FEDERAL LAW GUIDE TO THE ENTRAPMENT DEFENSE

Posted by Jarrett P. AmbeauFeb 04, 20250 Comments

Many people ask about entrapment as a defense to criminal charges. But this is a misunderstood defense, and more often that not, it's not useful. Importantly, entrapment is not simply the government being involved in a criminal act or playing some part in the criminal behavior, which is what most people think. There are additional requirements of the manner of government involvement and the desire of the accused. 

It is important to understand the nature of the defenses available to the accused. Being informed gives the accused the ability to assist counsel in his defense and feel good about using, or not using, a specific strategy in his defense. At least part of the liberty rights we have, is the freedom to participate in our defense and be sufficiently informed thereof.

ENTRAPMENT LAW

Entrapment occurs when the government conceives and plans a crime and then induces a person to commit that crime, someone who was not predisposed to act absent government persuasion. Entrapment is a defense having two basic elements: (1) government inducement of a crime; and (2) lack of predisposition to commit that crime on the part of the defendant.

Element (1): The element of inducement requires more than mere solicitation. The defendant must establish an unwillingness to commit the crime, initially or during the planning, or that the government planted the criminal design in the defendant's mind where it would have otherwise not been considered. Also, the government induces a crime, for purposes of the entrapment defense, when it creates a special incentive for the defendant to commit the crime. This incentive can consist of anything that materially alters the defendant's decision whether to commit the offense.

Element (2): Even if the government induces the crime, a defendant can still be convicted if the defendant was predisposed to commit the offense. When the defendant is ready and willing to violate the law and the government only created the favorable opportunity for the crime, the defense of entrapment is not available. It is not entrapment merely because the government agent pretends to be someone else or offers to engage or participate in the criminal act.

Also: Entrapment cannot result from the inducements of a private citizen but must be the product of conduct by government agents.

Once the defendant establishes the two elements of an entrapment defense, the burden shifts to the government to prove beyond a reasonable doubt either the absence of government inducement or the defendant's predisposition.

Where the evidence bearing on the issue of predisposition is in conflict, that issue is for the jury.

 

COURT OPINIONS

US SUPREME COURT

Entrapment occurs only when the criminal conduct is the product of the creative activity of law-enforcement officials, that is, when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. The fact that government agents merely afford opportunities or facilities for the commission of the offense does not constitute entrapment. Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958).

The crucial factor in an entrapment defense is the predisposition of the defendant rather than the degree of government participation. Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976).

1ST CIRCUIT

The First Circuit instructs: “An improper inducement … goes beyond providing an ordinary opportunity to commit a crime. An inducement consists of an opportunity plus something else—typically, excessive pressure by the government upon the defendant or the government's taking advantage of an alternative, non-criminal type of motive.” U.S. v. Gendron, 18 F.3d 955 (1st Cir. 1994).

Solicitation alone is insufficient. Kadis v. U.S., 373 F.2d 370 (1st Cir. 1967)

It is error to rule that the defense of entrapment cannot be raised if the defendant fails to testify. U.S. v. Annese, 631 F.2d 1041, 7 Fed. R. Evid. Serv. 300 (1st Cir. 1980).

5TH CIRCUIT

To determine whether the defense of entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal…The fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution…For the offense to originate in the mind of a defendant, it is not necessary that the defendant be the instigator of a particular sale or act, but only that he have the general intention to commit such an offense whenever the opportunity is offered.  Goss v. U.S., 376 F.2d 812, 813 (5th Cir. 1967)

6TH CIRCUIT

When entrapment is asserted as a defense by raising the issue either by evidence in the government's case-in-chief or in the defense, the government has the burden of proving beyond a reasonable doubt that the defendant had a predisposition to commit the crime. If the defendant shows, through government witnesses or otherwise, some indication that a government agent corrupted him, the burden of disproving entrapment is on the government. However, such a showing is not made simply by evidence of a solicitation. There must be some evidence tending to show unreadiness. U.S. v. Jones, 575 F.2d 81 (6th Cir. 1978).

7TH CIRCUIT

Where the defendant was induced by a government agent to commit a crime the burden is on the government to prove beyond a reasonable doubt that the inducement was not the cause or creator of the crime, that the accused was ready and willing to commit the offense charged, whenever the opportunity offered. U.S. v. Landry, 257 F.2d 425 (7th Cir. 1958).

10TH CIRCUIT

Evidence of predisposition may consist of a showing of a defendant's desire for profit, his eagerness to participate in the transaction, his ready response to the government's inducement offer, or his demonstrated knowledge or experience in the criminal activity under investigation. United States v. Ortiz, 804 F.2d at 1165 (10th Cir. 1970).

In a narcotics case, whether the government initiated the contact with the defendant is not the entire question in determining the issue of entrapment. Mere assistance by government undercover agents in the commission of a crime does not constitute entrapment. In rebutting an entrapment defense, the government is not required to show that the defendant has engaged in prior acts or prior violation of the narcotics laws. U.S. v. Fadel, 844 F.2d 1425 (10th Cir. 1988).

 

This is not legal advice and is offered as information only. This law is applicable to the Federal Criminal Statutes and Procedure only, and should not be considered in the context of a State arrest or prosecution, except as your attorney may direct.

Jarrett Ambeau is licensed to practice law in Louisiana State court, and the following federal district courts: U.S. District Court for the Middle District of Louisiana, U.S. District Court for the Western District of Louisiana; U.S. District Court for the Southern District of Texas; and the U.S. District Court for the District of Colorado.