Federal Entrapment Defense: When Is a Defendant Entitled to a Jury Instruction?
Federal law enforcement officers are permitted to conduct undercover investigations, use confidential informants, create sting operations, and provide suspects with opportunities to commit crimes.
But there is a constitutional and legal limit to how far the government may go.
When government agents induce a person to commit a crime that the person was not predisposed to commit, the defendant may be entitled to present an entrapment defense to the jury.
Entrapment can be a complete defense to a federal criminal charge.
What Is Entrapment?
The Supreme Court has recognized two basic components of the federal entrapment defense:
- Government inducement of the crime, and
- Lack of predisposition by the defendant to commit the crime before the government’s inducement.
The critical distinction is between the government merely providing an opportunity to commit a crime and the government persuading or pressuring an otherwise unwilling person into committing one.
Simply giving someone an opportunity to commit a crime ordinarily is not entrapment.
Government Inducement Requires More Than an Opportunity
Federal agents may use deception.
They may pose as criminals, buyers, sellers, drug couriers, or other participants in illegal activity. They may use confidential informants and undercover agents. They may even create fictitious criminal opportunities.
Those tactics do not automatically establish entrapment.
The defense becomes stronger when the government does more than simply offer an ordinary criminal opportunity.
Evidence of inducement may include persistent pressure, repeated solicitation after refusals, coercive tactics, exploitation of unusual vulnerabilities, threats, extraordinary promises, or other conduct designed to overcome a person’s unwillingness to commit the crime.
The precise circumstances matter.
Predisposition Is Often the Critical Question
Even when government agents induced the crime, there is no entrapment if the defendant was already predisposed to commit it.
Predisposition focuses on the defendant’s readiness and willingness to commit the charged crime before the government’s inducement.
Important evidence may include:
- Whether the defendant initially refused or hesitated
- Whether government agents repeatedly pressured the defendant
- Whether the defendant readily accepted the criminal opportunity
- Whether the defendant had previously engaged in similar criminal conduct
- Who first suggested the criminal activity
- Whether the defendant demonstrated knowledge or experience concerning the crime
- Whether the defendant actively planned or expanded the criminal scheme
- The nature and degree of the government’s persuasion
No single fact necessarily decides the issue.
The defense should focus on what the defendant was prepared to do before the government created or encouraged the criminal conduct.
The Government Cannot Manufacture Predisposition
The Supreme Court’s decision in Jacobson v. United States, 503 U.S. 540 (1992), provides an important limitation on government-created crime.
The government must establish that the defendant was predisposed to commit the offense before government agents induced the criminal conduct.
The government cannot manufacture predisposition through its own investigation and then rely upon the defendant’s eventual participation as proof that the defendant was predisposed all along.
This distinction can be especially important in lengthy undercover operations involving repeated contacts between agents or informants and the defendant.
When Is a Defendant Entitled to an Entrapment Jury Instruction?
A defendant does not have to prove entrapment before being allowed to present the defense to the jury.
Instead, the defendant must produce sufficient evidence to place entrapment genuinely at issue.
Once the evidentiary threshold is satisfied, entrapment becomes a question for the jury.
The jury then considers whether the government has proved beyond a reasonable doubt that the defendant was not entrapped.
This makes the fight over the entrapment jury instruction extremely important.
If the judge refuses to give the instruction, the jury never gets the opportunity to decide whether government agents caused an otherwise unwilling person to commit the crime.
Eleventh Circuit Entrapment Law
The Eleventh Circuit recognizes entrapment as an affirmative defense involving:
Government inducement of the crime and lack of predisposition by the defendant before the inducement.
Predisposition is a fact-intensive inquiry focusing on whether the defendant was ready and willing to engage in the charged criminal conduct without government persuasion.
The Eleventh Circuit’s criminal pattern jury instructions expressly include an Entrapment instruction as well as a separate instruction addressing the jury’s evaluation of the conduct of government agents.
When the evidence properly raises entrapment, the government bears the ultimate burden of proving beyond a reasonable doubt that the defendant was not entrapped.
United States v. Hall and a Fictitious Drug Stash House
The original article on this page discussed United States v. Hall, a Seventh Circuit case involving a government-created stash-house robbery.
An undercover agent told Hall that kilograms of cocaine were stored in a drug stash house protected by armed guards. In reality, there was no stash house and no cocaine.
The entire robbery opportunity was created by the government.
But that fact alone did not establish entrapment.
Hall immediately expressed enthusiasm about participating in the robbery. He discussed killing the supposed guards and showed no meaningful reluctance to participate.
The Seventh Circuit concluded that the evidence did not support an entrapment instruction because Hall appeared ready and willing to participate rather than being persuaded into criminal conduct he otherwise would not have committed.
The case illustrates an important distinction:
Government creation of the criminal opportunity is not necessarily government entrapment.
The question remains whether the defendant was induced to commit a crime that he was not otherwise predisposed to commit.
Sting Operations and Entrapment
Entrapment issues frequently arise in federal sting operations involving:
- Fictitious drug stash-house robberies
- Undercover drug transactions
- Firearms investigations
- Online investigations
- Public corruption investigations
- Fraud investigations
- Confidential informants
- Undercover agents
- Repeated government solicitation
The fact that the government invented the criminal opportunity does not automatically establish a defense.
But neither does the defendant’s eventual agreement automatically establish predisposition.
The entire history of the government’s interaction with the defendant should be examined.
Evidence That Can Be Critical to an Entrapment Defense
The chronology of the investigation can be extremely important.
The defense should examine:
Who first proposed the crime?
Did the defendant approach the government, or did an undercover agent or confidential informant initiate the criminal proposal?
Did the defendant initially refuse?
Repeated refusals followed by persistent government pressure can be important evidence of inducement and lack of predisposition.
How persistent was the government?
The number of contacts, duration of the investigation, promises made, pressure applied, and tactics used should be examined carefully.
What did the defendant do before government involvement?
The government must establish predisposition existing independently of its own inducement.
What do the recordings show?
Many undercover investigations are recorded. Those recordings may provide the best evidence of whether the defendant eagerly accepted the criminal opportunity or resisted government pressure.
Entrapment Is Different From Outrageous Government Conduct
Entrapment focuses primarily on the defendant’s predisposition and the government’s inducement.
A claim that law enforcement conduct was so outrageous that it violated due process is a different and substantially more difficult defense.
The two theories should not be confused.
An undercover operation can involve aggressive or deceptive government conduct without necessarily reaching the constitutional standard for outrageous government conduct.
Entrapment asks a different question:
Did the government induce this defendant to commit a crime that the defendant was not predisposed to commit?
Federal Entrapment Defense Attorney Michael J. Petro
Federal agents have considerable freedom to investigate criminal activity, but the government should not manufacture crimes by overcoming the resistance of people who were not otherwise ready and willing to commit them.
When a federal prosecution results from an undercover operation or a confidential informant, the defense should examine the government’s conduct from the very beginning of the investigation.
That includes recordings, text messages, informant communications, reports, surveillance, prior contacts, and every instance in which the defendant resisted or rejected the government’s proposal.
If you were charged with a federal crime after an undercover sting operation or repeated pressure from a government informant or agent, call federal criminal defense attorney Michael J. Petro to determine whether entrapment should be part of your defense.