Entrapment - Extended Explanation
By: Bill E. Branscum
© Copyright 2001
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:
- 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.
- 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
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
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
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."
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.
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
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.
Branscum is a licensed Private Investigator and owner of Oracle
International, an investigative agency he established in Naples,
Florida following his career as a federal agent. His experience
includes investigations related to narcotics smuggling, money laundering,
securities fraud, the unlawful exportation of critical technology,
the sexual exploitation of children and contract murder.
International maintains a web site at http://www.OracleInternational.com.
to "Articles" menu
to "Main Page"