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Entrapment: Presence of Several Inducement Plus Factors Leads to REVERSAL

US v. James Barta.  No. 13-3208.

Defendant James Barta has appealed his conviction for conspiracy to commit bribery. He was charged and convicted based on an undercover government sting operation that evolved into an agreement among Barta and his co-defendants to bribe a fictional county official in California to obtain a government contract.

We reverse because Barta was entrapped as a matter of law and order his immediate release from prison.

“Entrapment is a defense to criminal liability when the defendant was not predisposed to commit the charged crime before the intervention of the government’s agents and the government’s conduct induced him to commit it.” United States v. Mayfield, 771 F.3d 417, 420 (7th Cir. 2014) (en banc).

There are two elements to the defense of entrapment: the defendant’s lack of predisposition and the government’s inducement. Here the government made the unusual but appropriate decision to concede that Barta was not predisposed to commit the charged crime. Predisposition is the “principal element in the defense of entrapment.” United States v. Russell, 411 U.S. 423, 433 (1973).

To overcome Barta’s entrapment defense, therefore, the government was required to “prove beyond a reasonable doubt … that there was no government inducement” in this case. Mayfield, 771 F.3d at 443. The government failed to do so.

Inducement “means government solicitation of the crime plus some other government conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the government’s efforts.” Id. at 434-35.

Undisputed evidence shows that several “plus factors” signaling inducement were present in this case. In the course of its undercover operation the government employed “repeated attempts at persuasion.” Id. at 435. It employed both “fraudulent representations” and “promises of reward beyond that inherent in the customary execution of the crime.” Id. It also employed “pleas based on need, sympathy, or friendship.” Id. The cumulative effect of these tactics directed at Barta amounted to inducement.

Because Barta was induced and the government concedes that he was not predisposed, it follows that he was entrapped as a matter of law.

Barta’s conviction is REVERSED and the case is REMANDED with instructions to enter a judgment of acquittal.

By:  Chicago Federal Criminal Defense Attorney Michael J. Petro

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