United States v. Arnold L. Hollingsworth, Jr. And William A. Pickard, III

EASTERBROOK, Circuit Judge,

with whom COFFEY, Circuit Judge, joins,

dissenting.

I join parts I and III of Judge Ripple’s opinion, which demonstrates that the majority’s “readiness” or “ability” requirement cannot be located in the Supreme Court’s cases *1212 and ought not be created of our own volition. I also join Judge Coffey’s opinion analyzing the evidence in this case. I am less certain than Judge Ripple that the majority errs in recognizing a defense of “derivative entrapment” (at 1204) and therefore do not join part II of Judge Ripple’s opinion. The majority expressly rejects any defense of “private entrapment” {id. at 1203) and implies that there is no defense of “vicarious entrapment.” The defense of derivative entrapment, according to the majority, rests on recognition that one private person may be the government’s agent for purposes of entrapping another; we regularly treat informants in this way. That a particular person did not receive a grant of immunity and therefore turned up as a defendant cannot exclude the possibility that he was the government’s tool (unbeknownst to himself) for some purposes.

To the extent the majority believes that this imputation is obligatory — that whenever one defendant prevails on an entrapment defense, his henchmen win too because the alternative is “the absurdity of acquitting the principal while sending the agent to prison” (at 1204) — the decision conflicts with Standefer v. United States, 447 U.S. 10 , 100 S.Ct. 1999 , 64 L.Ed.2d 689 (1980), which rejects the argument that acquittal of the principal malefactor automatically blocks conviction of aides and assistants. Inconsistent verdicts are permissible in criminal eases. United States v. Powell, 469 U.S. 57 , 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984). The majority’s failure to discuss whether the evidence shows that Pickard acted as the government’s agent, and in this role entrapped Hollings-worth (both elements are vital to an entrapment defense), suggests that it is following the path barred by Standefer . I do not delve into the Pickard-Hollingsworth dealings, however, for the evidence permitted a rational jury to conclude that Pickard himself was not entrapped.

Jacobson v. United States, — U.S. -, 112 S.Ct. 1535 , 118 L.Ed.2d 174 (1992), which the majority invokes to justify its novel treatment of entrapment, purported to leave this corner of the law as the Court found it. To this the majority replies that common law courts sometimes alter the law while maintaining a fagade of continuity. Doubtless this is true, but more often language tracking prior law means that nothing has changed. Sometimes the Supreme Court issues a writ of certiorari only to conclude, after more reflection, that doctrine should be preserved. Everything then is just as it seems. (As Freud put it, sometimes a cigar is just a cigar.) Judges of an inferior court do best to take doctrine seriously, to treat the Justices as honest expositors. Every opinion contains language slightly different from its predecessors, if only for the sake of elegant variation. Isolated phrases do not alter the law when the bulk of an opinion professes otherwise. Stability and consistency among the hundreds of judges on the trial and appellate benches have substantial benefits. A relatively formal treatment of the Supreme Court’s opinions better promotes evenhanded administration of justice than does a willingness to infer change from opinions reiterating old rules. After all, what six judges of this court see in Jacobson , five others think a mirage. As we approach a thousand judges on the federal courts, such differences in visual acuity have the potential to transmute Norman Rockwell’s view of the world into Joan Miró’s.

The panel conceded that “[a] reasonable jury would have found Pickard and Hollings-worth ‘predisposed’ if the term refers merely to a psychological state of willingness to break the law.” 9 F.3d 593, 599 (1993) (emphasis in original). Indeed so. Pickard did not blanch when “Hinch” made it clear that he wanted to launder some money; instead Pickard asked what kind of work Hinch had in mind — whether Hinch wanted to “clean and polish” cash or sought “extended services”. Pickard quoted a schedule of prices far exceeding those banks charge for legitimate transactions and expressed only a criminal’s natural wariness at dealing with a person he hardly knew. Even then the wariness took the form of seeking a defense to criminal liability rather than a legal outlet for his energies. He asked Hinch whether he was an agent or informer, expressing the view that the answer “no” would set up an entrapment defense. When Pickard and Hinch met, Pickard was carrying a passport issued *1213 by the “Dominion of Melchizedek” — an ally of the Dnchy of Grand Fenwick? 1 The passport shows that Pickard was ready, willing, and able to commit at least one crime without federal prompting or assistance. 2 Reasonable jurors could conclude that he was anxious to add financial crimes to the list, if the ratio of profit to risk was right.

My colleagues in the majority treat Pick-ard as a pathetic figure. Perhaps he is. Police are better at nabbing bumblers than accomplished criminals. Being a novice caught on an initial sally into crime is no defense, however. There is a booming private market in currency offenses; Pickard could have entered this business, as do most currency offenders (including many with less intelligence and capital), without governmental aid. Often the best safeguard is to nab a person at the outset of a criminal career— even, under statutes such as 21 U.S.C. § 846 , a person who has agreed to commit a crime without taking so much as a single step toward its accomplishment. United States v. Sassi 966 F.2d 283 (7th Cir.1992). Wise prosecutors may throw the harmless fish back. Judges lack an equivalent power.

RIPPLE, Circuit Judge, with whom BAUER, COFFEY, and KANNE, Circuit Judges, join, dissenting and with whom EASTERBROOK, Circuit Judge, joins in Parts I and III.

By today’s decision en banc, the majority alters in two major respects the law of entrapment. Although articulating its decision in more subtle terms than were employed in the earlier panel decision, the holding of the court can hardly be characterized as an incremental shift in perspective or as a clarification of minor nuance to established doctrine. Rather, the majority today adds a distinct burden for the government to carry and, with respect to so-called derivative entrapment, recognizes a doctrine not accepted previously in our circuit or, for that matter, in almost any circuit. The majority thus has departed radically from the established law of this circuit, and, more importantly, from the governing precedent of the Supreme Court of the United States. The burden that this new approach will impose on legitimate law enforcement efforts will be substantial.

Over the last several decades, the Supreme Court has expended a great deal of judicial energy in formulating the governing principles of entrapment law. As this circuit noted in United States v. Fusko, 869 F.2d 1048 (7th Cir.1989):

The basic law governing the affirmative defense of entrapment is well established. In Mathews v. United States, 485 U.S. 58 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988), the Supreme Court noted that it had “consistently adhered to the view ... that a valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct.” 485 U.S. at 62-63 , 108 S.Ct. at 886 .

Id. at 1051.

The underlying policy concern that animates the doctrine has also been clear. As the present Chief Justice stated in United States v. Russell, 411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973):

It is rooted, not in any authority of the Judicial Branch to dismiss prosecutions for what it feels to have been “overzealous law enforcement,” but instead in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government.

Id. at 435 , 93 S.Ct. at 1644 . The Court has thus emphasized that the defense of entrapment was not meant to provide the federal *1214 judiciary with a device by which it might curb what, in the estimation of a particular judge or appellate panel, appears to be over-zealousness on the part of the Executive Branch in the prosecution under the criminal laws of the United States. As now-Chief Justice Rehnquist wrote in Russell :

[T]he defense of entrapment ... was not intended to give the federal judiciary a “chancellor’s foot” veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to the applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.

Id.

I

“READINESS”

1.

Today’s decision introduces a new and independent hurdle for the government to surmount. No longer is it enough for the government to establish that the defendant was predisposed to commit the crime; it must now also establish his “readiness” to do so. The introduction of this new element into the entrapment doctrine alters both the doctrine and the policy concerns identified by the Supreme Court as animating that doctrine.

In Russell , Justice Rehnquist explained that, from the Court’s first recognition of the entrapment doctrine in Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932), “the thrust of the entrapment defense was held to focus on the intent or predisposition of the defendant to commit the crime.” Russell, 411 U.S. at 429 , 93 S.Ct. at 1641 (emphasis added). “Predisposition, ‘the principal element in the defense of entrapment,’ Russell , [411 U.S.] at 433, [ 93 S.Ct. at 1643 ], focuses upon whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.” Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883, 886 , 99 L.Ed.2d 54 (quoting Sherman v. United States, 356 U.S. 369, 372 , 78 S.Ct. 819, 821 , 2 L.Ed.2d 848 (1958); Russell, 411 U.S. at 436 , 93 S.Ct. at 1645 ). That determination is based upon the intent of the defendant. A defendant is protected by that defense “[i]f the result of the governmental activity is to ‘implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission.’ ” Hampton v. United States, 425 U.S. 484, 490 , 96 S.Ct. 1646, 1650 , 48 L.Ed.2d 113 (1976) (quoting Sorrells, 287 U.S. at 442 , 53 S.Ct. at 212-13 ). Because predisposition concerns the defendant’s state of mind at the time of the government inducement, it is usually an issue of fact for the trier of fact to decide. Mathews, 485 U.S. at 63 , 108 S.Ct. at 886-87 . 1

The “readiness” of the defendant has an established role in the determination of whether a defendant is predisposed to commit an offense. It is circumstantial evidence that is relevant and probative evidence of whether the defendant was in fact predisposed to commit the offense. Indeed, the classic formulation of the predisposition factor, in the opinion of Judge Learned Hand in United States v. Sherman, 200 F.2d 880 (2d Cir.1952), treats the “ready and willing” conception in this manner. 2 This understanding was later implemented by the Supreme Court of the United States in a subsequent *1215 appeal by the defendant. Sherman v. United States, 356 U.S. 369, 375 , 78 S.Ct. 819, 822 , 2 L.Ed.2d 848 (1958). 3 The caselaw of the circuits has treated the concept in this way consistently. Predisposition may thus be established by evidence of the defendant’s readiness or willingness to commit the offense. See, e.g., United States v. Mendoza-Salgado, 964 F.2d 993, 1002 (10th Cir.1992); United States v. Ventura, 936 F.2d 1228, 1230-31 (11th Cir.1991); United States v. Alston, 895 F.2d 1362, 1368 (11th Cir.1990); United States v. Carrasco, 887 F.2d 794, 814 (7th Cir.1989); United States v. Shukitis, 877 F.2d 1322, 1331 (7th Cir.1989); United States v. Fusko, 869 F.2d at 1052 ; United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir.), cert. denied, 474 U.S. 831 , 106 S.Ct. 99 , 88 L.Ed.2d 80 (1985). See also United States v. Hudson, 982 F.2d 160, 162 (5th Cir.) (stating defendant’s enthusiasm for crime can satisfy predisposition requirement), cert. denied, — U.S. -, 114 S.Ct. 100 , 126 L.Ed.2d 67 (1993).

In similar fashion, the alacrity with which the defendant accepts the invitation is circumstantial evidence of his predisposition to commit the illegal act. Recently, the Supreme Court has reminded us that predisposition is demonstrated by the defendant’s “ready commission of [a] criminal act.” Jacobson v. United States, — U.S. -, -, 112 S.Ct. 1535, 1541 , 118 L.Ed.2d 174 (1992) (citing Sherman, 200 F.2d at 882 ); see also United States v. Kussmaul, 987 F.2d 345, 349 (6th Cir.1993); United States v. Tejeda, 974 F.2d 210, 217-18 (1st Cir.1992). Predisposition can also be proven by a showing of the defendant’s ready response to the inducement being offered. Jacobson, — U.S. -, 112 S.Ct. at 1543 ; United States v. Jones, 976 F.2d 176, 179 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2351 , 124 L.Ed.2d 260 (1993); United States v. Dozal-Bencomo, 952 F.2d 1246, 1251 (10th Cir.1991); United States v. Sullivan, 919 F.2d 1403, 1418 (10th Cir.1990), cert. denied, — U.S. -, 113 S.Ct. 285 , 121 L.Ed.2d 211 (1992). In this sense, the defendant’s preparation for the opportunity is no doubt relevant and probative on the issue of his predisposition. See generally Paul Marcus, The Entrapment Defense § 4.16, at 150 (1989). It is not, however, an independent element of the defense. 4

Despite this well-settled approach to the concept of “readiness” in the controlling opinions of the Supreme Court and the consistent obedience of the courts of appeals to those mandates, the majority today takes this circuit outside the fold and establishes, within the boundaries of this circuit, a brand new role for the concept of readiness. By this decision, the majority treats “ready” as a new word of art. It has changed the “ready” defendant from one who is inclined, feeling or exhibiting no reluctance, to one on the point of acting. This massive alteration in the settled caselaw places this circuit at odds with the controlling caselaw of the Supreme Court and with the settled precedent in the *1216 other circuits. For example, as the majority frankly acknowledges, the approach taken by the majority cannot live in peace with the holding of the United States Court of Appeals for the Second Circuit in United States v. Ulloa, 882 F.2d 41 (2d Cir.1989). In Ul-loa, the trial court instructed that the government was required to prove that the defendant “was predisposed, or ‘ready and willing,’ to commit the crime before the informant’s inducement.” Id. at 43 . Several times the jurors sent notes to the judge, asking him to explain what “ready” means. The judge stated: “ ‘Ready’ implies an open amenability to it. It is not terribly different from ‘willing.’ The two of them together imply a certain amenability to be involved in illegal conduct.” Id. at 44 . The defendant appealed the court’s interpretation, which equated “readiness” and “willingness.” He asserted that the goverhment was required to prove that the defendant was not only willing but also ready to commit the crime, in the sense of having the present physical ability to do so. The Second Circuit rejected this argument:

The focus of the entrapment inquiry, once inducement by the Government is established, is on the defendant’s state of mind.... [In our eases stating that the defendant was “fully prepared” to act,] we noted the defendant’s physical readiness in order to demonstrate why the entrapment defense failed as a matter of law. We did not say that the Government was required to prove readiness in this sense to sustain its burden in proving disposition.

Id. (emphasis added).

As a result of this doctrinal transformation, conduct that every other court in the country considers to be within the permissible ambit of criminal proscription is, in the Seventh Circuit, beyond the reach of the criminal law. Although the Supreme Court has emphasized that the doctrine of entrapment is grounded in the judgment of Congress as to what conduct is so dangerous to the community as to invoke the sanction of our criminal laws, Russell, 411 U.S. at 435 , 93 S.Ct. at 1644 , the majority makes no serious attempt to demonstrate that its new restriction on criminal prosecution is compatible with the intent of Congress in enacting the criminal code. More precisely, it makes no attempt to explain why a person who fully desires to break the law and is entirely willing to do what needs to be done to accomplish a criminal objective ought be excused from criminal liability simply because, for whatever reason, he does not have his act together when afforded an opportunity by an undercover agent. Instead, the majority justifies its change in the law of the Circuit squarely — and solely — on its interpretation of the Supreme Court’s decision in Jacobson . Clarifying the position of the majority, the court now asserts that Jacobson significantly changed the law of entrapment and changed it in a way that necessitates the introduction of their new concept of “readiness” into entrapment analysis.

The first part of the majority’s proposition can be accepted a lot easier than the second. Some decisions have acknowledged that Jacobson may well have some effect on the approach that courts take in implementing the traditional approach to entrapment. As Justice O’Connor suggested in her dissenting opinion in Jacobson , the Court’s opinion may well have redefined the mental predisposition that will render useless the defense. The Justice pointed out that Jacobson seems to require that the government not only establish that the defendant had a pre-existing propensity to engage in the underlying conduct but also that he had the pre-existing propensity to violate the law in order to engage in that conduct. Jacobson , — U.S. at -, 112 S.Ct. at 1546 .

The alteration of entrapment analysis that Justice O’Connor identified in Jacobson is indeed a far cry from the massive alteration that the majority now reads into that holding. Notably, while the Justice’s reading of the Court’s opinion in Jacobson finds support in the text, the majority in this case must strain to claim any similar support. More precisely, the Justice’s view that Jacobson requires that the defendant have the predisposition to violate the law sheds a plausible fight on the Jacobson majority’s closing statement that the doctrine of entrapment is applicable when “the Government’s quest for conviction leads to the apprehension of an *1217 otherwise law-abiding citizen who, if left to his own devices, likely would never have run afoul of the law.” Jacobson , — U.S. at -, 112 S.Ct. at 1543 . While the majority here claims to find legitimacy for its view in the same statement, it fails to explain precisely how the Court’s statement provides that support. Indeed, one can search the Jacobson opinion in vain for any indication that the Justices showed the slightest interest in bestowing upon the concept of predisposition “positional as well as dispositional force.” Ante at 1199. The futility of such a search is not surprising. Assuming that Jacobson has made any enduring contribution to the caselaw of entrapment, it contains not the whisper of an echo of any suggestion that the courts are to second-guess Congress on the sort of conduct that warrants the invocation of our criminal laws.

2.

The transformation in the law of entrapment worked by the majority is not simply a theoretical doctrinal change. It is an alteration with significant practical ramifications. The majority opinion evidences a great deal of sympathy for the defendant who is not up to the task of sophisticated criminality. Until now, when the defendant raised properly the defense of entrapment, the government had the obligation to establish that the defendant committed the elements of the offense without having been provided an inducement by the government 5 and without the idea of criminality having been implanted by the government. Now the government must also demonstrate that the defendant has sufficient aptitude and equipment to commit the crime and thus poses an immediate danger to society.

Because the majority takes this significant step in a case that does not present, from a factual point of view, the typical situation facing the modern federal prosecutor, the full impact of this new requirement may not be as apparent as it would be if the majority had chosen a drug or racketeering ease in which to announce its new rule. The holding in this case, however, will benefit not only the pathetic incompetents of the criminal world but also the very competent criminal who is sufficiently studied in his way of doing business so as to appear not too organized. 6 This holding adds a whole new dimension to the arsenal of the mainstream drug trafficker and the traditional racketeer. For instance, it will provide first-rate arrest insurance for the occasional drug trafficker who, willing to ply his trade whenever the opportunity presents itself, is still not quite sufficiently organized when the opportunity is provided by the undercover agent. Initial reluctance in a drug “buy” is not an atypical behavior pattern. As the majority appears to acknowledge, perhaps the most problematic application of the new rule will come when a sting operation attracts a very willing but also not very well organized or inept first offender. A defendant’s prior arrests and convictions, as well as his previous associations with drug traffickers, are strong indications of predisposition. Without that past record, however, would the neophyte’s quick reply to an agent’s invitation to “talk business” count as predisposition? Would his agreement to distribute drugs show a willingness, but not a readiness? See United States v. Olson, 978 F.2d 1472, 1483 (7th Cir.1992), cert. de *1218 nied, — U.S. -, 113 S.Ct. 1614 , 123 L.Ed.2d 174 , 175 (1993).

There is, of course, no constitutional requirement that the Congress punish only activity that is immediately dangerous. Nor can the majority point to any expression by the Congress of such an intent. If such a criterion is appropriate, it is the members of Congress, not the judges of an intermediate appellate court, who ought to make that decision. Russell emphatically settles this question of our authority. 411 U.S. at 435 , 93 S.Ct. at 1644 . It must govern our decision today.

II

PRIVATE/VICARIOUS ENTRAPMENT

The majority also holds that Mr. Hollings-worth is, as a matter of law, protected from criminal liability by the defense of “vicarious entrapment.” Here also, this decision charts a different course from almost all of the circuits and deviates from the course previously set by our decisions. 7 This circuit, along with every other circuit except the Second, has steadfastly held that there is no defense of private entrapment. See United States v. Mahkimetas, 991 F.2d 379, 386 (7th Cir.1993); United States v. Jones, 950 F.2d 1309, 1315 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1700 , 118 L.Ed.2d 410 (1992); United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir.1986). Even the Second Circuit’s decision in United States v. Valencia, 645 F.2d 1158 , 1168-69 & n. 10 (2d Cir.1980), has been placed in doubt by the subsequent caselaw of that circuit. See United States v. Pilarinos, 864 F.2d 253, 256 (2d Cir.1988) (holding no derivative entrapment where middleman was induced by a government agent to commit crime, responding to pressure, takes it upon himself to induce another to participate in crime); United States v. Toner, 728 F.2d 115, 126-27 (2d Cir.1984) (“[Tjhere is a burden of showing that the government’s inducement was directly communicated to the person seeking an entrapment charge.”). So-called derivative or vicarious entrapment, like private entrapment, is not, and ought not be, recognized as a defense. United States v. Marren, 890 F.2d 924 , 931 n. 2 (7th Cir.1989); United States v. Buishas, 791 F.2d 1310, 1314 (7th Cir.1986). “Without direct government communication with the defendant, there is no basis for an entrapment defense.” 8 United States v. Martinez, 979 F.2d 1424, 1432 (10th Cir.1992),. cert. denied, — U.S. -, 113 S.Ct. 1824 , 123 L.Ed.2d 454 (1993). Entrapment ought to succeed as a defense only if the government “implant[s] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission.” Hampton v. United States, 425 U.S. 484, 490 , 96 S.Ct. 1646, 1650 , 48 L.Ed.2d 113 (1976) (quoting Sorrells, 287 U.S. at 442 , 53 S.Ct. at 212-13 ). Either the government agent or official induced the defendant or he did not; a “vicarious entrapment” simply serves none of the policy concerns that justify the burden placed on the government by the defense of entrapment. Indeed, as presented by the majority, it excuses the illegal actions of an individual perfectly willing to break the law and well prepared to do so simply because the defendant has the good fortune to choose a partner in crime who has had improper contact with a government agent. If Congress wishes to allow such individuals to walk in our communities undisturbed, or if the Executive Branch declines to prosecute such *1219 individuals, those branches operate well within the ambit of their authority. Such determinations are quite different from the judiciary’s use of the “ ‘chancellor’s foot,’ ” Russell, 411 U.S. at 435 , 93 S.Ct. at 1644 , to nullify the decision of those branches to undertake such a prosecution.

Ill

CONCLUSION

This en banc proceeding sharply delineates the differences between the majority and the minority of this court on the issue of entrapment. It presents, in the most stark terms possible, two divergent views of the law of entrapment. More particularly, it presents a square difference of opinion among the judges of this court on the significance of the Supreme Court’s opinion in Jacobson . It questions the continued vitality of Russell . The holding of the majority sets this circuit on a doctrinal course different from that of the other circuits. It presents, as the government notes in its petition for rehearing, a significant practical burden for law enforcement authorities. It is now for the Supreme Court to determine whether the doctrinal course that the majority has now set and the burden that it has imposed on law enforcement efforts are correct ones. 9

. Melchizedek was the high priest and king of Salem who blessed Abraham. The Mormon Church uses his name for a higher order of its priesthood. Melchizedek has no temporal "Dominion."

. Forging a passport violates 18 U.S.C. § 1543 , which reaches foreign travel documents in addition to those issued by the United States. See United States v. Osiemi, 980 F.2d 344 (5th Cir.1993). International money launderers think that bogus travel documents facilitate the offense. E.g., United States v. Okayfor, 996 F.2d 116 (6th Cir.1993). See also 18 U.S.C. § 1546 .

. Entrapment exists as a matter of law in two situations: when the factual evidence of entrapment is undisputed, see, e.g., United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1824 , 123 L.Ed.2d 454 (1993); United States v. Haddad, 976 F.2d 1088, 1095 (7th Cir.1992); and when that evidence is insufficient to submit the issue to the jury, see, e.g., United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir.1986); United States v. Jannotti, 673 F.2d 578, 597 (3d Cir.), cert. denied, 457 U.S. 1106 , 102 S.Ct. 2906 , 73 L.Ed.2d 1315 (1982); United States v. Tritton, 535 F.2d 359, 360-61 (7th Cir. 1976). See generally Paul Marcus, The Entrapment Defense § 4.10, at 136 (1989).

. Although Judge Hand is credited with creation of the phrase “ready and willing,” this court and the Tenth Circuit used it in entrapment decisions prior to Judge Hand’s ruling in United States v. Sherman. See Ryles v. United States, 183 F.2d 944, 945 (10th Cir.), cert. denied, 340 U.S. 877 , 71 S.Ct. 123 , 95 L.Ed. 637 (1950); United States v. Markham, 191 F.2d 936, 938 (7th Cir.1951).

. The original judgment of conviction was reversed by the Second Circuit in United States v. Sherman, 200 F.2d 880 (2d Cir.1952). The subsequent retrial resulted in judgment of conviction. That judgment was affirmed by the Court of Appeals at 240 F.2d 949 (2d Cir.1957). The Supreme Court reversed that judgment in Sherman v. United States, 356 U.S. 369, 375 , 78 S.Ct. 819, 822 , 2 L.Ed.2d 848 (1958).

. The Eighth Circuit gave a more detailed list of factors to be viewed in determining disposition. It included:

1) whether the defendant readily responded to the inducement offered;

2) the circumstances surrounding the illegal conduct;

3) “the state of mind of a defendant before government agents make any suggestion that he shall commit a crime;"

4) whether the defendant was engaged in an existing course of conduct similar to the crime for which he is charged;

5) whether the defendant had already formed the “design” to commit the crime for which he is charged;

6) the defendant’s reputation;

7) the conduct of the defendant during negotiations with the undercover agent;

8) whether the defendant has refused to commit similar acts on other occasions;

9) the nature of the crime charged; and

10) "the degree of coercion present in the instigation law officers have contributed to the transaction" relative to the "defendant’s criminal background.”

United States v. Dion, 762 F.2d 674, 687-88 (8th Cir.1985) (citations omitted), rev'd on other grounds, 476 U.S. 734 , 106 S.Ct. 2216 , 90 L.Ed.2d 767 (1986).

. In this case, the majority's entrapment analysis focuses on the defendant's lack of predisposition to commit the charged conduct; for that reason there is no need for an inquiry into the government's inducement. See United States v. Cervante, 958 F.2d 175, 178 (7th Cir.1992). However, it should be noted that, in the face of a paucity of actual evidence of inducement, the majority presents considerable “innuendo evidence" of the government’s coercion. The evaluation of this evidence was a matter for the jury which determined, apparently, that the agent offered Pickard an opportunity to launder money and he took it.

. Defendants’ claims that they were stupid or duped are not new to this court. See, e.g., United States v. Neely, 980 F.2d 1074, 1085-86 (7th Cir.1992) (finding no impropriety in prosecutor's statement that defendants tried to "dupe” hospital staff); United States v. Johnson, 927 F.2d 999, 1004-05 (7th Cir.1991) (rejecting defendant’s claim that she was too unsophisticated to have requisite intent to defraud government); United States v. George, 869 F.2d 333, 334 (7th Cir.1989) (noting defendant's claim at sentencing hearing that court consider defendant's totally unsophisticated behavior). See also Dozal-Bencomo, 952 F.2d at 1251 (stating defendant "not the unwilling dupe he would have us believe”).

. The decisions of other circuits holding that there is no defense of private entrapment include United States v. Neal, 990 F.2d 355, 358 (8th Cir.1993); United States v. Goodacre, 793 F.2d 1124, 1125 (9th Cir.), cert. denied, 479 U.S. 993 , 107 S.Ct. 595 , 93 L.Ed.2d 595 (1986); United States v. Leroux, 738 F.2d 943, 947 (8th Cir.1984) (collecting cases); and United States v. Dove, 629 F.2d 325, 329 (4th Cir.1980). Cases holding that the defense of vicarious or derivative entrapment is not recognized include United States v. Martinez, 979 F.2d 1424, 1432 (10th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1824 , 123 L.Ed.2d 454 (1993) (collecting cases); United States v. Buishas, 791 F.2d 1310, 1313 (7th Cir.1986); Leroux, 738 F.2d at 947 ; and United States v. Mers, 701 F.2d 1321, 1340 (11th Cir.), cert. denied, 464 U.S. 991 , 104 S.Ct. 481 , 482, 78 L.Ed.2d 679 (1983).

. The First Circuit has suggested, albeit in dicta, that there may be circumstances when communication with the defendant through an intermediary at the instruction of a government agent would be sufficient. United States v. Hernandez, 995 F.2d 307, 313 (1st Cir.), cert. denied, — U.S. -, 114 S.Ct. 407 , 126 L.Ed.2d 354 (1993).

. As the majority notes, the defendants were convicted of unlawfully structuring a currency transaction for the purpose of evading the transaction reporting requirements of 31 U.S.C. § 5313 , in violation of 31 U.S.C. § 5324 (a)(3). In order to be subject to criminal prosecution for violating that statute, a person must "willfully” violate it. 31 U.S.C. § 5322 (a). In Ratzlaf v. United States, - U.S. -, 114 S.Ct. 655 , 126 L.Ed.2d 615 (1994), the Supreme Court of the United States held that this willfulness requirement mandates that the government prove, and the jury be instructed, that a defendant acted with knowledge that the structuring he undertook was unlawful. Id. at -, 114 S.Ct. at 663 . The Supreme Court's holding in Ratzlaf is the controlling interpretation of 31 U.S.C. § 5324 (a)(3) and must be given full retroactive effect. See Griffith v. Kentucky, 479 U.S. 314, 322 , 107 S.Ct. 708, 712-13 , 93 L.Ed.2d 649 (1987).

The jury instruction with respect to the unlawful structuring charge did not instruct the jury that the government was required to prove that the defendants acted with knowledge that the structuring he undertook was unlawful. Prior to Ratzlaf , the instruction was correct under the law of this circuit. See United States v. Jackson, 983 F.2d 757, 767 (7th Cir.1993) (holding that “a criminal violation of § 5324(a)(3) may be established without proof that the defendant knew that structuring was unlawful”). There was no objection to the instruction at trial. Therefore, if this case were not to be dismissed entirely on entrapment grounds, we would be obliged to remand this case to the district court to determine whether the omission of this instruction constituted plain error. See United States v. Olano, - U.S. -, -, 113 S.Ct. 1770, 1779 , 123 L.Ed.2d 508 (1993) (citation omitted). A "plain" error is "clear" or “obvious.” Id. at -, 113 S.Ct. at 1777 (citation omitted). In light of the majority's disposition of this case, we need not reach this issue.