Entrapment

Jacobson v. United States, 503 U.S. 540 (1992)

The evidence in this case established entrapment as a matter of law. Government agents repeatedly, over the course of two years, urged the defendant to order child pornography. When the defendant finally ordered the magazines, the agents arrested him.

Mathews v. United States, 485 U.S. 58 (1988)

The Court holds that the defendant is entitled to present inconsistent defenses, including “I didn’t do it” and “If I did I was entrapped.”

United States v. Barta, 776 F.3d 931 (7th Cir. 2015)

The conduct of the government agent in persisting encouraging the defendant to accept a bribe amounted to entrapment as a matter of law. “The government is supposed to catch criminals not create them.” It is not just the number of contacts between the undercover agent and the defendant that controls. The frequency of the contacts, the continuous offering of “sweeteners” to a bribe that the defendant already turned down, the number of unanswered or unreturned calls – all of these are factors in deciding whether the government’s conduct amount to improper inducement. The persistence of the government is what matters.

United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014)

In this en banc decision, the Seventh Circuit reversed the trial court’s pretrial decision (ruling on a government motion in limine) to bar the entrapment defense. In a lengthy decision, the appellate court explained in great detail the relationship between the concepts of predisposition and inducement, noting at one point that even a person who is predisposed can be entrapped. The court also held that when ruling on the availability of the entrapment defense pretrial, the court must assume the truthfulness of the defendant’s proffer and not balance it against any competing proffer by the government: the jury must decide if the defendant’s evidence of entrapment is valid and the trial judge may not engage in fact finding based on disputed evidence prior to trial.

United States v. Kopstein, 759 F.3d 168 (2d Cir. 2014)

Though the defendant did not deny possessing child pornography, he defended against distribution charges on the basis that he was entrapped by the undercover agent to send the images to him. The defendant believed he was chatting with a young girl who repeatedly asked him to send “her” images of child pornography. The defendant finally agreed to do so. The trial court’s initial entrapment charge to the jury was appropriate and in conformity with Second Circuit law. The instructions became confusing, however, when the court also instructed the jury that if it found that the defendant did not distribute the pornography, it could find the defendant guilty of the lesser included offense of possession. But this was not correct, because even if the defendant did distribute the pornography, he could be found not guilty based on entrapment. The confusion was compounded by supplemental instructions that were inconsistent in connection with the burden of proof regarding the initial inducement phase of the entrapment defense.

United States v. McGill, 754 F.3d 452 (7th Cir. 2014)

The defendant was charged with distributing child pornography. He claimed that he was entrapped by an informant who asked him to give him child pornography on a flash drive. The trial court declined to instruct the jury on the law of entrapment, because there was evidence that the defendant already possessed child pornography, he attended a party at which others shared child pornography, and there was inadequate proof of coercion. The Seventh Circuit reversed: the evidence was sufficient to authorize an entrapment instruction because there was no evidence of predisposition to distribute child pornography prior to the informant’s solicitation of the child pornography from the defendant and the informant’s persistence in getting the child pornography from the defendant was sufficiently coercive and relentless that an entrapment instruction was authorized. In addition, the informant was a friend of the defendant (who had been arrested) and the government’s exploitation of a friend of the defendant to induce the defendant to commit a crime is a relevant factor to consider in deciding whether there was sufficient evidence of coercion.

United States v. Black, 750 F.3d 1053 (9th Cir. 2014)

This decision contains a noteworthy dissent to the denial of a request for rehearing en banc. Judge Reinhardt posed the question: “Whether the government may target poor, minority neighborhoods and seek to tempt their residents to commit crimes that might well result in their escape from poverty[?]” He then noted, “These cases force us to consider the continued vitality of the outrageous government conduct doctrine itself.” The case involves the use of a CI, who was instructed by the government to go to Phoenix and recruit random people to help rob a non-existent cocaine stash house. The CI went to a bad part of town and looked for people who looked like bad guys. When the defendant said he was interested, the CI introduced him to the undercover agent who told the defendant about the large quantity of cocaine at the fictitious stash house (thus driving up the Guideline calculation). Judge Reinhardt emphasized numerous problems with this operation, including its inception: The CI was sent to look for “bad guys” in a “bad part of town,” i.e., a minority neighborhood. This was an open invitation to racial discrimination. The CI was not told to invite known or suspected criminals to get involved in the stash house robbery. This dissenting opinion contains a wealth of quotable observations, including, “The government verges too close to tyranny when it sends its agents trolling through bars, tempts people to engage in criminal conduct, and locks them up for unconscionable periods of time when they fall for the scheme. . . In this eara of mass incarceration, in which we already lock up more of our population than any other nation on Earth, it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them – people who but for the government’s scheme might have ever entered the world of major felonies. Of course, the government also controls the (often extraordinarily long) amount of time that its targets spend in prison after reverse sting operations, as it can specify the amount of drugs involved in the fake conspiracies.” Chief Judge Kozinski joined this dissent.

United States v. Cortes, 757 F.3d 850 (9th Cir. 2013)

The decision in Alleyne v. United States provides that a mandatory minimum sentence may only be triggered if proof of the drug quantity was proven to the jury beyond a reasonable doubt. In this case, the Ninth Circuit holds that a “sentencing entrapment” claim must also be submitted to the jury: thus, if the defendant claims that the amount of drugs was increased by the undercover agent in order to trigger the mandatory minimum and the defendant would not have participated in a transaction of that magnitude, the jury must be instructed on that “defense.” In a separate holding the appellate court held that the jury should be instructed that while the amount of profit that a defendant anticipates cannot alone establish the defense of entrapment, if the profit is offered solely by the government, this is a factor that may be considered in deciding whether the government induced the criminal conduct.

United States v. Pillado, 656 F.3d 754 (7th Cir. 2011)

The trial court erred in failing to instruct the jury on the law of entrapment. The trial court held that there was no evidence of “extraordinary inducement” and that the defendant could have simply “walked away.” But these are not the proper standards for evaluating whether a defense entrapment is available. The trial court failed to begin with an analysis of whether there was any evidence of predisposition. Though the entrapment defense is a two-part test, both prongs must be considered in evaluating whether the defense is available. The absence of any predisposition “informs” the inducement inquiry, as well. The purpose of the entrapment defense is to ensure that a person with no predisposition is not transformed into a criminal by the government. A person with no predisposition whatsoever is not required to prove that the government used extraordinary inducement to persuade him to commit a crime. There was sufficient evidence of “persuasion” in the record to support an entrapment instruction in this case.

United States v. Theagene, 565 F.3d 911 (5th Cir. 2009)

The defendant was entitled to an entrapment instruction in this case involving an allegation of bribing an IRS revenue agent. There was sufficient evidence in the trial to support a jury’s determination that the defendant was not predisposed to commit the offense and that the agent encouraged the defendant to bribe him. Evidence of inducement was supplied by a single telephone call in which the agent steered the conversation toward bribery as a solution to the tax delinquency problem. Failing to instruct the jury on this defense was reversible error.

United States v. Luisi, 482 F.3d 43 (1st Cir. 2007)

The court discusses the concept of vicarious or third-party entrapment. In this case, the government targeted the defendant, Luisi. Efforts by an informant to induce Luisi to commit the crime were unsuccessful, so the middleman utilized the services of another person (a mob boss) to pressure the Luisi to commit the crime. The First Circuit concludes that in this situation, the defendant is entitled to an entrapment instruction. This is not a case in which a pressured defendant employs the services of an unsuspecting but willing participant, in which case the unsuspecting but willing participant could not claim entrapment. In this case, the target of the government’s pressure tactics was the defendant, even though the person who ultimately put the pressure on the defendant was not himself acting at the direction of the government.

United States v. Sandoval-Mendoza, 472 F.3d 645 (9th Cir. 2006)

The trial court erred in barring the defendant from introducing expert medical testimony that the defendant’s medical condition (brain damage caused by pituitary tumor) rendered him unusually susceptible to “inducement” in this entrapment-defense case. The fact that doctors disagreed about the defendant’s medical condition did not mean that the defendant’s expert testimony was inadmissible. Medical testimony that a medical condition renders a person unusually vulnerable to inducement is highly relevant to an entrapment defense and should not have been excluded.

Bradley v. Duncan, 315 F.3d 1091 (9th Cir. 2002)

The state trial court’s failure to instruct the jury on the law of entrapment amounted to a due process violation and the Ninth Circuit ordered that the petitioner’s § 2254 petition should have been granted. The defendant helped a decoy who was addicted and going through withdrawal, purchase a small amount of drugs. The Ninth Circuit held that the right to have the jury instructed on a defense provided by state law is protected by the Due Process Clause.

United States v. Mendoza-Prado, 314 F.3d 1099 (9th Cir. 2002)

When a defendant relies on an entrapment defense, Rule 405 allows him to introduce good character evidence. In this case, the government argued the converse: when the defendant relies on an entrapment defense, the government should be permitted to introduce any prior crime evidence, including unrelated crimes. The Ninth Circuit disagreed: Different inferences are drawn regarding predisposition from evidence of bad character and from evidence of good character. In short, the government is limited to introducing evidence of predisposition to commit a similar offense, not any criminal offense. The defendant, on the other hand, may introduce evidence of general good character.

United States v. Thomas, 134 F.3d 975 (9th Cir. 1998)

In an entrapment case, the defendant is entitled, pursuant to both Rules 404(b) and 405(b) to introduce evidence of his lack of criminal record – that is, his good character. The defendant's "character" is relevant in an entrapment case on the issue of predisposition.

United States v. Duran, 133 F.3d 1324 (10th Cir. 1998)

The trial court failed to instruct the jury in connection with the entrapment instruction that the government had the burden of disproving entrapment. That is, in order to convict the defendant who has raises an entrapment defense, the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. The failure to instruct the jury on this principle was plain error requiring reversal of the conviction. The trial court also erred in failing to adequately answer jury questions about the status of "agents" (such as non-government employees who were acting as informants) in connection with the entrapment defense. The jury repeatedly asked if certain informants who were acting on behalf of the government were "agents" within the definition of the entrapment defense. Failing to answer these questions was reversible error.

United States v. Sligh, 142 F.3d 761 (4th Cir. 1998)

The jury could have found that an IRS agent repeatedly baited the defendant into paying her a bribe, and that the defendant repeatedly ignored these requests. Given these reasonable inferences, the trial court erred in deciding that no entrapment instruction would be given to the jury.

United States v. Burt, 143 F.3d 1215 (9th Cir. 1998)

The trial court gave the improper pre-Jacobson entrapment instruction that improperly explained the burden of proof with regard to the element of predisposition.

United States v. Gamache, 156 F.3d 1 (1st Cir. 1998)

The defendant was charged with violating 18 U.S.C. § 2423(b) – traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of 18. This case began with a “sting” operation in which a police officer posed as a “mother” on the internet, seeking a man to “educate” her children about sex. The defendant was clearly on a “different wavelength” than the police, seeking adult companionship. The police officer’s artifice, however, induced the defendant to come to meet the undercover officer with children. The trial court erred in failing to instruct the jury on the law of entrapment.

United States v. Montanez, 105 F.3d 36 (1st Cir. 1997)

In considering the improper inducement component of an entrapment defense, the jury may consider whether the undercover informant induced the defendant by claiming that she would lose her children if he did not help her acquire cocaine. The trial court in this case erred in failing to instruct the jury specifically on this point, that is, that an appeal to sympathy may amount to improper inducement.

United States v. Joost, 92 F.3d 7 (1st Cir. 1996)

The defendant was the target of an undercover operation for several months, focusing first on counterfeit slot machine tokens. During the undercover operation, the police, on several occasions asked the defendant to furnish them with a weapon (the defendant was a convicted felon, so his possession of a weapon would be a felony), a request he eventually satisfied. The trial court erred in denying a request to instruct the jury on the law of entrapment. Though the police never used force, or undue persuasion to induce the defendant to obtain the gun, their request persisted for over three months before he finally acquiesced. Also, the police were aware of the defendant’s dire financial situation and used that “weakness” to induce him to produce a firearm for them. Finally, the calls from the agents were persistent, constant and frequent.

United States v. Rodriguez, 858 F.2d 809 (1st Cir. 1988)

If there is support for the defendant’s claim that the government induced the commission of the crimes and the defendant lacked predisposition, the defendant is entitled to a jury instruction on entrapment. In this case, a reasonable juror could have determined that the defendant was entrapped and the trial court erred in refusing to give a requested entrapment instruction.

United States v. Bradley, 820 F.2d 3 (1st Cir. 1987)

An informant in jail threatened a cellmate with physical injury if he did not obtain cocaine for him. The cocaine was provided to a guard at the jail who then arrested the defendant. The Court holds that this presents a valid claim of entrapment. However, the individual who supplied the cocaine to the defendant, even though he was aware of the threats on the defendant’s life, could not avail himself of the entrapment defense.

United States v. Khubani, 791 F.2d 260 (2d Cir. 1986)

Whether initial entrapment extends through a series of crimes is a question of fact for the jury.

United States v. Berkery, 889 F.2d 1281 (3rd Cir. 1989)

It was reversible error to require the defendant to admit to all elements of a conspiracy before allowing him to argue entrapment to the jury.

United States v. Fedroff, 874 F.2d 178 (3rd Cir. 1989)

The defendant offered sufficient evidence to permit a jury instruction on the law of entrapment. Though the evidence was weak on the government’s coercive efforts to get the defendant to commit the crime, they did “wine and dine” him and otherwise deceive him in an effort to convince him to accept a kickback.

United States v. Pervez, 871 F.2d 310 (3rd Cir. 1989)

Under the decision in Mathews, it was error to require the defendant to admit to all elements of the offense prior to issuing the jury instruction on the law of entrapment.

United States v. Bradfield, 113 F.3d 515 (5th Cir. 1997)

In order to have the jury instructed on the defense of entrapment, the defendant must provide, at the least, a basis for a reasonable doubt on the ultimate issue of whether criminal intent originated with the government. The defendant satisfied this standard in this case and the trial court erred in denying his request for an entrapment instruction. The defendant is not required to prove that the government used threats or coercion; he is only required to show that he was not predisposed to commit the offense before first being approached by government agents.

United States v. Sandoval, 20 F.3d 134 (5th Cir. 1994)

The government failed to rebut the defense of entrapment and the defendant was entitled to be acquitted as a matter of law. The IRS agent approached the defendant about a tax liability. The defendant suggested a “deal.” The agent decided that this meant a “bribe” and pursued the request doggedly. At the next meeting, the defendant offered to provide information about other criminals in hope of receiving a reward, but the agent steered the defendant towards something which could benefit her (the agent), commenting that “information is not enough.” The agent then specifically asked that the defendant “scratch her back and I’ll scratch yours.” They later agreed on a cash payoff. This amounted to entrapment as a matter of law. The government failed to show any evidence of predisposition. Although an eager acceptance of an opportunity to commit some illegal act may prove predisposition, Jacobson clarified the boundaries of such substituted proof, rejecting it where significant and persistent government encouragement was required to induce the crime.

United States v. Kang, 934 F.2d 621 (5th Cir. 1991)

It was reversible error to permit a prosecutor to argue to the jury that hearsay evidence admitted for the sole purpose of explaining an agent’s conduct (in initiating an investigation) was substantive evidence of the defendant’s predisposition to commit the offense. The evidence was admitted for a limited purpose and it could not be used for another purpose in the closing argument.

United States v. Cantu, 876 F.2d 1134 (5th Cir. 1989)

It was error to exclude as hearsay statements made by an informant to the defendant. The statements were offered to demonstrate the defendant’s state of mind, and to support his entrapment defense, not for the truth of the matter asserted.

United States v. Newman, 849 F.2d 156 (5th Cir. 1988)

The defendant raised an entrapment defense and sought to introduce expert testimony as to a mental disease, or subnormal intelligence making him peculiarly susceptible to inducement. The Court holds that such evidence is admissible, however, the defendant in this case failed to make a sufficient proffer and reversal was not required.

United States v. Robinson, 887 F.2d 651 (6th Cir. 1989)

The trial court erred in requiring the defendant to admit the elements of the offense prior to getting an entrapment instruction.

United States v. Graham, 856 F.2d 756 (6th Cir. 1988)

The decision in Mathews v. United States is retroactive. Thus, it was reversible error for the trial court to refuse an entrapment instruction solely on the basis that the defendant had not admitted all elements of the offense.

United States v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994)(en banc)

Rehearing this entrapment case en banc, the Seventh Circuit again holds that Jacobson requires the government to prove that the defendant was ready, willing and able to commit the offense in order to rebut the claim of entrapment. Mere willingness, alone, is not sufficient to establish predisposition. The key to Jacobson is the definition of entrapment as being, “the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law.” A politician is ready and able to take a bribe; a drug addict is capable of selling drugs. Predisposition in those cases only requires a showing of willingness. But here, the defendants were not ready or capable of being international money launderers without the aid of the government.

United States v. Hollingsworth, 9 F.3d 593 (7th Cir. 1993)

In a sweeping review of the entrapment defense, the Seventh Circuit holds that the government’s burden in defeating an entrapment defense is not satisfied merely by showing that the defendant was willing to commit the crime; rather, the government must prove that the defendant was “ready” to commit the crime – that he was poised and likely to commit the crime. Here, the defendants were inept, incapable international money launderers. The government provided the means and the wherewithal to commit the offense. The court holds that the government “turned a harmless man with impure thoughts into a felon.” Relying on Jacobson, the court observed, “The federal government shall not use its resources to increase the criminal population by inducing people to commit crimes who otherwise would not do so. . . [T]he proper use of the criminal law in a liberal society is to regulate potentially harmful conduct for the protection of society, rather than to purify minds and to perfect character. A person who would not commit a crime unless induced to do so by the government is not a threat to society and the criminal law has no proper concern with him, however evil his thoughts or deficient his character.” The Seventh Circuit then re-heard the case en banc. See supra.

United States v. Fusko, 869 F.2d 1048 (7th Cir. 1989)

The defendant’s crime in defrauding her insurer was first suggested by a friend who was an undercover confidential informant for the FBI. She claimed at trial that her friend’s persuasion overcame her initial reluctance to commit the offense. This is sufficient to authorize an entrapment instruction.

United States v. Martinez, 122 F.3d 1161 (9th Cir. 1997)

Despite being recruited by an undercover informant on several occasions to sell drugs, the defendant resisted. Eventually, however, he acquiesced. The informant taught the defendant how to sell drugs, promised him great wealth and reassured him not to worry about the police. The Ninth Circuit concluded that the defendant established the defense of entrapment as a matter of law.

United States v. Rameriz-Rangel, 103 F.3d 1501 (9th Cir. 1996)

Numerous decisions have discussed the concept of sentencing entrapment under the Sentencing Guidelines and the Guidelines themselves now provide for cases in which the government supplies more drugs than the defendant could afford in order to increase the base offense level. In this case, however, the sentence was for violating 18 U.S.C. §924(c), using a firearm in connection with a drug offense. The defendant agreed to receive firearms in exchange for drugs, which does amount to a §924(c) violation. What the government supplied, however (and arguably without any knowledge or intent on the part of the defendant) was machine guns, a 924(c) violation which carries a fifteen year sentence, rather than the five year sentence for a §924(c) violation involving a normal gun. The court holds that the lower court should determine whether the defendant negotiated for, or knew that machine guns would be supplied. If not, then only a five-year sentence should be imposed.

United States v. Reece, 60 F.3d 660 (9th Cir. 1995)

The trial court failed to instruct the jury properly on the entrapment defense. The instruction failed to explain that the jury could convict the defendant only if the government proved beyond a reasonable doubt “that the defendant was disposed to commit the criminal act prior to first being approached by government agents.”

United States v. Sterner, 23 F.3d 250 (9th Cir. 1994)

The trial court instructed the jury on the law of entrapment as follows: “Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and as a matter of policy, the law forbids his conviction in such a case. On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be favorable opportunity is not entrapment.” This was reversible error. The use of the term “already” in the second sentence is ambiguous and does not adequately advise the jury that the predisposition must exist prior to the inducement offered by the government. The jury could have erroneously believed that even if the defendant was not initially disposed to commit the crime, he could develop such a disposition during the later course of interacting with the government informant and still be guilty.

United States v. Lessard, 17 F.3d 303 (9th Cir. 1994)

As in the Mkhsian case, the trial court did not make it clear that if the defendant was initially entrapped, then his continued participation in the scheme would be tainted by the same entrapment. That is, “a defendant who is initially entrapped by the government cannot then become unentrapped during the same course of conduct.” The government must prove that the predisposition existed prior to the initial government involvement. The jury must be clearly instructed that if the defendant was not initially disposed to commit the crime, it would still be entrapment if he later developed such a disposition during the later course of interacting with the government informant.

United States v. Mkhsian, 5 F.3d 1306 (9th Cir. 1993)

The trial court’s entrapment instruction did not clearly explain that the defendant must have been predisposed prior to meeting with the government agents in order to find that he was not entrapped. The court’s instruction could have been understood by the jury to mean that if the defendant developed the disposition during his dealings with the agents, he was not entrapped. Under Jacobson, a person has been entrapped if he was not predisposed to commit the offense prior to being approached by the government.

United States v. Kessee, 992 F.2d 1001 (9th Cir. 1993)

The defendant testified that he had never previously been involved in the sale of cocaine; that he initially refused to sell drugs for the informant; that he eventually consented after he lost his job and needed food for his family. Though he was impeached during cross-examination and it was evident that he was conversant in the drug trade, it was reversible error to fail to instruct the jury on the law of entrapment. The jury, not the trial judge, must make the credibility decisions whether to accept the defendant’s version of the offense.

United States v. Becerra, 992 F.2d 960 (9th Cir. 1993)

The trial court erred in refusing to give an entrapment instruction to the jury. The defendant’s testimony – claiming that the undercover agent contacted him over forty times in a three-month period to convince him to find cocaine, and claiming to be from the New York Mafia – was sufficient to raise the defense.

United States v. Skarie, 971 F.2d 317 (9th Cir. 1992)

The defendant was entrapped as a matter of law. There was insufficient evidence of predisposition offered by the government – the fact that the defendant admitted to using drugs in the past was not determinative of predisposition – and the proof established that the informant threatened the defendant, as well as her son, in an effort to persuade her to engage in a methamphetamine transaction.

United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987)

The defendant was advised by a federally licensed firearms dealer that the defendant could purchase a firearm despite his prior conviction of a felony because the felony conviction was reduced to a misdemeanor. This was incorrect advice. Nevertheless, by the doctrine of entrapment by estoppel, the defendant could not be convicted of possessing a weapon after having been convicted of a felony.

United States v. Beal, 961 F.2d 1512 (10th Cir. 1992)

Defendant was acquitted on one count of distributing cocaine, but convicted of another. He defended both counts on the basis that he was entrapped. The second sale occurred approximately twenty-four hours after the first sale. The trial court’s decision to grant a post-verdict motion for judgement of acquittal was affirmed by the appellate court. The discreet acts of the defendant were part of the same continuum of events motivated by the same governmental influence.

United States v. Collazo, 885 F.2d 813 (11th Cir. 1989)

In this entrapment case, the trial court improperly advised the jury that a defendant must come forward with evidence that the government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it. This is a preliminary legal question which the judge must determine and not a question which is submitted to the jury. The instruction improperly suggested that the defendant had a burden to establish the entrapment defense. Reversal was required.

United States v. Washington, 106 F.3d 983 (D.C. Cir. 1997)

Though not applicable in this case, the D.C. Circuit holds that in certain circumstances, a defendant is entitled to an instruction on the law of derivative entrapment. This occurs where the government induces one person to commit a crime and that person, not acting knowingly as a government agent, induces another person (the defendant) to commit the crime. Thus, the defendant is induced by someone who is not knowingly acting at the behest of the government. To apply the concept of derivative entrapment, the government must direct the unwitting agent to induce others – specific others.