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Entrapment Defense in Federal Crimes

Posted by Dmitry Gorin | Feb 15, 2024

Suppose you are charged with a federal crime, and the crime occurred because a law enforcement or government official induced you to do something you would not typically have done. In that case, you may claim entrapment as a valid defense. 

A valid entrapment defense consists of showing the government's inducement of the crime and a defendant's lack of predisposition to engage in criminal conduct.

Entrapment Defense in Federal Crimes
An entrapment argument says that you only committed the crime through coercion by officials.

In other words, entrapment is an affirmative defense where a defendant alleges that law enforcement acquired the evidence necessary for prosecution by inducing the defendant to engage in a criminal act that they would not otherwise have committed.

The criminal defense of entrapment to criminal charges is based on an argument that the defendant only committed the crime because of harassment or coercion by a government official. 

It's said that without such coercion or harassment, the crime would never have been committed. Entrapment is often problematic because it requires a defendant to show that federal government agents introduced the initial idea for committing the crime and that they were not already willing or predisposed to commit it. 

Notably, it can only occur with a government agent, such as an FBI official or a local police officer, not a private person. Also, since it's an affirmative defense, the defendant must establish that entrapment occurred.

Federal agents and law enforcement officers are allowed to engage in sting operations to identify criminal behavior. This is where they create circumstances to enable someone to engage in criminal behavior for which they can be arrested and prosecuted.

To “create circumstances” and opportunities for people to commit federal offenses differs from entrapment because it only involves a temptation to violate the law, not being forced to commit a crime. With the help of a skilled federal criminal defense attorney, proving entrapment may result in a dismissal of the charges against you.

What is Entrapment?

As noted, at its core, entrapment occurs when a law enforcement agent or official persuades or coerces an individual into committing a crime that they had no previous intent to commit. 

The defense is predicated on the principle that individuals should not be unfairly pressured into committing crimes they weren't predisposed to commit, only to punish them for doing so—and that this behavior is tantamount to abusing the government's power. 

Entrapment is significant in federal crimes due to the sophisticated nature of federal agencies like the FBI, DEA, and ATF investigations. These agencies often employ undercover agents and informants, creating scenarios that could potentially entrap unsuspecting individuals.

What Are the Origins of Entrapment Defense?

The legal concept of the entrapment defense is a relatively new one. While entrapment was claimed as a defense in English law as early as the seventeenth century, the English courts still do not officially recognize entrapment as a defense.

In the U.S., no federal statute is officially prohibiting entrapment (although some states have codified it). Instead, the entrapment defense has emerged from common law and case law. 

It was first officially recognized as a defense in the U.S. in 1932 with the court case Sorrells v. United States, in which the defendant successfully claimed he was badgered into providing illegal whisky to a prohibition agent.

In modern law, the most concise description of the entrapment defense comes from a ruling in Jacobson v. United States (1992): "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."

What are the Key Elements for Proving Entrapment?

To successfully claim entrapment in a federal court, an attorney must demonstrate two main elements: government inducement of the crime and lack of predisposition on the defendant's part to engage in criminal conduct.

Key Elements for Proving Entrapment

Government Inducement

The first element revolves around proving that law enforcement or some other government agent initiated the idea of committing the crime and persuaded or coerced the defendant into committing it. Inducement can take various forms, including persuasion, fraudulent representations, flattery, threats, harassment, or offering an opportunity for illicit gain that the defendant would not have otherwise encountered.

Importantly, this element requires the defendant to show that the government's conduct went beyond merely offering an opportunity to commit the crime. Simply soliciting the commission of a crime doesn't count as inducement. Instead, the attorney must demonstrate that the government's actions would have likely induced any law-abiding citizen to commit the offense, not just the defendant.

Lack of Predisposition

The second, and often more challenging, element to prove is the defendant's lack of predisposition to commit the crime. Predisposition refers to the defendant's readiness and willingness to commit the crime before the government agent suggests it. The attorney must show that the defendant would not have been inclined to break the law apart from the government's influence.

Evidence of lack of predisposition might include the defendant's lack of prior involvement in similar criminal activities, absence of initial interest in the government's proposition, or reluctance to commit the crime that was overcome only due to consistent persuasion or pressure.

What are the Challenges and Considerations?

While the entrapment defense can be powerful when it can be proven, it is not without challenges. Claiming entrapment essentially admits to committing the act in question, shifting the focus to whether the government's conduct justified the defendant's actions. Therefore, it is a strategy employed carefully and under the guidance of an experienced criminal defense attorney.

How Can You Use Entrapment Defense?

If you believe you have been entrapped in a federal case, a knowledgeable federal criminal defense attorney can guide you through the process and help you build a strong defense. Some steps involved in developing this defense may include:

  • Gathering evidence of inducement. This could include recordings, text messages, emails, or any other communication between you and the government agent. This evidence should demonstrate the government's role in inducing the crime.
  • Showing a lack of predisposition. You must provide evidence that you were not predisposed to commit the crime. This is often more challenging, as it involves proving your state of mind at the time of the alleged offense. Character references, past behavior, and your personal history can all play a role in establishing this lack of predisposition.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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