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USA v. Israel Pillado, Irineo Gonzalez, and Leobardo Lara, 10-1081, 10-1083 &10-1202.

A law enforcement operation that began with the promising interdiction of 943 kilograms of marijuana, shipped from Jalisco, Mexico, ended less than admirably.

When government agents executed a “controlled delivery” to an address in McHenry, Illinois, close to the one on the shipping manifest (the addresslisted did not exist), they arrested five people. By the government’s own account, three persons ensnared in the sting operation had no prior connection to the illicit cargo. They were merely laborers who happened to be working on-site when they were persuaded to unload the truck. Unload it they did, and after the cargo was on the ground, police raided the scene.

The prosecution charged all five defendants with conspiracy to possess marijuana with the intent to distribute in violation of 21 U.S.C. § 846, and possession with the intent to distribute in violation of § 841(a)(1).

A. Leobarda Lara

2. Entrapment

Lara asserts that he is entitled to acquittal because he was entrapped into his minor involvement with this crime.

Entrapment involves “the apprehension of anotherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law.” Jacobson v. United States, 503 U.S. 540, 553-54 (1992). The defense has two elements: government inducement of the crime and a lack of predisposition on the part of the defendant. See Mathews v. United States, 485 U.S. 58, 63 (1988).

In order to obtain an entrapment instruction, a defendant must proffer evidence on both elements. See United States v. Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Once a defendant meets this threshold, the burden shifts to the government to prove that the defendant was not entrapped, meaning “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.” Jacobson, 500 U.S. at 549.

We review a district court’s refusal to give an entrapment jury instruction de novo, United States v. Hall, 608 F.3d 340, 343 (7th Cir. 2010), bearing in mind that the question whether a defendant has been entrapped is “generally one for the jury, rather than for the court.” Mathews, 485 U.S. at 63.

The parties vigorously dispute what the defendant must proffer to warrant an entrapment instruction. The district court thought that absent a showing of “extraordinary inducement,” the inquiry ends. Before we explain why the court was wrong on this point, we pause to comment on the court’s decision not to consider predisposition before making its final ruling.

It is true that a defendant must proffer some evidence on both elements of the entrapment defense to warrant the instruction, but this is a situation in which the two parts of the inquiry inform one another. A person’s lack of predisposition to commit a crime distinctively reveals whether the government has ensnared “an unwary innocent” in a criminal enterprise of its own design. See Mathews, 485 U.S. at 63.

As we explained in United States v. Evans, “the centrality of predisposition can be seen by considering the purpose of the doctrine of entrapment. It is to prevent the police from turning a law-abiding person into a criminal.” See 924 F.2d 714, 717 (7th Cir. 1991). Thus, when the entrapment defense is in play, “predisposition . . . must be the key inquiry.” Id.; Mathews, 485 U.S. at 63.

We recognize that where there is insufficient evidence of inducement-either because there is no such evidence at all, or because the government did nothing more than offer a standard market deal in a sting-there is no need to consider predisposition. But predisposition will often be the more efficient place to start.

As we have noted before, if there is sufficient evidence that a defendant was pre-disposed to commit the crime, a request for an entrapment instruction may be rejected without considering government inducement. See Santiago-Godinez, 12 F.3d at 728.

But the converse is not true: the court may not, as it did here, begin and end the inquiry with government inducement unless it is confident either that the government did nothing at all or that the record demonstrates that the government’s actions simply provided an opportunity for a person who was already ready and willing to commit the offense.

There is an additional reason why it is sensible to begin the inquiry with predisposition. Whether a defendant is predisposed to commit the crime charged informs the nature and level of government inducement that must be identified to warrant an entrapment instruction. As we explained in United States v. Hollingsworth, 27 F.3d at 1200, when a defendant is so “situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so,” then he may be required to point to “extraordinary inducements” to raise the entrapment defense.

When there is independent evidence that the person was predisposed to commit the crime charged, there is little risk that an innocent person has been transformed into a criminal by the government’s presentation of an ordinary opportunity to engage in a particular criminal activity. See United States v. De Marie, 226 F.2d 783, 785 (7th Cir. 1955) (“Where the officers only furnished the defendant with an opportunity to carry out a crime which he was already willing to commit, there is no entrapment.”).

Significantly, however, what we have set forth above does not exhaust the possible applications of the entrapment defense. The most important function of the doctrine, the one that the Supreme Court has repeatedly affirmed, is to ensure that people who are not predisposed to commit a crime are not transformed into criminals by the government. See, e.g., Sorrells v. United States, 287 U.S. 435, 442 (1932).

Suppose the rule was that every defendant, even one not predisposed to committing the crime charged, was required to make a showing of extra-ordinary inducement before the defense could be presented to the jury. Government agents would be free to target perfectly law-abiding individuals with inducements that are subtle, persistent, or persuasive-yet not extraordinary-and those individuals would never be able to present the entrapment defense to the jury.

With these principles in mind, we consider Lara’s claims. We begin by asking whether Lara was predisposed to the crime charged: possession with the intent to distribute about one ton of marijuana. This requires an evaluation of the following five factors: (1) the defendant’s character or reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion by the government.

No single factor controls, but most significant is whether the defendant was reluctant to commit the offense. Id. It is not surprising that the government spends no time arguing that Lara was predisposed to commit the crime charged, since even a cursory review of the record shows no hint of such a predisposition.

Based on these facts, we conclude that Lara has identified enough evidence in the record from which a jury could conclude that the government induced him to commit the crime. So Lara is also entitled to a new trial based on the entrapment defense.

In that proceeding, prosecutors will bear the burden to prove beyond a reasonable doubt that Lara was predisposed to committing the crime by identifying “preinvestigation evidence” bearing on this issue. See Jacobson, 503 U.S. at 548-49 (“Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”).

For the reasons stated above, we REVERSE Lara’s conviction and REMAND for a new trial consistent with this opinion