Entrapment - Extended Explanation
c. Bill E. Branscum
It is clearly established that government agents may not originate a
criminal design, implant in an innocent person's mind the disposition to
commit a criminal act, and then induce commission of the crime so that the
government may prosecute it. Such an exercise gives rise to the affirmative
defense of "entrapment."
People frequently read more into this than is actually there. Broken down,
the preceding paragraph says:
1. Government agents: This applies to the actions of those working for the
government or acting on behalf of those working for the government. A
private citizen cannot "entrap" a criminal unless he is acting on behalf of
the government - note that this does not mean that he cannot do whatever he
wants to with the intention of turning it over to the government. The
government must be held accountable for the "entrapping" action for
entrapment to apply.
2. The government must not implant the idea to commit a crime in the mind
of an INNOCENT person. The government can, and routinely does, implant the
idea to commit a crime in the minds of criminals under controlled
circumstances. For example, Mohammad the Mugger is going to catch a train
to visit his Momma having no intention to rob anyone when he encounters
a "drunk" U/C cop with a gold chain that would look good on him. An
innocent man would get on the train without the chain - if Mohammad goes
for it, he's no innocent man. He is, in fact PREDISPOSED to commit the
crime. [The test you hear argued to juries over and over is, "would you do
what he did under those circumstances."]
The fact that officers or employees of the government merely afford
opportunity or facilities for the commission of the offense does not defeat
the prosecution. Where the police, in effect, simply furnished the
opportunity for the commission of the crime, that this is not enough to
enable the defendant to escape conviction.
Also, there is no "sneaky bastards" defense. Artifice and stratagem may be
employed to catch those engaged in criminal enterprises - in other words,
just because the government uses a pretext to set the person up, that does
not negate the potential for successful prosecution. It is truly amazing
how many people believe that they can ask a person if they are a cop and
cry foul if they say, "No" and then arrest them.
In the event that a criminal defendant raises the issue of entrapment, the
question boils down to a two prong test. First, did government agents
INDUCE the defendant to commit the crime? Second, was the defendant
PREDISPOSED to commit the crime?
INDUCEMENT occurs when the government creates a special incentive for the
defendant to commit the crime. This incentive can consist of anything that
materially alters the balance of risks and rewards bearing on defendant's
decision as to whether to commit the offense, so as to increase the
likelihood that he will engage in the particular criminal conduct.
INDUCEMENT can be any government conduct including persuasion, fraudulent
representations, threats, coercive tactics, harassment, promises of reward,
or pleas based on need, sympathy or friendship. IF this first prong of the
two prong test proves viable, the next question relates to PREDISPOSITION.
PREDISPOSITION is the defendant's willingness to commit the offense prior
to being contacted by government agents, coupled with the wherewithal to do
so. If a defendant is predisposed to commit the offense, he will require
little or no inducement to do so; conversely, if the government must work
hard to induce a defendant to commit the offense, it is far less likely
that he was predisposed.
The relevant time frame for assessing a defendant's disposition comes
before he has any contact with government agents, which is doubtless why
its called PREDISPOSITION. In rebutting an entrapment defense, the
prosecution must prove beyond a reasonable doubt that the defendant was
disposed to commit the criminal act prior to first being approached by
government agents.
The ultimate principal at work here is, "When the government's quest for
convictions leads to the apprehension of an otherwise law-abiding citizen
who, if left to his own devices, likely would have never run afoul of the
law, the courts should intervene."
Finally, a word about a reality associated with affirmative defenses and
appellate cases that you just don't ever seem to see in print. The way
these things work in actual practice is that the government makes their
case against the defendant, prosecutes him and, unless their behavior is
utterly outrageously egregious, convicts them at the trial level. Guilty
people do not prevail upon matters of technical merit at trial level nearly
as often as televesion would have us believe.
Joe Convict then files an appeal which they will lose UNLESS they persuade
the appellate court that, VIEWING THE EVIDENCE IN THE LIGHT MOST FAVORABLE
TO THE GOVERNMENT, there is no way a jury could have convicted them. In an
entrapment appeal, the appellant must prove that no reasonable jury could
have failed to recognize that the government induced them to commit a crime
AND they were utterly lacking in predisposition.
Think about this a minute - EVERY successful entrapment appeal exemplifies
a situation where the government set up a person to commit a crime they
would not have otherwise committed under circumstances in which it is so
clear that NO JURY COULD SEE IT OTHERWISE when vhen viewed from the
position MOST FAVORABLE TO THE GOVERMENT.
That is scary and scarier still when you ask yourself how many defendants
could not afford the appeal. If you read the case re Poehlman as cited
below, you will find that he was convicted and served his time; it was only
after he was released and the government tried to go after him a second
time on the exact same facts that he filed an appeal and prevailed. In
other words, even viewing the facts in the light most favorable to the
government (which they are not supposed to do at trial level), it should
have been clear to any jury that the government set him up to commit a
crime he would never have otherwise committed.
Read it - it's a pitiful case. Think about that before telling
yourself, "They cannot do that - it's entrapment."
Further Reading:
United States v. Garcia, No. 00-10062, UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT, 2001 U.S. App. LEXIS 300, December 15, 2000, Argued and
Submitted, San Francisco, CA, January 5, 2001, Filed. Defendant's drug
conviction was reversed and remanded, since he was entitled to an
entrapment instruction when he presented some evidence that he was not
predisposed to commit narcotics offenses, and some evidence of inducement.
United States v. Lafreniere, No. 99-1318, UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT, 236 F.3d 41; 2001 U.S. App. LEXIS 2, January 2,
2001, Decided. Defendant was not entitled to entrapment defense as he was
not wrongfully induced to participate in drug deal and jury instruction was
consistent with judicial precedent.
United States v. Johnson, No. 99-3259, UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT, 2000 U.S. App. LEXIS 22723, September 5, 2000, Filed.
Evidence supporting state senator's conviction for extortion under color of
official right was sufficient where evidence showed he was predisposed to
commit the crimes and was not the target of improper government inducement.
United States v. Poehlman, No. 98-50631, UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT, 217 F.3d 692; 2000 U.S. App. LEXIS 14628; 2000 Cal.
Daily Op. Service 5157; 2000 Daily Journal DAR 6887, December 6, 1999,
Argued and Submitted, Pasadena, California, June 27, 2000, Filed.
Conviction reversed and remanded on finding as a matter of law that the
government induced defendant to commit the criminal act and there was no
indication that defendant was prone to engage in sexual relations with
minors. (This is a fascinating case!!!) Read the full text Here.
United States v. Brooks, No. 99-3448, UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT, 215 F.3d 842; 2000 U.S. App. LEXIS 13688, March 14,
2000, Submitted, June 14, 2000, Filed, As Corrected June 26, 2000. Where a
government agent first sold defendant heroin, then coerced him into selling
the heroin back to another agent, these facts showed that defendant was
entrapped as a matter of law.
United States v. Barnett, No. 98-30365, UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT, 197 F.3d 138; 1999 U.S. App. LEXIS 30360, November 22,
1999, Decided, Rehearing Denied December 29, 1999, Reported at: 1999 U.S.
App. LEXIS 34984. Certiorari Denied May 15, 2000, Reported at: 2000 U.S.
LEXIS 3220. Court affirmed defendant's convictions, reversed codefendant's,
for conspiracy to commit murder for hire; aiding, abetting attempted murder
for hire. There was no evidence codefendant intended to be involved in
murder.
United States v. Finley, No. 98-2721, UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT, 175 F.3d 645; 1999 U.S. App. LEXIS 8200, March 9, 1999,
Submitted, April 29, 1999, Filed, Rehearing En Banc and Rehearing Denied
June 8, 1999, Reported at: 1999 U.S. App. LEXIS 12000. Certiorari Denied
January 10, 2000, Reported at: 2000 U.S. LEXIS 404. In defendant's trial
for using the mail with the intent that a murder-for-hire be committed,
evidence that defendant was predisposed to the crime precluded a successful
defense of entrapment.
State v. Preston, 2 CA-CR 98-0524, COURT OF APPEALS OF ARIZONA, DIVISION
TWO, DEPARTMENT A, 197 Ariz. 461; 4 P.3d 1004; 2000 Ariz. App. LEXIS 71;
317 Ariz. Adv. Rep. 3, March 14, 2000, Filed. Requiring clear and
convincing proof of entrapment was constitutional but, even though defense
required admission of offense elements, jury instructions on presumption of
innocence and reasonable doubt were unconstitutionally eliminated.
SOOHOO v. STATE, CASE NO. 97-3891, COURT OF APPEAL OF FLORIDA, FOURTH
DISTRICT, 737 So. 2d 1108; 1999 Fla. App. LEXIS 6495; 24 Fla. Law W. D
1219, May 19, 1999, Opinion Filed, Released for Publication June 4, 1999.
Egregious conduct by government's confidential informant constituted
entrapment sufficient to overturn appellant's conviction of drug
trafficking, as informant was virtually unsupervised in structuring,
distributing, and promoting drug sales.
State v. Weaver, NO. 99-KA-2177, COURT OF APPEAL OF LOUISIANA, FOURTH
CIRCUIT, 99-2177 (La.App. 4 Cir, 12/06/00);, 2000 La. App. LEXIS 3000,
December 6, 2000, Decided. Conviction and sentence were upheld because
appellant failed to prove that he was induced to commit an act that he was
not already predisposed to commit; and the State established the validity
of the prior guilty pleas and convictions.
State v. Green, No. 99-KA-2847, COURT OF APPEAL OF LOUISIANA, FOURTH
CIRCUIT, 99-2847 (La.App. 4 Cir, 11/29/00);, 2000 La. App. LEXIS 2965,
November 29, 2000, Decided. Released for Publication January 19, 2001.
Conviction and sentence of appellant for distribution of cocaine was
affirmed as appellant failed to show entrapment, he was a fourth felony
offender, and as such he was properly sentenced to life imprisonment.
State v. Alford, No. 99-KA-0299, COURT OF APPEAL OF LOUISIANA, FOURTH
CIRCUIT, 99-0299 (La.App. 4 Cir, 06/14/00);, 765 So. 2d 1120; 2000 La. App.
LEXIS 1523, June 14, 2000, Decided, Released for Publication August 3,
2000. Because appellant quickly assured undercover officer that he could
obtain cocaine in response to request, offered officer marijuana, and
encouraged officer to wait for delivery, appellant was predisposed to sell
cocaine.
STATE v. BRADFORD, No. 32,747-KA, COURT OF APPEAL OF LOUISIANA, SECOND
CIRCUIT, 32,747 (La.App. 2 Cir, 10/27/99);, 745 So. 2d 800; 1999 La. App.
LEXIS 2952, October 27, 1999, Rendered. The evidence established intent and
delivery elements to support conviction for distribution of cocaine, and
the entrapment defense failed because officer merely presented defendant a
chance to commit the crime to which he was predisposed.
