Elements of Entrapment

6.04 ENTRAPMENT - ELEMENTS

The government must prove beyond a reasonable doubt that the defendant was not entrapped. Thus, the government must prove beyond a reasonable doubt either (1) that, before contact with law enforcement, the defendant was ready and willing or had a predisposition or prior intent to commit the offense, or (2) that the defendant was not induced or persuaded to commit the offense by law enforcement officers or their agents.

Predisposition is the key issue in the entrapment defense. “It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” United States v. Russell, 411 U.S. 423, 436 (1973).

 

The predisposition must be “independent”; that is, it must have existed before government agents attempted to induce criminal behavior on the part of the defendant. 

 

6.05 ENTRAPMENT - FACTORS

In determining whether the defendant was entrapped, you may consider:

(1) The background [or character or reputation] of the defendant [including] [prior criminal history] [or economic status];

(2) Whether it was law enforcement officers or their agents that first suggested the criminal activity;

(3) Whether the defendant performed criminal activity for profit;

(4) Whether the defendant showed reluctance to perform criminal activity;

(5) Whether law enforcement officers or their agents repeatedly induced or persuaded the defendant to perform criminal activity;

(6) Whether law enforcement officers or their agents offered an ordinary opportunity to commit a crime; and

(7) Whether law enforcement officers or their agents offered exceptional [profits or] persuasion or merely solicited commission of the crime.

While no single factor necessarily indicates by itself that a defendant was or was not entrapped, the central question is whether the defendant showed reluctance to engage in criminal activity that was overcome by inducement or persuasion. 

6.06 ENTRAPMENT - OPTIONAL ADDITIONS

(a) If the defendant was ready and willing or had a predisposition to commit the offense charged, then he was not entrapped, even though law enforcement officers or their agents provided a favorable opportunity to commit the offense, made committing the offense easier, or even participated in acts essential to the offense.

(b) In addition to being ready and willing, the defendant must have had the ability by reason of previous training, experience, occupation, or acquaintances to commit the crime even if the government had not provided the opportunity to do so. Where the defendant is not in a position to become involved in the crime without the government’s help, the defendant is not predisposed.