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 VOLUME 11 - CHAPTER 257
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257.3 Entrapment

    257.3.5 Entrapment: Who May Entrap

    257.3.5.1 Applicability Of Derivative Entrapment: Where Law Enforcement Acts Indirectly Through Manipulation Of Third Party
    257.3.5.2 Entrapment: Definition Of Government Agent
    257.3.5.3 For Purposes Of Entrapment Police Officer Includes Unpaid Agent Or Informer
    257.3.5.4 Entrapment By Private Citizen

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RATIONALE: Improper governmental instigation of crime should not be ignored simply because it is done indirectly through an agent. Hence, when appropriate, the defense should have the right to an instruction on derivative entrapment by manipulation of a third party.

POINTS AND AUTHORITIES: The defense of "derivative entrapment" was recognized in People v. McIntire (CA 1979) 23 C3d 742 [153 CR 237], which stated: "The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer's tool in a plan to foster a crime and entrap its perpetrator .... The function of ... enforcement officials is to investigate, not instigate, crime; to discover, not to promote, crime. Improper governmental instigation of crime is not immunized because it is effected indirectly through a pliable medium." (Id. at p. 748; see also People v. Mendoza (CA 1992) 8 CA4th 504, 512-13 [10 CR2d 312] [defense of derivative entrapment recognized but no error in failure to give instruction absent of evidence the police manipulated the alleged agent].)

    In the federal courts, there is a split of authority on the issue. (See generally, Cook and Hermann, Criminal Defense Checklist (West, 1999) § 4.01(5).) "Although all circuits appear to be in agreement that persuasion, seduction, or cajoling by a private party does not qualify as entrapment...and some circuits appear to have rejected the derivative entrapment defense in all its forms, nevertheless a number of circuits have recognized the defense under some circumstances when government agents act through private citizens. Of those jurisdictions permitting the defense, some have allowed it only in cases in which the government acts through a knowing agent (e.g., an informant), whereas others have also allowed its application in cases of unwitting (that is de facto) agents." (U.S. v. Washington (DC Cir. 1997) 106 F3d 983, 993; see also U.S. v. Hollingsworth (7th Cir. 1994) 27 F3d 1196, 1204; U.S. v. Layeni (DC Cir. 1996) 90 F3d 514, 519 [entrapment defense available where defendant induced by unknowing intermediary or third party acting under direction of government].)  When the unwitting agent recruits the defendant, but does not do so at the direction of the government official, it is clear that the entrapment defense is not available. (See United States v. Jones, 231 F3d 508, 517 (9th Cir. 2000); United States v. Emmert, 829 F2d 805, 809 (9th Cir. 1987).)

    Compare FORECITE National™ 257.3.1.4 [Entrapment: Not Available Vicariously].

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

Entrapment Through Unsuspecting Middlemen, 95 Harv.L.Rev. 1122 (1982).

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

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

    Manipulation of a third party by law enforcement agents to procure the commission of a criminal offense by another renders the third party a government agent for purposes of the entrapment defense even if the third party remains unaware of the law enforcement agent's identity or object.

[Source: FORECITE National™.]

SAMPLE INSTRUCTION # 2:

    When the evidence shows that a government informer made the first overture to commit a crime, the government is required to disprove that a defendant was vicariously entrapped.

    In order to disprove that it entrapped a defendant, the government must prove beyond a reasonable doubt that, without the inducement of its informer, the defendant was predisposed to commit the crime and that the informer merely provided an opportunity for its commission.

    If the government has not proven a defendant's predisposition beyond a reasonable doubt, then, regardless of the other evidence of guilt, the defendant was entrapped and must be found not guilty.

[Source:  The Shellow Instructions [Vicarious Entrapment By Informer].]

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 VOLUME 11 - CHAPTER 257

RATIONALE: Without an explanatory instruction the jury may not correctly understand the meaning of the term government agent as used in the entrapment instruction.

POINTS AND AUTHORITIES: Many standard pattern instructions do not explain how the jury should determine whether a person is a government agent for purposes of entrapment. However, because "[t]he word 'agent' is not self-defining ... [the court should] ... define the word 'agent' in the entrapment charge." (U.S. v. Duran (10th Cir. 1998) 133 F3d 1324, 1335; see also U. S. v. Attell (5th Cir. 1981) 655 F2d 703, 707; U.S. v. Smegal (10th Cir. 1985) 772 F2d 659, 661 [favoring an instruction defining the word "agent" in an entrapment charge where both a DEA agent and government informant were involved].) The sample instruction below is adapted from People v. Fontenot (9th Cir. 1994) 14 F3d 1364, 1369, which held that the jury in that case was correctly instructed that "someone is a government 'agent' when the government directs and supervises his or her activities and is aware of those activities."

    See also FORECITE National™ 257.3.5.3 [For Purposes Of Entrapment Police Officer Includes Unpaid Agent Or Informer].

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].

    For purposes of entrapment, someone is a government "agent" when the government directs and supervises his or her activities and is aware of those activities.

    You must look to all of the circumstances existing at the time, including but not limited to the nature of the informant's relationship with the government, the purposes for which it was understood that [he] [she] may act on behalf of the government, the instructions given to the informant about the nature and extent of permissible activities and what the government knew about those activities and what activities were used.

    You are instructed that a paid informer is an "agent" of the government for entrapment purposes.

[Source: ¶¶ 1 and 2, adapted from People v. Fontenot (9th Cir. 1994) 14 F3d 1364, 1367-68; 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.28 [Entrapment] ¶ 2, p.41 (2001); U.S. v. Johnson (5th Cir. 1989) 872 F2d 612, 622 [approving instruction which used a paid informer as an example of a police agent].]

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 VOLUME 11 - CHAPTER 257

RATIONALE: Without special instruction the jury may assume that an agent or informer must be paid by the police in order to make that person a police officer or agent for purposes of entrapment.

POINTS AND AUTHORITIES: It has been held to be error to refuse to define "police officers" to include unpaid agents and informants when the evidence raises the issue and the court is specifically requested to do so. (See Sherman v. U.S. (1958) 356 US 369 [78 SCt 819; 2 LEd2d 848]; compare State v. McDonald (OH 1972) 289 NE2d 583; State v. Milbern UNPUBLISHED (1987) 1987 WL 7046 [1987 Ohio App. LEXIS 5958]; OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 411.25(2) comment [Unlawful Entrapment] (Anderson, 2000).)

OPINION AVAILABLE: To read the Milbern opinion, click here. [Opinion Bank # O-311].

    See also FORECITE National™ 257.3.5.2 [Entrapment: Definition Of Government Agent].

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

SAMPLE INSTRUCTION:

    It is not necessary that a person working for the police to be paid for that person to be a police officer or agent of the police for purposes of these instructions.

[Source: FORECITE National™.]

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 VOLUME 11 - CHAPTER 257

PRACTICE NOTE: See Wharton’s Criminal Law (West, 15th Ed. 1993) § 53, pp. 396-99.

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

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