Legal Defense of Entrapment in a Military Court-Martial

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The defense of accident is defined by R.C.M. 916(f).

Subjective Entrapment:

In United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982) the court set out the two elements of subjective entrapment.

The suggestion to commit the crime originated in the government, and

The accused had no predisposition to commit the offense.

A question of fact for the finder of fact. United States v. Jursnick, 24 M.J. 504 (A.F.C.M.R. 1987).

Predisposition to Commit the Crime.

The prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents. Jacobson v. United States, 503 U.S. 540 (1992); United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982).

An accused who readily accepts the government’s first invitation to commit the offense has no defense of entrapment. United States v. Suter, 45 C.M.R. 284 (C.M.A. 1972); United States v. Garcia, 1 M.J. 26 (C.M.A. 1975); United States v. Collins, 17 M.J. 901 (A.C.M.R. 1984); see United States v. Rollins, 28 M.J. 803 (A.C.M.R. 1989); see also United States v. Clark, 28 M.J. 401 (C.M.A. 1989) (accused’s hesitancy did not raise entrapment, as it was a result of fearing apprehension rather than a lack of predisposition); United States v. St. Mary, 33 M.J. 836 (A.C.M.R. 1991) (evidence supported finding predisposition where accused procured hashish and sold it to undercover agent within 24 hours of first request.).

Legal Defenses Available in a Military Court-Martial

The government’s reasonable suspicion of the accused’s criminal activity is immaterial. United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982); United States v. Gonzalez-Dominicci, 14 M.J. 426 (C.M.A. 1983); United States v. Eason, 21 M.J. 79 (C.M.A. 1985) (holding error to instruct trier of fact that entrapment negated if gov’t agents reasonably believed that accused involved in criminal activity).
Mistake of Fact as a Defense in Sexual Assault Cases

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To show predisposition the government may introduce evidence of relevant, uncharged misconduct to establish predisposition. United States v. Hunter, 21 M.J. 240 (C.M.A. 1986); See MRE 405(b). Some authority suggests that reputation and hearsay evidence may be admissible to show predisposition. See, e.g., United States v. Rocha, 401 F.2d 529 (5th Cir. 1968); United States v. Simon, 488 F.2d 133 (5th Cir. 1973); United States v. Woolfs, 594 F.2d 77 (5th Cir. 1979). But see United States v. Cunningham, 529 F.2d 884 (6th Cir. 1976); United States v. Whiting, 295 F.2d 512 (1st Cir. 1961); United States v. McClain, 531 F.2d 431 (9th Cir. 1976). See generally Annot., 61 A.L.R. 3d 293, 314-18 (1975).

In a prosecution for possession of a large quantity of hashish for the purpose of trafficking, accused’s prior possession and use of small quantities of hashish was held not to constitute “similar criminal conduct,” and did not extinguish the defense of entrapment as to the large quantity. The accused would be found guilty, however, of possessing the lesser amount. United States v. Fredrichs, 49 C.M.R. 765 (A.C.M.R. 1974); see also United States v. Jacobs, 14 M.J. 999 (A.C.M.R. 1982). Prior possession or use of drugs does not necessarily establish a predisposition to sell or distribute drugs. United States v. Venus, 15 M.J. 1095 (A.C.M.R. 1983); United States v. Bailey, 18 M.J. 749 (A.C.M.R. 1984), aff’d, 21 M.J. 244 (C.M.A. 1986).

Continuing Defense. A valid defense of entrapment to commit the first of a series of crimes is presumed to carry over into the later crimes. United States v. Skrzek, 47 C.M.R. 314 (A.C.M.R. 1973). Whether the presumption carries over to different kinds of drugs is a question of fact. United States v. Jacobs, 14 M.J. 999 (A.C.M.R. 1982). The taint can extend to a different type of crime as long as the acts come from the same inducement. United States v. Bailey, 18 M.J. 749 (A.C.M.R. 1984) (accused entrapped to distribute drugs could raise defense to larceny by trick arising from later distribution of counterfeit drugs), aff’d, 21 M.J. 244 (C.M.A. 1986).

Profit motive does not necessarily negate an entrapment defense. United States v. Eckhoff, 27 M.J. 142 (C.M.A. 1988); United States v. Meyers, 21 M.J. 1007 (A.C.M.R. 1986); United States v. Cortes, 29 M.J. 946 (A.C.M.R. 1990); see TJAGSA Practice Note, Multiple Requests, Profit Motive, and Entrapment, ARMY LAW., Jun. 1990, at 48 (discusses Cortes).

Predisposition is a question of fact. A military judge may not find predisposition as a matter of law and refuse to instruct on entrapment. United States v. Johnson, 17 M.J. 1056 (A.F.C.M.R. 1983).

Government Conduct

United States v. Williams, 61 M.J. 584 (N-M. Ct. Crim. App. 2005) (wanting to get to know two attractive females (undercover government agents) is insufficient to raise entrapment and reject an otherwise provident plea). Profit motive does not necessarily negate entrapment. Eckhoff, Cortes and Meyers, all supra. Multiple requests by a government agent alone may not raise entrapment. United States v. Sermons, 14 M.J. 350 (C.M.A. 1982).

The latitude given the government in “inducing” the criminal act is considerably greater in drug cases than it would be in other kinds of crimes. United States v. Vanzandt, 14 M.J. 332, 344 (C.M.A. 1982); United States v. Cortes, 29 M.J. 946 (A.C.M.R. 1990). But cf. United States v. Lemaster, 40 M.J. 178 (C.M.A. 1994)

Not Confession and Avoidance. In order for the defense of entrapment to be raised and established, the accused need not admit the crime; indeed, he may deny it. United States v. Garcia, 1 M.J. 26 (C.M.A. 1975); United States v. Williams, 4 M.J. 507, 509 n. 1 (A.C.M.R. 1977).

Due Process Entrapment. See generally Benchbook paragraph 5-6, note 4. The due process defense is recognized under military law. United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982) (but outrageous government conduct in drug cases will be especially difficult to prove given the greater latitude given government agents in drug cases); United States v. Simmons, 14 M.J. 624 (A.F.C.M.R. 1982); United States v. Harms, 14 M.J. 677 (A.F.C.M.R. 1982); United States v. Lemaster, 40 M.J. 178 (C.M.A. 1994) (targeting an emotionally unstable female suspect, sexually and emotionally exploiting her, and planting drugs upon her in a reverse sting operation violates the fundamental norms of military due process and is the functional equivalent of entrapment), amended by, 42 M.J. 91 (C.M.A. 1995).

The due process defense is a question of law for the military judge. United States v. Vanzandt, 14 M.J. 332, 343 n. 11 (C.M.A. 1982).

Reverse sting operation does not deprive accused of due process. United States v. Frazier, 30 M.J. 1231 (A.C.M.R. 1990).

Police did not violate due process in soliciting the accused’s involvement in drug transactions where they had no knowledge of his enrollment in a drug rehabilitation program. United States v. Harris, 41 M.J. 433 (C.A.A.F. 1995); United States v. Bell, 38 M.J. 358 (C.M.A. 1993); United States. v. Cooper, 33 M.J. 356 (C.M.A. 1991), cert. denied, 507 U.S. 985 (1993).

United States v. St. Mary, 33 M.J. 836 (A.C.M.R. 1991) (government conduct did not violate due process where accused provided drugs to undercover female agent in hopes of having a future sexual relationship as the agent did not offer dating or sexual favors as an inducement); accord United States v. Fegurgur, 43 M.J. 871 (Army Ct. Crim. App. 1996) (undercover CID agent who repeatedly asked accused to obtain marijuana for her, knowing that he wished to date her, was not so outrageous as to bar prosecution of accused under either due process clause or fundamental norms of military due process).

United States v. Bell, 38 M.J. 358 (C.M.A. 1993) (sufficient evidence existed to show accused’s predisposition to commit two separate offenses of distribution of cocaine; however, due process entrapment defense was available for drug use offenses where government improperly induced accused, a recovering cocaine addict enrolled in Army rehabilitation program, into using cocaine).

Court members should be instructed only on subjective entrapment, and not the due process defense. United States v. Dayton, 29 M.J. 6 (C.M.A. 1989).

Entrapment does not apply if carried out by foreign law enforcement activities. See United States v. Perl, 584 F.2d 1316, 1321 n. 3 (4th Cir. 1978).

Legal Defense Of Entrapment

The question is whether a government official instigated the act. If the accused shows that he was willing and willing to commit the crime when the opportunity arose, the defense of capture is useless, regardless of the degree of incitement.

Entrapment is an alternative defense to the claim that the government failed to find the defendant guilty beyond a reasonable doubt. Entrapment admits that the defendant intended the act under the influence of a government agent. The goal of the defense is to focus on the reasonable person, not on the actual defendant so that the defendant is not relevant in the crime commit ancestry.

The detention defense is introduced when an accused demonstrates criminal behavior that induces or encourages law enforcement authorities to obtain evidence against the accused. In prosecuting an offense, it is an affirmative defense that the offense happened because he was induced or encouraged by an official or another person to cooperate with the official in seeking or obtaining evidence against him for prosecution and that the methods by which such evidence is obtained present a significant risk that the offense will be committed by someone who otherwise would not commit the offense. The accused does not have to be law-abiding to assert the defense, but the defense does not exclude the background to a predisposition to unlawful acts that have nothing to do with the crime in question.

The accused may present a defense to prove that the capture took place. Entrapment is an affirmative defense of the crime, which means that even if the defendant has been lured into a trap if he is found not guilty, he is guilty of a crime. Depending on the law of jurisdiction, the prosecution may be obliged to prove beyond doubt that the accused was not captured, or the accused must prove that he was captured, which are both affirmative defenses.

To prove a defense of entrapment, the accused must present evidence that meets both an objective and a subjective standard, depending on the law of the state in which the accused is charged. The burden of proof falls on the accused to prove that the officer is guilty of the arrest by overriding the evidence. For example, suppose the actions of the police officers were extreme and inappropriate. In that case, the jury or judge could decide that no case or a more subjective standard can determine whether the accused was predisposed to commit the crime and whether this predisposition motivates the accused to take further police action.

A judge or jury must consider whether the prosecution can prove beyond reasonable doubt that the defendant committed the crime based on his criminal disposition, not because the police measures themselves were convincing. When a person commits a crime that he or she has not committed in the presence or influence of law enforcement, law enforcement does not function as a defense. The objective standard by which a defendant must prove that he is a prisoner is a preponderance of the evidence. This is a stricter requirement than a “reasonable doubt” for judges and juries to declare a defendant not guilty.

Indeed, such arrangements are worth considering in cases involving undercover drug trafficking, firearms purchases, sting operations, and the involvement of agents posing as ordinary people. When law enforcement uses tactics to incite a reasonable, law-abiding person to commit a crime against them, it falls within the judiciary’s jurisdiction to assert an objective defense of that crime.

Defendants, on the other hand, can use capture to their advantage if their case permits. For example, when the accused has a criminal record for a similar crime and the public prosecutor is prepared to resolve the case by reducing the charges or other considerations, the defense that falls into the trap can be invoked. The defense of the subjective traps focuses on the individual defendant and provides defense against law enforcement agencies that pressure the defendant to commit the crime against him.

Entrapment is the defense against prosecution in which a government official tricks a person into committing a crime they are unlikely to commit. For example, a person who is genetically predisposed to commit criminal acts may not use arrest if he has never committed a crime. Entry can be an affirmative defense against criminal charges and help a defendant dismiss a case.

The detention defense will be considered in cases involving undercover agents or sting operations involving law enforcement officers posing as normal people and observing defendants engaged in illegal activities. In criminal proceedings arising from the involvement of the law enforcement authorities, the accused maintains that he or she did not commit the crime by being caught. It is unlikely that the person would commit it without the involvement of the law enforcement authorities. It is an affirmative defense if the crime is committed in the name of another crime or if the defendant exhibits such behavior because he/she was “imprisoned.”.

Each state has its case law and legislation defining the available defense of captivity. Each state can choose to conduct either a subjective or objective test to determine whether a government’s actions constitute a trap. The objective test examines whether the government has made arrests because of actions by government officials that led a law-abiding person to commit a crime. Subjective Entrapment Subjective Entrapment is imprisonment according to the subjective included defense, in which the law enforcement authorities pressure a defendant to commit a crime against him or her.

The objective defense focuses on prosecution tactics and the accused’s predisposition (e.g., Winifred’s criminal record is irrelevant and therefore inadmissible as evidence). The subjective test considers the defendant’s state of mind, and the entanglements claim that the defendant has a predisposition to commit the crime. The prosecutor must prove that all elements of the accused’s crime are taken into account, and the state must prove beyond doubt with evidence that a suspect was not caught.

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