647

Entrapment—Proving Predisposition

A defendant who claims that he was entrapped opens himself to "an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue." Sorrells v. United States, 287 U.S. 435, 451 (1932). Thus, predisposition may be shown by evidence of other crimes that might not otherwise be admissible. And, although Jacobson's focus on the government's duty to show that the defendant was disposed to commit the crime "prior to first being approached by [g]overnment agents" (Jacobson v. United States, 503 U.S. 540, 549 (1992)) seems to cast doubt on the admissibility of evidence of subsequent crimes to show predisposition (as in United States v. Posner, 865 F.2d 654 (5th Cir. 1989); United States v. Warren, 453 F.2d 738 (2d Cir.), cert. denied, 406 U.S. 944 (1972)), it is fair to argue that such evidence is admissible under Jacobson as long as the subsequent crimes were "independent and not the product of the attention that the [g]overnment had directed" at the defendant (503 U.S. at 550). In the wake of Jacobson, entrapment instructions have engendered much litigation, despite the Jacobson majority's insistence that it was not altering traditional entrapment concepts. It is important that instructions be accurate statements of the law as articulated in Jacobson. (At least one circuit -- the Ninth -- has found its own pattern instruction on entrapment to be plain error under Jacobson.) [cited in USAM 9-18.000]