The Entrapment Defense: Alive and Well

Louis Brandeis, a former Supreme Court Justice, perfectly captured the inherent tension with police or their agents luring individuals into criminal plots and then punishing them for the activity. “The obstacle to the prosecution lies in the fact that the alleged crime was instigated by officers of the government; that the act for which the government seeks to punish the defendant is the fruit of their criminal conspiracy to induce its commission.” Casey v. United States, 276 U.S. 413, 4223-24 (1928). The defense of entrapment was not recognized by most courts until the early 20th century, because, unlike many defenses available to defendants in a criminal trial, it is not a defense provided for by the Constitution. Instead, the defense of entrapment has been slowly carved out by the courts as response to what was perceived by many as unlawful police conduct.

The Supreme Court first took up the issue of an entrapment defense in Casey v. United States, 276 U.S. 413 (1928). Jail officials suspected Casey, an attorney, was smuggling narcotics into the jail for his clients. To confirm their suspicions, officials recruited an inmate to set up a deal with Casey for a delivery of morphine. He made the deal and smuggled in the morphine. Writing for the majority, Justice Holmes suggested that entrapment would be a viable defense in an appropriate case, but the case at hand did not rise to the level of entrapment. Four years later, the Supreme Court officially adopted entrapment in Sorrells v. United States, 287 U.S. 435, 454-55 (1932). Sorrells was repeatedly asked by an undercover agent to get him some bootlegged whiskey. It took five attempts before Sorrells agreed to locate some whiskey for the agent. At trial, several witnesses testified that the defendant had no existing ties to bootleggers. Instead of basing its decision on the entrapment theory posited by Brandeis, the Court held that Congress did not enact the statute intending for law enforcement officials to lure innocent individuals into committing the proscribed crime. Id. at 448.

Two theories of entrapment have emerged over the years. The objective theory focuses on whether the conduct of the police would have, in all likelihood, entrapped only those readily willing to commit the crime rather than focusing on the predisposition of the defendant. The Supreme Court’s current holdings on the entrapment defense instead places the weight on the disposition of the particular defendant leading to a subjective theory. The subjective theory asks whether the government’s conduct induced the crime and whether the defendant was predisposed to commit the crime.

By adopting the subjective test, Courts have unwittingly made it extremely difficult for the entrapment defense to prevail. Under the government inducement prong, defendants must show that he was unduly coerced, harassed, threatened, or pleas based on sympathy of friendship by the police. The government conduct must be such that it creates a situation in which an otherwise law abiding citizen would break the law. Even if a defendant can prove the government’s conduct induced their illegal activity, he must then prove that no predisposition to commit the crime existed. The predisposition prong essentially asks whether the government simply provided the defendant with the opportunity to commit a crime.

Based on these developments, many defense lawyers believe that the entrapment defense is “dead” and not viable to raise in criminal trials. Recently, however, the 7th Circuit has given criminal defendants a reason to be more optimistic about raising an entrapment defense with their holding in United States v. Mayfield. United States v. Mayfield, No. 11-2439 (2014). Mayfield was a convicted burglar and had been convicted of several violent crimes stemming from a carjacking. Upon his release from prison, Mayfield worked hard to turn his life around, but due to his criminal record, was only able to secure low paying jobs. A co-worker, Jeffery Potts, with a similar background often commiserated with Mayfield about the struggles to turn their life around. Unbeknownst to Mayfield, Potts was a confidential informant for the Bureau of Alcohol, Tobacco, and Firearms (“ATF”), and he had selected Mayfield as a target for a potential sting. On several occasions, Potts unsuccessfully tried to persuade Mayfield to participate in a robbery for the cut of the profit. It was only after Potts loaned Mayfield money to repair his vehicle and then threatened him, flashing his gang tattoo, that Mayfield relented. At trial, the judge barred the defendant from raising the entrapment defense. Id. at 4-6.

The seventh circuit reversed the trial court’s decision holding the issue of entrapment should have been presented to the jury. Mayfield at 49. The Court found that Potts’ tactics taken together were enough to permit a reasonable jury to find that the government’s actions induced Mayfield to commit a crime. Additionally, the Court found that Mayfield’s criminal record did not necessarily mean he was predisposed to commit this crime. A reasonable jury could have found Mayfield’s attempt to turn his life around and his repeated refusal to participate sufficient evidence that he was not predisposed to commit the offense. “The predisposition element focuses on the defendant’s circumstances before and at the time the government first approached him with a proposal to commit the crime.” Id. at 52.

In recent months, the office of Columbus, Ohio criminal defense attorney Joe Edwards has represented numerous individuals charged with drug offenses at the state and federal levels. In some of these cases, the defendant charged with the offense was approached by a confidential informant who was acting as an agent of law enforcement. The informant, who is often cooperating with the police to reduce charges of their own, has contacted the defendant multiple times about setting up a deal. Our experience is that informants are becoming increasingly aggressive in their attempts to induce the defendant’s participation, largely as a result of new forms of social media. The ability to clearly articulate to a jury the elements of an entrapment defense is essential. It not only provides a possible defense to criminal liability, but evidence presented for an entrapment defense can also mitigate any sentence imposed. As courts continue to clarify and refine the elements of entrapment, it remains an essential tool for criminal defense attorneys.

If you need a lawyer to defend drug, sex, homicide, juvenile, or white collar crimes, DUI/OVI, or Federal charges, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.





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