NOTE: This article was originally posted October 17, 2010. This page includes added content to reflect the First Step Act (P.L. 115- 391) and subsequent changes to the federal criminal justice system. When this Act became effective on December 21, 2018, there were substantial changes to the mandatory minimum sentences for various repeat drug offenders.
What is federal entrapment?
Entrapment is an alternative defense to the assertion that the government has failed to prove the defendant guilty beyond a reasonable doubt. An entrapment defense admits that the offense took place. But this defense also alleges that the defendant would not have committed the offense – but for the influence of law enforcement. This defense should be considered carefully in cases involving undercover agents and sting operations, where law enforcement officers pose as regular people to observe defendants engaging in illegal activities.
The Bureau of Alcohol, Tobacco and Firearms (ATF), Federal Bureau of Investigation (FBI), and Drug Enforcement Administration (DEA), frequently conduct investigations with this sort of deceptive arrangement. At times, federal investigators will conduct the investigation with the assistance of police officers from that city or deputies of the county sheriff.
All of these investigators are trained in techniques to get someone to participate in a scheme with a criminal purpose. While participation may seem voluntary, federal courts recognize that the decision to participate may not be voluntary, legally speaking.
Elements of entrapment defense
The elements of an entrapment defense are the following:
- Inducement to commit a crime; and
- Absence of a predisposition to commit a crime.
Entrapment is not codified in any statute in the United States Code (USC). Rather, it is a common law defense that the federal courts have recognized as necessary for due process.
Entrapment requires the defendant to prove both elements in trial. Further, entrapment is not a defense that the defendant can raise prior to trial, such as in a motion to dismiss.
Generally, the defendant can prove these elements through cross-examination of the government’s witnesses. Then, when the U.S. government has rested, the defendant can present some evidence in support of their case. It may be possible to prove the entrapment defense entirely during the prosecution’s case. But that would be risky, because the jury would never hear from the defendant.
Inducement to commit a crime
Inducement to commit a crime is the critical issue. Solicitation to commit a crime does not qualify as inducement. While there is no definition of inducement, the courts have said it requires more than asking someone to commit a crime.
Inducement must involve at least persuasion or mild coercion. It may also be based on pleas of need, sympathy, or friendship. The fact that federal investigators engaged in deception, lies, subterfuge, or misrepresentation, does not, by itself, establish inducement. Ultimately, whether the defendant was induced is a question for the jury to decide.
Absence of predisposition to commit a crime
The defendant must also demonstrate that they were not predisposed to commit the crime. Predisposition is not the same issue as intent. If the defendant is arguing that they did not intend to commit the crime, then it is not an entrapment defense. Entrapment admits that the defendant intended to do the crime, but only did so because of the influence of government agents.
Generally, a lack of predisposition suggests the defendant was law-abiding individual. But under the circumstances, they had no choice but to commit the crime. The vagueness of entrapment allows the defense to make a variety of arguments to the jury. The issue is what the jury will believe.
Jurors can be very sensitive to the appearance of fairness. If they see the defendant as outnumbered and outmatched by federal investigators and prosecutors, they may feel sympathy and believe an entrapment defense. Jurors may disapprove of deception and lies by federal investigators.
In any case, the defense should concentrate on presentation. Present the defendant as a person and attempt to get the jury to acknowledge human nature. This means people can make mistakes, and while the crime was no ordinary mistake, the deceptive influence of the federal government was the difference. That is why the defendant committed the crime.
If the facts of the case involve an undercover drug transaction, purchase of firearms, sting operation, or the involvement of an agent posing as a regular person in some type of setup, entrapment is a defense worth considering.
In terms of undercover drug transactions, specifically, the First Step Act lowered the mandatory minimum sentence for certain repeat offenders. In these cases, a second conviction now results in at least 15 years in prison, down from 20. Whereas, a third or subsequent conviction now results in at least 25 years in prison, down from a life sentence.
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