entrapment: an extended explanation

[Faustine]

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.