Petition for Writ of Certiorari — Alvin Celius Andre, Petitioner v. United States
Supreme Court briefOct 5, 2020
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APPENDIX
APPENDIX
Opinion, United States Court of Appeals for the Eleventh Circuit,
Alvin Andre v. United States, No. 19-11486
(11th Cir. May 8, 2020) ......................................................................................... A-1
Judgment in a Criminal Case, United States District Court for
the Southern District of Florida,
United States v. Alvin Andre, No. 18-60271-Cr-Scola ......................................... A-2
Defendant’s Notice of Proposed Jury Instructions – Entrapment (DE 39)
United States v. Alvin Andre, No. 18-60271-Cr-Scola ......................................... A-3
First Circuit Pattern Crim. Jury Instruction 5.05 (2019) ........................................ A-4
Third Circuit Pattern Crim. Jury Instruction 8.05 (2018) ....................................... A-5
Fifth Circuit Pattern Crim. Jury Instruction 1.30 (2019) ........................................ A-6
Sixth Circuit Pattern Crim. Jury Instruction 6.03 (2019) ........................................ A-7
Seventh Circuit Pattern Crim. Jury Instruction 6.04 (2020) ................................... A-8
Eighth Circuit Pattern Crim. Jury Instruction 9.01 (2017) ..................................... A-9
Ninth Circuit Pattern Crim. Jury Instruction 6.2 (2020) ....................................... A-10
Tenth Circuit Pattern Crim. Jury Instr. 1.27 (2018) .............................................. A-11
Eleventh Circuit Criminal Pattern Instruction, No. S13.1 (2020) ......................... A-12
A-1
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Date Filed: 05/08/2020
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11486
Non-Argument Calendar
________________________
D.C. Docket No. 0:18-cr-60271-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN CELIUS ANDRE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 8, 2020)
Before ED CARNES, Chief Judge, LAGOA, and HULL, Circuit Judges.
PER CURIAM:
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Alvin Andre was caught in an undercover sting operation attempting to pay
for sex with a child. After a jury trial, he was convicted of attempted enticement of
a minor and attempted sex trafficking of a minor. This is his appeal.
I.
In January 2018, FBI agent Matthew Fowler began an undercover sting
operation to catch child abusers. He placed an ad on Craigslist posing as a man
who abused his nine-year-old daughter and who was looking for another man to
have sex with her. In the title of his ad he said that he was a “younger dad” and
included “MW4M,” meaning man and woman looking for a man. In the body of
the ad he wrote: “Younger dad looking for other like-minded. Daughter here. . . .
Love to meet others with similar interests.”
The next day, Andre contacted Fowler, saying he had read the ad and
“wanted to see what’s up.” Fowler replied that he was looking for others into
“younggggg,” a spelling that he knew, based on his experience investigating child
abuse cases, meant underage. After confirming that Fowler was talking about his
nine-year-old daughter, Andre asked for a picture. They continued to text back and
forth. Andre asked if Fowler was a cop and, being assured that he was not, began to
ask questions and describe in graphic and horrifying detail his plans to have sex
with the nine-year-old child.
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Agent Fowler attempted to arrange a meeting with Andre in January, but
Andre did not show up for the meeting. Fowler contacted Andre the next week and
invited Andre to another meeting in mid-February, but the plans fell through again.
Over the next seven months, Andre would stop texting agent Fowler for long
periods of time. At one point, he did not text Fowler for three months. But Andre
eventually restarted the conversation and steered the topic of conversation to the
daughter. During their conversations that summer, Fowler told Andre that his
daughter had turned ten.
In September, Fowler and Andre arranged another meeting. The two agreed
that Andre would pay $100 to have sex with the ten-year-old child, $50 in advance
and $50 after. They met at a McDonald’s where Andre paid $50 to Fowler. They
left together, and Andre was arrested in the parking lot.
Andre pleaded not guilty and went to trial. He moved for judgment of
acquittal after the government rested, but the court denied his motion. Andre did
not call any witnesses for his defense. He objected to the jury instruction that the
court gave on entrapment and proposed his own. The district court overruled
Andre’s objection and used the Eleventh Circuit pattern jury instruction for
entrapment instead of his. He was convicted of attempted enticement of a minor in
violation of 18 U.S.C. § 2422(b) and attempted sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a)(1) and (b)(1) and 18 U.S.C. § 1594(a).
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Andre makes two contentions on appeal. First, that the district court abused
its discretion in declining to use his proposed entrapment instruction. And second,
that the evidence was insufficient to support the convictions.
II.
The entrapment instruction that Andre proposed, and the district court
rejected in favor of the Eleventh Circuit pattern jury instruction, stated the
following:
“Entrapment” occurs when a government agent induces a Defendant to
commit a crime that the Defendant was not already willing to commit.
The Defendant has claimed to be a victim of entrapment regarding the
offenses charged in the indictment.
The law forbids convicting an entrapped Defendant.
The Government must prove beyond a reasonable doubt that the
Defendant was willing to commit the crimes charged in the indictment
before this contact with the government agent and without the
inducement of the government agent.
If you have a reasonable doubt about whether the Defendant was
willing to commit the crimes charged in the indictment before his
contact with the government agent and without the inducement of the
government agent then you must find the Defendant not guilty.
The Eleventh Circuit pattern jury instruction, which the court gave instead, stated as
follows:
“Entrapment” occurs when law-enforcement officers or others under
their direction persuade a defendant to commit a crime that the
Defendant had no previous intent to commit.
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The Defendant has claimed to be a victim of entrapment regarding the
charged offense.
The law forbids convicting an entrapped Defendant.
But there is no entrapment when a defendant is willing to break the law
and the Government merely provides what appears to be a favorable
opportunity for the Defendant to commit a crime.
For example, it’s not entrapment for a Government agent to pretend to
be someone else and offer – directly or through another person – to
engage in an unlawful transaction.
So a defendant isn’t a victim of entrapment if you find beyond a
reasonable doubt that the Government only offered the Defendant an
opportunity to commit a crime the Defendant was already willing to
commit.
But if there is a reasonable doubt about whether the Defendant was
willing to commit the crime without the persuasion of a Government
officer or a person under the Government’s direction, then you must
find the Defendant not guilty.
Eleventh Circuit Criminal Pattern Instruction, No. S13.1 (2016).
We review a district court’s rejection of a proposed jury instruction only for
abuse of discretion. United States v. Lebowitz, 676 F.3d 1000, 1014 (11th Cir.
2012). “Although a defendant may request a specific instruction, the court is not
obligated to use the exact wording of the proposed instruction, as long as the words
chosen clearly and accurately state the proposition being requested.” United States
v. Duff, 707 F.2d 1315, 1320–21 (11th Cir. 1983). A district court’s refusal to give
a requested jury instruction is grounds for reversal only if “(1) the requested
instruction was substantively correct, (2) the court’s charge to the jury did not cover
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the gist of the instruction, and (3) the failure to give the instruction substantially
impaired the defendant’s ability to present an effective defense.” Lebowitz, 676
F.3d at 1014 (quoting United States v. Culver, 598 F.3d 740, 751 (11th Cir. 2010)).
Andre argues that his proposed instruction includes an important element of
entrapment that is missing from the pattern jury instructions. He asserts that under
Jacobson v. United States, 503 U.S. 540 (1991), to overcome an entrapment
defense, the government must show that the defendant had a predisposition to
commit the crime before coming into contact with the government agent; that
predisposition requirement is not clear from the pattern jury instruction; therefore,
his ability to present an effective defense was substantially impaired.
We disagree with his minor premise. The pattern jury instruction states that
entrapment “occurs when law-enforcement officers or others under their direction
persuade a defendant to commit a crime that the Defendant had no previous intent
to commit” and that “if there is a reasonable doubt about whether the Defendant
was willing to commit the crime without the persuasion of a Government officer or
a person under the Government’s direction, then you must find the Defendant not
guilty.” Those sentences clearly communicate that the defendant cannot be
convicted unless the government proves beyond a reasonable doubt that he was
predisposed to commit the crime before the government agent did anything to
persuade him to do it. Because the jury charge that was given covered the gist of
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the requested instruction, the refusal to give it did not impair Andre’s ability to
mount an entrapment defense.
Our prior decisions support that holding. In United States v. Brown, 43 F.3d
618 (11th Cir. 1995), for example, we held that an older version of the pattern jury
instruction for entrapment, with substantially similar language, properly
communicated the predisposition requirement described under Jacobson. In Brown,
the instruction said that if the evidence left the jury with “reasonable doubt whether
a defendant had any intent to commit the crimes except for inducement or
persuasion on the part of the Government officer or agent,” the jury had to find the
defendant not guilty. 43 F.3d at 628 (emphasis added). We held that language was
good enough to communicate the predisposition requirement.
The instruction here is essentially the same as the one in Brown. It says that
“if there is a reasonable doubt about whether the Defendant was willing to commit
the crime without the persuasion of a Government officer or a person under the
Government’s direction, then [the jury] must find the Defendant not guilty.”
(Emphasis added). The court’s charge to the jury communicated the gist of the
instruction that Andre wanted, and the court did not abuse its discretion by refusing
to give his proposed instruction. See Lebowitz, 676 F.3d at 1014.
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III.
Andre also challenges the sufficiency of the evidence underlying his
convictions. He argues that the government failed to demonstrate both that he had
the specific intent to entice a minor for the purposes of § 2422(b) and that before
the government had contact with him Andre was predisposed to commit the crimes
for which he was convicted.
We review de novo a challenge to the sufficiency of the evidence. United
States v. Isnadin, 742 F.3d 1278, 1303 (11th Cir. 2014). We view the evidence in
the light most favorable to the government, resolving all reasonable inferences and
credibility evaluations in favor of the verdict. Id. To be sufficient to support a
conviction, the evidence “need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt.” Id.
(quotation marks omitted). Evidence is sufficient to support a conviction if a
reasonable trier of fact could find that the evidence established the defendant’s guilt
beyond a reasonable doubt. Id.
A.
Andre argues that the government failed to demonstrate that he had the
specific intent to entice a minor for the purposes of 18 U.S.C. § 2422(b).
Section 2422(b) applies if a defendant uses interstate commerce and “knowingly
persuades, induces, entices, or coerces any individual” who is not yet eighteen years
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old to engage in prostitution or sexual activity. To prove attempt under § 2422(b),
the government must prove that the defendant (1) had the specific intent to
persuade, induce, entice, or coerce a minor to engage in criminal sexual activity,
and (2) took a substantial step toward the commission of the underlying crime.
United States v. Yost, 479 F.3d 815, 819 (11th Cir. 2007).
A defendant does not have to communicate or negotiate directly with a child
to be convicted under § 2422(b), nor does the child even have to exist. A defendant
“can be convicted under [§ 2422(b)] when he arranges to have sex with a minor or a
supposed minor through communications with an adult intermediary.” United
States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir. 2011).
Andre asserts that because the Craigslist ad he responded to indicated that the
father had already assented to the sexual contact, the government did not prove that
he had the specific intent to persuade, induce, entice, or coerce anyone. That
argument is foreclosed by United States v. Rutgerson, 822 F.3d 1223 (11th Cir.
2016). In Rutgerson, the defendant argued that the minor had already indicated
through an online ad that she would have had sex with anyone who paid, so he did
not have the intent to coerce her. Id. at 1233. We rejected that argument, holding
that “offering or agreeing to pay money in exchange for engaging in various sex
acts qualifies as inducement within the meaning of the statute.” Id. at 1234
(emphasis added). Because merely agreeing to the underaged victim’s price in
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exchange for sex counts as inducement, the defendant violated the act by attempting
to “persuade or induce [the minor] to engage in sex with him by offering to pay her
money (and a substantial amount at that) for her services.” Id.
So too here. It does not matter that the child in this case does not exist or that
the fictional father had already assented to sexual contact between her and an adult.
See Lanzon, 639 F.3d at 1299. What matters is that Andre agreed to pay money to
have sex with a child. The government put forth sufficient evidence for a
conviction under § 2422(b).
B.
Andre also argues that the government did not establish that he had a
predisposition to commit the enticement and the sex trafficking crimes.
Specifically, he asserts that the government failed to show that he was predisposed
to commit those crimes because it found no evidence of child pornography or any
other attempt to have sex with a child when it searched his phone and laptop. He
argues that his chats with Fowler cannot show predisposition because he had
already been contacted by police, so his willingness to sleep with a child at the
government’s prompting cannot prove that he was predisposed to sleeping with
children.
The entrapment defense applies if (1) the government induced the defendant
to engage in criminal activity and (2) the defendant was not predisposed to commit
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the crime before the inducement. Rutgerson, 822 F.3d at 1234. The defendant
bears the initial burden of production to show that the government “created a
substantial risk that the offense would be committed by a person other than one
ready to commit it.” Id. Once the defendant has met this burden, the government
must establish the defendant’s predisposition to commit the alleged offense — it
must prove beyond a reasonable doubt that the defendant was predisposed to
commit the criminal act before he was approached by Government agents. Id. at
1234–35.
Both parties seem to assume that Andre showed that the government induced
him to engage in the illegal activity, so the question before us is whether Andre was
predisposed to commit his crimes before he was contacted by the government.
Even though predisposition involves the defendant’s willingness to commit the
crime before he was contacted by the government, proving it does not require precontact evidence. Predisposition can be proven by the defendant’s “ready
commission” of the charged crime. Id. Or it can be shown if the defendant is given
the opportunity to back out of the illegal activity but fails to do so. Id. Whether a
defendant was predisposed to committing a crime is a “fact-intensive and subjective
inquiry.” Id.
The government’s evidence proved that Andre was predisposed to commit
the crimes. It showed that Andre was the one who initially contacted Fowler in
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response to the Craigslist ad. It showed that once Andre knew the daughter was
nine years old he chose to ask for photos of her and continued to plan to have sex
with her. And it showed that Andre had plenty of opportunity to back out of the
crimes during the months-long gap in communication but chose instead to reengage with Fowler and break the law. That is enough to show predisposition.
AFFIRMED.
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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
David J. Smith
Clerk of Court
For rules and forms visit
www.ca11.uscourts.gov
May 08, 2020
MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 19-11486-AA
Case Style: USA v. Alvin Andre
District Court Docket No: 0:18-cr-60271-RNS-1
This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF")
system, unless exempted for good cause. Non-incarcerated pro se parties are permitted to use the ECF
system by registering for an account at www.pacer.gov. Information and training materials related to
electronic filing, are available at www.ca11.uscourts.gov. Enclosed is a copy of the court's decision filed today
in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later
date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for
rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate
filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the
time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content
of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list
of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition
for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time
spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of
a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404)
335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.
For questions concerning the issuance of the decision of this court, please call the number referenced in the
signature block below. For all other questions, please call T. L. Searcy, AA at (404) 335-6180.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Djuanna H. Clark
Phone #: 404-335-6151
OPIN-1 Ntc of Issuance of Opinion
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Case 0:18-cr-60271-RNS Document 80 Entered on FLSD Docket 04/15/2019 Page 1 of 7
USDC FLSD 245B (Rev. 09/08) - Judgment in a Criminal Case
Page 1 of 7
UNITED STATES DISTRICT COURT
Southern District of Florida
Miami Division
UNITED STATES OF AMERICA
JUDGMENT IN A CRIMINAL CASE
v.
Case Number: 18-60271-CR-SCOLA
ALVIN CELIUS ANDRE
USM Number: 15595-104
Counsel for Defendant: Deric Zacca, Esquire
Counsel for The United States: Francis I. Viamontes
Court Reporter: Tammy Nestor
The defendant was found guilty on counts 1 and 2 of the superseding indictment.
The defendant is adjudicated guilty of these offenses:
OFFENSE
ENDED
COUNT
Attempted enticement of a minor to engage in illicit
sexual activity.
01/10/2018
1
Attempted sex trafficking of a minor.
01/10/2018
2
TITLE & SECTION
NATURE OF OFFENSE
18 U.S.C. § 2422(b)
18 U.S.C. § 1594(a) and
1591(a)(1), (b)(1)
The defendant is sentenced as provided in the following pages of this judgment. The sentence is imposed pursuant
to the Sentencing Reform Act of 1984.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change
of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this
judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States attorney
of material changes in economic circumstances.
Date of Imposition of Sentence: 4/11/2019
____________________________________
ROBERT N. SCOLA, Jr.
United States District Judge
Date: 4/11/2019
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USDC FLSD 245B (Rev. 09/08) - Judgment in a Criminal Case
Page 2 of 7
DEFENDANT: ALVIN CELIUS ANDRE
CASE NUMBER: 18-60271-CR-SCOLA
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a
total term of forty years. The term consists of ten years as to Count 1 and thirty years as to Count 2, to be served
consecutively to Count 1.
The court makes the following recommendations to the Bureau of Prisons: the defendant be designated to a facility
in the South Florida area.
The defendant is remanded to the custody of the United States Marshal.
RETURN
I have executed this judgment as follows:
Defendant delivered on ________________________________________ to ________________________________________
at ________________________________________, with a certified copy of this judgment.
___________________________________________
UNITED STATES MARSHAL
___________________________________________
DEPUTY UNITED STATES MARSHAL
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USDC FLSD 245B (Rev. 09/08) - Judgment in a Criminal Case
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DEFENDANT: ALVIN CELIUS ANDRE
CASE NUMBER: 18-60271-CR-SCOLA
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of twenty-five years. This term
consists of twenty-five years as to each of Counts 1 and 2, all such terms to run concurrently.
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release
from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a
controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least
two periodic drug tests thereafter, as determined by the court.
The defendant shall cooperate in the collection of DNA as directed by the probation officer.
The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with
the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional
conditions on the attached page.
STANDARD CONDITIONS OF SUPERVISION
1.
2.
The defendant shall not leave the judicial district without the permission of the court or probation officer;
The defendant shall report to the probation officer and shall submit a truthful and complete written report within the first fifteen
days of each month;
3. The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
4. The defendant shall support his or her dependents and meet other family responsibilities;
5. The defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or
other acceptable reasons;
6. The defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
7. The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any
controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8. The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9. The defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person
convicted of a felony, unless granted permission to do so by the probation officer;
10. The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation
of any contraband observed in plain view of the probation officer;
11. The defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement
officer;
12. The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without
the permission of the court; and
13. As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s
criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to
confirm the defendant’s compliance with such notification requirement.
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DEFENDANT: ALVIN CELIUS ANDRE
CASE NUMBER: 18-60271-CR-SCOLA
SPECIAL CONDITIONS OF SUPERVISION
Adam Walsh Act Search Condition - The defendant shall submit to the U.S. Probation Officer conducting periodic
unannounced searches of the defendant’s person, property, house, residence, vehicles, papers, computer(s), other
electronic communication or data storage devices or media, include retrieval and copying of all data from the
computer(s) and any internal or external peripherals and effects at any time, with or without warrant by any law
enforcement or probation officer with reasonable suspicion concerning unlawful conduct or a violation of a
condition of probation or supervised release. The search may include the retrieval and copying of all data from the
computer(s) and any internal or external peripherals to ensure compliance with other supervision conditions and/or
removal of such equipment for the purpose of conducting a more thorough inspection; and to have installed on the
defendant’s computer(s), at the defendant’s expense, any hardware or software systems to monitor the defendant’s
computer use.
Computer Possession Restriction - The defendant shall not possess or use any computer; except that the defendant
may, with the prior approval of the Court, use a computer in connection with authorized employment.
Credit Card Restriction - The defendant shall not possess any credit cards, nor shall he be a signer on any credit
card obligations during his term of supervision, without the Court’s approval.
Data Encryption Restriction - The defendant shall not possess or use any data encryption technique or program.
Employer Computer Restriction Disclosure - The defendant shall permit third party disclosure to any employer or
potential employer, concerning any computer-related restrictions that are imposed upon the defendant.
Financial Disclosure Requirement - The defendant shall provide complete access to financial information, including
disclosure of all business and personal finances, to the U.S. Probation Officer.
No Contact with Minors with one exception - The defendant shall have no personal, mail, telephone, or computer
contact with children/minors under the age of 18 or with the victim, with one exception. He can have supervised
contact with his own daughter if either the mother agrees to this after she is fully informed of the circumstances of
this case by the probation department. Or if she does not agree, then Mr. Andre can petition the appropriate family
court. And if that court enters an order allowing for supervised contact with his daughter, then I will also incorporate
that order into the terms of his sentence and supervised release.
No Contact with Minors in Employment - The defendant shall not be employed in a job requiring contact with
children under the age of 18 or with the victim.
No Involvement in Youth Organizations - The defendant shall not be involved in any children’s or youth
organization.
No New Debt Restriction - The defendant shall not apply for, solicit or incur any further debt, included but not
limited to loans, lines of credit or credit card charges, either as a principal or cosigner, as an individual or through
any corporate entity, without first obtaining permission from the United States Probation Officer.
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DEFENDANT: ALVIN CELIUS ANDRE
CASE NUMBER: 18-60271-CR-SCOLA
Permissible Search - The defendant shall submit to a search of his/her person or property conducted in a reasonable
manner and at a reasonable time by the U.S. Probation Officer.
Restricted from Possession of Sexual Materials - The defendant shall not buy, sell, exchange, possess, trade, or
produce visual depictions of minors or adults engaged in sexually explicit conduct. The defendant shall not
correspond or communicate in person, by mail, telephone, or computer, with individuals or companies offering to
buy, sell, trade, exchange, or produce visual depictions of minors or adults engaged in sexually explicit conduct.
Sex Offender Registration - The defendant shall comply with the requirements of the Sex Offender Registration
and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any
state sex offender registration agency in which he or she resides, works, is a student, or was convicted of a
qualifying offense.
Sex Offender Treatment - The defendant shall participate in a sex offender treatment program to include
psychological testing and polygraph examination. Participation may include inpatient/outpatient treatment, if
deemed necessary by the treatment provider. The defendant will contribute to the costs of services rendered (copayment) based on ability to pay or availability of third party payment.
Unpaid Restitution, Fines, or Special Assessments - If the defendant has any unpaid amount of restitution, fines, or
special assessments, the defendant shall notify the probation officer of any material change in the defendant’s
economic circumstances that might affect the defendant’s ability to pay.
Case 0:18-cr-60271-RNS Document 80 Entered on FLSD Docket 04/15/2019 Page 6 of 7
USDC FLSD 245B (Rev. 09/08) - Judgment in a Criminal Case
Page 6 of 7
DEFENDANT: ALVIN CELIUS ANDRE
CASE NUMBER: 18-60271-CR-SCOLA
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.
TOTALS
Assessment
$200.00
Fine
$0.00
Restitution
$0.00
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment,
unless specified otherwise in the priority order or percentage payment column below. However, pursuant to
18 U.S.C. § 3664(i), all nonfederal victims must be paid before the United States is paid.
NAME OF PAYEE
TOTAL LOSS*
RESTITUTION ORDERED
* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for
offenses committed on or after September 13, 1994, but before April 23, 1996.
**Assessment due immediately unless otherwise ordered by the Court.
Case 0:18-cr-60271-RNS Document 80 Entered on FLSD Docket 04/15/2019 Page 7 of 7
USDC FLSD 245B (Rev. 09/08) - Judgment in a Criminal Case
Page 7 of 7
DEFENDANT: ALVIN CELIUS ANDRE
CASE NUMBER: 18-60271-CR-SCOLA
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
A. Lump sum payment of $200.00 due immediately.
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal
monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made
through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties
imposed.
This assessment/fine/restitution is payable to the CLERK, UNITED STATES COURTS and is to be addressed to:
U.S. CLERK'S OFFICE
ATTN: FINANCIAL SECTION
400 NORTH MIAMI AVENUE, ROOM 08N09
MIAMI, FLORIDA 33128-7716
The assessment/fine/restitution is payable immediately. The U.S. Bureau of Prisons, U.S. Probation Office and the
U.S. Attorney's Office are responsible for the enforcement of this order.
Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and
Several Amount, and corresponding payee, if appropriate.
CASE NUMBER
DEFENDANT AND CO-DEFENDANT NAMES
(INCLUDING DEFENDANT NUMBER)
TOTAL AMOUNT
JOINT AND SEVERAL
AMOUNT
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest,
(4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of
prosecution and court costs.
A-3
Case 0:18-cr-60271-RNS Document 39 Entered on FLSD Docket 01/28/2019 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 18-60271-CR-SCOLA
UNITED STATES OF AMERICA,
Plaintiff,
v.
ALVIN CELIUS ANDRE,
Defendant.
_______________________________/
DEFENDANT’S NOTICE OF PROPOSED JURY INSTRUCTION –
ENTRAPMENT
COMES NOW Defendant, ALVIN CELIUS ANDRE, through counsel, and
hereby submits the following proposed jury instruction on the issue of Entrapment.
Respectfully submitted,
By: s/Deric Zacca
DERIC ZACCA, ESQUIRE
Fla. Bar No. 0151378
Deric Zacca, P.A.
110 Tower
110 SE 6th Street, Suite 1700
Fort Lauderdale, Florida 33301
Telephone: (954) 450-4848
Facsimile: (954) 450-4204
CERTIFICATE OF SERVICE
Case 0:18-cr-60271-RNS Document 39 Entered on FLSD Docket 01/28/2019 Page 2 of 3
I HEREBY CERTIFY that on January 28, 2019, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that
the foregoing document is being served this day on all counsel of record in this
matter by CM/ECF.
s/Deric Zacca
DERIC ZACCA, ESQUIRE
Case 0:18-cr-60271-RNS Document 39 Entered on FLSD Docket 01/28/2019 Page 3 of 3
S13.1
Entrapment
(MODIFIED)
“Entrapment” occurs when a government agent induces a Defendant to
commit a crime that the Defendant was not already willing to commit.
The Defendant has claimed to be a victim of entrapment regarding the
offenses charged in the indictment.
The law forbids convicting an entrapped Defendant.
The Government must prove beyond a reasonable doubt that the Defendant
was willing to commit the crimes charged in the indictment before his contact with
the government agent and without the inducement of the government agent.
If you have reasonable doubt about whether the Defendant was willing to
commit the crimes charged in the indictment before his contact with the government
agent and without the inducement of the government agent then you must find the
Defendant not guilty.
Modified Standard Entrapment Defense Instruction; see also Jacobson v. United States,
503 U.S. 540, 549 (1992) where the Supreme Court held that “where the government has
induced an individual to break the law and the defense of entrapment is at issue, . . . , the
prosecution must prove beyond reasonable doubt that the defendant was disposed to
commit the criminal act prior to first being approached by Government agents.”
A-4
5.05
Entrapment
[Updated: 1/13/17]
[Defendant] maintains that [he/she] was entrapped. A person is “entrapped” when he or she is
induced or persuaded by law enforcement officers or their agents to commit a crime that he or she
was not otherwise ready and willing to commit. The law forbids his or her conviction in such a
case. However, law enforcement agents are permitted to use a variety of methods to afford an
opportunity to a defendant to commit an offense, including the use of undercover agents,
furnishing of funds for the purchase of controlled substances, the use of informers and the adoption
of false identities.
For you to find [defendant] guilty of the crime with which [he/she] is charged, you must be
convinced that the government has proven beyond a reasonable doubt that [defendant] was not
entrapped. To show that [defendant] was not entrapped, the government must establish beyond a
reasonable doubt one of the following two things:
One, that [the officer] did not improperly persuade or talk [defendant] into committing the
crime. Simply giving someone an opportunity to commit a crime is not the same as
persuading [him/her], but persuasion, false statements or excessive pressure by [the officer]
or an undue appeal to sympathy can be improper; OR
Two, that [defendant] was ready and willing to commit the crime without any persuasion
from [the officer] or any other government agent. You may consider such factors as: (a) the
character or reputation of the defendant; (b) whether the initial suggestion of criminal
activity was made by the government; (c) whether the defendant was engaged in the
criminal activity for profit; (d) whether the defendant showed reluctance to commit the
offense, and whether that reluctance reflects the conscience of an innocent person or merely
the caution of a criminal; (e) the nature of the persuasion offered by the government; and
(f) how long the government persuasion lasted. In that connection, you have heard
testimony about actions by [defendant] for which [he/she] is not on trial. You are the sole
judges of whether to believe such testimony. If you decide to believe such evidence, I
caution you that you may consider it only for the limited purpose of determining whether
it tends to show [defendant]’s willingness to commit the charged crime or crimes without
the persuasion of a government agent. You must not consider it for any other purpose.
You must not, for instance, convict [defendant] because you believe that [he/she] is guilty
of other improper conduct for which [he/she] has not been charged in this case.
Comment
(1)
“A criminal defendant is entitled to an instruction on his theory of defense so long as the
theory is a valid one and there is evidence in the record to support it. In making this determination,
the district court is not allowed to weigh the evidence, make credibility determinations, or resolve
conflicts in the proof. Rather, the court’s function is to examine the evidence on the record and to
draw those inferences as can reasonably be drawn therefrom, determining whether the proof, taken
in the light most favorable to the defense can plausibly support the theory of the defense. This is
not a very high standard to meet, for in its present context, to be ‘plausible’ is to be ‘superficially
reasonable.’” United States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998) (citations omitted). The
277
Circuit sometimes suggests a higher standard, however, requiring “some hard evidence.” E.g.,
United States v. González-Pérez, 778 F.3d 3, 11 (1st Cir. 2015); United States v. Vasco, 564 F.3d
12, 18 (1st Cir. 2009); see also United States v. Young, 78 F.3d 758, 760 (1st Cir. 1996) (“The
record must show ‘hard evidence,’ which if believed by a rational juror, ‘would suffice to create a
reasonable doubt as to whether government actors induced the defendant to perform a criminal act
that he was not predisposed to commit.’” (quoting United States v. Rodriguez, 858 F.2d 809, 814
(1st Cir. 1988))).
(2)
In United States v. Hinkel, 837 F.3d 111, 121 (1st Cir. 2016), the First Circuit approved
the use of the pattern instruction for entrapment. In Hinkel, the court stated that the pattern
entrapment instruction “accurately describe[es] the general defense and correctly outlin[es] the
elements.” Id. at *5. I note that the current Pattern Criminal Jury Instruction, First Circuit, § 5.05
is identical to the 1998 version approved by the court in Hinkel. See also United States v. Prange,
771 F.3d 17, 30-31 (1st Cir. 2014); United States v. Nishnianidze, 342 F.3d 6, 17-18 (1st Cir.
2003); United States v. LaFreniere, 236 F.3d 41, 44-45 (1st Cir. 2001); Gamache, 156 F.3d at 912; United States v. Montañez, 105 F.3d 36, 38 (1st Cir. 1997); United States v. Acosta, 67 F.3d
334, 337-40 (1st Cir. 1995); United States v. Gendron, 18 F.3d 955, 960-64 (1st Cir. 1994); United
States v. Gifford, 17 F.3d 462, 467-70 (1st Cir. 1994); United States v. Hernandez, 995 F.2d 307,
313 (1st Cir. 1993); United States v. Reed, 977 F.2d 14, 18 (1st Cir. 1992); see also United States
v. Pion, 25 F.3d 18, 20 (1st Cir. 1994). We have intentionally avoided using the word
“predisposition,” a term that has proven troublesome to some jurors. See, e.g., United States v.
Rogers, 121 F.3d 12, 17 (1st Cir. 1997). See also United States v. Tom, 330 F.3d 83, 91-92 (1st
Cir. 2003), where the First Circuit seems to approve an alternate formulation (incorrectly labeled
an entrapment “offense” rather than defense). Although at one point the First Circuit said merely
that there is “nothing wrong in using the term ‘improper[ly]’” as an adverb before the verb
“persuade” in the first factor, United States v. DePierre, 599 F.3d 25, 28 (1st Cir. 2010) (citing
United States v. Santiago, 566 F.3d 65, 68 (1st Cir. 2009)), more recently it seems to require it.
United States v. Djokich, 693 F.3d 37, 46 n.5 (1st Cir. 2012) (“Djokich’s proposed instruction was
an inaccurate account of what would constitute inappropriate persuasion or inducement by the
government, as it suggests that any inducement by the government is inappropriate. That is not
the case; a defendant is only entrapped where the government utilizes wrongful persuasion or
inducement.” (citation omitted)).
(3)
“Beyond showing that the government afforded him the opportunity to commit the crime,
the defendant must adduce evidence that the government engaged in some find of ‘overreaching
conduct.’” United States v. Montoya, 844 F.3d 63, 67 (1st Cir. 2016) (quoting United States v.
Diaz-Maldonado, 727 F.3d 130, 138 (1st Cir. 2013)). “Such conduct might include, for example,
intimidation, threats, relentless insistence, or excessive pressure to participate in a criminal
scheme.” Id.
(4)
“[H]olding out the prospect of illicit gain is not the sort of government inducement that can
pave the way for an entrapment defense.” United States v. Sánchez-Berríos, 424 F.3d 65, 76 (1st
Cir. 2005).
(5)
The defendant’s “bare assertion that [the informant] called him several times and [the
defendant] declined previous invitations to commit offenses does not amount to inducement.”
United States v. González-Pérez, 778 F.3d 3, 12 (1st Cir. 2015). “In analyzing whether there was
improper inducement, the method of purportedly inducing a defendant is more important than the
number of solicitations.” Id.
278
(6)
It may be necessary to conform the charge to the defendant’s theory of defense:
Of course, the district court has a great deal of latitude in
formulating a charge. But taken as a whole, the examples given
were all either coercion examples or involved abstractions (“dogged
insistence”) rather far from the examples of inducement by an undue
appeal to sympathy, which the defendant expressly requested and
which were more pertinent to his defense. By omitting any
“sympathy” examples, the trial court may well have left the jury
with the mistaken impression that coercion is a necessary element
of entrapment and, in this case, such a misunderstanding could well
have affected the outcome.
Montañez, 105 F.3d at 39; see also United States v. Terry, 240 F.3d 65, 70 (1st Cir. 2001);
Gamache, 156 F.3d at 9-11.
(7)
“[T]he government cannot prove predisposition if the defendant’s willingness to commit
the crime was itself manufactured by the government in the course of dealing with the defendant
before he committed the crime charged.” United States v. Alzate, 70 F.3d 199, 201 (1st Cir. 1995)
(citing Jacobson v. United States, 503 U.S. 540, 549 & n.2 (1992)). If that is the issue, a more
precise instruction is advisable. See id. But, although the predisposition must exist before the
contact with government agents, behavior after the contact can be used as evidence of the preexisting predisposition. Rogers, 121 F.3d at 17.
(8)
For the elements of third-party or derivative entrapment, see United States v. RiveraRuperto, 846 F.3d 417, 429 (1st Cir. 2017) (quoting United States v. Luisi, 482 F.3d 43, 55 (1st
Cir. 2007)):
Under this theory, the conduct of a middleman is only attributable
to the government where: (1) a government agent specifically
targeted the defendant in order to induce him to commit illegal
conduct; (2) the agent acted through the middleman after other
government attempts at inducing the defendant had failed; (3) the
government agent requested, encouraged, or instructed the
middleman to employ a specified inducement, which could be found
improper, against the targeted defendant; (4) the agent's actions led
the middleman to do what the government sought, even if the
government did not use improper means to influence the
middleman; and (5) as a result of the middleman's inducement, the
targeted defendant in fact engaged in the illegal conduct.
Except with respect to the “target” reference, the First Circuit approved the following instruction
for “vicarious entrapment” as “consistent with our case law on the third-party entrapment defense”:
Inducement by a codefendant constitutes some vicarious
entrapment by the government if the following three elements are
met:
279
First, that a government agent specifically identified the
defendant as the desired target of the inducement or pressure;
second, that the government agent encouraged the
codefendant to induce or pressure the defendant to commit the
crime, or his government agent's handlers condoned the use of
coercive inducements or pressure by the codefendant; and
third, the codefendant, in fact, applied pressure or an
improper inducement to overcome the defendant's reluctance to
become involved.
United States v. Turner, 501 F.3d 59, 70 (1st Cir. 2007) (“[E]ven if there was error [in the target
requirement], and we are not saying that there was, the error was harmless”).
(9)
There is a separate defense known as entrapment by estoppel:
Entrapment by estoppel requires [defendant] to establish:
(1) that a government official told him the act was legal; (2) that he
relied on the advice; (3) that the reliance was reasonable; and
(4) that, given the reliance, prosecution would be unfair.
United States v. Ellis, 168 F.3d 558, 561 (1st Cir. 1999); accord United States v. Bunnell, 280 F.3d
46, 49-50 (1st Cir. 2002). On this defense, the defendant has the burden of proof. United States
v. Villafane-Jimenez, 410 F.3d 74, 80 (1st Cir. 2005). The first element requires an “affirmative
representation” that the conduct was legal. Id. at 80 n.7. According to United States v. Sousa, 468
F.3d 42, 46 (1st Cir. 2006) (citations omitted):
A successful entrapment by estoppel defense generally requires that
the misleading statement come from an official representing the
sovereign bringing the prosecution, i.e., a federal official. We did
hold open the possibility in [United States v. Caron, 64 F.3d 713,
716-17 (1st Cir. 1995)] that entrapment by estoppel could be a
defense to a federal crime where a state official affirmatively
provides the defendant with misleading advice on the requirements
of federal law.
(10) The Ninth Circuit has held that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Alleyne v. United States, 133 S. Ct. 2151 (2013), sentencing entrapment is a jury issue where
it would result in a lower statutory sentencing range, United States v. Cortes, 732 F.3d 1078, 1091
(9th Cir. 2013), and suggested language for such an instruction. For First Circuit discussion of the
judicial doctrine of sentencing entrapment or manipulation, see, e.g., United States v. Woods, 210
F.3d 70, 75 (1st Cir. 2000); United States v. Montoya, 62 F.3d 1, 3-5 (1st Cir. 1995).
280
A-5
8.05
Entrapment
(Name) has raised as a defense that (he) (she) was entrapped by [an agent of]
the government to commit the offense(s) charged in Count(s) (Nos.) of the
indictment. A defendant may not be convicted of a crime if he or she was entrapped
by the government to do the acts charged. The government is permitted to use
undercover agents, deception, and other means of providing opportunities for an
unwary criminally-minded person to commit a crime, but the law does not permit
the government to induce an unwary innocent person into committing a criminal
offense.
The defense of entrapment includes two inquiries:
First, did the government induce (name) to commit the offense?
Second, was (name) predisposed, that is, ready and willing to the commit the
offense before (he) (she) was first approached by the government?
It is the government’s burden to prove beyond a reasonable doubt that (name)
was not entrapped; it is not (name’s) burden to prove that (he) (she) was entrapped.
Thus, you may find (name) guilty of the offense charged in Count (No.) only if you
find that, in addition to proving the elements of that offense, the government also
proved beyond a reasonable doubt either (1) that the government did not induce the
commission of the offense; or (2) that (name) was predisposed, meaning that (name)
was ready and willing to commit the offense before the government [agents] first
[approached] spoke to (him) (her) about the crime.
17
You should first consider whether there is any evidence that the government
induced (name) to commit the offense. Government actions that could amount to
inducement include persuasion, fraudulent representations, threats, coercive tactics,
harassment, promises of reward, or pleas based on need, sympathy, or friendship.
The government does not induce a person to commit an offense if the government
merely approaches that person, or solicits, requests, or suggests that he or she
commit the offense, or affords an opportunity or facilities to commit the offense. If
you find that the government proved beyond a reasonable doubt that it did not
induce (name) to commit the offense, then you should find that there was no
entrapment and you need not consider this defense any further.
However, if you do have a reasonable doubt about whether the government
proved that it did not induce (name) to commit the offense, then you must decide
whether the government proved beyond a reasonable doubt that (name) was
predisposed – that is, that (name) was ready and willing to commit the offense before
the government first approached (him) (her) about it. In deciding this question, you
should consider all the evidence, including any evidence about whether the
government initially suggested the criminal activity; the nature of the government’s
inducement or persuasion; whether (name) had already formed an intent or design
to commit the offense charged; whether (name) was engaged in an existing course of
criminal conduct similar to the offense charged; whether (name) was engaged in
criminal activity for profit; and whether (name) showed a willingness to commit the
18
offense or showed any reluctance that was overcome by repeated government
inducement or persuasion [and evidence of (name’s) character or reputation, including
a prior record of criminal convictions]. If, after considering all the evidence, you have
a reasonable doubt that (name) would have committed the offense charged without
the government’s inducement, you should find the defendant not guilty.
Comment
See 1A O’Malley et al, supra, § 19.04; Sand et al, supra, 8-7. For variations in other
Circuits, see Sixth Circuit § 6.03; Eighth Circuit § 9.01; Ninth Circuit §§ 6.2, 6.3; Eleventh
Circuit Insts. 13.1, 13.2.
Elements of Entrapment. The defendant may properly assert an entrapment defense
and require an instruction on it without having to admit all the elements of the offense;
entrapment may be asserted along with other, inconsistent defenses. See, e.g., Mathews v.
United States, 458 U.S. 58, 63 (1988). Although ultimately the government has the burden of
persuasion on entrapment, the defendant has the burden of production. There are two elements
of proof: (1) inducement by the government to commit the crime, and (2) the defendant’s
lack of predisposition to commit the crime. United States v. Dennis, 826 F.3d 683, 690 (3rd Cir.
2016). “A defendant who requests the District Court to instruct the jury on an entrapment
defense has a ‘burden of production’ with regard to both elements.” 826 F.3d at 690. Thus, to
require the government to disprove the defense and to require an instruction on entrapment, “a
defendant must produce sufficient evidence of inducement on the part of the government and a
lack of predisposition on his own part.” United States v. Lakhani, 480 F.3d 171, 179 (3d Cir.
2007), citing Mathews v. United States, 485 U.S. 58, 63 (1988); United States v. Wright, 921
F.2d 42, 44 (3d Cir. 1990). See also United States v. McLean, 702 Fed. Appx. 81 (3d Cir. 2017).
In Sherman v. United States, 356 U.S. 369, 371 (1957), the Supreme Court noted that “to
determine whether entrapment has been established, a line must be drawn between a trap for the
unwary innocent and the trap for the unwary criminal.” The Court further defined this line by
stating that the defense of entrapment has two elements: “[1] government inducement of a crime,
and [2] a lack of predisposition on the part of the defendant to engage in the criminal conduct.”
Mathews v. United States, 485 U.S. at 63.
Predisposition. Since the Supreme Court’s decision in United States v. Russell, 411 U.S.
423 (1973), the focus has been on the defendant's predisposition, or lack of predisposition, to
commit the offense charged. See Russell, 411 U.S. at 429. Thus, the Court in Russell stated that
entrapment is relevant “only when the Government's deception actually implants the criminal
design in the mind of the defendant.” 411 U.S. at 426. That the government merely afforded
opportunities for or facilitated the commission of an offense through trickery or deceit does not
19
establish entrapment. 411 U.S. at 435-36. In Hampton v. United States, 425 U.S. 484, 488-489
(1976), the Court noted: “In Russell we … reaffirmed … that the entrapment defense ‘focus[es]
on the intent or predisposition of the defendant to commit the crime,’ Russell, … 411 U.S., at
429, 93 S. Ct., at 1641, 36 L. Ed. 2d, at 371, rather than upon the conduct of the Government's
agents.”
In Jacobson v. United States, 503 U.S. 540, 547 (1992), the Supreme Court reversed the
defendant’s conviction for receiving child pornography through the mail, where a sting operation
consisted of twenty-six months of repeated government mailings and communications before the
defendant finally ordered the child pornography, and the defendant possessed no allegedly
pornographic material other than that purchased from the government. The Court stated, “[i]n
their zeal to enforce the law, government agents may not originate a criminal design, implant in
an innocent person's mind the disposition to commit a criminal act, and then induce commission
of the crime so that the Government may prosecute.” 503 U.S. at 548. Furthermore, the Court
acknowledged that the burden of proof on entrapment is ultimately on the government: “Where
the Government has induced an individual to break the law and the defense of entrapment is at
issue, the prosecutor must prove beyond a reasonable doubt that the defendant was disposed to
commit the criminal act prior to first being approached by government agents.” 503 U.S. at 548.
Similarly, the Third Circuit has repeatedly observed that:
“[T]he element of non-predisposition to commit the offense is the primary focus of an
entrapment defense.” United States v. Fedroff, 874 F.2d 178, 182 (3d Cir.1989); see
United States v. Gambino, 788 F.2d 938, 944 (3d Cir.1986); Jannotti, 673 F.2d at 597. It
is a “‘relatively limited defense’ that may defeat a prosecution only ‘when the
Government’s deception actually implants the criminal design in the mind of the
defendant.’” Fedroff, 874 F.2d at 181 (quoting Russell, 411 U.S. at 435-36, 93 S.Ct.
1637). Once properly raised by the defendant, “the [G]overnment has the burden to
disprove the whole (entrapment) defense beyond a reasonable doubt.” Jannotti, 673 F.2d
at 597 (internal quotation marks omitted).
United States v. Lakhani, 480 F.3d 171, 178-79 (3d Cir. 2007).
In United States. v. Dennis, 826 F.3d 683 (3rd Cir. 2016), the defendant appealed a
conviction for robbery, firearms and drug offenses in connection with a robbery at a stash house.
The District Court denied the defendant’s request for an entrapment instruction. The Third
Circuit found sufficient evidence of lack of predisposition to warrant an entrapment instruction
on the robbery and firearms charges, even though the defendant had a criminal record for drug
offenses. The Court reversed the robbery and firearms convictions, but affirmed the drug
conviction. In holding that the defendant had met his burden of production on lack of
predisposition for robbery and firearms offenses, the Court cited evidence of the absence of
robbery or violent crimes in the defendant’s criminal history; the defendant’s partially
corroborated testimony of turning away three prior opportunities to join the government
informant in robberies; the defendant’s disavowal of violence on the stand; the defendant’s
20
testimony that he has not owned a gun in many years; and the expert testimony of defendant’s
vulnerability to being persuaded due to his low IQ. 826 F.3d at 691-2. The District Court has
discounted this evidence in denying the defendant’s request for an entrapment instruction, citing
evidence relating to the offenses as evidence of predisposition. The Third Circuit cautioned
District Courts “to refrain from invading the province of the jury” holding:\
Here, it was not for the District Court to decide the evidence ‘‘cut both
ways’’ and draw a conclusion against Dennis. Similarly, it was impermissible
for the Court to credit the Government’s evidence when Dennis presented
evidence to the contrary. Therefore, we conclude that the District Court did
err by weighing evidence and by improperly drawing inferences against
Dennis on the robbery and firearm charges.
United States v. Dennis, 826 F.3d at 693. Accord United States v. McLean, 702 Fed. Appx. 81,
86 (3d Cir. 2017) (non-precedential) (Third Circuit affirmed District Court’s denial of
defendant’s request for entrapment instruction in case bearing some similarity to Dennis stating
“Although he lacks any relevant criminal history, the ease with which the ATF was able to entice
McLean's participation, his ensuing enthusiasm for the plot, and his rebuff of multiple
opportunities to back out evidence his predisposition to the criminal conduct.”)
The Third Circuit also discussed in Lakhani how the government may prove
predisposition and some of the relevant factors:
In Gambino, we agreed with the Second Circuit Court of Appeals in noting three ways in
which the Government may do so: “‘(1) an existing course of criminal conduct similar to
the crime for which the defendant is charged, (2) an already formed design on the part of
the accused to commit the crime for which he is charged, or (3) a willingness to commit
the crime for which he is charged as evidenced by the accused's ready response to the
inducement.’” 788 F.2d at 945 (quoting United States v. Viviano, 437 F.2d 295, 299 (2d
Cir.1971)). We have also suggested several (somewhat overlapping) factors for
consideration when making a determination on predisposition:
“the character or reputation of the defendant, including any prior criminal record;
whether the suggestion of the criminal activity was initially made by the
Government; whether the defendant was engaged in the criminal activity for
profit; whether the defendant evidenced reluctance to commit the offense,
overcome only by repeated Government inducement or persuasion; and the
nature of the inducement or persuasion supplied by the Government.”
Fedroff, 874 F.2d at 184 (quoting United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336
(9th Cir.1977)).
United States v. Lakhani, 480 F.3d at 179. With respect to these factors, the court in United
States v. Federoff noted that lack of a prior criminal record does not alone establish lack of pre-
21
disposition and that the most important factor is the defendant’s reluctance to commit the
offense. 874 F.2d at 183-84.
Government Inducement. The Supreme Court and Third Circuit have also discussed
what may and may not constitute government inducement of a defendant to commit a crime. In
Mathews v. United States, 485 U.S. at 66, the Supreme Court stated, “[o]f course, evidence that
government agents merely afforded an opportunity or facilities for the commission of the crime
would be insufficient to warrant such an instruction.” In United States v. El-Gawli, 837 F.2d 142
(3d Cir. 1988), the Third Circuit approved the trial court’s instruction that:
A solicitation, request or approach by law enforcement to engage in criminal activity,
standing alone, is not an inducement. . . . Inducement by law enforcement may take many
forms, including persuasion, representation, threats, coercive tactics, harassment,
promises of reward, or pleas based on need, sympathy or friendship.
837 U.S. F.2d at 149. In United States v. Dennis, 826 F.3d 683 (3rd Cir. 2016), the Third
Circuit held that the defendant met the burden of production on inducement, citing, among other
factors: the central role that an informant played in getting the defendant to participate in the
scheme; the fact that the defendant had no known connections to the crimes the government was
investigating; that the defendant was only targeted after the informant produced the defendant’s
name in response to the federal agent’s general inquiry about people he knew who were involved
in robberies; the personal relationship between the informant and the defendant which allowed
the informant to appeal to the defendant’s sympathies based on a story about the informant’s sick
mother; that the informant recruited the defendant, set up the first meeting with the agent, drove
the defendant to the meeting, and asked the defendant to ‘‘play the role’’ of a seasoned robber;
and the substantial financial award discussed with the defendant. As the Court noted, “The
Government’s action exceeded a situation in which it merely opened up an opportunity for
committing a crime. Here, the Government ment targeted an individual previously unknown to it
and, with the help and persuasion of an informant who was a friend of the target, actively led him
into the commission of a crime.” 826 F.3d at 692-3. [Citation omitted] Also see, e.g., United
States v. Wright, 921 F.2d 42, 45 (3d Cir. 1990) (holding that the mere fact that a government
agent first suggested the illegal conduct is not enough to establish inducement).
Outrageous Government Conduct that Violates Due Process. In United States v.
Lakhani, 480 F.3d 171 (3d Cir. 2007), the Third Circuit also discussed the related defense that
the government’s conduct with respect to the offense violated Due Process. The court first
distinguished this Due Process defense from entrapment, noting that unlike entrapment which
focuses on the defendant and his or her predisposition to commit the crime, “the defense of due
process focuses exclusively on the conduct of the Government. If that conduct is ‘so outrageous’
as to be ‘shocking to the universal sense of justice,’ then the Due Process Clause can function as
an ‘absolut[e] bar [on] the [G]overnment from invoking judicial processes to obtain a
conviction.’ United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366
(1973).” 480 F.3d at 177-78. The court then explained the Due Process defense further:
22
“[T]he judiciary is extremely hesitant to find law enforcement conduct so offensive that it
violates the Due Process Clause.” United States v. Voigt, 89 F.3d 1050, 1065 (3d
Cir.1996). We have said that this principle is to be invoked only in the face of “the most
intolerable government conduct,” Jannotti, 673 F.2d at 608 – not “‘each time the
government acts deceptively or participates in a crime that it is investigating,’” NolanCooper, 155 F.3d at 231 (quoting United States v. Mosley, 965 F.2d 906, 910 (10th
Cir.1992)). Moreover, due process should not be used in this context “‘merely as a
device to circumvent the predisposition test [of] the entrapment defense.’” Id. (quoting
Mosley, 965 F.2d at 910); see Jannotti, 673 F.2d at 608 (“We must be careful not to
undermine the [Supreme] Court's consistent rejection of the objective test of entrapment
by permitting it to reemerge cloaked as a due process defense.”). In this spirit, we have
been “admonished” not to “exercise ‘a “Chancellor's foot’” veto over law enforcement
practices of which [we might] not approve.” Beverly, 723 F.2d at 12-13 (quoting Russell,
411 U.S. at 435, 93 S.Ct. 1637). . . .
As we have quoted before,
“[a]lthough the requirement of outrageousness has been stated in several ways by
various courts, the thrust of each of these formulations is that the challenged
conduct must be shocking, outrageous, and clearly intolerable .... The cases make
it clear that this is an extraordinary defense reserved for only for the most
egregious circumstances.”
Nolan-Cooper, 155 F.3d at 230-31 (alteration in original) (quoting Mosley, 965 F.2d at
910).
United States v. Lakhani, 480 F.3d at 180-81. Also see, e.g., United States v. Stimler, 864 F.3d
253, 273-274 (3rd Cir. 2017) (Third Circuit rejected outrageous conduct claim relating to
undercover operation in that “the defendants used their own knowledge and connections to set up
and carry out the unlawful conduct”); United States v. Tolentino, 486 Fed. Appx. 286, 288-89
(3d Cir. 2012) (non-precedential opinion discussing the outrageous conduct defense at length in
holding that, even if the defendant did not waive the defense by failing to timely raise it, the
government’s alleged failure to supervise its confidential informant did not constitute
outrageous conduct); United States v. Hoffecker, 530 F.3d 137, 154-55 (3d Cir. 2008) (affirming
district court’s finding that the government did not engage in outrageous conduct by using the
defendant’s one-time attorney as an undercover informant; “[t]o elevate a violation of the
attorney-client privilege to a constitutional claim of outrageous misconduct, a defendant must
demonstrate ‘(1) the government's objective awareness of an ongoing, personal attorney-client
relationship between its informant and the defendant; (2) deliberate intrusion into that
relationship; and (3) actual and substantial prejudice.’” Quoting United States v. Voigt, 89 F.3d at
1067.); United States v. Pitt, 193 F.3d 751, 760–761 (3d Cir.1999).
In rejecting the Due Process defense in Lakhani, the Third Circuit distinguished United
States v. Twigg, 588 F.2d 373 (3d Cir. 1978), the only case in which the Third Circuit has held
23
that the government’s conduct offended Due Process. In Twigg, the government agent proposed
to the defendants setting up a methamphetamine lab, acquired the production site and all the
equipment and raw materials, and was in complete charge of the lab, while the defendants’
assistance was minor and at the specific direction of the government agent. Lakhani, on the
other hand, involved an international terrorism investigation in which the government agent
solicited the defendant to acquire a missile, but the defendant eagerly agreed, made several trips
to the Ukraine in search of the missile, relied on his own experience in the arms trade,
communicated with three separate arms companies, falsified shipping documents, and deployed
his own money laundering network. 480 F.3d at 182. The court noted that Due Process is not
violated merely because the government is on both sides of the transaction (buyer and seller),
and recognized “that where the Government is investigating ‘fleeting and elusive crime(s),’ it
may ‘require more extreme methods of investigating. . . ,’” (480 F.3d at 182-83, quoting Twigg,
588 F.2d at 378), and that “Government investigations of crimes that were ‘difficult to uncover’
because ‘both parties to the transaction have an interest in concealment’ would be given greater
latitude.”480 F.3d at 183, quoting Jannotti, 673 F.2d at 609.
It may be questioned whether any due process defense exists at all, independent of the
entrapment defense, and whether even Twigg was correctly decided. In United States v. NolanCooper, 155 F.3d 221, 229-31 (3d Cir. 1998), the court explained that the Supreme Court has
seemingly disavowed the earlier dicta on which the due process theory rests, many circuits have
refused to recognize the doctrine, and the theory, as of 1998, had been only applied one time in
the United States to dismiss a criminal case. Accordingly, the court stated, “it appears that the
viability of the doctrine is hanging by a thread.” Id. at 230. The court added: “The First Circuit
similarly has declared the outrageous government misconduct doctrine ‘moribund’ in light of the
fact that, in practice, ‘courts have rejected its application with almost monotonous regularity.’
United States v. Santana, 6 F.3d 1, 4 (1st Cir.1993) (‘The banner of outrageous misconduct is
often raised but seldom saluted.’).” Nolan-Cooper, 155 F.3d at 230. See United States v.
Fattah, 858 F.3d 801, 813 (3d Cir. 2017) (non-precedential) (“Since Twigg was decided, this
Court has repeatedly distinguished, and even questioned, its holding.”)
Entrapment by Estoppel. The entrapment defense described in this instruction should
not be confused with the affirmative defense of “entrapment by estoppel,” which requires
different elements. “The entrapment by estoppel defense applies where the defendant has
established by a preponderance of the evidence that: (1) a government official (2) told the
defendant that certain criminal conduct was legal, (3) the defendant actually relied on the
government official's statements, (4) and the defendant's reliance was in good faith and
reasonable in light of the identity of the government official, the point of law represented, and
the substance of the official's statement.” United States v. Stewart, 185 F.3d 112, 124 (3d
Cir.1999). Also see, e.g., United States v. Langforddavis, 454 Fed. Appx. 34 (3d Cir. 2011)
(non-precedential) (holding no error to refuse to instruct the jury on this defense where no
evidence to prove the elements); United States v. West Indies Transp., Inc., 127 F.3d 299, 313
(3d Cir. 1997) (thoroughly discussing the defense of “entrapment by estoppel”); Model Penal
Code § 2.04(3)(b) (defining defense of reasonable reliance on an official statement of the law).
24
If the defense of entrapment by estoppel is properly raised, an appropriate instruction should be
given.
Sentencing Entrapment. The entrapment defense described in this instruction also does
not address sentencing entrapment (where official conduct leads a person otherwise indisposed to
dealing in a larger quantity or different type of controlled substance to do so, resulting in a higher
sentence) or sentencing factor manipulation (where the government unfairly exaggerates the
defendant's sentencing range by engaging in a longer-than-needed investigation to increase the
drug quantities for which the defendant is responsible). These doctrines are only relevant at
sentencing, not during trial. Although other circuits have reached different conclusions about
these doctrines, the Third Circuit has not needed to address the legal merits of either. See, e.g.,
United States v. Washington, 869 F.3d 193, 209-213 (3d Cir. 2017); U.S. v. Whitfield, 649 Fed.
Appx. 192, 199 (3d Cir. 2016) (non-precedential); United States v. Chappelle, 591 Fed. Appx.
71, 71-72 (3d Cir. 2015) (non-precedential); United States v. Sed, 601 F. 3d 224, 229-31 (3d Cir.
2010).
(Revised 11/2018)
25
A-6
1.30
ENTRAPMENT
The defendant asserts that he [she] was a victim of entrapment.
Where a person has no previous intent or purpose to violate the law but is induced or
persuaded by law enforcement officers or their agents to commit a crime, that person is a victim
of entrapment, and the law as a matter of policy forbids that person’s conviction in such a case.
On the other hand, where a person already has the readiness and willingness to break the
law, the mere fact that government agents provide what appears to be a favorable opportunity is
not entrapment. For example, it is not entrapment for a government agent to pretend to be someone
else and to offer either directly or through an informer or other decoy, to engage in an unlawful
transaction.
If you should find beyond a reasonable doubt from the evidence in the case that, before
anything at all occurred respecting the alleged offense involved in this case, the defendant was
ready and willing to commit such a crime as charged in the indictment, whenever opportunity was
afforded, and that government officers or their agents did no more than offer the opportunity, then
you should find that the defendant is not a victim of entrapment.
If the evidence in the case should leave you with a reasonable doubt whether the defendant
had the previous intent or purpose to commit an offense of the character charged, apart from the
inducement or persuasion of some officer or agent of the government, then it is your duty to find
the defendant not guilty.
The burden is on the government to prove beyond a reasonable doubt that the defendant:
1.
2.
was not induced to commit the offense by a government agent; or
had a predisposition or intention to commit that offense prior to being
approached by a government agent.
You are instructed that a paid informer is an “agent” of the government for purposes of this
instruction.
Note
There is no statutory defense of entrapment, it stems from Sorrells v. United States, 53 S.
Ct. 210 (1932) (government must disprove inducement and predisposition, as Congress does not
want to implant crime in innocent mind), An earlier version of this instruction, that required the
government to prove that the defendant was predisposed apart from government inducement, has
42
been cited and approved in a number of cases. See, e.g., United States v. Hidalgo, 226 F. App’x
391, 397 (5th Cir. 2007); United States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000); United States
v. Brace, 145 F.3d 247, 256–57 (5th Cir. 1998); United States v. Hernandez, 92 F.3d 309, 311 (5th
Cir. 1996). United States v. Thompson, 130 F.3d 676, 689 n. 29 (5th Cir. 1997), argued that a prior
version of this jury instruction misstated the law, suggesting that between the requirements of
predisposition and lack of inducement, the word “and” be replaced with “or.” This change was
made.
If there is sufficient evidence for a reasonable jury to rule in favor of the defendant on an
entrapment theory, it is generally reversible error to refuse to submit a requested entrapment
instruction to the jury. See United States v. Theagene, 565 F.3d 911, 918–24 (5th Cir. 2009); United
States v. Smith, 481 F.3d 259, 262–63 (5th Cir. 2007); United States v. Ogle, 328 F.3d 182, 185
(5th Cir. 2003); United States v. Gutierrez, 343 F.3d 415, 419 (5th Cir. 1993). “The question is
whether the defendant identified or produced ‘evidence from which a reasonable jury could derive
a reasonable doubt as to the origin of criminal intent and, thus, entrapment.’ . . . This requires the
defendant to make a prima facie showing of (1) his [her] lack of predisposition to commit the
offense and (2) some governmental involvement and inducement more substantial than simply
providing an opportunity or facilities to commit the offense.’’ Theagene, 565 F.3d at 918 (citations
omitted); United States v. Cawthon, 637 F. App’x 804, 806 (5th Cir. 2016) (discussing the required
two prongs of predisposition and inducement); United States v. Macedo-Flores, 788 F.3d 181, 188
(5th Cir. 2015) (“Only after the defendant has made a prima facie showing of entrapment by
showing both elements—lack of predisposition and governmental inducement—is the defendant
entitled to an entrapment instruction by the court.” (citing United States v. Stephens, 717 F.3d 440,
444 (5th Cir. 2013)).
For a discussion of the timing issue, see Jacobson v. United States, 112 S. Ct. 1535, 1540
(1992)(where the government “has induced an individual to break the law, and the defense of
entrapment is at issue, 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.”);
Hernandez, 92 F.3d at 310–11 (affirming the adequacy of this instruction with respect to the
requirement expressed in Jacobson).
An issue may arise in a case in which a defendant denies the requisite intent to commit the
crime in question or denies that he or she was involved in one or more of the acts essential to the
commission of the charged crime and alternatively contends that he or she was in any event
entrapped. In Mathews v. United States, 108 S. Ct. 883, 886 (1988), the Supreme Court held that
“even if the defendant denies one or more elements of the crime, he is entitled to an entrapment
instruction whenever there is sufficient evidence from which a reasonable jury could find
entrapment.” Considering the unusual nature of such an alternative contention, on request of a
defendant, the judge should consider giving a specific instruction to the effect that a defendant
may deny that he or she engaged in the activity constituting the charged offense and alternatively
plead entrapment.
A related defense is entrapment by estoppel, which is “applicable when a government
official or agent actively assures a defendant that certain conduct is legal, and the defendant
reasonably relies on that advice and continues or initiates the conduct.” United States v. Jones, 664
43
F.3d 966, 979 (5th Cir. 2011). In fact, the reliance defense is required by the constitutional
guarantee of due process. See Cox v. Louisiana, 85 S. Ct. 476 (1965); Raley v. Ohio, 79 S. Ct.
1257 (1959). Similarly, a requested instruction on this defense should be given if there is “an
evidentiary basis in the record which would lead to acquittal.” United States v. Spires, 79 F.3d 464,
466 (5th Cir. 1996).
This circuit has never recognized the defense of sentencing entrapment; a circuit split exists
as to that issue. See Macedo-Flores, 788 F.3d at 187 n.3 (collecting cases).
44
A-7
6.03 ENTRAPMENT
(1) One of the questions in this case is whether the defendant was entrapped.
(2) Entrapment has two related elements. One is that the defendant was not already willing to
commit the crime. The other is that the government, or someone acting for the government,
induced or persuaded the defendant to commit it.
(3) If the defendant was not already willing to commit the crime prior to first being approached
by government agents or other persons acting for the government, and the government persuaded
him to commit it, that would be entrapment. But if the defendant was already willing to commit
the crime prior to first being approached by government agents or other persons acting for the
government, it would not be entrapment, even if the government provided him with a favorable
opportunity to commit the crime, or made the crime easier, or participated in the crime in some
way.
(4) It is sometimes necessary during an investigation for a government agent to pretend to be a
criminal, and to offer to take part in a crime. This may be done directly, or the agent may have
to work through an informant or a decoy. This is permissible, and without more is not
entrapment. The crucial question in entrapment cases is whether the government persuaded a
defendant who was not already willing to commit a crime to go ahead and commit it.
(5) The government has the burden of proving beyond a reasonable doubt that the defendant
was already willing to commit the crime prior to first being approached by government agents or
other persons acting for the government. Let me suggest some things that you may consider in
deciding whether the government has proved this:
(A) Ask yourself what the evidence shows about the defendant's character and reputation.
(B) Ask yourself if the idea for committing the crime originated with or came from the
government.
(C) Ask yourself if the defendant took part in the crime for profit.
(D) Ask yourself if the defendant took part in any similar criminal activity with anyone
else before or afterwards.
(E) Ask yourself if the defendant showed any reluctance to commit the crime and, if he
did, whether he was overcome by government persuasion.
(F) And ask yourself what kind of persuasion and how much persuasion the government
used.
(6) Consider all the evidence, and decide if the government has proved that the defendant was
already willing to commit the crime. Unless the government proves this beyond a reasonable
doubt, you must find the defendant not guilty.
Committee Commentary 6.03
(current through July 1, 2019)
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. Mathews v. United States, 485 U.S. 58, 62-63 (1988). See also United States v.
Nelson, 922 F.2d 311, 317 (6th Cir. 1990).
In defining predisposition, the Sixth Circuit relies on the five factors identified in United
States v. Nelson, 922 F.2d 311, 317 (6th Cir. 1990). See, e.g., United States v. Harris, 1995 WL
6220, 2-3, 1995 U.S. App. LEXIS 254, 6 (6th Cir. 1995) (unpublished) (quoting United States v.
McLernon, 746 F.2d 1098, 1112 (6th Cir. 1984)). Those five factors are: (1) the character or
reputation of the defendant; (2) whether the suggestion of the criminal activity was originally
made by the government; (3) whether the defendant was engaged in criminal activity for profit;
(4) whether the defendant evidenced reluctance to commit the offense but was overcome by
government persuasion; and (5) the nature of the inducement or persuasion offered by the
government. Nelson, supra at 317. These five factors appear in plain English terms in parts (A),
(B), (C), (E), and (F) of paragraph 5.
The pattern instruction adds a sixth factor, paragraph (D) (“Ask yourself if the defendant
took part in any similar criminal activity with anyone else before or afterwards.”). This addition
has been specifically approved by a panel of the Sixth Circuit. United States v. Stokes, 1993 WL
312009, 3, 1993 U.S. App. LEXIS 21414, 9 (6th Cir. 1993) (unpublished). In Stokes, the panel
explained that paragraph (D) concerns the evidence that may be considered when answering
whether predisposition existed, and that “a jury may look at evidence of the defendant’s
character both before and after his arrest. Ex post facto evidence is relevant because it may shed
light on whether defendant is the type of person who could commit the crime in question.” Id.
In Jacobson v. United States, 503 U.S. 540 (1992), the Court refined the predisposition
element, holding that to be convicted, a defendant must be predisposed to commit the criminal
act prior to first being approached by government agents. Jacobson, 503 U.S. at 549. The words
in paragraphs (3) and (5), “prior to first being approached by government agents or other persons
acting for the government,” are drawn from the Jacobson decision and from the modified
instruction approved in United States v. Smith, 1994 WL 162584, 4, 1994 U.S. App. LEXIS
9914, 11 (6th Cir. 1994) (unpublished).
In paragraphs (2), (3) and (5), the instruction refers to the question of whether the
defendant was “already willing” to commit the crime before being approached by government
agents. In Jacobson, the Court used the term “predisposed” as opposed to “already willing.”
503 U.S. at 549. The Committee decided to use the term “already willing” rather than
“predisposed” because the Sixth Circuit has approved the use of “already willing,” see United
States v. Sherrod, 33 F.3d 723, 726 (6th Cir. 1994), and because it is consistent with a plain
English approach.
In Mathews v. United States, 485 U.S. 58 (1988), the Supreme Court held that even if a
defendant denies one or more elements of the crime for which he is charged, he is entitled to an
entrapment instruction whenever there is sufficient evidence from which a reasonable jury could
find that the government entrapped him.
As long as the defendant shows a predisposition to commit an offense, governmental
participation in the commission of an offense by itself cannot be the basis of an entrapment
defense. United States v. Tucker, 28 F.3d 1420 (6th Cir. 1994); United States v. Leja, 563 F.2d
244 (6th Cir. 1977).
No instruction on entrapment need be given unless there is some evidence of both
government inducement and lack of predisposition. United States v. Nelson, supra, 922 F.2d at
317. It is the duty of the trial judge to determine whether there is sufficient evidence of
entrapment to allow the issue to go before the jury. If there is, then the burden shifts to the
government to prove predisposition. United States v. Meyer, 803 F.2d 246, 249 (6th Cir. 1986).
The government must prove beyond a reasonable doubt that the defendant was predisposed to
commit the crime. See, e.g., United States v. Jones, 575 F.2d 81, 83-84 (6th Cir. 1978).
The entrapment defense should not be confused with the defense of entrapment by
estoppel. See United States v. Blood, 435 F.3d 612 (6th Cir. 2006) (noting distinction between
the theories of the two defenses of entrapment and entrapment by estoppel). Entrapment by
estoppel is covered in Instruction 6.09.
A-8
GENERAL INSTRUCTIONS
6.04
6.04 ENTRAPMENT—ELEMENTS
The government has the burden of proving that the
defendant was not entrapped by [identify the actor[s]:
e.g., government agent, informant, law enforcement
officer]. The government must prove beyond a reasonable doubt either:
1. [A] [government agent[s]; informant[s]; [or] law
enforcement officer[s]] did not induce the defendant to
commit the offense; or
2. The defendant was predisposed to commit the
offense before he had contact with [government agent[s];
informant[s]; law enforcement officer[s]].
I will define what I mean by the terms “induce”
and “predisposed.”
Committee Comment
See United States v. Mayfield, 771 F.3d 417, 439–40 (7th Cir.
2014) (en banc).
126
CRIMINAL INSTRUCTIONS
6.05
6.05 ENTRAPMENT—DEFINITIONS OF TERMS
Definition of “induce”:
[A] [government agent[s]; informant[s]; law enforcement officer[s]] “induce[s]” a defendant to commit a
crime: (1) if [the] [agent[s]; informant[s]; [and/or] officer[s]] solicit[s] the defendant to commit the crime,
and (2) does something in addition that could influence
a person to commit a crime that the person would not
commit if left to his own devices. This other conduct
may consist of [repeated attempts at persuasion; fraudulent representations; threats; coercive tactics; harassment; promises of reward beyond what is inherent in
the usual commission of the crime; pleas based on need,
sympathy, or friendship; [insert specific other conduct
at issue;] [or] [any [other] conduct that creates a risk
that a person who would not commit the crime if left to
his own devices will do so in response to the efforts of
the [agent[s]; informant[s]; officer[s]].
[If the [agent[s]; informant[s]; officer[s]] merely initiated contact with the defendant; merely solicited the
crime; or merely furnished an opportunity to commit
the crime on customary terms, then the [agent[s];
informant[s]; officer[s]] did not induce the defendant to
commit the crime.]
Definition of “predisposed”:
A defendant is “predisposed” to commit the charged
crime if, before he was approached by [a] [government
agent[s]; informant[s]; law enforcement officer[s]], he
was ready and willing to commit the crime and likely
would have committed it without the intervention of
the [agent[s]; informant[s]; officer[s]], or he wanted to
commit the crime but had not yet found the means.
Predisposition requires more than a mere desire,
urge, or inclination to engage in the charged crime.
127
6.05
GENERAL INSTRUCTIONS
Rather, it concerns the likelihood that the defendant
would have committed the crime if [the] [agent[s];
informant[s]; officer[s]] had not approached him.
In deciding whether the government has met its
burden of proving that the defendant was predisposed
to commit the crime, you may consider the defendant’s
character [, or] reputation [, or] criminal history];
whether the government initially suggested the criminal activity; whether the defendant engaged in the
criminal activity for profit; whether the defendant
showed a reluctance to commit the crime that was
overcome by persuasion by the [agent[s]; informant[s];
officer[s]]; and the nature of the inducement or persuasion that was used.
Committee Comment
See United States v. Mayfield, 771 F.3d 417, 434–36 (7th Cir.
2014) (en banc); United States v. McGill, 754 F.3d 452 (7th Cir.
2014) (reversing conviction for failure to give entrapment
instruction). See also Jacobson v. United States, 503 U.S. 540 (1992)
(predisposition must exist prior to the government’s attempts to
persuade the defendant to commit the crime). Regarding predisposition, the en banc court emphasized in Mayfield that the relevant
inquiry is the defendant’s predisposition to commit the charged
crime, not just any crime. Mayfield, 771 F.3d at 438. In addition,
“although the defendant’s criminal history is relevant to the question of his predisposition, it’s not dispositive.” Id. (emphasis in
original).
Entrapment is, generally speaking, a question for the jury, not
the court. Id. at 439. “[T]he defendant is entitled to a jury instruction on the defense ‘whenever there is sufficient evidence from
which a reasonable jury could find entrapment.’ ’’ Id. at 440. “[T]o
obtain a jury instruction and shift the burden of disproving entrapment to the government, the defendant must proffer evidence on
both elements of the defense. But this initial burden of production
is not great. An entrapment instruction is warranted if the
defendant proffers some evidence that the government induced
him to commit the crime and he was not predisposed to commit it.
Id. (internal quotation marks and citations omitted).
Mayfield also addressed the question of whether the trial court
128
6.05
CRIMINAL INSTRUCTIONS
may, before trial, preclude the defendant from asserting an entrapment defense. The court stated:
Though this practice is permissible, it carries an increased
risk that the court will be tempted to balance the defendant’s
evidence against the government’s, invading the province of
the jury. In ruling on a pretrial motion to preclude the entrapment defense, the court must accept the defendant’s proffered
evidence as true and not weigh the government’s evidence
against it. This important point is sometimes obscured, subtly
raising the bar for presenting entrapment evidence at trial.
. . . The two elements of the entrapment inquiry are not
equally amenable to resolution before trial. Predisposition
rarely will be susceptible to resolution as a matter of law.
Predisposition, as we’ve defined it, refers to the likelihood that
the defendant would have committed the crime without the
government’s intervention, or actively wanted to but hadn’t
yet found the means. This probabilistic question is quintessentially factual; it’s hard to imagine how a particular person
could be deemed “likely” to do something as a matter of law.
The inducement inquiry, on the other hand, may be more appropriate for pretrial resolution; if the evidence shows that the
government did nothing more than solicit the crime on standard terms, then the entrapment defense will be unavailable
as a matter of law.
Id. at 440–41.
The instruction’s list of the types of actions that may constitute inducement includes “fraudulent representations,” as the
Seventh Circuit ruled in Mayfield. The court has not yet, however,
definitively defined what types of fraudulent representations may
qualify as the type of inducement giving rise to entrapment, as opposed to legitimate undercover investigation tactics. For this proposition, the court cited United States v. Burkley, 591 F.2d 903, 913
(D.C. Cir. 1978), which in turn notes that “not all fraudulent
representations constitute inducement” and provides examples of
some types that the D.C. Circuit believed would not qualify. Id. at
n.18 (internal quotation marks omitted). The court may, of course,
consider whether the evidence warrants making specific reference
to “fraudulent representations” or whether some other factor listed
in the instruction covers the type of inducement at issue (e.g., a
fake stash of drugs might be better characterized as a “promise of
reward,” a false suggestion of a gang reprisal might be better
characterized as a “coercive tactic,” etc.).
In addition, in a case in which an entrapment instruction is
129
GENERAL INSTRUCTIONS
6.05
given and Instruction 3.19 (Government Investigative Techniques)
is requested, consideration should be given to whether Instruction
3.19 should be reworded so that it does not implicitly modify or
undercut the entrapment instruction.
Regarding predisposition, if evidence of the defendant’s
character or criminal history is introduced, the court should
consider giving a limiting instruction confining the use of the evidence to determination of predisposition and precluding its use for
other purposes.
130
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Page 799
FINAL INST.: DEFENSES/THEORIES OF DEF.
9.01
9.01 ENTRAPMENT1
One of the issues in this case is whether the
defendant was entrapped. The [government] [prosecution] has the burden of proving beyond a reasonable
doubt that the defendant was not entrapped by showing either: (1) the defendant was willing to commit
(insert description of crime charged) before [he] [she]
was approached or contacted by law enforcement
agents2 or someone acting for the government; or (2)
the government, or someone acting for the government,
did not persuade or talk the defendant into committing
(insert description of crime charged). If you find that
the [government] [prosecution] proved at least one of
these two things beyond a reasonable doubt, then you
must reject the defendant's claim of entrapment. If you
find that the [government] [prosecution] failed to prove
at least one of these two things beyond a reasonable
doubt, then you must find the defendant not guilty.
The law allows the government to use undercover
agents, deception, and other methods to present a
person already willing to commit a crime with the opportunity to commit a crime, but the law does not allow
the government to persuade an unwilling person to commit a crime. Simply giving someone a favorable opportunity to commit a crime is not the same as persuading [him] [her].
Notes on Use
1. When this instruction is submitted, the government's
burden of proof that the defendant was not entrapped must be
included in the elements instruction. See Instruction 3.09, supra.
This instruction should immediately follow.
2. The Committee recommends that the law enforcement officer or agent who had contact with the defendant or who is shown
by evidence to be responsible for inducing the defendant to commit
a criminal act, designing the criminal act, etc., be identified by
name and that his capacity as governmental agent, informant,
717
Page 800
9.01
CRIMINAL INSTRUCTIONS
etc., be described. If “agency,” rather than the conduct of an admitted agent, is an issue, a supplement to this instruction may be
required.
Committee Comments
This instruction has been revised to conform to Jacobson v.
United States, 503 U.S. 540, 547 n.1 (1992), which clarified the issue of “timing.” Jacobson held that the government must prove
that the defendant was disposed to commit the criminal act prior
to first being approached by governmental agents. Id., n.2; United
States v. Loftus, 992 F.2d 793 (8th Cir. 1993).
For general discussions of the law of entrapment, see United
States v. Norton, 846 F.2d 521 (8th Cir. 1988), and United States v.
Dion, 762 F.2d 674 (8th Cir. 1985). “The purpose behind the
entrapment defense is to prevent law enforcement officers from
manufacturing crime.” United States v. Hinton, 908 F.2d 355, 358
(8th Cir. 1990). The focus of the entrapment defense, however, is
on the intent or predisposition of the defendant to commit the
crime, rather than upon the conduct of the government's agents.
Hampton v. United States, 425 U.S. 484, 488 (1976). Even after
Jacobson, a defendant's ready response to an opportunity to commit an offense may show (1) that there was no “inducement,” as
well as (2) that the defendant was independently predisposed to
commit the offense. See, e.g., United States v. LaChapelle, 969 F.2d
632 (8th Cir. 1992).
“Entrapment is an affirmative defense which consists of two
elements: government action to induce or otherwise cause the
defendant to commit the crime, and the defendant's lack of
predisposition to commit the crime.” United States v. Pfeffer, 901
F.2d 654, 656 (8th Cir. 1990) (citing United States v. Foster, 815
F.2d 1200, 1201 (8th Cir. 1987)). A defendant is entitled to an
entrapment instruction when there is “sufficient evidence from
which a reasonable jury could find entrapment.” United States v.
Felix, 867 F.2d 1068, 1074 (8th Cir. 1989) (quoting Mathews v.
United States, 485 U.S. 58, 61 (1988)); see also United States v.
Kutrip, 670 F.2d 870, 877 (8th Cir. 1982). Cf. United States v.
Osborne, 935 F.2d 32, 38 (4th Cir. 1991) (seldom, if ever, appropriate to decide prior to trial that the defendant is not entitled to an
entrapment instruction). (For a list of evidentiary factors that may
assist in determining whether an entrapment instruction is appropriate, see United States v. Dion, 762 F.2d at 687–88.) The
government is not required to prove predisposition unless there is
evidence of government inducement to commit the offense. To show
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Page 801
FINAL INST.: DEFENSES/THEORIES OF DEF.
9.01
inducement, there must be evidence of government conduct creating “a substantial risk that an undisposed person . . . would commit the offense.” United States v. Loftus, 992 F.2d at 798; United
States v. Stanton, 973 F.2d 608, 609 (8th Cir. 1992).
When entrapment is an issue to be resolved, it is ordinarily for
the jury. United States v. Hinton, 908 F.2d at 357; United States v.
Pfeffer, 901 F.2d at 656; United States v. Williams, 873 F.2d 1102,
1104 (8th Cir. 1989). A finding of entrapment as a matter of law,
followed by judgment of acquittal, is appropriate when the evidence clearly shows (1) that the government induced the defendant
to engage in the criminal conduct, and (2) that the defendant
lacked the necessary predisposition to perform the criminal
conduct. United States v. Crump, 934 F.2d 947, 956 (8th Cir. 1991);
United States v. Hinton, 908 F.2d at 357; see also United States v.
Pfeffer, 901 F.2d at 656. The court of appeals stated in Crump, 934
F.2d at 956, that the government's failure to establish the
defendant's predisposition will result in reversal of a conviction
only when the evidence clearly indicates:
“[t]hat a government agent originated the criminal design;
that the agent implanted in the mind of an innocent person
the disposition to commit the offense; and that the defendant
then committed the criminal act at the urging of the
government.” United States v. Beissel, 901 F.2d 1467, 1469
(8th Cir. 1990) (quoting United States v. Resnick, 745 F.2d
1179, 1186 (8th Cir. 1984)).
“The issue of whether an informant should be considered a
government agent is generally an issue of fact for the jury.” United
States v. York, 830 F.2d 885, 889 (8th Cir. 1987) (citing United
States v. Hoppe, 645 F.2d 630, 633 (8th Cir. 1981)). The entrapment defense does not extend to inducement by private citizens
unless they are acting as agents of the government. United States
v. Leroux, 738 F.2d 943, 947 (8th Cir. 1984). For a discussion of issues associated with activities of “private agents,” standing to
raise the entrapment defense, and “indirect entrapment,” see United
States v. Neal, 990 F.2d 355 (8th Cir. 1993); Marcus, The Entrapment Defense, §§ 802 and 803 (1989).
Mathews v. United States, 485 U.S. 58 (1988), holds that a
defendant who denies the commission of the crime may nevertheless assert and have the jury instructed on the inconsistent defense
of entrapment. However, for the defendant to be entitled to an
instruction under these circumstances, there must be sufficient evidence from which a jury could find entrapment. United States v.
Felix, 867 F.2d at 1074 n.11.
719
Page 802
9.01
CRIMINAL INSTRUCTIONS
“Outrageous government conduct” in procuring the commission of an offense which would amount to a violation of due process, is frequently discussed, but infrequently (if ever) established.
See Gunderson v. Schlueter, 904 F.2d 407, 410 n.8 (8th Cir, 1990);
United States v. Ford, 918 F.2d 1343, 1349 (8th Cir. 1990), and
United States v. Musslyn, 865 F.2d 945 (8th Cir. 1989). A claim of
“outrageous conduct” is addressed to the court; no jury submission
on the issue is required. United States v. Dougherty, 810 F.2d 763,
770 (8th Cir. 1987); United States v. Quinn, 543 F.2d 640 (8th Cir.
1976). The Eighth Circuit has acknowledged that “sentencing
entrapment” may arise where outrageous official conduct has
overcome the predisposition of a defendant to commit only lowquantity, low-value (thus lower offense level) crimes by inducing
such a person to commit greater crimes subject to greater punishment under the Sentencing Guidelines. United States v. Nelson,
988 F.2d 798, 809 (8th Cir. 1993); United States v. Stein, 973 F.2d
600, 602 (8th Cir. 1992). These cases only recognize the possibility
of “sentencing entrapment;” the opinions did not find it to exist. As
a sentencing issue, “sentencing entrapment” would not be submitted to the jury.
A related issue may arise when the government agent engages
in the conduct which forms the only basis for federal jurisdiction.
See United States v. Coates, 949 F.2d 104 (4th Cir. 1991). Such issues are usually for the court and not a matter for jury instructions.
“Entrapment by estoppel” is a defense based on advice from a
government official that certain conduct is legal. The defendant
has the burden to establish that he was misled by the statements
of a government official into believing his conduct was lawful. United
States v. Austin, 915 F.2d 363 (8th Cir. 1990). The issue of “entrapment by estoppel” is a jury issue; however, Model Instruction 9.01
does not describe the defense. Cf., the proposed (but not approved)
instruction, in United States v. LaChapelle, 969 F.2d at 637.
720
A-10
6.2 ENTRAPMENT
The defendant contends that [he] [she] was entrapped by a government agent. The
government has the burden of proving beyond a reasonable doubt that the defendant was not
entrapped. The government must prove either:
1.
the defendant was predisposed to commit the crime before being contacted by
government agents, or
2.
the defendant was not induced by the government agents to commit the crime.
When a person, independent of and before government contact, is predisposed to commit
the crime, it is not entrapment if government agents merely provide an opportunity to commit
the crime. In determining whether the defendant was predisposed to commit the crime before
being approached by government agents, you may consider the following:
1.
whether the defendant demonstrated reluctance to commit the offense;
2.
the defendant’s character and reputation;
3.
whether government agents initially suggested the criminal activity;
4.
whether the defendant engaged in the criminal activity for profit; and
5.
the nature of the government’s inducement or persuasion.
In determining whether the defendant was induced by government agents to commit the
offense, you may consider any government conduct creating a substantial risk that an otherwise
innocent person would commit an offense, including persuasion, fraudulent representations,
threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or
friendship.
Comment
When there is evidence of entrapment, an additional element should be added to the
instruction on the substantive offense: for example, “Fourth, the defendant was not entrapped.”
A defendant need not concede that he or she committed the crime to be entitled to an
entrapment instruction. United States v. Derma, 523 F.2d 981, 982 (9th Cir. 1975); cf. United
States v. Paduano, 549 F.2d 145, 148 (9th Cir. 1977). Only slight evidence raising the issue of
entrapment is necessary for submission of the issue to the jury. United States v. Gurolla, 333
F.3d 944, 951 (9th Cir. 2003).
The government is not required to prove both lack of inducement and predisposition.
United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995) (“If the defendant is found to be
107
predisposed to commit a crime, an entrapment defense is unavailable regardless of the
inducement.”); United States v. Simas, 937 F.2d 459, 462 (9th Cir. 1991) (in absence of
inducement, evidence of lack of predisposition is irrelevant and the failure to give a requested
entrapment instruction is not error).
There are a number of Ninth Circuit cases describing the five factors that should be
considered when determining “predisposition.” See, e.g., United States v. Mohamud, 843 F.3d
420, 432-35 (9th Cir. 2016); United States v. Gurolla, 333 F.3d at 956, United States v. Jones,
231 F.3d 508, 518 (9th Cir. 2000).
The government must prove that the defendant was predisposed to commit the crime
prior to being approached by a government agent. Jacobson v. United States, 503 U.S. 540, 553
(1992). However, evidence gained after government contact with the defendant can be used to
prove that the defendant was predisposed before the contact. Id. at 550-53; see also United
States v. Burt, 143 F.3d 1215, 1218 (9th Cir. 1998) (previous Ninth Circuit Entrapment
Instruction 6.02 erroneous “because it failed to state clearly the government’s burden of
establishing ‘beyond a reasonable doubt that the defendant was disposed to commit the criminal
act prior to first being approached by the [g]overnment agents.’” (citing Jacobson, 503 U.S. at
549). The Ninth Circuit has stated that an entrapment instruction should avoid instructing the
jury that a person is not entrapped if the person was “already” willing to commit the crime
because of the ambiguity resulting therefrom. United States v. Kim, 176 F.3d 1126, 1128 (9th
Cir. 1993).
The final paragraph of the instruction, explaining inducement, appears repeatedly in the
case law. See, e.g., United States v. Williams, 547 F.3d 1187, 1197 (9th Cir. 2008) (quoting
United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994)).
See United States v. Spentz, 653 F.3d 815, 819-20 (9th Cir. 2011) (no abuse of discretion
in denying defendant’s request for entrapment jury instruction when only inducement for
committing crime, other than being afforded opportunity to do so, is typical benefit from
engaging in criminal act such as proceeds from robbery). When a case presents a Spentz issue,
the Ninth Circuit has suggested adding the following language:
It is not entrapment if a person is tempted into committing a crime solely on the
hope of obtaining ill-gotten gain; that is often the motive to commit a crime.
However, in deciding whether a law enforcement officer induced the defendant to
commit the crime, the jury may consider all of the factors that shed light on how
the officers supposedly persuaded or pressure the defendant to commit the crime.
United States v. Cortes, 732 F.3d 1078, 1087 (9th Cir. 2013).
When the propriety of a government agent’s conduct is an issue, see Instruction 4.10
(Government’s Use of Undercover Agents and Informants).
Approved 9/2018
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1.27
ENTRAPMENT
As a defense to the crimes charged in the indictment, the
defendant has asserted that he was entrapped.
The defendant was entrapped if
—
the idea for committing the crime(s) originated with
government agents, and
—
the government agents then persuaded or talked the
defendant into committing the crime(s), and
—
the defendant was not already willing to commit the
crime(s).
When a person has no previous intent or purpose to violate the
law, but is induced or persuaded by officers or agents to commit a crime,
he is entrapped and the law, as a matter of policy, forbids his conviction
in such a case. On the other hand, when a person already has the
readiness and willingness to violate the law, and the officers or agents
merely provide him with an opportunity to commit the crime and do so
even by disguise or ruse, there is no entrapment.
In order to return a verdict of guilty as to [the defendant] for the
crime(s) of [name crime or crimes charged], you must find beyond a
reasonable doubt that the defendant was not entrapped.
[Add as appropriate:
For purposes of this case, [ ], the informant, was an agent of
the law enforcement officers.]
Comment
The Committee has chosen not to use the word "predisposition" as it
sounds overly technical and thus may be confusing to the average juror.
This instruction is based on United States v. Scull, 321 F.3d 1270,
1274-76 (10th Cir. 2003), and United States v. Cerrato-Reyes, 176 F.3d 1253,
1262-63 (10th Cir. 1999) (and Tenth Circuit cases cited therein).
To establish a defense of entrapment, Scull seems to require proof of
more than persuasion by the government agent. "'Inducement' is 'government
41
conduct which creates a substantial risk that an undisposed person or
otherwise law-abiding citizen would commit the offense.'" 321 F.3d at 1275
(quoting United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986)).
Inducement is neither established by evidence of solicitation, standing alone,
nor "'by evidence that the government agent initiated the contact with the
defendant or proposed the crime.'" Id. (quoting Ortiz, 804 F.2d at 1165).
42
A-12
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.