Gonzalez & Waddington – Attorneys at Law

Subjective Entrapment

Ucmjarticle1201001 Gonzalez &Amp; Waddington - Attorneys At Law

Subjective entrapment exists when the suggestion to commit the crime originated in the government and the accused had no predisposition to commit the offense. See United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982).

Predisposition to Commit the Crime

In Jacobson v. United States, 503 U.S. 540 (1992), the Court held that in order to defeat a claim of entrapment, the government must prove that the defendant was predisposed to commit the act prior to being approached by the government. Therefore, if a defendant readily accepts the government’s first invitation to commit the offense, then the defendant was not entrapped. For example, in United States v. St. Mary, 33 M.J. 836 (A.C.M.R. 1991), the Court found that predisposition existed where the defendant sold hashish within 24 hours of the government’s first request.

Predisposition is a question of fact

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

Prior Similar Criminal Conduct

In United States v. Hunter, 21 M.J. 240 (C.M.A. 1986), the Court held that to show predisposition, the government may introduce evidence of relevant, uncharged misconduct. See also MRE 405(b). However, in United States v. Fredrichs, 49 C.M.R. 765 (A.C.M.R. 1974), the Court held that the defendant was able to raise the defense of entrapment where the defendant’s prior use of small quantities of hashish did not constitute “similar criminal conduct” where the defendant was accused of possessing large quantities of hashish.

 Continuing Defense

If a defendant has a valid defense of entrapment to a first in a series of crimes, the defense can extend to the other crimes as long as the acts came from the same inducement as the initial crime. In United States v. Bailey, 18 M.J. 749 (A.C.M.R. 1984), the defendant was entrapped to distribute drugs, was permitted to raise the defense in response to a charge of larceny by trick arising from later distribution of counterfeit drugs.

Profit motive

The fact that the defendant has a 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).

Not Confession and Avoidance

In United States v. Garcia, 1 M.J. 26 (C.M.A. 1975), the Court held that in order for the defendant to raise and establish the defense of entrapment, the defendant does not have to admit the crime; indeed, he may deny it. United States v. Williams, 4 M.J. 507, 509 n. 1 (A.C.M.R. 1977).

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United States v. Sermons, 14 M.J. 350 (C.M.A. 1982). The Court held that multiple requests by a government agent alone may not raise entrapment.

United States v. Vanzandt, 14 M.J. 332, 344 (C.M.A. 1982). The Court held that in drug cases, the latitude given the government in “inducing” the criminal act is considerably greater in drug-related cases than it would be in other types of cases. 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)

Due Process Entrapment

The due process defense is recognized under military law. However, in some drug cases, where the government is given greater latitude, entrapment may be difficult to prove. United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982). 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). However, in United States v. Lemaster, 40 M.J. 178 (C.M.A. 1994) the Court raised due process issues and held that the defendant has an entrapment defense where the government targeted an emotionally unstable female suspect, exploited her sexually and emotionally and planted drugs on her in a reverse sting operation. United States v. Vanzandt, 14 M.J. 332, 343 n. 11 (C.M.A. 1982).   However, that the government conducted a “reverse sting” operation does not in itself deprive a defendant of due process. United States v. Frazier, 30 M.J. 1231 (A.C.M.R. 1990).

United States v. Harris, 41 M.J. 433 (C.A.A.F. 1995). The Court determined that sinced the government did not know about the defendant’s enrollment in a drug rehabilitation program, the government did not violate due process when it solicited the defendant’s involvement in drug transactions. See also United States v. Bell, 38 M.J. 358 (C.M.A. 1993) and 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). The Court concluded that the government did not violate due process in a case where the defendant gave drugs to an undercover officer, hoping for a sexual relationship, where the officer did not offer dating or sex as an inducement.

United States v. Fegurgur, 43 M.J. 871, (Army Ct. Crim. App. 1996). In a case with facts similar to United States v. St. Mary, even though the undercover agent knew that the defendant wanted to date her, due process entrapment was not available to the defendant as a defense when the undercover agent asked the defendant to obtain marijuana for her.

United States v. Bell, 38 M.J. 358 (C.M.A. 1993). Here, the Court found that due process entrapment did exist where the defendant was a recovering addict enrolled in a Army rehabilitation program and the government induced the defendant to use cocaine.

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