails to establish statutory entrapment. Due process entrapment occurs when governmental conduct was
patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and
offends principles of fundamental fairness. A determination of due process entrapment requires careful
scrutiny of the government conduct in light of all the surrounding circumstances. Neither the record before
the Court nor the trial court's factual findings informs the Court sufficiently whether the State's actions
constituted due process entrapment. (pp. 14-23)
4. Due process entrapment justifies a different allocation of the burden of proof from that required by
statutory entrapment. The State will have the burden of proving by clear and convincing evidence that due
process entrapment did not occur. In addressing the issue of due process entrapment, the trial court should
rely on the evidence presented during the course of the trial and any additional hearings that might be
necessary to provide the proper factual basis to make that determination. (pp. 22-25)
5. Because of De LaRoche's role in the reverse sting, defendants were entitled to know long before
the second day of trial that he had been a retained informer. Under the circumstances, the State did not
satisfy its obligation of discovery owed to the defense. However, in light of the decision to remand the case
and the fact that De LaRoche's status as an informant is now disclosed as a matter of record, the Court
need not further consider the issue of prejudice as a result of the State's breach of the defendants' discovery
rights. (pp. 25-29)
6. The trial court failed to charge the jury that the weight of the cocaine was an essential element of
the underlying offense of possession with intent to distribute. The State conceded that the trial court's
omission of cocaine as an element requires reversal of the second-degree conspiracy convictions. In view
of that concession, when this case is retried, the trial court should instruct the jury on the weight of the
cocaine as an element of the crime charged. (pp. 29-31)
In State v. Florez, judgment of the Appellate Division is AFFIRMED. In State v. Garcia, the
conviction entered by the Law Division is REVERSED, and the matter is REMANDED for retrial.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-27/
49 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v. A-27
ALEX FLOREZ,
Defendant-Respondent.
--------------------------------
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. A-49
HAROLD GARCIA,
Defendant-Appellant.
Argued September 28, 1993 -- Decided January 27, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
261 N.J. Super. 12 (1992) (State v. Alex
Florez), and on certification to the Superior
Court, Law Division, Somerset County (State v.
Harold Garcia).
Craig V. Zwillman argued the cause for
appellant and respondent, State of New Jersey
(Fred DeVesa, Acting Attorney General of New
Jersey).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
Harold Garcia (Zulima V. Farber, Public
Defender, attorney).
Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for respondent Alex
Florez (Zulima V. Farber, Public Defender,
attorney).
The opinion of the Court was delivered by
HANDLER, J.
Defendants were arrested as a result of their purchase of one
kilogram of cocaine from a paid informant, who, with the
participation of another informant, helped to negotiate and
consummate the drug sale and was the State's primary witness.
Following a jury trial, they were convicted for the drug offense.
This case raises the issue of whether the State was required to
disclose the true identity of the paid informant. The role of the
informants also poses the issue of whether, under the
circumstances, defendants were entrapped as a matter of due
process. That issue bears on the additional issue of whether the
State violated defendants' right to discovery by failing to
disclose the fact that the other participant in the drug sale was
also an informant. The final issue is whether the trial court's
failure to instruct the jury on the weight of the cocaine as a
necessary element of the underlying offense of possession with
intent to distribute constituted error.
After their arrests for the attempted purchase of cocaine,
defendants, Alex Florez and Harold Garcia, were indicted for
conspiracy to commit the crime of possession of a controlled
dangerous substance with intent to distribute, contrary to N.J.S.A.
2C:35-5a(1), b(1), and N.J.S.A. 2C:5-2, and conspiracy to commit
the crime of distribution of a controlled dangerous substance,
contrary to N.J.S.A. 2C:35-5a(1), b(1), and N.J.S.A. 2C:5-2.
Garcia was also charged with resisting arrest, contrary to N.J.S.A.
2C:29-2. The trial court later dismissed the charges of conspiracy
to commit the crime of distribution of a controlled dangerous
substance as redundant.
Before trial, defendants brought motions to require the State
to disclose the true identity of the primary informant as well as
to furnish an unredacted report of his criminal record. The court
denied those motions.
248 N.J. Super. 54 (Law Div. 1991). A jury
convicted defendants of second-degree conspiracy to possess cocaine
with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), b(1),
and N.J.S.A. 2C:5-2. Defendants then renewed earlier motions for
judgments of acquittal and also moved for a new trial, all of which
the court denied. The court thereafter sentenced defendants to
eight years in prison and imposed fines.
Defendant Florez appealed his conviction to the Appellate
Division. That court ruled that the conviction must be reversed on
the ground that the State should have been required to disclose the
principal informant's true identity, and further indicated that
defendants' discovery rights had been violated and that the trial
court had not properly resolved the entrapment defense.
261 N.J.
Super. 12 (1992).
This Court granted the State's petition for certification,
133 N.J. 442 (1993), and also granted a motion for direct certification
filed by Garcia, __ N.J. __ (1993). During the pendency of the
appeal, Florez filed a cross-petition for certification, which the
Court now grants, nunc pro tunc.
The important facts are described fully in the opinion of the trial court, denying defendants' pretrial motions to learn the true identity of the principal informant, 248 N.J. Super. at 56-58, and in the opinion of the Appellate Division, reversing Florez's conviction, 261 N.J. Super. at 16-19.
The trial court explained the prosecutor's use of the paid informant:
This case involved a "reverse sting" in which the police posed, not as buyers of cocaine as usually occurs, but as sellers. The purpose of the operation is to identify and arrest mid-level cocaine dealers in the New York metropolitan area who seek to purchase large quantities of cocaine at wholesale prices. These dealers, who are known to distribute cocaine throughout the entire New York metropolitan area, including Somerset County, generally do not reside in Somerset County and, in this case, reside in Union County.
About one and one-half years ago, the
Somerset County Prosecutor's Office hired
Nicholas Cappolo as a confidential informant
(hereafter CI) and instructed him to
disseminate information, in the New York
metropolitan area, that he knows a person who
will sell large quantities of cocaine at less
than usual wholesale prices. The usual price
was $18,000 to $22,000 per kilogram of
cocaine, but he said that this seller was
willing to accept only $16,000 per kilogram.
CI's responsibility was to arrange a meeting
at which the buyers would bring cash to a
predetermined location to purchase cocaine
from an undercover police agent and at that
time the buyers would be arrested.
In addition, the trial court noted how the informant was
paid:
The State agreed that, if the services of
CI resulted in an arrest, he would receive a
fee for his services of 10" of all cash seized
up to $100,000, and 15" in excess of $100,000.
CI has been enormously successful. As the
result of his efforts 13 indictments have been
returned against 27 defendants and cash of
about $1,300,000, generally in $5, $10, $20
and $100 bills, has been seized.
Consequently, CI has earned over $130,000.
The Appellate Division described the involvement of the
informants in the commission of the specific crimes that were
charged against defendants:
On January 2, 1990, Orizon De La Roche also
became an informer for the Somerset County
Prosecutor following his arrest during a drug
transaction arranged by Capola.[See footnote 1] He was not
a paid informer; instead he worked as an
informant in the hope of receiving a favorable
disposition of his criminal case. On January
4, 1990, De La Roche provided Capola with the
names of defendant Florez and co-defendant
Garcia as potential cocaine buyers. The first
meeting between defendant, Garcia, De La Roche
and Capola occurred on January 6, 1990 in
Elizabeth, New Jersey. This meeting was the
outcome of other discussions about the sale
and purchase of one kilogram of cocaine for
$16,000.
At the meeting, defendant approached a car, which Capola and De La Roche occupied, while Garcia remained about 200 feet away in the defendant's car. Capola and defendant discussed the one kilogram of cocaine. After
that conversation, Garcia and Florez drove to
a diner in Roselle, New Jersey, where the two
of them, Capola and De La Roche had coffee.
They agreed that after breakfast, Garcia and
Florez would follow Capola and De La Roche to
a certain area of the parking lot for the Blue
Star Shopping Center in Watchung, Somerset
County, New Jersey, to finalize the sale for
one kilogram of cocaine for $16,000.
When Capola and De La Roche arrived at the
parking lot, Capola got out of his car leaving
De La Roche behind. Pursuant to a
predetermined plan, a surveillance team of
regular law enforcement personnel had parked a
decoy automobile (a third car) in the
designated parking area at the mall into which
they had placed one kilogram of cocaine in the
trunk. Capola walked from his car to the
decoy car with Florez. Garcia followed in
their car and parked next to the decoy car.
After Garcia showed Capola the money, they got
into the decoy car. The money ($16,000) was
given to Capola by Garcia. Capola then
obtained the cocaine from the trunk of the
decoy car, and it was placed into a gym bag.
Garcia took possession of the cocaine, while
Florez was standing beside the decoy car.
Garcia told Capola that the money bag
contained one of two checks which were good.
As Garcia and Florez were walking back to
their car, the surveillance team of law
enforcement officers arrested everyone and
seized the cocaine as well as the money.
Later, Capola was paid about $1,700 in
commissions for this drug deal.
[261 N.J. Super. at 17-19.]
From those accounts, Copola clearly was a regularly-used informant who had established a continuing relationship with law-enforcement authorities and was highly paid on a contingent basis depending on his success in getting persons to commit drug crimes, specifically, the illegal purchase of large quantities of drugs for substantial sums of money. That he played a central and critical
part in the commission of the crimes allegedly committed by
defendants is also clear.
Whether the State should have disclosed Copola's true identity to defendants is governed by the informant's privilege. Evidence Rule 36 (now Evidence Rule 516) provides that a witness need not provide the identity of an informant unless the identity of that person has already been otherwise disclosed or "disclosure of his identity is essential to assure a fair determination of the issues."
This Court explained the importance of the privilege in State v. Oliver, 50 N.J. 39, 42 (1967):
The privilege exists to secure a flow of vital information which can be had only upon a confidential basis. Not all such information comes from people of high motivation. The police must have the aid of men of lesser quality who respond to selfish inducements, including money. These men are needed for what they know, but also for what they can learn because of their associations. This is especially true with respect to crimes of a consensual nature as to which there is little likelihood that a victim will complain. [Citations omitted.] The informer paid or not, is subject to risks of retaliation which a regular member of a police force need not fear and hence, whether paid or not, he comes within the protection of the privilege.
However, the informant's privilege is not absolute. As the
United States Supreme Court has stated:
Where the disclosure of an informer's
identity, or of the contents of his
communication, is relevant and helpful to the
defense of an accused, or is essential to a
fair determination of a cause, the privilege
must give way. In these situations the trial
court may require disclosure and, if the
Government withholds the information, dismiss
the action.
[Roviaro v. United States,
353 U.S. 53, 60-61,
77 S. Ct. 623, 628,
1 L.
Ed.2d 639, 645 (1957) (footnote
omitted).]
Without a strong showing of need, courts will generally deny
a request for disclosure. Thus, in State v. Milligan,
71 N.J. 373,
388-89 (1976), the Court refused to require the disclosure of the
identity of an informer who had merely introduced the undercover
agent to the defendant but had not participated in the criminal
transaction itself, although he had been present. See Oliver,
supra, 50 N.J. at 42 (finding no need to disclose informer's
identity where informer played no part in criminal act, State had
not attempted to introduce informer's information into record, and
defense was unable to prove that informer's testimony was necessary
for a fair determination of issues); State v. Varona,
242 N.J.
Super. 474, 480 (App. Div.) (holding no need to disclose true
identity of informer, who merely introduced defendant to undercover
officers and only witnessed criminal transaction, but did not
participate in crime), certif. denied,
122 N.J. 386 (1990).
On the other hand, as the Court recognized in Milligan, supra,
the State cannot invoke the privilege when the informer is an
essential witness on a basic issue in the case, when the informer
is an active participant in the crime for which the defendant is on
trial, when the defendant may reasonably assert the defense of
entrapment, or when fundamental principles of fairness to the
accused mandate disclosure. 71 N.J. at 383-84.
In determining whether the State must disclose the true
identity of an informant, courts weigh and balance the competing
considerations on a case-by-case basis. Id. at 384; see McCray v.
Illinois,
386 U.S. 300, 311,
87 S. Ct. 1056, 1062,
18 L. Ed.2d 62,
70, reh'g denied,
386 U.S. 1042,
87 S. Ct. 1474,
18 L. Ed.2d 616
(1967). As explained by the Supreme Court in Roviaro, supra:
We believe that no fixed rule with respect
to disclosure is justifiable. The problem is
one that calls for balancing the public
interest in protecting the flow of information
against the individual's right to prepare his
defense. Whether a proper balance renders
nondisclosure erroneous must depend on the
particular circumstances of each case, taking
into consideration the crime charged, the
possible defenses, the possible significance
of the informer's testimony, and other
relevant factors.
[353 U.S. at 62, 77 S. Ct. at 628-29, 1 L. Ed.
2d at 646.]
Under the criteria set forth in Milligan, supra, the relevant factors in this case unquestionably demand the disclosure of the informant's identity. 71 N.J. at 383-84. Copola was an active participant in the crime. He was also the key witness on basic issues in the case. Further, defendants urged the defense of entrapment based in large measure on Copola's status as an agent of the State and on his role in the commission of the crime. As the Appellate Division noted, "where the informer was an active participant in the criminal event and has testified for the State as its principal witness, the balancing of the defendant's need for
disclosure against the public interest in protecting the flow of
information . . . should generally result in disclosure." 261 N.J.
Super. at 24-25. The United States Supreme Court found reversible
error when a trial court allowed the government to withhold the
identity of an informer who was the sole participant along with the
defendants in the drug transaction charged, who might have been a
material witness, and who was the only witness in the position to
support or refute the testimony of the governmental witness.
Roviaro, supra, 353 U.S. at 63-65, 77 S. Ct. at 629-30, 1 L. Ed.
2d
at 647.
The trial court, nevertheless, believed that disclosure of the
informant's true name and address was not necessary because defense
counsel was otherwise able to conduct an independent investigation
and undertake an effective cross-examination of the informant. 248
N.J. Super. at 62-63. The prosecutor had provided a redacted copy
of Copola's arrest record, which revealed that he had been arrested
in Seattle on drug charges, which were later dismissed, and that
federal authorities had arrested him in March 1990 for theft of
government funds (a charge that was still pending at the time of
trial). The trial court felt that that information was sufficient
for defense purposes. It reasoned "that knowledge of [the
informant's] true name and address will be of only 'peripheral
assistance' to defendants." Id. at 63.
The United States Supreme Court, overturning a conviction in
a case in which the defendant had been prevented from asking the
principal prosecution witness either his name or address, held that
when credibility is at issue, the starting point "in 'exposing
falsehood and bringing out the truth'" is the name and address of
the informer because they "open countless avenues of in-court
examination and out-of-court investigation." Smith v. Illinois,
390 U.S. 129, 131,
88 S. Ct. 748, 750,
19 L. Ed.2d 956, 959 (1968)
(quoting Pointer v. Texas,
380 U.S. 400, 404,
85 S. Ct. 1065, 1068,
13 L. Ed.2d 923, 926 (1965)). Further, the Court stated, "[t]o
forbid this most rudimentary inquiry at the threshold is
effectively to emasculate the right of cross-examination itself."
Ibid. In State v. Postorino,
253 N.J. Super. 98, 107 (App. Div.
1991), the court observed that with knowledge of the true identity
of a witness the defense could impeach the credibility of that
witness in way other than simply the use of a criminal record,
citing Evidence Rules 20 (regarding extrinsic evidence), 22
(regarding prior statements and character evidence), and 47
(regarding opinion or reputation testimony and character evidence).
That defendants had some information bearing on credibility
did not obviate the need for information that could be derived from
knowledge of Copola's true identity. As the Appellate Division
pointed out, credibility was a significant issue in the case and
therefore "identification of the informer's true name and address
is essential to a proper exercise of the right to cross-examination
of the prosecution's key witness." 261 N.J. Super. at 25.
Copola's credibility was pivotal. The primary evidence of the
illegal drug purchase was founded on his testimony. That evidence,
on which the State relied, is the only evidence that directly
contradicts defendants' version of the events. The credibility of
the informant thus bears materially on the basic question of
whether the crime was committed and on the affirmative defenses of
statutory and due process entrapment.
The trial court also found that the potential harm to the
informant and his family that would occur as a result of the
disclosure of his identity outweighed any defense need for that
disclosure. 248 N.J. Super. at 63. That finding was based on
Copola's certification alleging that his life and the lives of his
family were in danger and that therefore the State should not
disclose his true identity, address, or facial features. Based on
that certification the prosecutor had made a pretrial motion to
allow Copola to testify with a hood to cover his face. The trial
court denied that motion, even though it refused to require the
State to reveal the informant's true identity.
A court should examine critically the claim of harm to the
safety of an informant based on revelation of the identity of the
informant. See, e.g., Postorino, supra, 253 N.J. Super. at 100-01
(questioning informer's claim of threat to safety where informer
refused to participate in federal witness protection program).
However, even if the safety of the informant would be imperiled by
the disclosure of his true identity, that fact cannot surmount the
imperative for trial fairness when disclosure is material to the
defense and to a balanced presentation of essential issues.
Concededly, informants are an important, indeed indispensable, part
of the arsenal that law-enforcement forces bring to bear against
drug crimes. But law enforcement agents, including retained
outsiders who operate under the mantle of government and are
authorized to take major initiatives in the investigation and the
apprehension of suspected criminals, must function within the
framework of the constitutional constraints governing criminal
prosecutions. As aptly observed by the Appellate Division, because
he was regularly-used and well-paid, "no reason [existed] why
Capola should be treated any differently [from] a police officer
who works undercover in drug trafficking as an agent of the
government." 261 N.J. Super. at 26.
The State devised the reverse-sting involving the use of an
informant to set up the illegal sale of drugs. In prosecuting the
matter, it thus created the hard choice put to the court of either
jeopardizing the safety of the State's informant or undermining
defendants' constitutional right to a fair trial. The State cannot
create such a dichotomous dilemma and reasonably expect that courts
will favor its interests on that issue at the expense of a
defendant's rights. We conclude, as did the Appellate Division,
that "defendant's constitutional right to a proper confrontation
may not be sacrificed for the safety of a highly paid informer who
is an active participant in the crime, rather than merely a
tipster, and who testifies as the State's primary witness." Ibid.
Under the principles established by both the United States
Supreme Court and this Court, the defense demonstrated the
necessity for the disclosure of the true identity of the primary
informant.
Defendants claimed that they had been entrapped into committing the crimes for which they were prosecuted. They argue that they were entitled to the affirmative defense of entrapment on both statutory and constitutional grounds.
The trial court submitted to the jury the issue of statutory entrapment. It also ruled that due process entrapment presented a question of law to be resolved by the court, despite defendants' request to submit that issue to the jury. Nevertheless, the court concluded that the record did not establish due process entrapment. The Appellate Division determined that the trial court erred in failing to submit the issue of due process entrapment to the jury. 261 N.J. Super. at 28.
Under the Code of Criminal Justice, entrapment is an affirmative defense, which the defendant must prove by a preponderance of the evidence. State v. Gibbons, 105 N.J. 67 (1987); State v. Medina, 201 N.J. Super. 565 (App. Div.), certif. denied, 102 N.J. 298 (1985). The statutory defense has both subjective and objective elements. State v. Rockholt, 96 N.J. 570, 579 (1984). Subjective entrapment occurs when the police implant a criminal plan into the mind of an innocent person who would not ordinarily have committed the offense. Id. at 576. Objective entrapment takes place when the police conduct causes an average
citizen to commit a crime or when the conduct is so egregious as to
"impugn the integrity of the court that permits a conviction."
State v. Fogarty,
128 N.J. 59, 65 (1992). The statutory entrapment
defense based on both subjective and objective elements is an issue
that the jury must determine. Rockholt, supra, 96 N.J. at 577; see
Delguidice v. New Jersey Racing Com'n.,
100 N.J. 79, 83 (1985).
Entrapment based on constitutional due process principles
concentrates exclusively on government conduct and the extent of
the government's involvement in commission of the crime. State v.
Johnson,
127 N.J. 458, 470 (1992). Due process entrapment poses an
issue of law that must be resolved by the court. See State v.
Talbot,
71 N.J. 160, 168 (1976). Further, due process entrapment
may be found even though a defendant fails to establish statutory
entrapment. See Johnson, supra, 127 N.J. at 467, 469.
Under due process standards, entrapment occurs when the
governmental conduct was "patently wrongful in that it constitutes
an abuse of lawful power, perverts the proper role of government,
and offends principles of fundamental fairness." Id. at 473. A
determination of due process entrapment requires careful scrutiny
of the government conduct in light of all the surrounding
circumstances. That scrutiny focuses on:
(1) whether the government or the defendant
was primarily responsible for creating and
planning the crime, (2) whether the government
or the defendant primarily controlled and
directed the commission of the crime, (3)
whether objectively viewed the methods used by
the government to involve the defendant in the
commission of the crime were unreasonable, and
(4) whether the government had a legitimate
law enforcement purpose in bringing about the
crime.
We conclude that neither the record before us nor the trial
court's factual findings informs us sufficiently whether the
State's actions constituted due process entrapment under those
standards.
The first factor in Johnson involves "whether the government
or the defendant was primarily responsible for creating and
planning the crime." Ibid. In Johnson, the defendant authored the
basic idea of the crime, and when the police presented him with a
specific criminal plan to implement his idea, the defendant
embellished the scheme with additional details of his own. The
record here strongly suggests that the government, not defendants,
was responsible for devising, creating, and planning the reverse-sting drug transaction in question. The solicited crime involved
the use of a confidential informant, who would pose as a large-scale distributor of cocaine. When someone was interested in
purchasing cocaine, Copola, that informant, would communicate with
Captain Scott Fabiano of the Somerset County Prosecutor's Office
Narcotics Strike force. A "reverse-sting" operation would then be
attempted whereby Copola would lure the person or persons
interested in the purchase of cocaine to an arranged location
within Somerset County where waiting law-enforcement officers would
arrest the suspect when they attempted to complete the transaction.
261 N.J. Super. at 16-17. Copola had engaged in such drug
operations at least a dozen times. That scheme was used by the
State's agents to implicate defendants. Conversely, the record
contains no evidence that defendants had ever before engaged in
such crimes or in any way contributed to the creation and planning
of the criminal scheme that resulted in their apprehension.
The second factor focuses on "whether the government or the
defendant primarily controlled and directed the commission of the
crime." Johnson, supra, 127 N.J. at 474. The record points to the
fact that the State controlled and directed defendants in the
commission of the crimes. The informants selected defendants as
the targets for the reverse-sting. The informants, in cooperation
with law-enforcement officers, arranged the drug transaction with
defendants. Further, the effectuation of the plan for the drug
purchase appears to have been managed and directed by the
informants and the law-enforcement officers.
The third factor in Johnson requires a court to determine
"whether objectively viewed the methods used by the government to
involve the defendant in the commission of the crime were
unreasonable." Ibid. "The nature of the efforts directed to
encourage defendants to commit the crime is another measure of the
propriety of government conduct." Id. at 478. As we pointed out
in Johnson, "[t]actics like heavy-handed pressure; repetitive and
persistent solicitation, or threats or other forms of coercion; the
use of false and deceitful appeals to such humanitarian instincts
as sympathy, friendship, and personal need; and the promise of
exorbitant gain are generally disallowed because they can overwhelm
the resistance of ordinary people." Ibid. Several aspects of this
case are relevant under that criterion. The transaction planned by
the police clearly involved the inducement of an "exorbitant gain."
The State's drug expert testified that when the substance was
diluted and sold to street users, a dealer would realize about
$90,000 per kilogram. Thus, with a $16,000 investment, a dealer
could earn a gross profit of $74,000.
In addition, the use of a contingent-fee arrangement as a
means of compensating Copola created a number of perverse
incentives, generating a real risk that innocent persons would be
pressured into the commission of crimes. At the time of
defendants' arrest, Copola had been working for the Somerset County
Prosecutor's Office in the capacity of a confidential informant for
approximately eighteen months. The prosecutor's office paid Copola
a percentage of any monies that were confiscated as a result of
drug purchases arranged by him. The office would pay him ten
percent of the first $100,000 involved in any transaction and
fifteen percent of any amount over $100,000. In this case, Copola
was paid in excess of that rate -- he received close to $1,700 for
a $16,000 drug sale. By the time Copola testified at defendants'
trial, he had been involved in thirteen "reverse buys" for which
the State had paid him approximately $130,000. 261 N.J. Super. at
17.
Not only is the contingency arrangement a powerful incentive
for the informant to pressure or coerce persons into the commission
of crime, it constitutes a potent influence to fabricate or
exaggerate testimony to establish the guilt of a defendant. As
Copola admitted on cross-examination, he recognized that as part of
his job as a paid informant he was expected to testify at trial.
To continue his highly profitable arrangement, Copola needed to
meet the expectations of the prosecutor's office.
In State v. Glosson,
462 So.2d 1082 (1985), the Florida
Supreme Court determined that an agreement to pay an informant a
contingent fee conditioned on his cooperation and testimony in
criminal prosecutions violated the constitutional due process
rights of the defendants. The court in Glosson commented that
"[w]e can imagine few situations with more potential for abuse of
a defendant's due process right." Id. at 1085.
Also relevant to determining whether the methods used to
implicate defendants were objectively unreasonable is the apparent
lack of supervision over the informants by the prosecutor. In that
regard, the actual circumstances under which the informant
initially "selected" and communicated with defendants are hazy. De
La Roche apparently had been targeted as a potential drug purchaser
in a reverse-sting transaction orchestrated by Copola. As a result
of De la Roche's arrest, on January 2, 1990, he agreed to cooperate
as a confidential informant in exchange for leniency. Two days
later, De la Roche provided Copola with the name of Alex Florez.
Thus the initial selection of Florez, and consequently Garcia, was
attributable to De La Roche and Copola. 261 N.J. Super. at 17-18.
The police should ordinarily have a reasonable suspicion that
the targeted defendant would be likely to engage in the commission
of the crime contemplated. Even the United States Supreme Court,
which has primarily maintained a subjective approach to entrapment,
requires reasonable suspicion of a person before that person
becomes the focus of an investigation. Jacobson v. United States,
___ U.S. __, __,
112 S. Ct. 1535, 1543,
118 L. Ed.2d 147, 184
(1992). The circumstances of this case are in sharp contrast to
those in Johnson, supra, where the defendant himself
initiated the chain of events that eventuated
in the criminal acts . . . [and his] position
as a police officer with regular involvement
in the drug world, coupled with his ongoing
drug use and his expressed desire to commit a
more serious drug offense, created a
sufficient likelihood that the desire would
become the deed, even without government
intrusion.
In this case neither of the defendants had a previous criminal
record, and they testified that they had not engaged in a drug
transaction. Apparently the police targeted them only on the say-so of unsupervised informants, without any indication of a basis
for a reasonable suspicion that defendants were likely to engage in
such criminal acts.
Another factor relevant to the inquiry into the State's
tactics is whether the money used to buy the drugs in this case was
supplied by De La Roche. Compare Johnson, supra, 127 N.J. at 482
(indicating full-circle transaction is not per se a violation of
due process entrapment) with Talbot, supra, 71 N.J. at 168 (finding
full-circle reverse sting would unreasonably violate principles of
fundamental fairness). The trial court reasonably sought to
establish whether the State had supplied the money used by
defendants to purchase the drugs. The court satisfied itself
through the jury's answer to a special interrogatory that the State
had not furnished the drug-purchase money. That finding, however,
cannot be used in light of our reversal of the defendants'
conviction. That factual issue, therefore, remains to be resolved.
If the State did not supply the money for the purchase of drugs,
that circumstance alone would not be dispositive of whether due
process entrapment had occurred. However, if the State supplied
the money that was used to purchase the drugs, the actions of the
government under all the surrounding circumstances could hardly be
characterized as anything other than egregious and unreasonable.
The fourth prong of the Johnson test is "whether the
government had a legitimate law enforcement purpose in bringing
about the crime." 127 N.J. at 474. We readily acknowledge that
"[s]pecial efforts may be required to cope with the difficulties of
investigating drug offenses." Id. at 480. We can appreciate the
great difficulty in effectively investigating and apprehending mid-level drug dealers. Drug dealers who function at higher
organizational levels of a criminal enterprise clearly trigger
greater public concerns, necessarily invite more vigorous and
intensive law-enforcement measures, and justly deserve harsher
treatment at the hands of the criminal laws. See, e.g., State v.
Afanador,
134 N.J. 162, 169 (1993). We can easily recognize that
a reverse sting -- used to expose and apprehend such persons -- may
be a very effective weapon in society's war against drug crimes.
Nonetheless, the record does not reveal why the specific modus
operandi used by the State in this case was indispensable to the
accomplishment of its law-enforcement goals. The record thus does
not disclose why the reverse-sting operation could not have been
used successfully without a contingency-compensation arrangement
with the primary informant or without more effective control and
supervision over the informant by law-enforcement officers or
without other safeguards and precautions that would reduce the risk
that an innocent person would be coerced into the commission of
crime.
The evidence in this record is not sufficient to permit us to
resolve the issue of due process entrapment. Further, the trial
court, in determining, correctly, that the court was to decide this
issue as a matter of law, did not have available the standards set
forth in Johnson. Because this case must be retried on other
grounds, the trial court should make that determination based on
those standards informed by an adequate record. On retrial, the
parties will have an opportunity to amplify the record as it bears
on the determination of whether due process entrapment occurred.
Statutory entrapment, as earlier noted, is an affirmative
defense to be determined by the jury, and with respect to which the
burden of proof is on the defendants. See Rockholt, supra, 96 N.J.
at 577. The focus of due process entrapment, as opposed to
statutory entrapment, is exclusively on the actions of the State.
That circumstance justifies a different allocation of the burden of
proof from that required by statutory entrapment. Because in the
context of due process entrapment the prosecution has created the
situation that is under scrutiny and because the State has far more
control over the evidence relevant to proving or disproving due
process entrapment, we are convinced that the burden of proof must
lie with the State. That conclusion is consistent with the
approach taken by the Court in Talbot, supra, 71 N.J. at 165, a
pre-statute case, which provided the basis for the development of
due process entrapment. See Johnson, supra, 127 N.J. at 469.
Although the question of the burden of proof relating to
entrapment was not fully answered in Talbot, see Rockholt, supra,
96 N.J. at 576 n. 2, we determine, as indicated by Talbot, that
defendant must initially put forth some evidence of due process
entrapment before the burden switches to the State. Although "[a]
defendant who claims entrapment has the burden of presenting
evidence in support of this defense, . . . once this is done, . .
. the State must prove" that entrapment has not occurred. Talbot,
supra, 71 N.J. at 165. That approach is consistent with the one
taken in respect of other affirmative defenses in connection with
which the State bears the ultimate burden of proof. E.g., State v.
Galloway,
133 N.J. 631 (1993) (dealing with evidence relating to
affirmative defense of diminished capacity).
Further, we determine that the State must disprove due process
entrapment by "clear-and-convincing" evidence. Because due
process entrapment typically involves situations engineered by law-enforcement officials, placing that level of burden on the State is
reasonable. In other contexts in which evidence has been obtained
illegally, this Court has found the same level of burden to be
appropriate. See State v. Sugar,
100 N.J. 214, 239 (1985)
(applying "clear-and-convincing-evidence" standard as elevated
burden of proof with respect to claim of "inevitable discovery" of
illegally obtained evidence, because State had "created [the]
situation"). The same considerations impel us to adopt the "clear-and-convincing" standard for cases involving the due process
entrapment defense. An even higher burden, "beyond a reasonable
doubt," is placed on the State when the voluntariness of suspect's
confession is at issue. E.g., State v. Gerald,
113 N.J. 40, 118
(1988) (stating "In New Jersey . . . we have long adhered to the
view that as a matter of state law, the waiver [of one's right to
remain silent] must be proven beyond a reasonable doubt."). Such
a high burden is required when evaluating confessions largely
because the State is usually in control of the environment in which
confessions occur. E.g., State v. Reed,
133 N.J. 237, 259-60
(1993) (finding that inherently coercive atmosphere of custodial
interrogation was exacerbated by refusal to permit access by
retained attorney who was present to speak with suspect). The same
logic suggests the use of a high burden when the due process
entrapment defense is legitimately invoked because the State
similarly controls the environment. We refrain, however, from
imposing the highest standard of proof as is done in confession-cases because the issue of due process entrapment lacks an
additional concern attendant to the confession-cases, namely, the
questionable evidentiary reliability of a confession that is not
objectively and definitively voluntary. Id. at 260.
Finally, we note that in addressing the issue of due process
entrapment, the trial court should rely on the evidence presented
during the course of the trial and any additional hearings that
might be necessary to provide the proper factual basis to make that
determination. That approach should obviate the use of special
interrogatories to be answered by the jury.
In the course of ongoing pre-trial motions, the prosecutor took the position that Copola was the only informer involved in the transaction. Not until the second day of the trial did the State disclose for the first time that De La Roche had been a retained informant. Although defendants knew of De La Roche's involvement in the crime, they did not know prior to that disclosure that he had been an informer.
Defendants argue that De La Roche played a central role because he selected and targeted defendants and set up the entire transaction and actually provided the money. The trial court, however, relying on the prosecutor's representation, believed that De La Roche "was not a participant in the actual transaction . . . between . . . [d]efendants and the police officers at the time of the arrest."
The record supports defendants' contention that De La Roche was not a marginal participant in the crime. He apparently played a substantial part in arranging for the commission of the crimes. De La Roche was intimately familiar with Copola's scheme of the
reverse-sting against suspected mid-level drug dealers, having been
arrested in a case in which Copola had been the State's main
operative. De La Roche himself singled out Florez as the target of
the sting; he was the person who introduced Copola to defendants.
In addition, he attended all the meetings between defendants and
Copola at which the criminal plan was devised. Finally, he was
present when the drug transaction occurred. 261 N.J. Super. at 17-19. In light of all these circumstances, the Appellate Division
correctly found that a substantial issue of entrapment existed, and
concluded "that the prosecutor delayed for an unreasonable period
of time in supplying information that De La Roche was a participant
in the criminal event." Id. at 28.
Brady v. Maryland,
373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed.2d 215 (1963), requires the prosecution to disclose evidence in its
possession that is both material and favorable to the defendant.
Evidence is material "only if there is a reasonable probability
that, had it been disclosed to the defense, the result of the
proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682,
105 S. Ct. 3375, 3383,
87 L. Ed.2d 481, 494
(1985). "A 'reasonable probability' is a probability sufficient to
undermine confidence in the outcome." Ibid. "Where the defendant
has made a specific request for information and the prosecution has
failed to reveal the requested information, the standard of
materiality is whether 'the suppressed evidence might have affected
the outcome of the trial.'" State v. Carter,
91 N.J. 86, 112
(1982) (quoting United States v. Agurs,
497 U.S. 97, 104,
96 S. Ct. 2392, 2398,
49 L. Ed.2d 342, 350 (1976)).
De La Roche could have provided information that would have
had a direct bearing on Copola's testimony relating to the
commission of the crime. That information also would have been
relevant to the issue of entrapment. Because of De La Roche's role
in the reverse-sting, defendants were entitled to know long before
the second day of trial that he had been a retained informer.
The State contends, however, that it should be excused from
its failure to provide such discovery because it made reasonable
efforts to locate De La Roche and defendants already knew De La
Roche's identity. The trial court found that the State had done
enough to attempt to locate De La Roche and further that the
failure to reveal his identity as an informant had not prejudiced
the defense. The State apparently had checked De La Roche's last-known address, pager number, and phone number. The defense itself
searched through inmate-identification procedures and interviewed
neighbors.
When the defendants know the identity of the informant and
that his or her testimony may be relevant to an entrapment defense,
courts have found that the government must nevertheless make a
reasonable effort to locate the informant and produce him or her at
trial. See, e.g., United States v. Suarez,
939 F.2d 929, 932 (11th
Cir. 1991) (citing Roviaro, supra, 353 U.S. at 60-61, 77 S. Ct. at
627-28, 1 L. Ed.
2d at 645). A defendant's unsuccessful efforts do
not excuse the State from its responsibility to ferret out and
produce information that is important to the defense and to which
it is entitled.
We agree with the Appellate Division, 261 N.J. Super. at 28,
that the State under the circumstances did not satisfy its
obligation of discovery owed the defense. However, in light of the
decision to remand this case and the fact that De La Roche's status
as an informant is now disclosed as a matter of record, we need not
further consider the issue of prejudice as a result of the State's
breach of defendants' discovery rights.
As a final point, both defendants now claim that the trial court failed to charge the jury that the weight of the cocaine was an essential element of the underlying offense of possession with intent to distribute and that that omission constituted reversible error.
Defendants were charged with and convicted of second-degree conspiracy to commit the crime of possession of a controlled substance with intent to distribute, a crime of the first degree. N.J.S.A. 2C:35-5b(1) (first-degree possession with intent to distribute) and N.J.S.A. 2C:5-4a (grading of conspiracy). The statute, N.J.S.A. 2C:35-5b(1), specifies that that crime requires possession of a substance in a quantity of five ounces or more. When instructing the jury on the elements of that crime, the trial court explained the concept of conspiracy and then explained the elements of possession of cocaine with intent to distribute. In
its description of the elements of possession of cocaine with
intent to distribute, the trial court never instructed the jurors
that the weight of the cocaine was an element of the crime and that
they were required to determine that element.
Neither defendant raised an objection to the jury instructions
and to the omission of a reference to the weight of the controlled
dangerous substances as an element of the crime charged. Garcia,
however, raised that issue in his motion for direct certification.
Florez did not raise that issue in his appeal to the Appellate
Division. He raised the issue only through a cross-petition for
certification following Garcia's motion for direct certification.
We would not ordinarily entertain an issue presented in the
foregoing fashion. However, the State has acknowledged that the
weight of the controlled dangerous substance is a material element
of the crime of first degree possession with intent to distribute
under N.J.S.A. 2C:35-5b(1). Further, the State conceded that the
trial court's failure to instruct the jury on the weight of the
cocaine as an element requires reversal of the second-degree
conspiracy conviction. Those positions would appear to be correct.
See, e.g., State v. Roberson,
246 N.J. Super. 597, 607 (App. Div.
1991) (holding that failure to charge jury properly on weight of
controlled substance as element of crime must result in reversal
even where not objected to and where State's evidence on weight was
uncontradicted). The State maintained, however, that the proper
remedy was resentencing for the lesser-included offense of
conspiracy to commit third-degree possession with intent to
distribute. We need not consider further the State's proposed
remedial relief in light of our reversal of the convictions.
However, in view of the State's position on the merits, we
address the issue. Accordingly, we conclude that when this case is
retried, the trial court should instruct the jury on the weight of
the cocaine as an element of the crime charged.
In State v. Florez, we uphold the Appellate Division's reversal of defendant's conviction and remand for retrial. In State v. Garcia, we reverse the conviction entered by the Law Division and remand for retrial.
Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.
Footnote: 1 The spelling of Copola's name appears in several variations throughout the proceedings including Copola, Capola and Cappola. The informant is hereafter referred to as "Copola."