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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:

  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.

 


Bill 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.

Oracle International maintains a web site at http://www.OracleInternational.com.

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