645

Entrapment—Elements

Entrapment is a complete defense to a criminal charge, on the theory that "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important. Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. Sorrells v. United States, 287 U.S. 435, 451 (1932). Nor does the government's use of artifice, stratagem, pretense, or deceit establish inducement. Id. at 441. Rather, inducement requires a showing of at least persuasion or mild coercion, United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985); pleas based on need, sympathy, or friendship, ibid.; or extraordinary promises of the sort "that would blind the ordinary person to his legal duties," United States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991). See also United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984) (inducement shown only if government's behavior was such that "a law-abiding citizen's will to obey the law could have been overborne"); United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989) (inducement shown if government created "a substantial risk that an offense would be committed by a person other than one ready to commit it"). Even if inducement has been shown, a finding of predisposition is fatal to an entrapment defense. The predisposition inquiry focuses upon whether the defendant "was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime." Mathews, 485 U.S. at 63. Thus, predisposition should not be confused with intent or mens rea: a person may have the requisite intent to commit the crime, yet be entrapped. Also, predisposition may exist even in the absence of prior criminal involvement: "the ready commission of the criminal act," such as where a defendant promptly accepts an undercover agent's offer of an opportunity to buy or sell drugs, may itself establish predisposition. Jacobson, 503 U.S. at 550. [cited in USAM 9-18.000]