                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 93-1393

                    UNITED STATES OF AMERICA,

                            Appellant,

                                v.

               RAFAEL SANTANA AND FRANCIS FUENTES,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Frank H. Freedman, Senior U.S. District Judge]
                                                          

                                             

                              Before

              Selya, Cyr and Boudin, Circuit Judges.
                                                   

                                             

     Kevin O'Regan, Assistant United  States Attorney, with  whom
                  
A. John  Pappalardo, United States Attorney,  and Andrew Levchuk,
                                                                
Assistant United States Attorney, were on brief, for appellant.
     Leonard  H. Cohen, with whom William A. Rota, Nancy A. Lyon,
                                                                
and  Cain,  Hibbard, Myers  &amp; Cook  were  on brief,  for appellee
                                  
Santana.
     Peter L. Ettenberg, with whom Gould &amp; Ettenberg, P.C. was on
                                                          
brief, for appellee Fuentes.
     Wendy  Sibbison, Burton Shostak,  and Moline, Ottsen, Mauze,
                                                                 
Leggat &amp; Shostak on consolidated brief for Massachusetts Ass'n of
                
Criminal Defense  Lawyers and National Ass'n  of Criminal Defense
Lawyers, amici curiae.

                                             

                        September 16, 1993

                                             

          SELYA, Circuit Judge.  In the six decades since Justice
          SELYA, Circuit Judge.
                              

Roberts  noted  that  "[s]ociety  is at  war  with  the  criminal

classes," Sorrells  v. United States,  287 U.S.  435, 453  (1932)
                                    

(Roberts,  J.,  dissenting),   hostilities  have  escalated   and

armaments have  grown more  destructive.  Here,  the government's

weapon was 13.3  grams of  heroin, 92% pure,  delivered into  the

stream of commerce as part of an effort to gain the confidence of

suspected  drug traffickers.  The district judge decided that the

government's guerilla tactics impermissibly  endangered civilians

and  dismissed the ensuing charge.  See United States v. Santana,
                                                                

808 F. Supp.  77 (D.  Mass. 1992).   The  United States  appeals.

Although law enforcement officers  might well profit from reading

the lower court's  thoughtful opinion, we conclude that the court

exceeded its authority.  Consequently, we reverse.

I.  BACKGROUND

          In  1991, the  federal Drug  Enforcement Administration

(DEA)  mounted an  elaborate reverse  sting  designed to  bring a

mammoth heroin distribution network to  ground.  The DEA believed

that defendant-appellee  Rafael Santana ran the  ring from prison

through  various  henchmen, including  defendant-appellee Francis

Fuentes.  In the course of the sting, Fuentes asked an undercover

agent, posing as  a heroin supplier, to  furnish a sample of  his

wares.    The  agent  received a  special  dispensation  from DEA

hierarchs  and  delivered  13.3 grams  of  heroin,  92%  pure, to

                                2

Fuentes  in August of 1991.1  The authorities never recovered the

sample.

          There is a factual dispute over the size of the stakes.

The  government, based on its  agent's testimony, claims that the

deal under negotiation contemplated  delivery of 141 kilograms of

heroin.   It further claims, based on an informer's account, that

Santana's  organization was  capable  of distributing  up to  200

kilograms  of  heroin  monthly.     Appellees  suggest  that  the

negotiations  concerned   a  considerably  smaller   quantity  of

narcotics, and that the  organization, if it existed at  all, was

far less ambitious.  We need not  enter this thicket; for present

purposes, the relevant finding is the reasonableness, at the time

the sample  was furnished,  of the  government's belief that  the

alleged  organization  had  the  capacity  to  manage  widespread

distribution  of heroin.  It  is not seriously  disputed that the

government  thought  this  to be  the  case;  and, moreover,  the

government's  belief, given both the information in its files and

Santana's history   he  had been convicted in 1990  of conspiracy

to  smuggle   1,000  kilograms   of  heroin      was  objectively

reasonable.

          Having been made privy to the evidence collected in the

course  of  the government's  indagation,  a  federal grand  jury

                    

     1The heroin sample comprises  about 2,500 doses of the  size
and purity  typically sold on the street.  See Gerald F. Uelman &amp;
                                              
Victor G. Haddox, Drug Abuse and the Law  Sourcebook,   2.4(a) at
                                                    
2-19 (1991).   The DEA  authorized delivery  pursuant to  section
III-E  of the DEA's  Domestic Operations Guidelines,  20 Crim. L.
Rep. (BNA) 3055-58 (Feb. 2, 1977).

                                3

returned  a  three-count  indictment  against  seven  defendants,

including appellees,  in October of  1991.  The  defendants filed

pretrial motions seeking to dismiss the indictment on  the ground

that the government acted outrageously in fronting so much heroin

and then losing track of it.  A magistrate judge recommended that

the  motions   be  denied.    The  district  court  rejected  the

recommendation.   Presuming that  most of the  unretrieved sample

reached  end users,  see  id. at  79, the  court  found that  the
                             

government's actions exceeded the bounds of propriety, see id. at
                                                              

81-84.  It  thereupon dismissed  count 3 of  the indictment  (the

count  for   which  the   13.3-gram  sample  formed   the  corpus
                                                                 

delicti).2  See id.  at 85-86.   The court derived its  authority
                   

from  the  due  process  clause  of  the  Fifth  Amendment,  and,

alternatively, from its supervisory power.   See id. at 86.   The
                                                    

government  moved  unsuccessfully  for reconsideration3  and  now

appeals.  We have jurisdiction under 18 U.S.C.   3731 (1988).

          There  are two main legal points in contention.  First,

                    

     2Count  3 named only Santana  and Fuentes.   Hence, they are
the lone appellees.

     3The briefs  highlight several  other factual disputes.   By
and  large,  these  disputes hinge  on  the  admissibility of  an
affidavit appended  to the motion  to reconsider    an  affidavit
which  tries to shed  light on the  sample's ultimate disposition
and  the agent's motive in delivering it.  Because this affidavit
was not proffered originally, and because the lower court made no
findings concerning it, we  consider only two undisputed portions
of the affidavit, namely, that the agent, in asking his superiors
to  arrange for  a  sample, believed  that  "Fuentes was  testing
whether I was a real drug  dealer," and that supplying the sample
"was  an  important part  of  Fuentes' evaluation  whether  to go
forward  with the deal."   We will assume,  as appellees implore,
that most,  if not all, of  the 13.3 grams of  heroin reached end
users.

                                4

the government  denies that its conduct was  outrageous.  Second,

the  government  asseverates  that   the  district  court  lacked

authority  under either the due  process clause or  the rubric of

supervisory  power  to  redress  injuries  to  third  parties  by
                                                             

dismissing charges against appellees.  On the facts of this case,

we think that both points are well taken.

II.  THE DOCTRINE OF OUTRAGEOUS MISCONDUCT

          Outrageous   misconduct  is   the  deathbed   child  of

objective  entrapment, a  doctrine  long since  discarded in  the

federal  courts.  See, e.g.,  Sherman v. United  States, 356 U.S.
                                                       

369, 372  (1958) (rejecting  an objective entrapment  approach in

favor  of a  subjective  approach).   The doctrine's  midwife was

Chief  Justice Rehnquist  (then Justice  Rehnquist), who,  in the

course  of  championing  a   subjective  theory  of   entrapment,

speculated that the  Court might  "some day be  presented with  a

situation  in which the conduct  of law enforcement  agents is so

outrageous that  due process principles would  absolutely bar the

government   from  invoking  judicial   processes  to   obtain  a

conviction. . . ."  United States v. Russell, 411  U.S. 423, 431-
                                            

32 (1972).  Seizing upon this dictum, the defendant in Hampton v.
                                                              

United States,  425 U.S. 484  (1975), attempted  to construct  an
             

outrageous misconduct  defense rooted in the  due process clause.

Hampton lost his case but succeeded in legitimating the doctrine,

albeit precariously.4

                    

     4In Hampton,  a concurrence  combined with the  plurality to
                
reject the appeal.  However, the two concurring Justices switched
sides  to form  a different  majority vivifying  the  doctrine of

                                5

          Although   it  has   a   comfortably   familiar   ring,

"outrageous  misconduct" is  surpassingly difficult  to translate

into a closely  defined set  of behavioral norms.   The  broadest

hints as to the content of the outrageousness standard lie in the

dictum  that  spawned  the  doctrine.    Inasmuch  as  Rochin  v.
                                                             

California, 342  U.S. 165 (1952), is the case irrefragably linked
          

with  the legal rubric of fundamental fairness, one hint is found

in Justice Rehnquist's citation to Rochin.  See Russell, 411 U.S.
                                                       

at  431-32.   A second  hint is  contained in  Russell's explicit
                                                      

equation  of  outrageous  misconduct  with  violations  of  "that

'fundamental  fairness,  shocking  to  the  universal   sense  of

justice,'  mandated  by  the  Due  Process  Clause  of the  Fifth

Amendment."  Russell, 423 U.S. at 432 (quoting Kinsella v. United
                                                                 

States ex rel. Singleton, 361 U.S. 234, 246  (1960)).  Picking up
                        

on  these clues, most courts  apply a variant  on the fundamental

fairness standard as  a sounding  line for  outrageousness.   See
                                                                 

Mosley, 965 F.2d at 910 (collecting formulations).  Although this
      

standard lacks  mathematical  precision, we  agree  with  Justice

Frankfurter that imprecision of this nature does not leave courts

without  adequate guidance;  rather, "[i]n  dealing not  with the

machinery of  government but with  human rights,  the absence  of

formal  exactitude, or  want  of fixity  of  meaning, is  not  an

unusual  or   even   regrettable  attribute   of   constitutional

provisions."  Rochin, 342 U.S. at 169.
                    

                    

outrageous  misconduct.  See Hampton, 425 U.S. at 491-95 (Powell,
                                    
J. concurring).

                                6

          The banner of outrageous misconduct is often raised but

seldom saluted.   Even though one respected  jurist contends that

the doctrine belongs in the dustbin of history, see United States
                                                                 

v.  Miller, 891 F.2d 1265,  1271-73 (7th Cir. 1989) (Easterbrook,
          

J.,  concurring),5   case  after  case   confirms  its  continued

existence.   See Moran v. Burbine,  475 U.S. 412, 432 (1985) ("We
                                 

do not question that on facts more egregious than those presented

here police  deception might  rise to  a level  of a  due process

violation."); United  States v. Mosley,  965 F.2d 906,  909 (10th
                                      

Cir. 1992) (collecting cases  from eleven circuits).  Be  that as

it  may,  the doctrine  is  moribund;  in practice,  courts  have

rejected its application with almost monotonous regularity.  See,
                                                                

e.g.,  United  States v.  Barnett, 989  F.2d  546, 560  (1st Cir.
                                 

1993),  petition for cert.  filed (June 28,  1993) (No. 93-5018);
                                 

United States v.  Lilly, 983  F.2d 300, 309-10  (1st Cir.  1992);
                       

United States v. Marino, 936 F.2d  23, 27 (1st Cir. 1991); United
                                                                 

States v. Rosen, 929 F.2d 839, 842 (1st Cir.),  cert. denied, 112
                                                            

S. Ct. 77 (1991); United States v. McDowell, 918 F.2d 1004, 1008-
                                           

09 (1st  Cir. 1990); see also  United States v. Panitz,  907 F.2d
                                                      

1267, 1272-73 (1st Cir.  1990) (collecting pre-1990 First Circuit

                    

     5In  Judge Easterbrook's  view, the  appropriateness of  the
government's decision  to supply drugs  as part of  an undercover
operation   presents    a    "political"   question    that    is
quintessentially nonjusticiable.  Miller, 891 F.2d at 1272.  With
                                        
respect, we think  this conceptualization stretches the  military
analogy  too far.   We  adhere instead  to the  idea that  "those
charged  with th[e] investigative  and prosecutorial  duty should
not be  the  sole  judges  of when  to  utilize  constitutionally
sensitive means  in  pursuing their  tasks."   United  States  v.
                                                             
United States District Court, 407 U.S. 297, 317 (1972).
                            

                                7

cases declining to invoke the doctrine); United States v. Bogart,
                                                                

783  F.2d 1428,  1434-38  (9th Cir.)  (summarizing relevant  case

law), vacated in part on other grounds sub  nom. United States v.
                                                              

Wingender, 790 F.2d 802 (9th Cir. 1986); United States v. Warren,
                                                                

747 F.2d 1339,  1342-43 &amp;  nn. 7-8 (10th  Cir. 1984)  (collecting

precedents  from various  circuits).   Indeed, since  the Supreme

Court  decided Hampton,  a  federal appellate  court has  granted
                      

relief to a  criminal defendant  on the basis  of the  outrageous

misconduct  defense only once.   See United States  v. Twigg, 588
                                                            

F.2d 373,  382 (3d  Cir. 1978).   The historical record  makes it

clear,  therefore,  that  the  outrageous  misconduct defense  is

almost never successful.6

          There are two competing visions of the doctrine's role.

One school of thought  holds that the defense should  be confined

to cases involving extreme  physical, and possibly psychological,

abuse of a defendant.  See United States v. Kelly, 707 F.2d 1460,
                                                 

1476  n.13 (D.C.  Cir.)  (per curiam)  (collecting cases),  cert.
                                                                 

denied, 464  U.S. 908 (1983).   A second school  of thought holds
      

that  outrageous  misconduct  may  also  function  as  a  kind of

supplement to  the entrapment  defense, reserved for  those cases

                    

     6In  addition to  Twigg, one  court  of appeals  invoked the
                            
doctrine in an  alternative holding, see  United States v.  Lard,
                                                                
734 F.2d 1290,  1296 (8th  Cir. 1984), and  another directed  the
district court to determine  whether outrageous misconduct should
be  found on remand, see Bogart, 783  F.2d at 1438.  A smattering
                               
of district  courts have  also applied the  outrageous misconduct
doctrine to the defendant's advantage.   See, e.g., United States
                                                                 
v. Marshank, 777  F. Supp.  1507, 1524 (N.D.  Cal. 1991);  United
                                                                 
States  v.  Gardner, 658  F. Supp.  1573,  1577 (W.D.  Pa. 1987);
                   
United States v. Batres-Santolino, 521 F. Supp. 744, 751-52 (N.D.
                                 
Cal. 1981).

                                8

where  law  enforcement personnel  become  so  overinvolved in  a

felonious venture that  they can  fairly be said  either to  have

"creat[ed]"  the crime  or  to have  "coerc[ed]" the  defendant's

participation  in it.    Mosley, 965  F.2d  at 911-12;  see  also
                                                                 

Bogart, 783  F.2d at 1436-38.   This case does not  require us to
      

choose between these two conceptions of the doctrine.

III.  APPLYING THE DOCTRINE

          Having  traced   the  evolution  of  the   doctrine  of

outrageous misconduct,  we proceed to consider  its applicability

in this case.   Although what transpired here fits neither of the

conventional  patterns of outrageous  misconduct described above,

the district  court nonetheless  ruled that furnishing  the hefty

heroin  sample (and  then losing  track of  it) comes  within the

doctrine's sweep.  We  conclude, for two independently sufficient

reasons, that the district court erred.

                       A.  Outrageousness.
                                         

          "It  is clear that the government may supply drugs to a

suspect  in  a drug  investigation."   Hampton,  425 U.S.  at 491
                                              

(Powell, J.,  concurring).  When this occurs  in the prototypical

case,  an   agent  documents  a  malefactor's   acceptance  of  a

government-supplied  sample and  then promptly  arrests him.   In

this scenario, even a large quantity of government-supplied drugs

will not raise judicial eyebrows, for the  contraband is regained

coincident with the arrest.   See, e.g., Barnett, 989 F.2d at 560
                                                

(declining to find outrageous misconduct where agent sold suspect

enough hydriodic acid to  manufacture 18 kilos of methamphetamine

                                9

but  recovered it  promptly); United States  v. Gianni,  678 F.2d
                                                      

956, 960 (11th Cir.)  (similar; agents sold suspect 1150  lbs. of

marijuana but recovered it promptly), cert. denied, 459 U.S. 1071
                                                  

(1982);  United States v. Dunn,  608 F. Supp.  530, 531 (W.D.N.Y.
                              

1985)  (similar;  agent  sold  suspect one  kilo  of  cocaine but

recovered it promptly).

          The  government's  role  in  supplying  drugs  is  more

problematic  when  the drugs  are  not  recovered.   Nonetheless,

several  courts have  held that  providing a  known addict  small

quantities of drugs  in order  to facilitate the  progress of  an

undercover   agent's   work   does   not   constitute  outrageous

misconduct.  See United States v. Harris,     F.2d    ,     (10th
                                        

Cir.  1993) [No. 92-4001, 1993 WL 232155 at *5-*6]; United States
                                                                 

v.  Barrera-Moreno, 951 F.2d  1089, 1092  (9th Cir.  1991), cert.
                                                                 

denied, 113  S. Ct. 417  (1992) &amp; 113  S. Ct. 985  (1993); United
                                                                 

States v. Ford, 918 F.2d 1343, 1349-50 (8th Cir. 1990).
              

          Common  sense suggests  that, where  the target  of the

investigation  is  a  distributor  rather  than  an  addict,  the

quantity  of  drugs  needed  to  earn  or  retain  the  suspect's

confidence   will  likely   be  larger.7     It   is,  therefore,

unsurprising  that  courts  generally   have  declined  to   find

outrageous  misconduct in  situations  of this  sort despite  the

                    

     7We recognize that narcotics  differ in many ways, including
size, weight, and potency; and that, therefore, a small amount of
a  particular drug, say,  heroin, may be much  more lethal than a
larger amount  of a different drug, say,  marijuana.  For ease in
reference, however,  we use  the term "quantity"  throughout this
opinion as a proxy for dangerousness.

                                10

disappearance  of fairly  substantial  quantities  of  government

supplied contraband.   See,  e.g., United  States v.  Valona, 834
                                                            

F.2d 1334, 1344-45 (7th Cir. 1987) (declining to  find misconduct

where  the government disbursed,  without recovering,  a 3.5-gram

sample  of cocaine while  negotiating sales aggregating  up to 35

kilos); United States v.  Buishas, 791 F.2d 1310, 1314  (7th Cir.
                                 

1986) (similar; government disbursed,  without recovering, a  69-

gram  sample of  marijuana in  the course  of closing  an 89-kilo

deal).

          Although  Valona and Buishas are structurally analogous
                                      

to the case at hand, the government concedes that the quantity of

drugs given to Fuentes is, in absolute terms, unprecedented.  The

question,  then, is whether, at some point, the quantity of drugs

disbursed  on the government's  behalf may become  so large that,

given  all the  attendant  circumstances,  the government's  role

becomes qualitatively different, i.e., outrageous.
                                     

          The court below devised a seven-part test and, applying

that test, determined the  government's actions to be outrageous.

See Santana, 808 F. Supp. at 81-86.  The court focused on (1) the
           

type of drug furnished;  (2) the sample's potency or  purity; (3)

its relative  size; (4) whether  the defendant requested  it; (5)

whether the  drugs were  recovered; (6)  what likely happened  to

them;  and (7) whether  the sample itself  constitutes the corpus
                                                                 

delicti  of the crime charged in the  indictment.8  Id. at 81-82.
                                                       

                    

     8In contrast, the relevant DEA guidelines, see supra note 1,
                                                         
suggest  consideration of  (1) the  type and  amount of  the drug
contained  in the sample; (2) the likelihood that the sample will

                                11

We  appreciate  the  district  court's effort  to  structure  the

exercise of  judicial discretion, and  we realize that  the court

did not intend  its compendium to be exhaustive.   See id. at 82.
                                                          

Nevertheless,   we   do  not   think   that   the  inquiry   into

outrageousness can  usefully  be broken  down  into a  series  of

discrete  components.  Almost by definition, the power of a court

to control prosecutorial excesses  through resort to  substantive

aspects of  the due process  clause is  called into play  only in

idiosyncratic situations    and such situations are  likely to be

highly ramified.   Where facts are critically  important and fact

patterns tend  to be  infinitely diverse, adjudication  can often

best proceed on a case-by-case basis.  The outrageousness defense

falls into this category.   Thus, it is unproductive to force the

determination of outrageousness into a mechanical mode.

          Let   us   be   perfectly   plain.     We   find   that

outrageousness, by its nature,  requires an ad hoc determination.
                                                  

We  do not suggest, however, that the assessment should be wholly

unguided.  The calculus must be rooted in the record, and it will

often  be informed  by  the  various  factors enumerated  in  the

district  court's test,  the DEA's  test, see  supra note  8, and
                                                    

                    

reach consumers;  (3) the number  and prominence of  the suspects
implicated;  (4)  the  type  and  amount  of evidence  needed  to
complete the  ongoing investigation; (5) the time  required to do
so;  and (6) the likelihood of obtaining such evidence.  Although
the DEA's list, like the  district court's list, contains factors
relevant to the seriousness of harm likely to  be suffered by end
users,  the DEA's list emphasizes, and  the court's list slights,
the  likelihood   that  the   investigation  will  lead   to  the
prosecution of important drug dealers.

                                12

similar tests produced  by other sources.9   At bottom,  however,

outrageousness is a  concept, not  a constant.   What shocks  the

conscience in a given situation may be acceptable, though perhaps

grim  or  unpleasant, under  a  different  set of  circumstances.

Slashing  a  person's  throat  with  a  sharp  knife  may  be  an

unrelievedly outrageous  course of conduct if one thinks in terms

of  Jack the Ripper, helpless  women, and the  shadowy streets of

London; the same behavior will be thoroughly acceptable, however,

if  the knife is a  scalpel, the knife-wielder  a skilled surgeon

performing  a tracheotomy, the target a patient, and the venue an

operating room.  Although we recognize that formulaic tests offer

administrative  convenience  and  ease  in  application,  we also

recognize that neither life nor law can always be made convenient

and easy.  So here:   there is simply no way to reduce the myriad

combinations of potentially relevant circumstances to a neat list

of weighted factors without  losing too much in  the translation.

Cf. Borden v. Paul Revere  Life Ins. Co., 935 F.2d 370,  380 (1st
                                        

Cir. 1991)  (discussing "outrageousness"  in the context  of tort

liability  and concluding  that "[t]here  is no  universal litmus

                    

     9See, e.g., United States v. Feinman, 930 F.2d 495, 498 (6th
                                         
Cir. 1991)  (suggesting that a  reviewing tribunal weigh  (1) the
importance  of  the  investigation,  evidenced  by  the  type  of
criminal activity  targeted, (2) whether the  criminal enterprise
predated the investigation, (3) whether the investigator directed
or controlled the criminal  activity, and (4) the investigation's
impact on the commission of the crime); United States v. Gardner,
                                                                
658 F. Supp.  1573, 1576-77  (W.D. Pa. 1987)  (suggesting that  a
reviewing tribunal  weigh (1)  the government's role  in creating
the  crime,  (2)  the  illegality  or immorality  of  the  police
conduct, (3) the defendant's  predisposition to commit the crime,
and  (4) whether the investigation is aimed at preventing further
criminality).

                                13

test  that a court can  utilize to determine  whether behavior is

extreme and outrageous").

          In  addition  to   relying  on  a  tightly   structured

formulation  in an  area of  the law  demanding  flexibility, the

district  court  compounded  its  error  by  omitting  from  that

formulation a  salient set of considerations:  it disregarded the

nature   and   scope  of   the   ongoing   investigation.     The

outrageousness  vel non of a police officer's actions can only be
                       

evaluated by  taking into  account the  totality of  the relevant

circumstances.  When  the officer is on  the trail of  a criminal

enterprise,  these  circumstances  include  the  identity of  the

suspects, the gravity of past crimes, and the dangers foreseeably

attributable   to   the   enterprise's   uninterrupted   progress

(including  likely  future  crimes).     In  this  instance,  the

government had  a solid basis  to believe that  Santana's network

could distribute up  to 200 kilograms of heroin per  month.  Seen

in that light,  it does  not shock our  collective conscience  to

think that a lawman would dangle  13.3 grams of heroin as bait to

land  such a large-scale ring, even though delivery of the sample

ran a palpable risk of ushering it into the marketplace.

          The  district  judge  refused to  honor  this argument,

which the magistrate described as setting "a  big hook to catch a

big fish," for several reasons.  We find none of them convincing.

First, the  judge worried  that the  big  hook/big fish  approach

would remove any outer limit  on "the quantity of drugs that  the

government can introduce to  society."  Santana, 808 F.  Supp. at
                                               

                                14

83.   It is a sufficient  answer to this concern  that, here, the

size of the sample was proportionate both to the perceived threat

posed by the ongoing  criminal activity and to the  exigencies of

the chase.  Other cases, involving greater quantities of drugs or

materially different  circumstances, need not  be decided  unless

and until they arise.

          Second,  the judge  concluded  that  "the  government's

conduct served  only  to increase  the  aggregate sum  of  heroin

available for consumption."  Id. at 84.  This statement, which we
                                

read as  a bid to repudiate the  magistrate's implicit assessment

of  costs and benefits, is  highly questionable.   Let us compare

two  worlds.  In the first world, the government distributes 13.3

grams  of heroin, but Santana's  network is put  out of business.

In the  second world, the government  exercises greater restraint

in its undercover activities, but fails to gather enough evidence

to immobilize the  ring.  The aggregate supply of  heroin will be

greater in the first world only if one is prepared to indulge the

unlikely assumption  that  some other  equally  skilled  criminal

network will instantaneously pick up the slack.

          Third,  the judge,  without  saying so  in haec  verba,
                                                                

seemingly  suggests that  some situations  cannot be  analyzed in

terms of societal costs and benefits.  See id. at 85; cf. Richard
                                                         

C.  Donnelly,  Judicial  Control   of  Informants,  Spies,  Stool
                                                                 

Pigeons, and  Agents Provocateurs, 60 Yale L.J. 1091, 1111 (1951)
                                 

(denouncing "the sinister sophism that the end, when dealing with

known  criminals   or  the  'criminal   classes,'  justifies  the

                                15

employment  of illegal  means").   We do  not share  the district

court's  discomfiture  with  means/ends  rationality  or     what

amounts to the same thing   cost/benefit analysis.  At least when

the decisionmaker uses a common currency of exchange and operates

under  conditions of reasonable  certainty, cost/benefit analysis

is  a perfectly  legitimate mode  of legal  reasoning, frequently

employed by both courts  and agencies.  See generally  Richard A.
                                                     

Posner,  The Problems of Jurisprudence 105-08 (1990).  Using such
                                      

an  approach here  does  not strike  us  as either  theoretically

unsound or fundamentally  unfair.  More  important still, we  can

identify no constitutional impediment to the  government weighing

the  risk of an immediate 13.3-gram increase in the heroin supply

against  the potential  benefit of  diverting vast  quantities of

heroin from the American market.

          The   district   court's  resistance   to  cost/benefit

analysis  is  carried  to  its  logical  conclusion  by  appellee

Fuentes.   He maintains that no  possible prosecutorial objective

can justify the distribution of so much heroin by the government.

But, since there is abundant precedent for distribution of  drugs

by law  enforcement agents  mounting stings and  other undercover

operations,  see cases cited supra  pp. 9-10, the  only course of
                                  

action compatible with Fuentes's argument would be to construct a

per se rule, drawing a bright line at some particular quantity of
      

drugs  and forbidding lawmen to  cross that line  in dealing with

suspected  drug traffickers.   We regard  a per  se rule  in this
                                                   

                                16

context  as unprecedented,  unworkable,10 unwise,  and thoroughly

uninviting.  We, therefore, refuse to travel that road.

          Saying that we  reject the district court's  objections

to the big  hook/big fish  metaphor is not  tantamount to  saying

that we unreservedly embrace the comparison.   A hook, regardless

of its size, causes injury  only to the fish that is caught.   We

think that a more useful metaphor is that it takes a wide  net to

catch a  big fish.   Of course, a  net cast to  catch a  big fish

(thought to be predatory) might also catch hundreds of relatively

innocent little fish.  But, if  the big fish would have  devoured

millions  of little  fish,  even the  most tender-hearted  marine

biologist would be hard pressed to argue against  the fisherman's

use of the net.   In the final analysis, probing the magistrate's

metaphor for imprecisions does  not assist appellees' cause, but,

rather, reinforces  our conviction that the  intuition underlying

the metaphor is sound.

          We  have trolled enough  in these waters.   We conclude

that, on  the facts  of this  case, the district  court erred  in

discounting the import of the criminal enterprise's scope and the

magnitude  of the  threat that  it posed.   This  error possesses

decretory  significance:  once the size of the sample is measured

in  relative  rather  than   absolute  terms,  the  investigation

                    

     10We illustrate one of  the many problems that such a per se
                                                                 
rule would  present.  Were  we to draw  such a  line at, say,  10
grams of heroin, we would be handing criminals a foolproof way to
detect whether prospective new suppliers were actually government
agents:    simply demand  a sample  equal to  11  or 12  grams of
heroin.

                                17

reviewed  here  is no  longer  unprecedented and  the  conduct in

question cannot plausibly be classified as outrageous.11

             B.  Misconduct Not Injuring Defendants.
                                                   

          Generally  speaking,  an outrageous  misconduct defense

can  prosper only if a  defendant's due process  rights have been
                                   

violated.   The defense is  normally not available  in situations

where the government has injured only  third parties or committed

a victimless gaffe.  We would  be compelled to reverse the ruling

below on  this basis even  if the government's  deportment failed

the test of outrageousness.

          In  an early entrapment  case, Justice  Brandeis wrote:

"The prosecution  should be stopped,  not because  some right  of

th[e] defendant's] has been  denied, but in order to  protect the

Government.  To preserve it from illegal conduct of its officers.

To  protect the purity of  its courts."   Casey v. United States,
                                                                

276  U.S.  413,  425 (Brandeis,  J.,  dissenting).   The  obvious

implication of this perspective    with its emphasis on  the rule

of law rather than on individual rights   is that the state ought

not  profit by  its miscreancy, regardless  of whether  a charged

defendant  has been  wronged.   Although  the  doctrinal view  of

entrapment based on this philosophy never prevailed, see Russell,
                                                                

411 U.S. at  428-36, the Second Circuit subsequently flirted with

the  same perspective in a  different context.   In an outrageous

                    

     11We do not totally reject the possibility, suggested by the
court below, that outrageous  misconduct may be found  apart from
situations in which the government has used brutality  or induced
commission of a crime.  We simply note that the case at hand does
not require us to explore this doctrinal frontier.

                                18

misconduct  case   decided  on  other  grounds,   Judge  Friendly

expressed tentative support,  in the abstract, for  the view that

the government  ought not reap prosecutorial  success growing out

of  the seeds of misconduct  injuring third parties.   See United
                                                                 

States v.  Archer, 486 F.2d  670, 676-77  (2d Cir. 1973).12   The
                 

court below believed this  principle to be applicable here.   See
                                                                 

Santana, 808 F. Supp. at 84-85.  We do not agree.
       

          In our  estimation, the  Archer dictum  is incompatible
                                         

with later  pronouncements of  the Supreme  Court.   The flagship

case is United States v. Payner, 447 U.S. 727 (1979).  There, the
                               

government  obtained evidence  against a  defendant by  rifling a

third  party's briefcase.    Although no  due  process claim  was

presented on appeal, the Court seized the occasion to address the

precise question of misconduct injuring third parties and adopted

a distinction first endorsed by the Hampton plurality:
                                           

          [E]ven  if  we   assume  that  the   unlawful
          briefcase  search  was  so outrageous  as  to
          offend  fundamental  "`canons of  decency and
          fairness,'"  Rochin  v. California,  342 U.S.
                                            
          165, 169 (1952)  . . . the  fact remains that
          "[t]he limitations of the Due  Process Clause
          . . . come into play only when the Government

                    

     12Two recent Second Circuit  cases cite Archer in connection
                                                   
with  the proposition  that  courts "will  closely examine  those
cases in which the Government misconduct injures third parties in
some  way."   United  States v.  Thoma, 726  F.2d 1191,  1199 (2d
                                      
Cir.), cert. denied,  467 U.S. 1228 (1984);  accord United States
                                                                 
v.  Chin, 934 F.2d  393, 400 (2d  Cir. 1991).   But neither panel
        
actually  applied  this principle,  because  no  injury to  third
parties had been established.  By like token, in United States v.
                                                              
Panet-Collazo,  960 F.2d 256 (1st Cir.), cert. denied, 113 S. Ct.
                                                     
220 (1992), we were able to sidestep the issue because the heroin
sample provided by  the government as  part of the sting  was not
used  in a manner outrageously  injurious to third  parties.  See
                                                                 
id. at 260.
   

                                19

          activity in question violates  some protected
          right of  the defendant."   Hampton v. United
                                                       
          States, supra, at 490 (plurality opinion).
                       

Payner, 447 U.S. at 737 n.9  (1979).  This statement, to be sure,
      

is dictum    but it  bears the earmarks  of deliberative  thought

purposefully  expressed.   The statement  is clear,  pointed, and

subscribed to  by a  6-3 majority  of the Justices.   It  is also

prominent  in  its  placement,  appearing,  as it  does,  in  the

concluding footnote of a major opinion.   What is more, the issue

that  footnote 9  addressed had  been thoroughly  debated in  the

recent  past,  the Payner  dissent  treated it  as  purporting to
                         

establish a "standing" limitation, see id. at 749 n.15 (Marshall,
                                          

J., dissenting), and the footnote's message has not  been diluted

by any subsequent pronouncement.  Carefully considered statements

of  the  Supreme  Court,  even  if  technically dictum,  must  be

accorded  great weight  and  should be  treated as  authoritative

when, as in  this instance,  badges of reliability  abound.   See
                                                                 

McCoy  v. Massachusetts Inst. of Technology, 950 F.2d 13, 19 (1st
                                           

Cir. 1991)  (concluding that "federal appellate  courts are bound

by  the Supreme Court's considered  dicta almost as  firmly as by

the Court's outright holdings,  particularly when . . .  a dictum

is  of  recent  vintage  and  not  enfeebled  by  any  subsequent

statement")  (collecting   cases  to   like  effect   from  other

circuits), cert. denied, 112 S. Ct. 1939 (1992); see also Charles
                                                         

Alan Wright, The Law of the Federal Courts   58, at 374 (4th  ed.
                                          

1983).

          We  need  not  decide  whether  Payner  established   a
                                                

                                20

limitation on standing in the strict sense of the word, or merely

signaled that defendants are highly unlikely to prevail when they

seek to vindicate the rights of third parties.   In either event,

Payner  makes  manifest  that,   here,  the  trial  court  lacked
      

authority under the due process clause to dismiss a charge on the

basis  that  governmental  misconduct caused  conscience-shocking

harm  to  non-defendants.    See  United  States  v.  Valdovinos-
                                                                 

Valdovinos, 743 F.2d  1436, 1437-38 (9th Cir. 1984)  (per curiam)
          

(rejecting an  outrageous misconduct  defense on the  strength of

footnote 9 in a case in  which government agents, trying to  trap

professional middlemen, lured illegal immigrants to the U.S. only

to deport them), cert. denied, 469 U.S. 114 (1985); United States
                                                                 

v.  Miceli, 774 F. Supp.  760, 770 (W.D.N.Y.  1991) (rejecting an
          

outrageous  misconduct defense on the strength of footnote 9 in a

case in  which a government investigator  seduced the defendant's

ex-wife in  order to  gather incriminating information  about the

defendant).

IV.  SUPERVISORY POWER

          The district court grounded its dismissal of count 3 on

its supervisory  power as well as on the due process clause.  See
                                                                 

Santana, 808 F. Supp. at 86.  In a reprise of an argument earlier
       

advanced, see supra  Part III(B), the  government asserts that  a
                   

federal court's  supervisory  power does  not enable  it to  curb

misconduct that injures only  third parties by dismissing charges

against uninjured defendants.  We test this assertion.

          The  contours of  a court's  supervisory power  are not

                                21

much in doubt.  Under them, a federal court "may, within  limits,

formulate  procedural  rules  not specifically  required  by  the

Constitution or  the Congress."   United States  v. Hasting,  461
                                                           

U.S. 499, 505 (1983).  The Hasting Court flagged three underlying
                                  

purposes  that  can  justify  the  use  of supervisory  power  in

response  to  case-related misconduct,  viz.:    "to implement  a
                                            

remedy for  violation of recognized rights;  to preserve judicial

integrity  by ensuring  that  a conviction  rests on  appropriate

considerations validly before the jury;  and finally, as a remedy

designed  to deter  illegal conduct."   Id.  (citations omitted).
                                           

While we have expressed the view that courts should be willing to

"consider   invoking  [their]   supervisory   powers  to   secure

enforcement  of `better  prosecutorial practice and  reprimand of

those who fail to observe it,'" United States v. Osorio, 929 F.2d
                                                       

753, 763 (1st Cir.  1991) (citation omitted), we have  repeatedly

cautioned that such  powers must  be used  sparingly, see,  e.g.,
                                                                

id.; United  States v. Babb,  807 F.2d 272, 279  (1st Cir. 1986);
                           

United  States v. Lieberman, 608  F.2d 889, 899  (1st Cir. 1979),
                           

cert. denied, 444 U.S. 1019 (1980).  Potent elixirs should not be
            

casually dispensed.

          We  do not believe that the  circumstances of this case

warrant  such  strong medicine.    Although resort  to  a court's

supervisory power has not been  foreclosed altogether as a  means

to remedy  government misconduct not injuring  the defendant, the

Supreme Court  has plainly  semaphored its likely  disapproval in

several  analogous  contexts.    For example,  the  Payner  Court
                                                          

                                22

concluded  that  "the  supervisory  power does  not  authorize  a

federal court  to suppress  otherwise admissible evidence  on the

ground  that  it was  seized unlawfully  from  a third  party not

before the  court."  Payner, 447  U.S. at 735.   In reaching this
                           

conclusion, the Court emphasized that such evidence  could not be

suppressed under the Fourth Amendment, see Rakas v. Illinois, 439
                                                            

U.S.  128,  133-38 (1978),  and reasoned  that the  lower court's

choice of a different analytic framework did nothing to alter the

relative values  assigned to  the underlying interests.   Payner,
                                                                

447 U.S. at 736.  The lesson that this portion  of Payner teaches
                                                         

is  that,  in  a  case-specific context,  society's  interest  in

adjudicating guilt  and innocence on  full information  outweighs

its   interest  in  punishing  governmental  misconduct  directed

against third parties.

          The Court subsequently held  that the supervisory power

could  not be  invoked  to  reverse  a  conviction  in  order  to

castigate the  prosecution for misconduct that  did not prejudice

(as  opposed to injure) the  defendant.13  See  Hasting, 461 U.S.
                                                       

at 505.  Because the prosecutor's actions in Hasting  constituted
                                                    

harmless error vis-a-vis the defendant, see id. at 507, no relief
                                               

was warranted.   The holding  of Hasting  replicates the  message
                                        

                    

     13Misconduct  not  injuring the  defendant  is  a subset  of
harmless error (which itself might be described as misconduct not
prejudicing the defendant).  For our purposes, the two categories
may be fruitfully analyzed  as one.  The only  salient difference
between  them is that the larger set subsumes not only misconduct
that injures  third persons  and victimless misconduct,  but also
subsumes misconduct  that violates a  defendant's rights  without
affecting the outcome of his case.

                                23

sent by Payner, but it does so a fortiori:  if society's interest
                                         

in  fully  informed  adjudication   sometimes  can  outweigh  its

interest in protecting the  Fifth Amendment rights of defendants,
                                                                

then surely  it can outweigh society's  more generalized interest

in making law enforcement officers toe the line.

          The reasoning of the Hasting Court is also instructive.
                                      

As  in Payner,  the Court  in Hasting  reasoned that  when courts
                                     

exercise  the supervisory power, they must respect the balance of

interests  struck  by  conventional   application  of  the  legal

doctrines  governing  the particular  problem  in  the particular

case.  See id. at 505.  Furthermore, the Hasting Court identified
                                                

three  justifications,   or  goals,  in  service   of  which  the

supervisory power might appropriately be invoked, see id. at 506-
                                                         

07; see also supra  p. 21, and rested  its holding in part on  an
                  

analysis of them.   The Court concluded that none  of these three

goals are significantly advanced  when the error that  is alleged

to  constitute  misconduct  proves  harmless, for  concerns  over

individual rights and  the integrity of the  judicial process are

less acute in  all such cases.  See id. at 506.  The Court stated
                                       

that the  third doctrinal goal    the deterrence  of misconduct14

   "is  an inappropriate  basis  for  reversal where  .  . .  the

prosecutor's  remark  is  at  most  an  attenuated  violation  of

[defendant's  right  to  remain  silent]  and  where  means  more

                    

     14We highlight this goal because it not only constitutes the
linchpin  of the  district  court's rationale  for employing  the
supervisory power in this  case, but also serves as  the mainstay
of  the supporting arguments advanced by the appellees and by the
amici.

                                24

narrowly  tailored to  deter objectionable  prosecutorial conduct

are available."  Id.
                    

          Another  case  delineating  limits on  the  supervisory

power is  Bank of  Nova Scotia  v.  United States,  487 U.S.  250
                                                 

(1988).   There, the Court  ruled that,  "as a general  matter, a

district  court may not dismiss an indictment for errors in grand

jury proceedings unless such  errors prejudiced the  defendants."

Id. at 254.   In reaching this conclusion, the  Court adverted to
   

Payner's point that  value choices dictated by  the resolution of
      

the underlying legal problem should not be affected by the source

from which an inquiring court  draws its power.  See id.  at 255.
                                                        

The Court also reaffirmed Hasting's point that the rationales for
                                 

invoking supervisory power  are much weaker in the harmless error

context.15  See id. at 255-56.
                   

          In  keeping with  the Supreme  Court's teachings,  this

court  has  repeatedly  refused  to sanction  the  deployment  of

supervisory  power  in order  to  redress  harmless  error.   See
                                                                 

Osorio, 929 F.2d  at 763  (finding no nexus  between the  alleged
      

misconduct and any prejudice to the defendant); United States  v.
                                                             

Pacheco-Ortiz, 889 F.2d 301, 310  (1st Cir. 1989) (denying relief
             

when prejudice was not a "product" of alleged  misconduct); Babb,
                                                                

807 F.2d at  272; Lieberman,  608 F.2d  at 899;  see also  United
                                                                 

                    

     15It  is a  short step, sideways  rather than  forward, from
Hasting  to  Bank  of  Nova  Scotia.    Hasting  holds  that  the
                                               
supervisory power  may not  be used  to evade  the constitutional
harmless error doctrine  of Chapman  v. California,  386 U.S.  18
                                                  
(1957);  Bank of Nova Scotia holds that the supervisory power may
                            
not  be used to evade  the less searching  harmless error inquiry
mandated by Fed. R. Crim. P. 52(a).

                                25

States v. Hastings, 847  F.2d 920, 927 (1st Cir.),  cert. denied,
                                                                

488 U.S.  925 (1988).   We  think this  line of cases  adequately

evinces our institutional  belief that,  taken together,  Payner,
                                                                

Hasting,  and  Bank of  Nova  Scotia form  a  trilogy admonishing
                                    

federal  courts to refrain  from using  the supervisory  power to

conform  executive  conduct  to  judicially  preferred  norms  by

dismissing charges, absent cognizable  prejudice to a  particular

defendant.16   Accord United  States v. Williams,  874 F.2d  968,
                                                

976  n.23  (5th  Cir.  1989).     Here,  appellees  sustained  no

redressable  injury  attributable  to   governmental  misconduct.

Accordingly, the district court erred as a  matter of law when it

invoked supervisory power to dismiss count 3 of the indictment.

          Before  departing from these shores,  we pause to add a

qualification:    the  use  of supervisory  power  to  dismiss an

indictment, in the absence of injury to the defendant, may not be

entirely a dead letter.  The  Court's reasoning in Hasting may be
                                                          

read to leave  open the  possibility that the  goal of  deterring

future misconduct  would justify  using the supervisory  power to

redress conduct not injuring defendants if the conduct is plainly

improper,  indisputably outrageous,  and not  redressable through

the utilization of less drastic disciplinary tools.  See Hasting,
                                                                

                    

     16The  Second Circuit  has  gone even  further, reading  the
Supreme Court's  cases to  suggest that "the  federal judiciary's
supervisory powers over prosecutorial activities  that take place
outside  the courthouse  is extremely  limited, if  it exists  at
all."   United  States v.  Lau Tung  Lam, 714  F.2d 209,  210 (2d
                                        
Cir.), cert. denied,  464 U.S. 942  (1983).  Because the  case at
                   
bar  does not  require that  we probe  the ramifications  of this
suggestion, we take no view of it.

                                26

461 U.S. at 506.  Be that as it may, we leave the qualification's

fate and dimensions for  another day, as this is plainly not such

a case.

V.  CONCLUSION

          In  summary,   the   orphan  doctrine   of   outrageous

misconduct  finds no  nurturing home  on the  facts of  this case

because  the objects  of the  government's  ongoing investigation

satisfactorily justified whatever harm  stemmed from the delivery

(and subsequent loss) of  a large heroin sample, and  because, in

any  event,   that  harm  was  not  incurred   by  the  appellees

themselves.     In   like   manner,  because   the  trial   court

overestimated  the reach  of  its supervisory  power in  cases of

misconduct  not  injuring defendants,  its  alternative rationale

crumbles.  If there are  exceptions to the general rules that  we

have  elucidated   a matter  on which we do not  opine   they are

assuredly not triggered by this case.   Hence, the court lacked a

sufficient legal basis for dismissing count 3 of the indictment.

          We  need go  no further.   Although  the effect  of our

ruling is to  uphold the  government's tactics in  this case,  we

remain   secure  in  the  knowledge  that,  despite  restrictions

hobbling  the  outrageous  misconduct doctrine,  law  enforcement

practices are subject to a wide range of specific "constitutional

and statutory  limitations and  to judicially fashioned  rules to

enforce  those  limitations."   Russell,  411  U.S.  at  435; cf.
                                                                 

Hasting, 461 U.S. at 506 n.5 (illustrating more narrowly tailored
       

means  to  punish  prosecutorial  misconduct).    Moreover,   the

                                27

outrageous  misconduct  doctrine,  no   matter  how  cramped  its

confines, is not entirely mummified.  Should the occasion and the

necessity arise, we continue  to believe that the law  will prove

itself adequate  to the  task of  preventing the government  from

going too  far.  In the war on crime, as in conventional warfare,

some tactics simply cannot be tolerated by a civilized society.

          Reversed.
                  

                                28
