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257.3 Entrapment

    257.3.4 Entrapment: Predisposition

    257.3.4.1 Entrapment: Factors Relevant To Predisposition
    257.3.4.2 Entrapment: Defendant’s Right to Present Evidence of Good Character
    257.3.4.3 Entrapment: “Already Willing” Language Fails To Convey Required Predisposition
    257.3.4.4 Entrapment: Predisposition Must Be Independent
    257.3.4.5 Entrapment: Positional Predisposition -- Defendant Must Have Ability To Commit Crime Without Assistance Of The Government
    257.3.4.6 Predisposition Defined: How Defendant Likely Would Have Reacted To Ordinary Opportunity To Commit The Crime
    257.3.4.7 Entrapment: Reference To “Predisposition” Should Be Omitted
    257.3.4.8 CAVEAT: Entrapment May Open The Door To Uncharged Crimes Or Bad Acts On Issue Of Predisposition

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RATIONALE: For the jurors to reliably decide the issue of predisposition they should understand what factors are relevant to that decision.

POINTS AND AUTHORITIES: The factors relevant to predisposition for entrapment purposes include the defendant's background and the nature and degree of governmental involvement. (See 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.05 [Entrapment--Factors] p. 97, Committee comment (1999).) For example, U.S. v. Nelson (6th Cir. 1990) 922 F2d 311, 317, listed the following five factors as relevant to whether the defendant was predisposed to commit the crime:

1. The character or reputation of the defendant;

2. Whether the suggestion of criminal activity was originally made by the government;

3. Whether the defendant was engaged in criminal activity for profit;

4. Whether the defendant evidenced reluctance to commit the offense but was overcome by government persuasion; and

5. The nature of the inducement or persuasion offered by the government.

    Another factor suggested by the 6th Circuit is whether the defendant engaged in similar criminal activity before or after the government’s involvement. (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.03 [Entrapment] p. 132, ¶ 4, sent. 3, commentary (1991).)

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

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

SAMPLE INSTRUCTION:

    The government has the burden of proving beyond a reasonable doubt that the defendant was ready willing to commit the crime. Let me suggest me things that you may consider in deciding whether the government has proved this:

    (A)    Ask yourself what the evidence shows about the defendant's character and reputation.

    (B)    Ask yourself if the idea for committing the crime originated with or came from the government.

    (C)    Ask yourself if the defendant took part in the crime for profit.

    (D)    Ask yourself if the defendant took part in any similar criminal activity with anyone else before or afterwards.

    (E)    Ask yourself if the defendant showed any reluctance to commit the crime and, if he did, whether he was overcome by government persuasion.

    (F)    And ask yourself what kind of persuasion and how much persuasion the government used.

    Consider all the evidence, and decide if the government has proved that the defendant was already willing to commit the crime. Unless the government proves this beyond a reasonable doubt, you must find the defendant not guilty.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.03 [Entrapment] ¶ 5, including A-F, and ¶ 6, pp. 130-131 (1991).]

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PRACTICE NOTE: In jurisdictions where the defendant's predisposition to commit the criminal offense is an issue in entrapment, the defendant's character becomes an "essential element" of the defense. Hence, the determination of that issue necessarily "embraces the defendant's 'character' as well as his immediate intentions." (U.S. v. Barry (9th Cir. 1987) 814 F2d 1400, 1403 n 6; see also U.S. v. Thomas (9th Cir. 1998) 134 F3d 975, 978.)

    In such jurisdictions whether or not the defendant takes the stand, he or she has a right to adduce evidence of good character on the issue of predisposition. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:13 [Witnesses-Entrapment-Commentary] p. 135-36 (West, 1999 Supp.).)

CAVEAT: In light of the above an entrapment defense may also open the door for the prosecution to present bad character evidence. (See FORECITE National™ 257.3.4.8 [CAVEAT: Entrapment May Open The Door To Uncharged Crimes Or Bad Acts On Issue Of Predisposition].)

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: Jacobson v. U.S. (1992) 503 US 540 [112 SCt 1535; 118 LEd2d 174], held that under the subjective theory of entrapment used in the federal courts, "the prosecutor must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents." (Jacobson, 503 US at 548.) However, a jury instruction which states that entrapment does not apply if the defendant was "already willing to commit a crime" does not adequately convey the Jacobson rule. (See U.S. v. Rodriguez (5th Cir. 1995) 43 F3d 117, 126-27; U.S. v. Sherrod (6th Cir. 1994) 33 F3d 723, 726 ["already willing" is potentially ambiguous]; U.S. v. Cannon (8th Cir. 1996) 88 F3d 1495, 1504-05; U.S. v. Jackson (9th Cir. 1995) 72 F3d 1370, 1378 ["already willing" language was imperfect]; U.S. v. Sterner (9th Cir. 1994) 23 F3d 250, 251; U.S. v. Lessard (9th Cir. 1994) 17 F3d 303, 306; U.S. v. Mkhsian (9th Cir. 1993) 5 F3d 1306, 1311 [instruction was erroneous]; State v. Lee (CT 1994) 640 A2d 553, 563; State v. Robinson (FL 1994) 635 So2d 130; State v. McFerron (MO 1995) 890 SW2d 764, 768; State v. Brandon (MT 1994) 870 P2d 734, 739; Corbin v. State (NV 1995) 892 P2d 580, 582; Roberts v. State (NV 1994) 881 P2d 1, 8.)

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

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

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    257.3.4.4    Entrapment: Predisposition Must Be Independent

RATIONALE: Without an explanatory instruction the jury may not correctly understand that the defendant must have been ready and willing or predisposed to commit the offense before the contact with law enforcement.

POINTS AND AUTHORITIES: In subjective entrapment jurisdictions, the predisposition must be "independent;" that is, it must have existed before government agents attempted to induce criminal behavior on the part of the defendant. (Jacobson v. U.S. (1992) 503 US 540, 542 [112 SCt 1535; 118 LEd2d 174]; U.S. v. Rodriguez-Andrade (7th Cir. 1995) 62 F3d 948, 954.)

    See also FORECITE National™ 257.3.4.3 [Entrapment: "Already Willing" Language Fails To Convey Required Predisposition].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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

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

    The government must prove beyond a reasonable doubt that, before contact with law enforcement, the defendant was ready and willing or had a predisposition or prior intent to commit the offense.

[Source: Adapted from 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.04 [Entrapment--Elements] p. 96 (1999).]

CAVEAT: This instruction focuses only on the predisposition prong -- the prosecution may also disprove entrapment by proving that the defendant was not induced or persuaded to commit the offense by law enforcement officers or their agents. (See 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.04 [Entrapment--Elements] p. 96 (1999).)

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RATIONALE: Because entrapment requires predisposition prior to contact with law enforcement, if the defendant couldn't commit the offense without the help of law enforcement, entrapment has not been proven.

POINTS AND AUTHORITIES: U.S. v. Hollingsworth (7th Cir. 1994) 27 F3d 1196, 1198-1203 interpreted Jacobson v. U.S. (1992) 503 US 540 [112 SCt 1535; 118 LEd2d 174] to require the prosecution to prove that absent the governmental activity the defendant would have been in a position to commit the crime. "In addition to being ready and willing, the defendant must have had the ability by reason of previous training, experience, occupation, or acquaintances to commit the crime even if the government had not provided the opportunity to do so. Where the defendant is not in a position to become involved in the crime without the government’s help, the defendant is not predisposed." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.06(b) [Entrapment--Optional Additions Predisposition (Optional Additions)] p. 98, ¶ 2 (1999); U.S. v. Gendron (1st Cir. 1994) 18 F3d 955, 962 [proper predispositional inquiry is "how the defendant likely would have reacted to an ordinary opportunity to commit the crime?"]; U.S. v. Brace (5th Cir. 1998) 145 F3d 247, 255 [although Brace argued on appeal that he was "entrapped" as a matter of law, this was insufficient to raise the entrapment "sub-issue" of "positional predisposition"]; but see U.S. v. Thickstun (9th Cir. 1997) 110 F3d 1394, 1398 [rejecting positional analysis].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: This instruction is to be given only when there is an issue as to whether the defendant had the ability to commit the crime without the assistance of the government. (See U.S. v. Hollingsworth (7th Cir. 1994) 27 F3d 1196, 1200-03.)

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

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

    Predisposition is not a purely mental state, the state of being willing to swallow the government's bait. It has positional as well dispositional force. The definitions of the word include "tendency" as well as "inclination." The defendant must be so situated by reason of previous training or experience or occupation or acquaintances that it likely that if the government had not induced him to commit the crime some criminal would have done so.

[Source: Adapted from U.S. v. Hollingsworth (7th Cir. 1994) 27 F3d 1196, 1200.]

    In addition to being ready and willing, the defendant must have had the ability by reason of previous training, experience, occupation, or acquaintances to commit the crime even if the government had not provided the opportunity to do so. Where the defendant is not in a position to become involved in the crime without the government’s help, the defendant is not predisposed.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.06(b) [Entrapment-Optional Additions Predisposition (Optional Additions)] p. 78, ¶ 2 (1999).]

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RATIONALE: If the positional predisposition instruction is not used, another option which addresses some of the same concerns is the First Circuit's approach focuses on the "special inducement" offered by law enforcement.

POINTS AND AUTHORITIES: The First Circuit decided in U.S. v. Gendron (1st Cir. 1994) 18 F3d 955 that the best way to frame the inquiry regarding disposition is to ask, "how the defendant likely would have reacted to an ordinary opportunity to commit the crime," defining "ordinary" as "an opportunity that lacked those special features of the government's conduct that made it an 'inducement,' or an 'overreaching.'" [Emphasis in original.] (Id. at 962.) In other words, was the defendant "predisposed" to respond affirmatively to a proper, i.e., "ordinary opportunity" rather than an "improper lure" or "special inducement." (Gendron, 18 F3d at 962-63; see also Tarlow, "RICO Report: Positional Predisposition -- Not Entrapment Panacea But There May Be Alternative Medicine," The Champion (NACDL) March 1999, p. 38.)

    "By incorporating into the predispositional analysis, the government's conduct in creating an implausible, unrealistic setting for this crime in order to lure the defendant into its commission, the Gendron court recognized that 'government misconduct lies at the heart of the entrapment defense.' [Citation.]" [Emphasis in original.] Thus, this entrapment framework which asks the question: 'would the defendant have done this under "ordinary" circumstances,' defeats the oft-heard argument that predisposition can be discerned from the simple fact that the defendant committed the crime or committed it 'with enthusiasm.' [Citation.] It can defeat even the argument that a defendant with a prior conviction for a similar offense is automatically 'predisposed' -- provided that the government-created circumstances are 'out of the ordinary' and designed to improperly lure a 'reformed' defendant." (Ibid.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

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

See 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 5.06 [Entrapment]

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RATIONALE: The term "predisposition to commit the crime" may be confusing to the jury in an entrapment case. Hence, when predisposition is an issue it may be appropriate to define that element as "willing to commit the crime."

POINTS AND AUTHORITIES: In jurisdictions utilizing the subjective entrapment standard predisposition is a key issue. (See Mathews v. U.S. (1988) 485 US 58, 62-63 [108 SCt 883; 99 LEd2d 54]; see also U.S. v. Nelson (6th Cir. 1990) 922 F2d 311, 317.) However, use of the term 'predisposition' may confuse the jury and should be eliminated. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. 54 [Entrapment] p. 67 (1988) No. 54, commentary ["The term ‘predisposition’ has been avoided here, as it appears to have little meaning to the layperson"]; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.03 [Entrapment] ¶ 2, p. 131, Committee commentary (1991).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

CAVEAT: In light of the above an entrapment defense may also open the door for the prosecution to present bad character evidence. (See FORECITE National™ 257.3.4.8 [CAVEAT: Entrapment May Open The Door To Uncharged Crimes Or Bad Acts On Issue Of Predisposition].)

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

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

    Entrapment has two related elements. One is that the defendant was not already willing* to commit the crime. The other is that the government, or someone acting for the government, induced or persuaded the defendant to commit it.

...

    The crucial question in entrapment cases is whether the government persuaded a defendant who was not already willing* to commit a crime to go ahead and commit it.

* But see FORECITE National™ 257.3.4.3 [Entrapment: "Already Willing" Language Fails To Convey Required Predisposition].

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.03 [Entrapment] ¶¶ 2 and 4, p. 130, sent. 2 (1991).]

[Source: Adapted from 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 5.06 [Entrapment] p. 156, ¶ 4 (2002).]

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PRACTICE NOTE: In jurisdictions utilizing the subjective test for entrapment, the defendant may be exposed to inquiry into his or her own conduct and predisposition by raising the defense of entrapment. To negate the defense, the prosecution may be permitted to present evidence as to the defendant’s character which would otherwise be inadmissible. (See Sorrells v. U.S. (1932) 287 US 435, 451 [53 SCt 210; 77 LEd 413]; Lambeth v. State (AL 1991) 562 So2d 575, 578-79; Bowser v. State (MD 1981) 439 A2d 1, 8; ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL 13A-3-31, [Entrapment] use notes (Alabama Bar ICLE, 3rd ed. 1994); see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(E) pg. 316 [Mistake/Accident] VI(G) p. 322 (South Carolina CLE, 1994).)

Wharton’s Criminal Evidence (West, 15th Ed. 1997) § 4:37, p. 422.

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

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