Respondents Brief — Mathews v. United States

No. 86-4108

Iu the Supreme Court of th

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OLESTION PRESENTED

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STATUTORY PROVISION INVOLVED

18 U.S.C. 201(2) provides:

Whoever, being a public official, former pub-

lic official, or person selected to be a public ofh

cial, otherwise than as provided by law for the

roper discharge of official duty, directly or in-

directly asks, demands, exacts, solicits, seeks,

accepts, receives, or agrees to receive anything

of value for himself for or because of any official

act performed or to be performed by him;

Shall be fined not more than $10,000 or im-

prisoned for not more than two years, or both.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Wisconsin, peti-

tioner was convicted of accepting a gratuity as a

public official, in violation of 18 U.S.C. 201l(¢). He

was sentenced to a three-year term of probation. The

court of appeals affirmed (Pet. App. 101-108).

1. The government’s evidence at trial established

that petitioner was responsible for administering the

so-called “SA program” of the Small Business Ad-

ministration (SBA) in Milwaukee, Wisconsin. That

program was designed to aid small businesses owned

by minorities and economically disadvantaged indi-

viduals. Under the program, the SBA would obtain

government contracts and subcontract them to par-

ticipating firms; it also would provide assistance to

the firms in performing the contracts, and when nec-

essary it would help participating firms obtain pay-

ment in advance of performance. Pet. App. 102; Tr.

124-125, 127-128, 130-131, 136-137. Until the time

of his arrest on April 24, 1985, petitioner had pri-

mary responsibility for obtaining 8A program con-

tracts and advance payments for SBA client firms in

Milwaukee, and for assisting those firms with the

associated paperwork. Tr. 124-125, 127, 151, 15o-

137.

One of the long-term participants in the 8A pro

cram was Midwest Knitting Mills (Midwest). As

early as 1979, petitioner had assisted Midwest's

president, James DeShazer, in obtaining financit

for his company (J.A. 116). By 1983, petitioner was

Midwest’s principal contact at the SBA (id. at 10-

ll). Yet beginning in 1982, petitioner repeated);

asked DeShazer for money. When DeShazer was

seeking bank financing in that year, petitioner de-

manded a $1,200 payment to “get you a bank”

(J.A. 16). DeShazer did not make that payment, but

in February 1983 petitioner called DeShazer to re

quest a $1,500 loan, which petitioner said he needed

to help pay his daughter’s college expenses. DeShazer

made the loan, which was not repaid (id. at 16-18)

Later that year, petitioner requested an additional

$1,200 loan to help meet his mortgage payments.

DeShazer again lent the money to petitioner, and

again was not repaid (id. at 18-19).

In February 1984, petitioner and DeShazer met

discuss Midwest’s failure t receive advance

ments from the SBA that were necessary for the

formance of its contracts. At that meeting, petitioner

asked DeShazer for a $3,000 personal loan (J.4. 12

15). Although DeShazer refused to make the pay-

ment at that time, petitioner repeated his request fo

the money on several occasions between February

1) ~ >) ( rn? p (>? ? dd Tig? Si) 198

{ J \ ‘()) he te? t . | Or These ? T

1984 ‘ ~ TT) ry) [) Q} y Tif ’ ) fT.

q : ‘ mm f i pe one on | f rel

i

and July of 1984 (id. at 20, 85, 94). During that

same period, DeShazer noted that petitioner had

failed to process his requests for payment on Mid-

west’s 8A contracts (id. at 27). In October 19354,

DeShazer complained to representatives of the De-

fense Department, one of his customers, that he be-

lieved he was being denied advance payments because

he would not make payoffs to petitioner (id. at 23-

24). The Defense Department in turn reported this

allegation to the Federal Bureau of Investigation

(FBI), which in early 1985 asked DeShazer to assist

an investigation by recording his conversations with

petitioner. DeShazer agreed. /d. at 25-27.

DeShazer and petitioner met in February 1985

(J.A. 29). At that meeting, DeShazer offered peti-

tioner the $4,200 he had previously requested if

petitioner would agree to process Midwest’s applica-

tion for advance payments.’ DeShazer told petitioner

that he “want[fed] to give you that forty-two hun-

dred dollars, if you can assure me that this is going

to solve my problems.”’ Petitioner responded: “sure,

I am sure that I can co that,” adding that the pavy-

ment would “solve the problem.” J.A. 30-31. In the

following weeks, petitioner and DeShazer spoke many

times about Midwest’s financial problems (id. at 32).

The two met again on April 8 in DeShazer’s car.

After a discussion of DeShazer’s prospects for obtain-

ing financing for his company, petitioner asked,

“what can you do for me?” (see id. at 125; Tr. 508).

Petitioner then referred to DeShazer’s statement in

February of that year that he had recently come into

a large sum of money. DeShazer responded that he

The $4,200 represented the $1,200 petitioner had requested

n 1982 and the $3,000 he had requested in February 1984

would pav petitioner in two installments of $2,100

each And DeShazer agall ( ‘pla ned to pet tione

“the critical situation that I was in, * * * I kept

saying, ate you voing to, can You tel] me once GO

this. this nightmare that I have is over? And he told

me that it would be.” /d. at 33-59.

Petitioner and DeShaz " OK ry tele} ne

April 25. LOSS. and agree that DeShazer would

\fter an exchange of calls the following mom in

they agreed to meet in a hotel restaurant (id. at 99-

101). At the hotel, petitioner asked for the money

after obtaining petitioner's assurances that the pay

ment would end Midwest’s financiai problems, Di

Shazer passed the money under the table (7d. at 4%

19) Petitioner was arrested as he left

9 At the outset of trial, the district court rule

that petitioner would not be nermitted to argue et}

trapment as a defense The court explained that a

defendant is entitled t a ue ent ment n| I

“concede! s | that what he lid Vas Wron ~ £2.25 > )

Because petitioner denied accepting the payment fro

DeShazer for the performance of his official duties

: ; . , —

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and thus denied having the requisite mental state fo

» ¢ ; » 4 ° . ‘ ¢ ' .

violation of 18 U.S.C. 201(¢) tne court ruied tnat

| | | , » "

nNeril oner cout not rery (>? eat cegtTel ~ tH QO] eENnNTranp

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ment (id. at 5-4) he cou

pet tioner "TO seus. ¢( IL? | t Lneor"

the acts of the |petitioner| were

ment, Mr. DeShazer, and to develo}

of [his] first line of defense” at tri:

Petitioner subsequently testified

disputed some of the particulars of

Case, he acknowled; ec| t} al he had

from DeShazer in 1985 (J.A. 119)

edged t hat he had accepted DeShazer’

in February 1985 “¥ at 122); thi

sub ect was br ache: subsequenth

that he was “‘|still] thames in” the

procure

yt that as

the governn

He also acl

S otteay

at when

125): and that he had brought up the topic of

Shazer's — ” their April & meeting, stating

‘he would s he willing to accept” the mon

at 125: see ") at 123: Tr. 508-509). Petitione)

acknowledged that his discussions

about the payment generally followes

west’s financial problems. J.A 124-125, AE

S? 100

50%. And petitioner conceded that

from DeShazer in an _ under-the-t

April 24, 1985, while telling DeShaz

the payment to anyone (J.A. 126-127

contended, however, that he had vi

|

a personal one that Was not connect

th DeSha

| talk about

he took

ance of his job (id. at 127-150). He attribut

two-month delay between the origi?

s of the Govern-

overt acts of this princip|/al] witnes:

par

vent’ =

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Mid-

TI

able payn nent on

er not to ment ]

129). Petitione

{ vec the al

ec LO tne periorm-

Ti

Lne

loan and the delivery of the money to his doubts

DeShazer actually had the money or was “really sin-

eere about the loan” (id. at 126: see id. at 122, 128,

125, 126).

At the close of the evidence the district court de-

clined to give an entrapment instruction. Petitioner

arcued that the court’s ruling on that issue was a

eround for a mistrial. The government opposed 1

motion for two reasons, arguing (1) that a defenda1

may not both deny commission of the offense and

argue entrapment, and (2) that petitioner had not

in any event, adducea . “ -ient evidence of entrap-

ment to warrant an instruction on the issue (T)

622). The district court found it unnecessary to

address the government’s second argument. Instead

the court ruled that petitioner was not entitled to an

entrapment instruction because he “elected * * * to

deny the intent and the other elements in the |[of-

fense]” (J.A. 131). The court went on to note, how-

ever, that the evidence of entrapment was “shaky at

best.” adding that “it would normally require more

evidence than what is presently in the record on

which to predicate an entrapment instruction”

(ibid.). The jury returned a verdict of guilty

3. The court of appeals affirmed, holding that peti-

tioner was not entitled to raise an entrapment de-

fense (Pet. App. 101-108).° The court explained that

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SUMMARY OF ARGUMENT

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1 f erense i entrapme na e

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rey e) e (,overnmen nlavs O he Weak-

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at Lp , . . rs nar , Bal heo 1] PS nmvry 1%

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m1! rimes which he otherwise would n

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na rTemnNteé She (1) \ / red STOTT ¢ oH

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mar Oy tral ry’ < ? ? aT . ‘arel™ ry | oY ry y's tect . .

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wert ry > tines tar} le , ry) a ’ ’ T

) » lack a predispositior

ry?) VY ’ ’ ’ vy . , *) . y isa +« +> +} +

{) ‘ ‘ ir ove roearing HOLICe At ics :

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ir ice Cl Inai DenNavior On tne part Ol

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ens nus NaS LWO con Its ne crime must Nave

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9

The courts have uniformly held that the govern-

ment may be said to have induced an offense only if

the police behavior was such that it would likely have

overborne “a law-abiding citizen’s will to obey the

law.” United States v. Kelly, 748 F.2d 691, 698

(D.C. Cir. 1984). Simple solicitation or initiation of

the crime by the government plainly does not fall

within this category, since “ ‘solicitation by itself is

not the kind of conduct that would persuade an other-

wise innocent person to commit a crime’” United

States v. Burkley, 591 F.2d 903, 912 (D.C. Cir. 1978)

(citation omitted), cert. denied, 440 U.S 966 (1979).

Instead. as this Court’s holdings suggest, inducement

can be made out only if the government used coercion

or some other sort overbearing conduct to instigate

the offense. Conversely, a defendant who is predis-

posed—whose “criminal conduct was due to his own

readiness and not to the persuasion of government

agents” (Sherman, 356 U.S. at 376-377)—cannot

claim entrapment. And obviously, the surest indica-

tion of this sort of predisposition is the defendant’s

unhesitating acceptance of the government’s criminal

offer.

Because entrapment is an affirmative defense, it

need not be submitted to the jury unless the defend-

ant makes a threshold showing of inducement and

lack of predisposition. Petitioner plainly failed to

make such a showing in this case. The “inducement”’

here was a simple criminal proposition: the govern-

ment’s agent offered petitioner cash in return for

official action. This is hardly the sort of conduct that

would have overborne the will of a normally law-

abiding person. At the same time, absolutely nothing

in petitioner’s reaction to the proposal suggests that

he was not predisposed. To the contrary, petitioner's

y .

eager acceptance of the offer mack r be

, ’ ] ' - , ec WU ) S } 4

SPWULA JF ULES v¥ t i

» reai al I Wi sit. ¥ eat it 1) ‘ li ~~ I I!

YY ++ +} e aa nce T’) ty ad Si 1teR R ‘ 26 " }- 2 } G 5.

-~ -— ‘ , * . , a 5 . ° } . p + +

Gi (Yq { a. 1966). Because t! = evidence cll )

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[ is Was SLLLiiCie {) ~—¢ ‘ r roar

5 | } . |

al Té riS€ the (*/ urts re ov were eCorrec ) nei | y 0 Tt? al

etitioner was not e! ed to a 1? mst} ale)

entrapment.

B Petitioner was not e) titled ti an e) + yr ry) <

instruction for a second, independent reason: his ex-

s | ° , | . . >. J . al . :

press denial ot the crime was inconsistent W nis

simultaneous claim that he was entrapped into com-

mitting it. The court below, like a majorit * tl

courts of appeals, wil! not permit a defendan

to testify that he did not commit the crime, and

the same time to argue that the government e!

trapped him. This “inconsistency rule” is a sound

one.

Entrapment is a nonconstitutional affirmative ce-

fense that relieves the defendant of liability for what

otherwise would be a crime. Because the law of en-

trapment is not governed by any constitutional prin-

ciple, and because Congress has not enacted legisla-

tion affecting the defense in any way, the administra-

tion of the entrapment defense has remained prin-

cipally the responsibility of the courts. The courts,

in turn, have applied the defense in a way that is

consistent with its underlying purposes and that

furthers accuracy in the truth-seeking process. Ap-

mnlying their authority to shape the ertrapment de-

fense according to these principles, a great majority

of the courts of appeals have concluded that withhold-

ing the defense from defendants who testify that

they did not commit the crime accords most fully

\ t+} +} y Ti) ? 1) . ‘

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rT) ] \ VW is ‘ \ ) t-i Ogi (Fel ZO

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TL. +] i lent ior "7 mont f +}

When the defendant denies an element of the ol-

' } b a : <7 : lh « aC + yr

fense. he effectively testifies that he was not entrap-

ped: if he nevertheless is permitted to argue entrap-

ment, he will ask the jury to acquit him on a view of

the facts that he himself has testified is not true.

But a defendant, who has no right to present false

testimony, may fairly be held to the story that he

tells under oath. And if the defendant is expected

to tell the truth when he testifies, there is no justifi-

cation for permitting him to seek a windfall acquittal

on grounds that are inconsistent with his stated view

of the facts. In this case, because petitioner testified

that he did not commit the crime, he was not en-

titled to an entrapment instruction.

ARGUMENT

PETITIONER WAS NOT ENTITLED TO A JURY IN-

STRUCTION ON THE DEFENSE OF ENTRAPMENT

The government’s evidence at trial revealed that an

informant, DeShazer, made a simple criminal pro-

posal te which petitioner readily acquiesced. Testify-

ing on his own behalf, petitioner acknowledged that

he unhesitatingly accepted DeShazer’s offer of money:

he maintained, however, that he took the payment as

a personal loan, rather than as recompense for offi-

cial services. On this record, two independent rea-

sons supported the decisions of the courts below to

deny petitioner an entrapment instruction. An in

formant’s simple offer of a criminal proposition is

not the sort of government action that has ever been

understood to amount to entrapment. Because peti-

tioser could point to no more than that in this case,

12

he failed to make the threshold showing necessary to

justify an instruction on the affirmative defense. At

the same time, petitioner’s attempt both to deny the

crime and to argue that the government entrapped

him into committing it—-in effect, stating that “I

didn’t do it, and anyway the government made me do

it’’—is inconsistent with this Court’s admonition that

a criminal trial is ultimately “a search for truth.”

Nix v. Whiteside, No. 84-1321 (Feb. 26, 1986), slip

op. 8.

A. The Evidence At Trial Was Insufficient To Raise an

Entrapment Defense

1. The affirmative defense of entrapment may be

invoked “when the Government plays on the weak-

nesses of an innocent party and beguiles him into

committing crimes which he otherwise would not

have attempted.” Sherman vy. United States, 356

U.S. 369, 376 (1958). See Sorrells v. United States,

287 U.S. 435, 446-448 (1932). The doctrine, as

Judge Learned Hand exp/=ined more than 50 years

ago, “derives from a spontaneous moral revulsion

against using the powers of government to beguile

innocent, though ductile, persons into lapses which

they might otherwise resist.’”’ United States v. Becker,

62 F.2d 1007, 1009 (2d Cir. 1933). But because the

loct"ine was created as a “spontaneous” response to

particular prosecutions—and, perhaps, because the

entrapment defense is not grounded in the Constitu-

tion,® in the common law,” or in any explicit state-

‘See [’nited States Vy. Russe i, 411 U.S. 123, 133 (1978).

‘Entrapment is not recognized as a defense in England

(see Barlow, Entrapme nt and the Common Law: Is The rea

Place for the American Doctr inc of Entranment, 41 Mod. L.

Rev. 266 (1978): Defeo, Entrapment as a Defense to Criminal

}

ment by Congress the Court has never expressi)

articulated either its purposes or its .oundaries. 5e

Seidman, The Supreme Court, Entre vent, and Our

Criminal Justice Dilemma, 1981 Sup Ct. Rev. 111,

127.

It nevertheless is clear from the Court’s treatment

of entrapment claims that two considerations w der-

lie the entrapment doctrine. First. the Court has

concluded that defendants who are induced to commit

crimes by overbearing government conduct- ~lefend

ants repeatedly described by the Court as “unwary

innocents” (Sherman, 356 U.S. at 372) who lack a

preexisting “disposition to commit the alleged of-

fense” (Sorrells, 287 U.S. at 442)—are in some

sense less culpable than other persons who engage in

riminal conduct. Second, the Court has viewed as

undesirable those police tactics that are likely to in-

duce criminal behavior on the part of otherwise law-

abiding persons. Such tactics are offensive because

they can lead to criminal activity by (and the imposi-

Responsibility: Its History, Theory and Application, 1

U.S.F. L. Rev. 243, 247 (1967)), and was rejected by Amer!

an courts in the nineteenth and early twentieth centuries

(see, e.g., People v. Mills, 178 N.Y. 274, 70 N.E. 786 (1904) )

»A majority of the Court has found the entrapment de

fense implicit in criminal statutes, reasoning that it could not

have been “the intention of the Congress in enacting [a given}

tatute that its processes of detection and enforcement should

be abused by the instigation by government officials of an act

on the part of persons otherwise innocent in order to lure

them to its commission and to punish them.” Sorrells, 28%

U.S. at 446-448. See Sherman, 356 U.S. at 372

1 See also United States v. Russell, 411 U.S. at 434-435;

Sherman, 356 U.S. at 376; Sorrells, 287 U.S. at 442, 446-448

14

tion of criminal sanctions against) persons who, if

left to their own devices, might not have violated the

law. See Park, The Entrapment Controversy, 60

Minn. L. Rev. 163, 244 (1976).

As the Court has recognized, neither of these con-

siderations, standing alone, is sufficient to defeat a

prosecution, and neither is fully served by the en-

trapment doctrine in its current form.’* When both

considerations are present in a single case, however—

when the defendant is an “unwary innocent” and the

police tactics that induce the crime are overbearing—

the Court has concluded that the defense may be in-

voked. In a case where coercive government tactics

are directed against persons lacking the predisposi-

tion to commit a crime, the Court has reasoned, the

resulting “criminal conduct [is] ‘the product of the

creative activity’ of law enforcement officials,” and

therefore should not be punished. Sherman, 356 U.S.

12 On the one hand, persons who are induced to commit crim-

inal acts by third parties are not ordinarily regarded as non

culpable: a person led into criminal conduct by a private

actor rather than by a government agent may not claim ¢

trapment, or for that matter argue that his conduct is “less

criminal” because it was induced by another. Sherman, 356

U.S. at 380 (Frankfurter, J., concurring in the result). See

l’nited States v. Rhodes. 713 F.2d 463. 467 (9th Cir.), cert.

denied, 464 U.S. 1012 (1982); United States v. Perl, 584 F.2d

1316, 1320-1321 (4th Cir. 1978), cert. denied, 459 U.S. 1150

(1979): Holloway v. United States, 432 F.2d 775, 776 (10th

Cir. 1970). On the other hand, it is impossible to determine

in any given case whether a defendant would have remained

law-abiding had it not been for the government inducement,

since “the very fact that an entrapped defendant accepts an

nducement conclusively proves that he poses a risk of con

mitting the offense whenever a similar inducement might

be oftered in the future.” Seidman, supra, 1981 Sup. Ct. Rev.

at 141.

15

at 372 (quoting Sorrells, 287 U.S. at 451) (emphasis

added in Sherman). See United States y. Russell,

411 U.S. at 435-436. See generally Park, supra, 60

Minn. L. Rev. at 240-242. The Court’s application of

the entrapment doctrine, in Judge McGowan’s words,

has thus been directed at “protecting the otherwise

unpredisposed defendant” from police tactics caleu-

lated to lead law-abiding persons into crime. United

States v. Burkley, 591 F.2d 903, 912 (D.C. Cir.

1978), cert. denied, 440 U.S 966 (1979)”

2. The policies served by the entrapment doctrine

dictate the two elements that must be present to make

out an entrapment claim: government inducement

and a lack of predisposition to engage in the criminal

conduct. These elements are, of course, closely re-

lated. The nature of a defendant’s response to an

inducement—his readiness to commit the crime at

the government’s invitation—obviously bears on

whether he is predisposed, rather than an undisposed

“innocent.” The nature of the inducement, in turn,

may help dictate the defendant’s response. See

United States v. Hunt, 749 F.2d 1078, 1085 n.9 (4th

Cir. 1984), cert. denied, 472 U.S. 1018 (1985);

18 The Court has made it clear that “the principal element

in the defense of entrapment” is “the defendants’s predispo-

sition to commit the crime” (Russell, 411 U.S. at 433). In

deed, a finding that the defendant was predisposed is fatal to

an entrapment defense. See id. at 436; Hampton v. United

States, 425 U.S. 484, 488-489 (1976) (plurality opinion); id.

at 492 n.2 (Powell, J., concurring in the judgment). See gen-

erally United States Vv. Ortiz, 804 F.2d 1161, 1165 (10th Cir.

1986): United States V. Dion, 762 F.2d 674, 684 (Sth Cir.

1985), rev’d on other grounds, No. 85-246 (June 11, 1986);

linited Staies Vv. Hunt, 749 F.2d 1078, 1085 (4th Cir. 1984),

cert. denied, 472 U.S. 1018 (1985).

/ nited States

Nations. 764 F.2d 1073, 1079 (5th

> - ) ] . r . ‘ ; 14 .« 1.

Cir. 1985). Both elements therefore are ultimate!)

concerned with

ernment “implant[ed] in the mind of an innocent

son the disposition to commit the al

lle Ag

(Sorrells, 287

A

the single question whether the POV-

—~

i

’ ’

|

ieged offense

U.S. at 442). Yet because inducement

focuses on the

position is concerned with the defendant’s state of

mind. it is convenient to consider the two elements

separately

government’s conduct, while predis

a. The courts have uniformly held that the gov-

ernment may be said to have induced an offense onl}

if the “behavior fof law enforcement agents] was

such that a law-abiding citizen’s will to obey the law

could have been overborne’”’ (United States v. Ke ly,

748 F.2d 691,

698 (D.C. Cir. 1984) )—if, in other

words. there was “government conduct that would

O¢ ‘ “ek > mg11¢01 ‘ } *1T7} . : ; ]

create a YrisK OI causing an otnerwise unprecdisposed

person to comn

F.2d at 914)

words, “‘mere

sit the crime charged” (Burkley, 591

Thus. again in Judge \ieGowan’'s

government solicitation or initiation

[of the crime] is, without more, insufficient to raise

a’ *« . ] . 7 : ++ ‘

the entrapment defense” ; that conclusion “rests on

the not unreasonable behavioral assumptior

‘solicitation by

itself is not the kind of conduct that

would persuade an otherwise innocent person to com-

mit a crime’ ”’

(id. at 911-912 (quoting United States

—

DeVore, 423 F.2d 1069, 1071 (4th Cir. 1970), cert.

denied, 402 U.S

950 (1971)

Reg j f Stat H N S7-1072 (7

( | e 17. 19R7 ’ } * / R04

F.2d 1161, 1165 (10th Cir. 1986): United Stat Nat

764 F.2d at 1079: 1 . Hi 749 1 ) -

17

The validity of this conclusion is confirmed by this

. , . ,

<y . > >

msideration oO! ne

Court’s holdings. In its earliest cons!

issue, the Court rejected assertions of the entrapment

defense when the defendant “was in no way induced

to commit the crime beyond the simple request of

[a government informant].” Casey v. United States

276 U.S. 413, 419 (1928). See Grimm v. Uni

States. 156 U.S. 604, 609-610 (1895) And in its

first lengthy treatment of entrapment, the Court

made it clear that “the defense of entrapment is not

simply that the particular act was committed at the

(Sorrells, 287 U.S.

to]

instance of government officials”

at 451). To the contrary, the Court pronounced it

“well settled that the fact that officers or employees

of the Government merely afforded opportunities or

facilities for the commission of the offense does not

defeat the prosecution” (id. at 441). “Artifice and

strategem,” the Court explained, are “frequently es-

In ¢ tr} } fendant pro ded morp! ri ? the 4

f a government informant (see 276 U.S. at 422 |

|. dissenting) ). Although the defendant failed to make

nt? D ent iT? ment the (4 rt sper fig ‘ suas ted ft}

i I Sé d be inavailable, expla ning that the de

Fos ma O 1 < . no wa ndu ed +r ¢ rY mit th, crime hows

the simple request of [the informant] to which he seems to

have acceded without hesitation and as a matter of 1

t 419). The government’s initiation of the transat

Court a ided. Was nod fferent n substance f} ry

rdering a drink [from | a suspect hootlegger’ (ihid.) |

f mm . YY ? aar » | Jieited nforn iT1O? ry ;

e materials through the mails; the defendant was pros

T } ne he respo ed Ti t} ( ratio ry} ( T

ed eT ian? < ; oY ‘ Ti thes mr ray ? ‘ ©?

} ‘ y ’ 1, Y) ‘ ’ Tv}

4 ‘ yy) TY 4 er” 1c 4 - err ‘ + ’ ‘

r ‘ Lr ¢ scerta " hethe r +} ‘4 Té : ‘

vyful busi ” (156 U.S. at 609-610)

sential to the enforcement of the law” (ibid.). See

Russell, 411 U.S. at 435-436; Sherman, 356 U.S. at

372; cf. Lopez v. United States, 373 U.S. 427, 436

(1963).'*° In the succeeding years, the courts of ap-

peals have uniformly agreed that an entrapment de-

fense cannot be raised when a government agent does

no more than initiate the criminal transaction by

offering the defendant money, soliciting contraband,

or proposing the crime, since such conduct “merel\

afford[s] [the defendant] with the opportunity to

commit an offense he was not otherwise unready to

commit.” United States v. Luce, 726 F.2d 47, 49

(1st Cir. 1984)."

Instead, the courts have held that inducement can

be established only by a showing of at least “ ‘per-

suasion or mild coercion’ and ‘pleas based on need.

sympathy, or friendship’ ” (United States v. Nations,

764 F.2d at 1080 (citations omitted) ).’* Again, this

' The Court has recognized that the use of undercove)

techniques is essential in combatting narcotics offenses and

consensual crimes. See Russe/l, 411 U.S. at 4832: Hampton \

United States, 425 U.S. 484, 495 n.7 (1976) (Powell, J., cor

curring in the result): Park, supra, 60 Minn. L. Rev. at 164

See, e.g., DeVore, 423 F.2d at 1071; United States \

Sarmiento. 786 F.2d 665. 667 (5th Cir. 1986): 7 ted St

Vv. Rodgers. 755 F.2d 533. 550 (7th Cir. 1985). cert. denied.

73 U.S. 907 (1985); United States v. Ortiz, 804 F.2d 1161,

1165 (10th Cir. 1986); United States v. Andrews, 765 F.2d

1491, 1499 (llth Cir. 1985), cert. denied, No. 85-5572 (Jar

13, 1986)

* See, e.g., Kadis Vv. United States, 373 F.2d 370, 374 (ist

Cir. 1967): DeVore, 423 F.2d at 1071; United States v. Ja

son, 700 F.2d 181, 191 (5th Cir.), cert. denied, 464 U.S. 842

(1983): United States v. McLernan, 746 F.2d 1098, 1113-1114

(6th Cir. 1984); United Stat Y. Bagnell, 679 F.2d 826, 835

(lith Cir. 1982). cert. denied, 460 U.S. 1047 (19838). Ses

19

Court’s holdings are illustrative. In finding an en-

trapment defense available in Sorrells, a prosecution

for a violation of the National Prohibition Act (see

287 U.S. at 438), the Court noted that an undercover

agent had made repeated requests for liquor despite

the defendant’s obvious reluctance to supply it (1a.

at 439-440); the Court found it crucial that the de-

fendant’s ultimate decision to provide the liquor was

“instigated by the prohibition agent * * * by re-

peated and persistent solicitation in which [the

agent] succeeded by taking advantage of the senti-

ment aroused by reminiscences of their experiences

as companions in arms in the World War” (id. at

141). Similarly, the Court held that entrapment was

established in Sherman, where a reluctant defendant

provided narcotics to an informant only after re-

peated requests “predicated on [the informant’s] pre-

sumed suffering” (356 U.S. at 371; see id. at 373).

In contrast, the Court found no inducement where

the defendant responded to an informant’s “simple

request” for narcotics. Casey, 276 U.S. at 419."

renerally Park, supra, 60 Minn. L. Rev. at 180-183. Citing a

circuit jury instruction, Judge McGowan suggested that in-

lucement includes “ ‘persuasion, fraudulent representations,

threats, coercive tactics, harassment, promises of reward, 01

pleas based on need, sympathy, or friendship. A solicitation,

request or approach by law enforcement officials to engage in

riminal activity, standing alone, is not an inducement.’ ”’

Burkley, 591 F.2d at 913 & n.18. It is clear, however, that

‘*‘promises of reward’” do not include simple offers of gain

through participation in an illegal activity, since law enforce

ment officers “ ‘may properly offer to give to the defendant

money which is involved in the commission of the crime it-

self’ ”’ (ibid.). See id. at 914.

’The only court to take a different approach is the Second

Circuit, which has defined inducement to include “soliciting,

()

b. Whatever the inducement offered by the gov-

ernment, a defendant is not entrapped when his

“criminal conduct was due to his own readiness and

not to the persuasion of government a

man, 356 U.S. at 376-377) when, that is, the de-

fendant was predisposed to engage in the criminal

activity. The Court has treated such pereens, who

“needed no persuasion” to commit the crime (J/ascial

v. United States. 356 U.S. 386, 388 n.3 (1958) )

fully culpable. In part, of course, this predisposition

inquiry is the flip side of the inducement question,

since a defendant may suggest the absence of pre-

disposition “by demonstrating that he had not favor-

ably received the government plan, and the govern-

ment had to ‘push it’ on him, or that * * * on at

least one occasion he had directly refused to partici-

pate” (United States v. Andrews, 765 F.2d 1491,

1499 (llth Cir. 1985), cert. denied, No. 85-5572

(Jan. 13, 1986)). But the existence of predisposition

does not hinge soiely on the objective nature of th

government’s action: it turns on whether the defend-

ant was “ready and wiiling to commit the crime”

proposing, initiating, broaching or suggesting the comn

/

{ f t} | Sa ott a ‘ charged ” Ty, ited States \ She rid POO KF od

R80. 8838 (2d Cir. 1952). At the same time, however, the Sex

ond Circuit has held that “even when inducement [is| show:

ibmission fof the entrapment question] to th

required f uncontradicted proof has established that the

accused was ‘ready and willing without persuasion’ and to

} Ve hee} “AWAITING imnmy propit ous opportun Ty to comn

‘ ‘ ‘ / f Uthat Vv. Rol f kK YPd GAS. QAR-949

(2d Cir. 1966) \ ludve McGowan has noted, “[t]he pra

tical effect of Riley is to require something more than gover?

ment 7 tai ay cy? , , if on, mut v4 ao so ’ Té rms OT pre

604 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106

b

<a . _ ’ ‘4 ~— 4 0,3

iMc -) } PP ] ~7 7} ne — / j ted h. ates. J+ Za

’ ’ Bes ’ ‘ } 7 a; 4 } ‘I - |

Ziv iZ i ~ { 2 ert menier 4 Za Soi

Affi mative detenses sucn as entrapment needa

not be submitted to tne jury uniess the testimony

.

en or protierea meets a mirimum standard as to

. ‘* _s , : ”

each element of the offense [/nited States v. Barley,

‘ | 4 - ‘ ; ‘ . . }

i4 U.S 94. 415 (1980): see id. at 416. Indeed,

y¥ Lit . ai ¥ as nevel 1a occas! ii WW app! Uiils

ruie directiv in an entrapment case. it nas found it

obvious that an inadequate showing by the defendant

ght well * * ustiffy] a refusal to instruct the

iry at all on entrapment” (Lopez, 373 U.S. at 436

(footnote omitted)). The courts of appeals there-

fore have held without exception that the defend-

ant is not entitled to an entrapment instruction un-

less he “come|s| forward with evidence ‘that the

government’s conduct created a substantial risk that

the offense would be committed by a person othe

e held that the defendant has the burde

| ‘ ] men? wi | \ ©] . it sre

‘ rrTYv<e > > pr ve I re crTwy< VV SP¢ l VY

| | ++ ; ‘ _ , =~ >

Lal & A. § Subs e Crm 8 5.2(4)

(19R6) Othe t however, have collapsed the ir ry

a2 e +L . —_ = +; , or salty +o!

r g that inducement and predisposition are ultimately co!

gle question whether the defendant was

repared to commit the crime in the absence of the government

mndauct See. e.0.. Kadis v. United States. 373 F.2d 370. 373

: ’ rf ,

74 (lst Cir. 1967); Unmtted States v. Devore, 423 F.2d 1069,

1071 (4th Cir. 1970), cert. denied, 402 U.S. 950 (1971). But

’ ? ’ ’ Yr, , ros our ‘ ‘ ry ry?

> - -

‘ t I | ement 1 predisposition are s

And given the nature of the entiapment defense, it

is not surprising that the courts have requived a

showing of “inducemen: by a government agent and

a lack of predisposition by the defendant” before sub-

mitting an entrapment < jury. U

States v. Rhodes, 713 F.2d 468, 467 (9th Cir.)

(emphasis in original), cert. denied, 466 U.S. 1012

(1983) .*

1. In this case, petitioner plainly failed to make

the threshold showing of either inducement or lack of

predisposition that would have justified submitting

the entrapment issue to the jury. Even viewing the

evidence in the light most favorable to petitioner, i

is evident tha: the “inducement” in this case was a

imple criminal proposition: the government’s agent,

DeShazer, offered petitioner cash in return for official

action. As the Court put it in Casey, petitioner “was

in no way induced to commit the crime beyond the

closely related, every court requires some evidencs nat al

nnocent and it uct; nt rat fe} ad: nT Was orrupred py Tl ‘

ernment before sending the entrapment issue to the ju

See, e.g., United States v. Luce, 726 F.2d 47, 49 (1st Cir

1984) ; United States v. Anglada, 524 F.2d 296, 298 (2d Cir

1975) ; United States vy. Armocida, 515 F.2d 49, 55 (3d Cir.).

cert. denied, 423 U.S. 858 (1975): United States v. Hunt. 749

2d 1078, 1085 (4th Cir. 1984), cert. denied, 472 U.S. 1018

(1985) ; United States v. Nations, 764 F.2d 1073, 1079 (5th

Cir. 1985); United States v. Hawkins, No. 87-1072 (7th Cir

June 17, 1987), slip op. 8-10; United States v. Woosley. 761

F.2d 445, 448 (8th Cir. 1985): United States v. Goodacre.

793 F.2d 1124, 1125-1126 (9th Cir. 1986), cert. denied, No.

86-5704 (Dec. 1, 1986); United States v. Ortiz, 804 F.2d

llol, 1165 (10th Cir. 1986): Tnited States v. H phrey.

670 F.2d 153, 155 (11th Cir.), cert. denied, 456 U.S. 1010

(1982); United States v. Brooks, 567 F.2d 134, 138 (D.

Cir. 1977) ; id. at 142 (Robinson, J., dissenting

-F

24

simple request of [the agent] to which he seems to

have acceded without hesitation and as a matter

of course” (276 U.S. at 419). While the transac-

tion was not consummated immediately because of

petitioner’s doubts that DeShazer actualiy had the

money, in none of their subsequent conversations did

DeShazer do more than restate his willingness to

make the payment, a proposal to which petitioner

readily agreed; indeed, petitioner acknowledged that

at the April 8, 1985, meeting, he was the one who

brought up the subject us the payment.

Petitioner argued in the ccurt of appeals that ‘“De-

Shazer did more than merely provide the opportunity:

he persuaded, begged, and encouraged [petitioner] to

take [the money]” (Pet. C.A. Reply Br. 5; see Pet.

C.A. Br. 2). This contention is entirely unsupported

by the record. While DeShazer made several offers,

petitioner’s own testimony indicates that he unhesi-

tatingly accepted each one (see J.A. 122, 123, 125,

127). DeShazer at no point “persuaded” or “begged”’

petitioner to do anything. Indeed, since petitioner

contended at trial that he intended only to borrow

the money because he was “financially strapped”

“3 [It is doubtful that a simple offer of money in any amount

can cualify as an inducement of a sort sufficient to constitute

entrapment; law-abiding persons are expected to resist temp-

tation when unaccompanied by coercion or other kinds of

pressure. But it is clear, in any event, that the offer of

$4,200 to a defendant making an annual salary of $38,000

(see Tr. 491) did not impose undue pressure, particularly

where, as here, the amount was simply the sum that the de-

fendant himself had previously solicited. Cf. United States

Vv. Lambhinus, 747 F.2d 592, 598 (10th Cir. 1984), cert. denied,

171 U.S. 1067 (1985): United States v. Jannottt, 673 F.2d

578, 599 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106

(1982).

ho

'

(J.A. 123), it would have been nonsensical for him

to have suggested that petitioner begged him to take

a loan. And the only “encouragement” offered by De-

shazer was the suggestion that he might spend the

money himseit if he did not give it to petitioner (see

d. at 69). That is hardly an “inducement” within

the meaning of this Court’s decisions: placing a

time limit on a criminal proposition is not the sort

of oe mage action that would induce a normally

aw-abiding citizen to engage in criminal! conduct.

In this case, then, the government did not make

use of coercion, threats, pleas based on need or sym-

pathy, or, for that matter, even simple persuasion.

ithe transaction here consisted of an offer and a

acceptance. In these circumstances, the government’s

action plainly was not “such that a law-abiding cit

zen’s will to obey the law could have been overborne

(Kelly, 748 F.2d at 698). “‘At the most,’ DeShazer’s

proposal “afforded the petitioner ‘opportunities or

facilities’ for the commission of a criminal offense,

and that is a far ery from entrapment.” Osbor

‘’nited States, 385 U.S. 323, 381-532 (1966).

At the same time, petitioner failed to create any

doubt whatsoever about his predisposition to commit

he crime. Even leaving aside petitioner’s previous

requests for loans and his conceded acceptance of

‘ Petitioner also contended in the court of appeals (Pet

C.A. Reply Br. 3) that DeShazer urged him “to take the ex-

cess money so that DeShazer would not get into trouble with

his wife.” In fact, however, DeShazer indicated (according

to petitioner’s trial testimony (see J.A. 122)) only that he

kept the money from which the payment would be made in

his garage because “he didn’t want his wife to know about the

total amount.” Not surprisingly, DeShazer did not make the

incredible statement that he would get into trouble with his

wife unless petitioner took a payoff.

26

money from DeShazer in 1983, petitioner at no point

disputed DeShazer’s testimony that he accepted the

first and every subsequent offer of a payoff without

hesitation. To the contrary, petitioner acknowledged

that he expressed interest whenever DeShazer raised

the possibility of a payment, and he conceded that he

himself made an unsolicited inquiry about the pay-

ment on April 8, 1985. Petitioner contended only

that he did not have an improper motive in taking

the money—a contention that was necessarily rejected

by the jury. ‘ ‘[U]ncontradicted evidence’” thus

“established that the accused was ‘ready and willing

without persuasion’”’ to commit the offense (filey,

363 F.2d at 958). A person who jumps at a criminal

opportunity in that way can hardly be characterized

as an “unwary innocent” (Sherman, 356 U.S. at

prs \

312 -

For these reasons, the evidence at trial was not

sufficient to raise either element of the defense of

entrapment. Tlie district court was therefore correct

in refusing petitioner’s request to instruct the jury

un that defense.

B. A Defendant Cannot Both Deny Commission Of The

Crime And Obtain An Instruction On Entrapment

1. At trial, petitioner denied commiting the

crime; he took the stand and testified that he ac-

cepted money from DeShazer as a personal loan,

rather than “for or because of any official act” (18

U.S.C. 201(g)). Despite petitioner’s hints to the

contrary (Pet. Br. 15-16), this defense necessarily

was inconsistent with his simultaneous claim that he

was entrapped.

As we have noted, entrapment “is a relatively lim-

ited defense” that is grounded “in the notion that

27

Congress could not have intended criminal punish-

ment for a defendant who has committed all the ele-

ments of a proscribed offense, but was induced to

commit them by the Government” (Russell, 411 U.S.

at 435 (emphasis added) ). By definition, the entrap-

ment defense comes into play “only when the Govern-

ment’s deception actually implants the criminal de-

sign in the mind of the defendant” (7d. at 486). See

Sorrells, 287 U.S. at 442.° The definition of entrap-

ment therefore presupposes that all the elements of

the offense are present and that the defendant acted

with a “eriminal design.” As a logical matter, then,

the jury can find that a defendant was entrapped

only if it finds that a crime was in fact committed.

This means that by seeking an entrapment instruc-

tion while denying commission of the crime, peti-

tioner was “claim[ing] the right to swear that he

had no criminal intent and in the same breath to

argue that he had one that did not originate with

him.” United States v. Henry, 749 F.2d 208, 214

(5th Cir. 1984) (en banc) (Gee, J., dissenting).

Needless to say, both of these assertions cannot be

true.

“> The Court in Sorrells reversed the holding of the court

of appeals that “entrapment can be maintained only where,

as a result of inducement, the accused is placed in the attitude

of having committed a crime which he did not intend to com-

mit, or where, by reason of the consent implied in the induce-

ment, no crime has in fact been committed” (287 U.S. at 442

(citing 57 F.2d at 974)). One commentator has therefore

observed that “[a] defendant who has not committed a crimi-

nal act with the requisite criminal intent cannot have been

entrapped under federal law.” Note, Entrapment and the De-

nial of the Crime: A Defense of the Inconsistency Rule, 1986

Duke L.J. 866, 889 (footnote omitted); see id. at 889 n.206.

-

~~

—

4

—

more than 60 years—even prior to te

recognition of the entrapment defense by this Court

in Sorrells *“—it has been the rule in most circuits

that a defendant cannot take inconsistent positions

by simultaneously denying commission of the crime

and arguing entrapment to the jury. That is now

the approach taken by a substantial majority of the

courts of appeals. At present, it appears that three

circuits bar the assertion of an entrapment defense

;

unless the defendant affirmatively admits commission

}

of the crime.** Another five circuits nave held that

the defendant may not both deny commission of the

crime and argue entrapment, although those courts

>

the defendant from seeking an entrapment

foreclose

nstruction only if he offers evidence contesting the

elements of the offense.“ Only two courts of appeal:

pernilt the defendant to testify (or introduce othe

ting the existence of an element of

he offense while simultaneously arguing entrapment

These are the Third, Sixth, and Seventh Circuits. See

(United States Vv. Hill, 655 F.2d 512, 514 (3d Cir. 1981)

1 States v. Whitley, 734 F.2d 1129, 1129 (6th Ci)

1984): UV ed States Vv. Liparota, 735 F.2d 1044, 1048 (7th

Cir. 1984), rev’d on other grounds, 471 U.S. 419 (1985)

! See United States v. Annese, 631 F.2d 1041, 104

Cir. 1980); Unit States Vv. Mayo, 705 F.2d 62, 72-73

(2d Cir. 1983); United States v. Dorta, 783 F.2d 1179 (4tl

Cir. 1986), cert. denied, No. 85-1713 (June 23, 1986) ; Unite

Stat Vv. Mora. 768 F.2d 119 1198-1199 (10th Cir. 1985)

cert. denied, No. 85-5437 (Jan. 21, 1986); United States \

Smith, 757 F.2d.1161, 1169 (11th Cir. 1985). In addition, th

EFighth Circuit has « dorsed thi approach 1! dict im [’

Nhate \ A ; ' 670 2 od R70. R76 (Rth { Ir 19RY )

‘>¢

}

{ tne ry ne otner circult permits a detendal

2 th . > , +] . . -« ] . . Sani 7 TF

to deny the existence or the mental elemen OI Une

°

+F oy } 7 cr? ’ ? TY ) ’ ’ ? > ’ ¥

NiCiis< AlLiIIVUU U Lilt Ulli a at De > & i <

entrapment

I

I? Oul it tne malo! tv ruie— nicl 1pre PNTS The

ieTendant tro Slmuitaneousiy aenying tne Cl é

‘ £ ' > ' | ++ : b

\ lie arguing tnat tli tne crime was com! eC } f

aS entrapped into Col tting it Is the sounde

y A 4 +} » + + + + y , ‘ , + ¥ ? ’

ce. sit e outset, petitioner 1S pialniy corres

I :

‘ } 4 ] _

asserting (Pe Br 10. 14-15) that thers Ss anv con-

+ s«* na! » . y*) + ’ Qf *) »*} 'T} cy | »>*r) ? r)vT

~ ss ‘tv ) <A : a. ¥ iA SS a‘ cA | iit . ‘ —_ ‘

OT Course, pears rine nurdel OT npro' 1? fT evel é ‘ ert

S| > ] ‘ ‘ , ] +? r. ,

of the offense evyol a reasonabDie aoubnpt But the

entrapment aerense Ss not eonstiturionaly grounded

’ 7 . on : (

: > >> “7

LSet MuUSsse ; $1] | a al ! mo}, anna cle absence ‘

> + + + . {> +

envcrapniel SNnOL an @irementw Ol any OUenseé I) SLE aa

mrfran) nt ‘ } rant ] firn +tIit"D lofay

entrapment 18S a Courv-createt allirmatlv¢ GeLle;»nse

’ bs . ] ?} ,riée + + b + Fis ! 4 4

av reileves tne qdelendadant OL i1laDlilty 10) a ner-

} . ° ’ 2 > 7 y\? > 7

se would be a crime. And since entrapment comes

nto Diady O! \ Ne] all Line Cit! ents (yt ear. { ‘

nave deen estadlisned, 1tS existence qdaoes not “Ss é

+ + f + .

ND . ap - + . , . > ‘

} cCVal any ial ls U Lit a Vril ‘ i. -

67 ‘ : ‘ 99 '

ernmen Is tO prove in orde}l {) convict Pa a )

. . es 9° —_ - _ = py . 4

- Ne f Y ork, 152 -.% ve AL (19% ij} pee Mar

7 7 ~ . . “\ O° ‘ _— 1: . -~

(Jhio,. No. 85-6461 (Feb. Zo. Joi). SLD OD. bD--<

) + ++, ’ 4 } c ‘ "

| — St Lil vo. ( ongyress VO) Lig] a: i ree {) a kKeé ‘

‘ 4 r — : hn «

encrapmel qaetense avaliable on whatever conditions

" , | > . he . r ; r 4

‘ i <. vt tl Ca evor’y ) e endal CS ‘ ‘ PY.

These are the Ninth and District of Columbia Circuits

j =

See | i Stat De 232 F.9d GR1. 9GRP.9R5 (Ot) )

7 r j r 4 4 . ‘

975) anc): A lv. i ed § 03 F.2d 219

221 (U.C. Cir. 1962)

, ry — * — _

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DD)

a

\ ’ oO 4 ! ‘ ‘ ‘ } } T

fue (or present ¢ elice ClaulIng tO) al fT ative

GUCLeIIst t iS tactua SU pi avi t See B

144 U.S t 416-417) « Ot ievally CogniZavie (see

Ve} Li hy } i {J 1 ri Cast Chances ol

ACQUILLA

; . ++ ne + j ‘ " i > + ri) ‘Saki ‘ ’ sah)

©) l { LIi¢ qaerenad O alvue { rapmel

4 + , a

LLel LAKINY rie stand 1 il cif l \ {7 ‘ | i - 7 {)i

{ t | ‘ met) ‘ i] rie )' | f Si] ‘ } 1 yY))

c

the integrity and the trutn-finding function of ou

, . ee , . YY , ~ ‘) . ¢)

nal trials.” United States v. Dorta, 783 F.2d

—

179, 1181-1182 (4th Cir. 1986), cert. denied, No

85-1713 (June 23. 1986). When he denies an ele-

ment of the offense. the defendant in effect testifies

that he was not entrapped; in this case, for example,

Une overnment could hard! have implant] ed | the

criminal design” (Russell, 411 U.S. at 436) in peti-

tioner's mind lif, as petitioner testified. a criminal cd

sion never existed [f petitioner nevertheless ob-

tained I entrapment nstructior he effective

vould be ng tne l} to acquit him on a view of

? T | T a nimselt | (| testified is not true

vey \ te / ; ; r rw ad air Denial oT the ( rime

1 De / ste / Rule, 1986 Duke L.J

866. 883-884

. ent of the sporting the

i , 749 F.2d at 215 (Gee, J

ssenting)). “| Tl}here is no right whatever—con-

titutional or otherwise—for a defendant to use false

evidence’ (NA slip op. 15); once “[hlaving volun-

tarily taken the stand, |a defendant is] under an ob-

, , } aerate bh 4 li«y?? _)* f |

ition to speak truthfully” (Harris v. New York

LO] US 222, 229 (1971) See Niaz. slip Op 4.10)

,

,

sy)? ’

’

— Ff

Orn?

‘ | '

: ’

ave |

ft the

)

ne

An

‘ +¥

‘ rt

yr ht

for

ment

CONCLUSION

‘ f

' ; - ~

MTT , ’ PC]

HARI} RIED

. ; j

WILLIAM F. WELD

issistant Att

WILLIAM C. BRYSON

De ty Sol

RLES A. ROTHFE!

yk

orn ry ’ , The riryvie ‘ YY ’ al qa qd nao?

nee at t Even whe the defs iant a

t from the na o1 tnerwist ffer evidel

overnment & proot or the ¢ ements of the

lant al ment to the ir’y hased o1 nco!

I annot muitaneousiy be true that t

he offense were not present and that the def

pped And the entrapment defense ST

rr rie V“ h rar cy Ts h Q roe ry) < ’

not commit the offense at all and therefors

een entrapped by a government rent int

crime. On the other hand, we recoenize ti

natte i defendant may put the covernment

lAaAKe d nta | ! let <¢ ed \ the

i we recog? e that ? ~T where the def ¢

ered evidence denying comm on of the

have felt that it unreasonably taxes the d

to put the government to its proof on the

f rt to require the lefendant Oo stil ré

f the offe ‘ } order TO @en1TOV the henefit

defense See ¢ [’ ted St \ He

l’nited Stat \ } ese. 631 F.9d at 104