ENTRAPMENT FBI
While the courts have generally held law enforcement can use trickery and/or deception conducting investigations—employing these tactics—agents can sometimes risk a prosecution because of entrapment and/or outrageous government conduct claim. The most common examples of deception involve using a Confidential Informant, Cooperating Witness, and/or an FBI undercover agent to affect an arrest. Because entrapment and/or outrageous government conduct claims have the potential for derailing months of investigation, the Justice Department now mandates these investigations must undergo a rigorous review process before they can be approved.
But as one Nebraska farmer discovered with no criminal record—once charged—legal defenses including outrageous government conduct and/or entrapment are arguments not easily won, despite evidence suggesting the defendant was “induced” to purchase pornography using “unsolicited” mail solicitations. But not dissuaded by the lower courts rejections, in a slim 5-4 majority, the Supreme Court agreed with the Nebraska farmer’s entrapment claim and reversed his conviction [see Jacobson v. United States, 112 Supreme Court 1535 and 1540 (1992)].
Reviewing the High Court’s decision, experts state the Nine Justices followed a traditional entrapment analysis focusing on two basic questions. Namely—did the Government induce the defendant to commit the crime? And second—assuming the Government improperly induced the defendant to commit the crime—was the defendant nevertheless predisposed to commit the crime? Because the Government did not dispute “inducement,” the sole issue before the Court concerned whether the defendant was “predisposed” to order the illegal pornography before the Government intervened. Based on the Court’s review, the Justices concluded the Government “failed” to prove the defendant was “predisposed” to commit the crime and reversed his conviction.
In order to be successful with an entrapment claim, experts explain a defendant must show inducement before the burden of proof shifts to the Government. If the defendant can establish the Government induced the crime, courts require the Government must prove predisposition. In the event a defendant cannot establish/prove inducement an entrapment defense naturally fails. While most courts consider “inducement” and “predisposition” closely related noting the same evidence can be used to establish both elements, in general, inducement concerns the Government’s conduct while predisposition describes the defendant’s actions and statements.
As a seasoned federal investigator with plenty of experience working FBI undercover cases, Mr. WEDICK can be extremely helpful with an Entrapment defense.
[NOTE: Information contained herein was summarized from an article written by Thomas V. Kukura titled, “Undercover Investigations and the Entrapment Defense,” that appeared in the April 1993 FBI Bulletin].
