Entrapment is a legitimate defense to any criminal charge, federal or state. No federal statute authorizes the defenses, although some states have codified the defense, like Texas (Texas Penal Code § 8.06). The fact that entrapment is recognized in virtually every U.S. jurisdiction, however, demonstrates the validity and importance of the defense.

ORIGINS OF THE ENTRAPMENT DEFENSE

The U.S. Supreme Court first recognized the entrapment defense in 1932 in the case of Sorrells v. United States in which a defendant was convicted of possessing and selling one-half gallon of whiskey in violation of the National Prohibition Act. In that case, the Supreme Court established a rule of law that was first outlined in 1924 in Newman v. United States by the Fourth Circuit Court of Appeals that offered guidance as to how the defense was applicable:

“The first duties of the officers of the law are to prevent, not to punish, crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. Here, the evidence strongly tends to prove, if it does not conclusively do so, that their first and chief endeavor was to cause, to create, crime in order to punish it, and it is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it.”

Sixty years later, in Jacobson v. United States, the Supreme Court produced a more precise, more concise definition that is still the gold standard today: “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.”

ELEMENTS OF AN ENTRAPMENT DEFENSE

A valid entrapment defense has two elements: 1) Government inducement of the crime; and 2) the defendant’s lack of predisposition to commit a crime. Of these, predisposition is the “principle element” in the defense of entrapment because it distinguishes between whether the defendant was an “unwary innocent” or, instead, an “unwary criminal” who readily took advantage of the opportunity to commit the crime.

The Supreme Court has instructed that, as a general rule, this entrapment question is an issue for the jury to decide rather than the trial court.

While predisposition is the principal element, inducement is the threshold question in an entrapment defense. In deciding that question, the courts are guided by some basic legal principles:

  1. Mere solicitation by law enforcement to commit a crime is not inducement, as the Supreme Court noted in Sorrells;
  2. Law enforcement’s use of artifice, stratagem, pretense, or deceit does not establish inducement;
  3. Inducement requires a showing of at least persuasion or mild coercion;
  4. Persuasion or coercion by law enforcement includes pleas based on need, sympathy, friendship, or extraordinary promises of the sort that “would blind the ordinary person to his legal duties”;
  5. Law enforcement’s behavior must be egregious enough that “a law-abiding citizen’s will to obey the law could have been overborne“; and
  6. Inducement is established if the defendant shows law enforcement created “a substantial risk that an offense would be committed by a person other than the one ready to commit it.”

THE USE OF ENTRAPMENT DEFENSES

An entrapment defense can be challenging because it is an admission that the defendant committed the crime charged. A successful entrapment defense requires a significant pretrial investigation and a skilled criminal defense attorney with the expertise necessary to put the results of that investigation into an entrapment defense. This includes but is not limited to:

  • Inducement: Gather recordings, emails, text messages, or any other communications, including those heard by a third party, that show or tend to show the law enforcement agent’s role in inducing the crime.
  • Predisposition: This requires gathering evidence that shows, or tends to show, that the defendant was not predisposed to commit the crime. This element is the most challenging aspect of an entrapment defense because it involves showing the defendant’s state of mind. Counsel must delve into past personal history (good family and social deeds), past behavior (lack of criminal history or bad acts), and character references (family, friends, and work associates who can attest to the defendant’s overall good character).

In short, an entrapment defense comes down to a defendant’s lack of proclivity to commit a crime and law enforcement’s inducement to commit the crime.

THE DUE PROCESS QUANDARY

Using law enforcement agents and informants and deception by either or both, standing alone is not a due process violation. The Supreme Court has held that a due process violation occurs only when the law enforcement’s “outrageous conduct” is so fundamentally unfair as to be “shocking to the universal sense of justice.”

A dismissal based on a claim of “outrageous government conduct” requires a showing of a due process violation before a trial court can exercise its supervisory authority and dismiss the charge.

For example, federal appellate courts generally agree that law enforcement’s actions “to infiltrate an ongoing criminal enterprise, or to induce a defendant to repeat, continue, or even expand criminal activity” do not give rise to a due process violation.

No federal court of appeals has ever held that a predisposed defendant has established a due process violation simply because he was induced to commit the crime by a law enforcement agent or informant.

THE BOTTOM LINE ISSUE OF ENTRAPMENT

A defendant must show that law enforcement urged, harassed, or overtly encouraged them to commit the crime charged when they would not have ordinarily committed it. This is known as subjective entrapment—a focus on a defendant’s non-predisposition to commit a crime.

However, when law enforcement used threats, intimidation, extended fraud, financial assistance, involuntary intoxication, or other pressuring means to force the defendant to commit the crime charged, this is known as objective entrapment—a focus on the “outrageous conduct” of law enforcement.

An entrapment argument can focus on one or both of these defenses. However, it takes a skilled criminal defense attorney to present either or a combination of both defenses.

 

The post Federal Entrapment: Its Origins And Defenses appeared first on John T. Floyd Law Firm.