When Can You Raise an Entrapment Defense to a Criminal Charge?
The police often use undercover officers to catch criminals “in the act.” Consider a scenario where a suspect is accused of selling illegal drugs to someone who turns out to be an undercover officer. Can the suspect then argue they were a victim of police “entrapment”?
Entrapment is a legal term that applies when the government has induced the commission of a crime by someone who was not predisposed to commit it. In other words, if someone who regularly deals drugs happens to sell some to an undercover officer, that is not entrapment. The dealer was already “predisposed” to commit the crime. But if the police find someone who has never committed such an offense and tricks them into selling drugs to an undercover officer, then the suspect would have a viable entrapment defense.
Federal Appeals Court Orders New Trial for Four Ex-Prison Guards Convicted Following FBI Sting
Proving an entrapment defense is tricky. As the U.S. 11th Circuit Court of Appeals explained in a recent case, Mayweather v. United States, an entrapment defense must be evaluated in two stages, First, the judge must be satisfied that the defendant has offered sufficient evidence they were induced to commit the crime by the government. If that burden is met, then the jury must decide whether the prosecution can prove–beyond a reasonable doubt–that the defendant was already predisposed to commit the crime in question.
The Mayweather decision actually involved four separate defendants charged with participation in a larger criminal scheme. In 2014, the FBI initiated a widespread sting operation of officers employed by the Georgia Department of Corrections (GDC). Basically, the GDC believed officers were smuggling illegal contraband to prison inmates. As part of the FBI’s investigation, it had an undercover informant “set up fake drug deals with uniformed corrections officers outside of the prison walls,” according to the 11th Circuit’s opinion.
The four defendants here were among the corrections officers caught up in the undercover informant’s sting. Prior to trial, the prosecution moved to bar the defendants from raising an entrapment defense. The judge denied this motion but later denied to instruct the jury on entrapment.
The jury found all four defendants guilty. On appeal, the 11th Circuit said the defendants were entitled to a new trial. With respect to two of the defendants, the appeals court said the judge should have granted the requested entrapment instruction. (The other two convictions were reversed based on another error made by the trial judge while instructing the jury unrelated to the entrapment issue.)
Taking one of the entrapment reversals as an illustration, the 11th Circuit explained that the FBI’s confidential informant initiated contact with the defendant, who was already under suspicion of smuggling cigarettes into prison. The informant actually made several calls in an attempt to convince the defendant to start smuggling drugs. The informant further suggested he could help the defendant “beat” a pending drunk driving charge if he cooperated. After a total of nine conversations, the defendant agreed to help the defendant, which of course turned out to be a trap.
Under these facts, the 11th Circuit said the defendant was entitled to a jury determination as to whether or not he was “predisposed” to commit the crime absent the government’s inducement.
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