
USCA1 Opinion

	




                                      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  & Cook  were  on brief,  for appellee               _____________________________          Santana.               Peter L. Ettenberg, with whom Gould & Ettenberg, P.C. was on               __________________            _______________________          brief, for appellee Fuentes.               Wendy  Sibbison, Burton Shostak,  and Moline, Ottsen, Mauze,               _______________  ______________       ______________________          Leggat & 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          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 &                                                     ___          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          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 &  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          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.                                 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) & 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.                       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          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          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.                    Reversed.                    ________                                          28
