THE SHELLOW COLLECTION
 Jury Instructions By James M. Shellow of Wisconsin
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Entrapment

    1.    Entrapment By Informer
    2.    Entrapment: Jury Error Not Correctable Later
    3.    Entrapment: Prosecution’s Burden
    4.    Entrapment: Government Supplies Drugs
    5.    Entrapment: Factors To Consider
    6.    Entrapment: Outrageous Governmental Conduct
    7.    Entrapment: Predisposition
    8.    Entrapment: Community’s Sense Of Fair Play

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Entrapment By Informer

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    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 en trapped.

    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.

AUTHORITY:

United States v. Manzella, 791 F.2d 1263, 1269-70 (7th Cir. 1986)

RELATED NCJIC MATERIALS:

See generally NCJIC 257.3 [Entrapment].

See also NCJIC 257.3.5 [Entrapment: Who May Entrap].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Entrapment: Jury Error Not Correctable Later

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    A Court of Appeals only can correct the mistakes of the trial judge. It does not and cannot correct a jury's mistake. If you find that _____________ was entrapped, you cannot be reversed by an appellate court. Similarly, if you find he was not entrapped, this finding is also not subject to appellate review.

RELATED NCJIC MATERIALS:

See NCJIC 257.3 [Entrapment].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Entrapment: Prosecution’s Burden

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The defendant has introduced evidence that a State informer furnished the drugs which he delivered to ______________. Accordingly, the defense of entrapment is properly before you and [the defendant] may not be found guilty unless you all agree that the State has proven beyond a reasonable doubt that he was not entrapped.

RELATED NCJIC MATERIALS:

See generally NCJIC 257.3 [Entrapment].

See also NCJIC 257.3.3 [Entrapment: Burden Of Proof].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Entrapment: Government Supplies Drugs

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The defendant asserts that he was a victim of entrapment. If you find that the defendant delivered drugs which were supplied to him by an informer working for the [name of government agency], then you must acquit the defendant because the law, as a matter of policy, forbids his conviction in such a case.    

    Furthermore, under this particular defense, you need not consider the predisposition of the defendant to commit the offense.

RELATED NCJIC MATERIALS:

See generally NCJIC 257.3 [Entrapment].

See also NCJIC 257.3.2.5 [Entrapment: Where Government Supplies And Purchases The Drugs Or Narcotics].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

5.    Entrapment: Factors To Consider

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The defendant has offered the defense of entrapment. In order to secure his conviction, the State must prove beyond a reasonable doubt that the defendant was not entrapped. The defendant does not have the burden of proving this defense; the State has the burden of disproving it.

    The defense of entrapment requires that a jury consider two basic factors: the willingness or predisposition of the defendant to commit the crime; and the conduct of law enforcement agents in its commission.

    In considering the willingness or predisposition of the defendant, you may consider whether he has committed such crimes in the past and his motive for committing the crime for which he is on trial.

    In considering the conduct of law enforcement agents, you may consider whether they, or their informers, furnished the drugs sold by the defendant, exploited a special relationship which the defendant had with the purchaser, exploited any particular vulnerability of the defendant, and the means by which the defendant was selected as a target of their activities.

    If, after considering all of these factors, and any others which you feel are important, you are not convinced beyond a reasonable doubt that [defendant] was not entrapped, then you must acquit him.

RELATED NCJIC MATERIALS:

See generally NCJIC 257.3 [Entrapment].

See also NCJIC 257.3.2.6 [Entrapment: Use Of Sexual Acts Or Romantic Promises As Entrapment].

See also NCJIC 257.3.2.7 [Entrapment: Defendant's Feeling "Under Pressure" From Police Sufficient For Instruction].

See also NCJIC 257.3.4 [Entrapment: Predisposition].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

6.    Entrapment: Outrageous Governmental Conduct

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The law of [name of jurisdiction] does not permit the conviction of a defendant who was entrapped. When a defendant introduces some evidence of entrapment then, in order to secure a conviction, the prosecution must prove beyond a reasonable doubt that the defendant was not entrapped.

    There are two different kinds of entrapment. At the risk of confusing you, I will define both, although only the second kind will be submitted for your consideration. I am defining both, because the law defines entrapment in a special way. And I do not want you to use your own definition, or to confuse the two kinds of entrapment during your deliberations.

    The first kind of entrapment, and the one upon which [the defendant] is not relying, is entrapment in the usual meaning of the term. It occurs when law enforcement officers encourage or persuade an unwilling person to commit a crime. When a defendant raises entrapment in this sense, the jury must consider both the pressures which were placed upon the defendant by the law enforcement officers and the defendant's predisposition or willingness to commit the crime.

    The second kind of entrapment, and the one which is relied upon by [the defendant], requires the jury to examine only the activity of law enforcement officers. The defendant does not claim that he was an unwilling victim who had no predisposition to commit the crime; but he does assert that the police acted outrageously and unfairly in creating the offense with which he is charged. The jury may consider all of the evidence it has heard in making its determination whether the prosecution has proven beyond a reasonable doubt that it did not engage in this kind of entrapment. Only if the prosecution has met this burden and has proven beyond a reasonable doubt that it did not engage in this entrapment may a defendant be convicted. Remember, the defendant does not need to prove he was entrapped. Once the defendant offers some evidence that he was entrapped, the burden is upon the prosecution to disprove entrapment.

    For example, if a defendant offers evidence that drugs he delivered to an undercover agent or informer were furnished by another undercover agent or informer, then the defendant has offered some evidence of entrapment. Then, in order to convict, the prosecution must prove that entrapment of the second kind did not occur. The prosecution cannot disprove entrapment in this situation by merely showing that its agent who purchased the drugs did not know that the defendant's supplier was an informer. Law enforcement officers are charged with knowing what other law enforcement officers and informers are doing whether they actually have this knowledge or not.

    Another factor which the jury may consider in a defense of entrapment is whether the person who purchased the drugs from the defendants had a special relationship to him, and law enforcement officers exploited this relationship.

    The jury may consider the reason why the defendant was selected as a prospective seller of drugs, who made the selection, and whether the selection was influenced by such improper factors as a desire to protect other drug dealers.

    Also, the jury may consider any evidence it may have heard concerning the precautions taken by law enforcement officers to ensure that its informers acted reasonably toward the defendant, and any instructions which may have been given such informers to avoid overreaching by them.

    The foregoing factors are merely illustrative of those you may consider if you wish. You may also consider any other conduct of law enforcement officers and their informers which you find to be offensive and contrary to standards of a civilized society or demonstrably outrageous.

AUTHORITIES:

United States v. McCaghren, 666 F.2d 1227, 1230 n.7 (8th Cir. 1981), citing Hampton v. United States, 425 U.S. 484, 495 n.7 (1976) (Powell, J., concurring), and United States v. Russell, 411 U.S. 423, 431-32 (1973); United States v. Quinn, 543 F.2d 640, 647-48 (8th Cir. 1976); United States v. Tavelman, 650 F.2d 1133, 1139-40 (9th Cir. 1981); United States v. Gentry, 642 F.2d 385, 387-88 (10th Cir. 1981); United States v. Borum, 584 F.2d 424, 427-29 (D.C. Cir. 1978); United States v. Twigg, 588 F.2d 373, 377-79 (3d Cir. 1978); United States v. West, 511 F.2d 1083, 1085 (3d Cir. 1975); United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978); United States v. Johnson, 565 F.2d 179, 181 (1st Cir. 1977); United States v. Landry, 257 F.2d 425, 427-430 (7th Cir. 1957); United States v. Graves, 556 F.2d 1319, 1324 n.7 (5th Cir. 1977) [collecting Fifth Cir. "full circle" cases]; United States v. Mosley, 496 F.2d 1012, 1015-16 (5th Cir. 1974); United States v. Oquendo, 490 F.2d 161, 162-64 (5th Cir. 1974); United States v. Bueno, 447 F.2d 903, 904-906 (5th Cir. 1971); State v. Talbot, 71 N.J. 160, 364 A.2d 9, 11-13 (1976).

RELATED NCJIC MATERIALS:

See generally NCJIC 257.3 [Entrapment].

See NCJIC 257.3.2.6 [Entrapment: Use Of Sexual Acts Or Romantic Promises As Entrapment].

See also NCJIC 257.3.2.7 [Entrapment: Defendant's Feeling "Under Pressure" From Police Sufficient For Instruction].

See also NCJIC 257.3.3 [Entrapment: Burden Of Proof].

See also NCJIC 257.3.4 [Entrapment: Predisposition].

See also NCJIC 257.8.1 [Outrageous Government Misconduct: Entrapment Distinguished].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

7.    Entrapment: Predisposition

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    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.

AUTHORITY:

United States v. Manzella, 791 F.2d 1263, 1269-70 (7th Cir. 1986)

RELATED NCJIC MATERIALS:

See generally NCJIC 257.3 [Entrapment].

See also NCJIC 257.3.4 [Entrapment: Predisposition].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

8.    Entrapment: Community’s Sense Of Fair Play

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    The defense of entrapment is a legal defense, but it arises from the community's sense of what is fair play and what conduct by law enforcement is so outrageous that it cannot be tolerated.

    At the heart of entrapment as a defense is the feeling of the community that the police can go only so far in creating crimes and encouraging persons to commit them.

    In considering whether the conduct of the police passed this point and the defendant should be acquitted, you may consider any factor which you believe to be of importance is making this judgment. Some courts have indicated that the willingness of the defendant to commit the crime, his predisposition, is something juries ought to consider. Some courts look for evidence that the police themselves, either directly or through their informers, supplied the drugs which the defendant delivered. Other courts view as important the vulnerability of the defendant and whether the police exploited a special relationship (he/she) may have had with the person to whom (he/she) sold the drugs. In some instances courts have examined the kinds of entreaties or pleading used by an informer to persuade a defendant to sell drugs and the mental condition of the defendant at the time these overtures were made.

    None of these factors is dispositive. Each should be considered by you if it helps you to formulate what police conduct our community will tolerate. It may be that you will also want to consider the seriousness of the offense, and whether the police may go further when they seek to prevent major crimes than when less serious crimes are involved.

    After giving these factors, or any others you feel to be important, consideration, you must always recall that the defendant does not need to prove (he/she) was entrapped. The State is entitled to a guilty verdict only if it has convinced each of you beyond a reasonable doubt that (he/she) was not entrapped.

RELATED NCJIC MATERIALS:

See generally NCJIC 257.3 [Entrapment].

See also NCJIC 257.3.5 [Entrapment: Who May Entrap].