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257.3 Entrapment

    257.3.1 Entrapment -- Miscellaneous Issues

    257.3.1.1 Entrapment -- Federal Test
    257.3.1.2 Whether Defendant Must Admit Guilt To Raise Entrapment
    257.3.1.3 Entrapment -- Impact Of Statement That Public Officials Or Representatives Engage In The Same Conduct
    257.3.1.4 Entrapment -- Not Available Vicariously
    257.3.1.5 Entrapment -- Examples Given To Jury Must Include Various Forms Of Entrapment
    257.3.1.6 Even If Entrapment Is Not Proven, Jury Must Consider Evidence Of Entrapment As To Whether Elements Of The Charge Were Proved
    257.3.1.7 Entrapment: Procedure When Jury Fails To Agree
    257.3.1.8 Multiple Defendants: Jury Must Consider Entrapment Separately As To Each Defendant
    257.3.1.9 Entrapment: Defense Improperly Excluded In Money Laundering Case

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    257.3.1.1    Entrapment: Federal Test

PRACTICE NOTE: Under federal law entrapment occurs when the government has apprehended an otherwise law-abiding citizen who, if left to his/her own devices, likely would have never run afoul of the law. (See Jacobson v. U.S. (1992) 503 US 540, 548 [112 SCt 1535; 118 LEd2d 174]; see also U.S. v. Skarie (9th Cir. 1992) 971 F2d 317, 320-21.)

Marcus, "Presenting, Back From the (Almost) Dead, the Entrapment Defense," 47 Fla.L. Rev. 205).

See also generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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PRACTICE NOTE: A defendant is entitled to an "instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54].) Hence, "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." (Mathews 485 US at 62; see also U.S. v. Nations (5th Cir. 1985) 764 F2d 1073, 1079 [right to entrapment instruction even though defendant denied criminal intent]; Correa v. U.S. (N.D. Ill.) 966 FSupp 731, 735; Terwilliger v. State (FL 1988) 535 So2d 346, 347; State v. Knowles (ME 1985) 495 A2d 335, 339 [same re: competing harms defense]; State v. McBride (OR 1979) 599 P2d 449, 451.)

    Hence, a defendant should not be compelled to admit his or her guilt as a condition of invoking the defense of entrapment.  (See People v. Johnston (NY 1975) 366 NYS2d 198, 203 [instruction that a defendant conceded his guilt by raising the entrapment defense is reversible error]; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:13 [Witnesses-Entrapment-Commentary] p. 256 (West, 1999); Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-45 [Instruction 46-Entrapment] comment (Lexis, 1999).) 

    Other jurisdictions, however, require an admission of guilt as a prerequisite for an entrapment instruction.  (See U.S. v. Prickett (6th Cir. 1986) 790 F2d 35, 37 [insanity defense precludes entrapment defense]; People v. Hendrickson (Colo. Ct. App., 2001) 46 P3d 786, 790 [defendant must admit having engaged in the proscribed conduct to be entitled to an entrapment instruction]; People v. Barraza (CA 1979) 23 C3d 675, 691 [153 CR 459]; State v. Scrutchfield (MO 1986) 742 SW2d 192, 197; U.S. v. Jones (5th Cir. 1988) 839 F2d 1041, 1053-54.)

    The constitutionality of such a rule may be subject to challenge in light of the defendant's constitutional right to present a defense.  (See FORECITE National™ 300.6 [Inadequate Instruction On Defense Or Defense Theory].)

Wharton’s Criminal Law (West, 15th Ed. 1993) § 53, pp. 388-92 [Entrapment: Availability To Defendant Who Denies Committing The Offense]; see annotations at p. 392.

Annotation, Availability In State Court Of Defense Of Entrapment Where Accused Denies Committing Acts Which Constitute Offense Charged, 5 ALR4th 1128.

Annotation, Availability Of Defense Of Entrapment Where Accused Denies Participating At All In Offense, 61 ALR2d 677.

Annotation, Availability In Federal Court Of Defense Of Entrapment Where Accused Denies Committing Acts Which Constitute Offense Charged, 54 ALR Fed 644.

Wharton’s Criminal Law (West, 15th Ed. 1993) § 53, p. 43 [Entrapment: Requirement That Guilt Be Admitted].

See also generally, FORECITE National™ 305.5.4 [Entrapment].

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PRACTICE NOTE: See State v. Erickson (HI 1978) 586 P2d 1022, 1024 [officer's statement to the defendant that, "even probation officers smoke marijuana" raised a substantial question of entrapment.]

See generally, FORECITE National™ 305.5.4 [Entrapment].

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PRACTICE NOTE: Where "the first person whom the government entraps expands, embroiders, or elaborates the scheme proposed to him by the government, the accomplices with whom he associates himself in the larger scheme cannot shelter under his entrapment defense; nor, we believe, could he, nor could they if, independently of any embroidery by the first 'entrapee,' they had been predisposed to join in the scheme ...." (U.S. v. Hollingsworth (7th Cir. 1994) 27 F3d 1196, 1204-05; see also U.S. v. Walker (11th Cir. 1983) 720 F2d 1527, 1541; People v. Holloway (CA 1996) 47 CA4th 1757, 1767 [55 CR2d 547]; State v. Hunter (FL 1991) 586 So2d 319, 322.)

    Compare FORECITE National™ 257.3.5 [Entrapment: Who May Entrap].

RESEARCH NOTES:

Annotation, Right Of Criminal Defendant to Raise Entrapment Defense Based On Having Dealt With Other Party Who Was Entrapped, 15 ALR5th 39.

See also generally, FORECITE National™ 305.5.4 [Entrapment].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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RATIONALE:  The jury may be misled by entrapment instructions which omit certain types of improper inducements.

POINTS AND AUTHORITIES:   Jury instructions which include certain specifics and omit others may improperly suggest that the omitted matter does not apply.  (See  FORECITE National™ 297.1.6 [Instruction That Applies A Rule To One Issue And Not To Another].)

    For example, in U.S. v. Montanez (1st Cir. 1997) 105 F3d 36 the entrapment instruction was prejudicially erroneous because it contained examples which only involved abstractions or coercion by the police. By omitting examples of inducement by undue appeal to sympathy, the jury may have been left "with the mistaken impression that coercion is a necessary element of entrapment ...." (Montanez, 105 F3d at 39; see also State v. Powell (IA 1977) 256 NW2d 235, 238.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].

See generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

SAMPLE INSTRUCTION:

    Examples of impermissible inducements, depending on the circumstances, are extreme pleas of desperate illness, appeals based primarily on sympathy, pity or close personal friendship, offers of inordinate amounts of money and the like.

[Source: State v. Powell (IA 1977) 256 NW2d 235, 238.]

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RATIONALE: When the defense focuses on entrapment, the jury may not understand that even if entrapment is rejected, the prosecution must still prove the substantive elements of the charge beyond a reasonable doubt.

POINTS AND AUTHORITIES: Martin v. Ohio (1987) 480 US 228 [107 SCt 1098; 94 LEd2d 267] held that the burden of proving a defense by a preponderance of the evidence may be placed on the defendant. However, in so holding, the Court stressed the need for the jury to understand (1) that the burden to prove the elements of the charge remains with the prosecution and (2) evidence relating to the affirmative defense must be considered by the jury if it does not satisfy the preponderance standard:

    "It would be quite different if the jury had been instructed that self defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case, i.e., that self defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of Winship's mandate. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State's proof of the elements of the crime."

(Martin v. Ohio, 480 US at 233-4.)

    Justice Powell recognized this reasoning to be the "crux of the Court's holding" (see Smart v. Leeke (4th Cir. 1989) 873 F2d 1558, 1564) when he articulated in his dissent: "The Court thus seem[ed] to conclude that as long as the jury is told that the State has the burden of proving all elements of the crime, the overlap between the offense and the defense is immaterial." (Martin, 480 US at 239.)

    In response to Martin's recognition of potential juror confusion in this area, it has been suggested that clarifying instructions should be given to assure jury understanding of these important principles. (See e.g., MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 3-115(a) [Issue-Justifiable Use of Force as a Defense] ¶ 2 (State Bar of Montana, 1990) [jury instructed that "even if you determine the use of force was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt"]; CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.61 [Consent Defense To Sexual Abuse] ¶ 1, sent. 3 (Bar Association of the District of Columbia, 4th ed. 1993) [jury told to consider evidence of consent [an affirmative defense] in deciding whether prosecution proved the force or threat element].)

    The First Circuit commentary to its standard insanity instruction (1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 5.07 [Insanity], comment fn. 3 (2002)) further illustrates the problem:

    "A more troublesome issue arises when the defendant raises both the insanity defense and a mens rea defense based on abnormal mental condition. If evidence tends to show that a defendant failed to understand the nature and quality of his/her conduct, that evidence will not only tend to help prove an insanity defense but it will also typically tend to raise reasonable doubt about the requisite culpable state of mind. (See Pattern Instruction 5.02.) In Martin v. Ohio (1987) 480 US 228, 234, the Supreme Court held that the trial judge must adequately convey to the jury that evidence supporting an affirmative defense may also be considered, where relevant, to raise reasonable doubt as to the requisite state of mind. This 'overlap' problem may be solved by adequate instructions."

    The need for clarifying instructions is particularly acute in circumstances where the affirmative defense would also serve to negate an element of the charge. (E.g., diminished capacity is affirmative defense which defendant must prove but prosecution must prove mens rea beyond an reasonable.) As one court observed:

    "In this kind of situation, the constitutional problem is not eliminated by including an instruction in the charge that the state has the ultimate burden of proving every element of the offense beyond a reasonable doubt. When such a standard instruction is coupled with one placing a burden on the defendant to prove his defense by a preponderance of the evidence, the predictable result is more than merely confusion. In order to attribute some significance to the defendants' burden, a rational juror's only option is to conclude that the defendants' evidence concerning the subject matter of the 'affirmative defense' is to be considered only if the jury finds it persuasive, i.e., finds that the facts sought to be proved are more likely true than not true. It is clear from Martin that this is constitutionally impermissible."  (Emphasis added.)

(Humanik v. Beyer (3rd Cir. 1989) 871 F2d 432, 440-41.)

    Moreover, the problem also exists when the defense does not directly negate the element. For example, in the case of momentary possession (FORECITE National™ 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession]), evidence related to momentary possession may actually negate the element of possession as a required element of the charge. Hence, any implication that the momentary possession evidence may only be considered if proven by a preponderance of the evidence would violate the due process and trial by jury clauses of the federal constitution.

    A similar analysis could be applied to entrapment where the defendant's lack of predisposition to commit the offense in the first place could be relied upon to negate the mens rea and/or intent elements of the charge even if entrapment is not proven by a preponderance of the evidence.

    Accordingly, counsel may wish to consider whether clarifying language such as set forth below may be appropriate.

    See also FORECITE National™ 250.5.2 [Even If Defendant's Burden As To A Defense Is Not Met, Jury Must Consider Factual Basis For The Defense As To Proof Of Elements].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].

STRATEGY NOTE: Depending on the case, the instruction in Sample Instruction # 1, below, may be undesirable as a matter of strategy because it may be viewed as suggesting to the jury a weakness in the defendant's affirmative defense evidence. Alternatively, the jury could simply be instructed in the language of Sample Instruction # 2, below.

USE NOTE: As to the language that the jury "must" consider the evidence, see FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].

See generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

   a.    Even if the defendant does not prove entrapment, the prosecution must still prove every element of the charge beyond a reasonable doubt.

   b.    In deciding whether the prosecution has met its burden to prove every element beyond a reasonable doubt, you must consider all the evidence, including that which relates to the defense of entrapment, even if you conclude that the defendant did not prove the defense.

[Source: FORECITE National™.]

    The defendant's burden as to this defense does not relieve the prosecution of its burden to prove every element of the charge beyond a reasonable doubt.

[Source: FORECITE National™.]

    Consider any evidence of ______________ (affirmative defense) in deciding whether the prosecution has proved all the elements of the charged offense beyond a reasonable doubt as set forth in the other instructions.

[Source: FORECITE National™.]

SAMPLE INSTRUCTION # 4:

    Consider any evidence of consent in deciding whether the prosecution has prove the force or threat elements of the charge upon which I have previously instructed you.

[Martin v. Ohio (1987) 480 US 228; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.61 [Consent Defense To Sexual Abuse] ¶ 1, sent. 3 (Bar Association of the District of Columbia, 4th ed. 1993).]

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    257.3.1.7    Entrapment: Procedure When Jury Fails To Agree

PRACTICE NOTE: Where the defendant has the burden to prove entrapment by a preponderance of the evidence, a verdict of guilt may not be returned if even a single juror believes that the defendant was entrapped. (People v. McIntyre (CA 1990) 222 CA3d 229, 232-33 [271 CR 467].)

    If the jury indicates a failure to agree upon the issue of entrapment the court may reinstruct the jury on entrapment and send them back for further deliberations or, if further deliberations would be fruitless, declare a mistrial. (Ibid.; but see FORECITE National™ 285.2 [General Rules For Framing Supplemental Instructions].)

See generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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    257.3.1.8    Multiple Defendants: Jury Must Consider Entrapment Separately As To Each Defendant

PRACTICE NOTE:  Davis v. State (Fla. 2001) 804 So2d 400 held that in a joint trial of codefendants on trafficking in cocaine and conspiracy to traffic, trial court committed reversible error in using term "and/or" to refer to defendant and codefendant in instructions on elements of crimes and defense of entrapment. The instruction could have caused jury to find defendant guilty based solely on defendant’s misconduct, and to reject entrapment defense based solely on codefendant’s predisposition to commit crime. Unlike the defendant, the codefendant had two prior cocaine convictions. The error is cognizable on appeal even though defense agreed to instructions, because fundamental error results from incomplete or inaccurate instruction which either misleads jury as to element of offense or negates accused’s only defense.

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PRACTICE NOTE: See United States v. Gurolla (9th Cir. 2003) 333 F3d 944.