Jacobson v. United States, 112 S.Ct. 1535 (1992): The evidence in this case established entrapment as a matter of law. Government agents repeatedly, over the course of two years, urged the defendant to order child pornography. When the defendant finally ordered the magazines, the agents arrested him.

Mathews v. United States, 108 S.Ct. 883 (1988): The Court holds that the defendant is entitled to present inconsistent defenses, including "I didn't do it" and "If I did I was entrapped."

United States v. Khubani, 791 F.2d 250 (2d Cir. 1986): Whether initial entrapment extends through a series of crimes is a question of fact for the jury. United States v. Bradley, 820 F.2d 3 (1st Cir. 1987): An informant in jail threatened a cellmate with physical injury if he did not obtain cocaine for him. The cocaine was provided to a guard at the jail who then arrested the defendant. The Court holds that this presents a valid claim of entrapment. However, the individual who supplied the cocaine to the defendant, even though he was aware of the threats on the defendants life, could not avail himself of the entrapment defense.

United States v. Rodriguez, 858 F.2d 809 (1st Cir. 1988): If there is support for the defendant's claim that the Government induced the commission of the crimes and the defendant lacked predisposition, the defendant is entitled to a jury instruction on entrapment. In this case, a reasonable juror could have determined that the defendant was entrapped and the trial court erred in refusing to give a requested entrapment instruction.

United States v. Newman, 849 F.2d 156 (5th Cir. 1988): The defendant raised an entrapment defense and sought to introduce expert testimony as to a mental disease, select, or subnormal intelligence making him peculiarly susceptible to inducement. The Court holds that such evidence is admissible, however, the defendant in this case failed to make a sufficient proffer and reversal was not required. United States v. Graham, 856 F.2d 756 (6th Cir. 1988): The decision in Mathews v. United States, is retroactive. Thus, it was reversible error for the trial court to refuse an entrapment instruction solely on the basis that the defendant had not admitted all elements of the offense.

United States v. Berkery, 865 F.2d 587 (3rd Cir. 1989): It was reversible error to require the defendant to admit to all elements of a conspiracy before allowing him to argue entrapment to the jury.

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United States v. Pervez, 871 F.2d 310 (3rd Cir. 1989): Under the decision in Mathews, it was error to require the defendant to admit to all elements of the offense prior to issuing the jury instruction on the law of entrapment.

United States v. Fedroff, 874 F.2d 178 (3rd Cir. 1989): The defendant offered sufficient evidence to permit a jury instruction on the law of entrapment. Though the evidence was weak on the Government's coercive efforts to get the defendant to commit the crime, they did "wine and dine" him and otherwise deceive him in an effort to convince him to accept a kickback.

United States v. Cantu, 876 F.2d 1134 (5th Cir. 1989): It was error to exclude as hearsay, statements made by an informant to the defendant. The statements were offered to demonstrate the defendant's state of mind, and to support his entrapment defense, not for the truth of the matter asserted.

United States v. Robinson, 887 F.2d 651 (6th Cir. 1989): The trial court erred in requiring the defendant to admit the elements of the offense prior to getting an entrapment instruction.

United States v. Fusko, 869 F.2d 1048 (7th Cir. 1989): The defendants' crime in defrauding her insurer was first suggested by a friend who was an undercover confidential informant for the FBI. She claimed at trial that her friend's persuasion overcame her initial reluctance to commit the offense. This is sufficient to authorize an entrapment instruction.

United States v. Collazo, 885 F.2d 813 (11th Cir. 1989): In this entrapment case, the trial court improperly advised the jury that a defendant must come forward with evidence that the Government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it. This is a preliminary legal question which the judge must determine and not a question which is submitted to the jury. The instruction improperly suggested that the defendant had a burden to establish the entrapment defense. Reversal was required.

United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990): 18 U.S.C. §208(a) is a strict liability offense. One who takes government action while having a conflicting financial interest is guilty of the offense even if he has no intent to violate the statute. However, in this case, the conviction had to be reversed because the trial court erred in failing to instruct the jury on the law of entrapment by estoppel. The defendant asked his Standards of Conduct Counselor to counsel him about the transactions in which he was engaged. Entrapment by estoppel applies when an official tells a defendant that certain conduct is legal and the defendant believes that ENTRAPMENT Page 3

official. This defense applies even in cases of strict liability, because entrapment does not negate the intent element of an offense, it relies on the principle of fairness.

United States v. Albertini, 830 F.2d 985 (9th Cir. 1987): The defendant was a frequent protester for nuclear disarmament at military bases on "open house" days. After one conviction, the Ninth Circuit held that his conduct was protected by the First Amendment. He continued to engage in these protests, in reliance on the Ninth Circuit decision and was again arrested. Subsequently, the United States Supreme Court reversed the decision of the Ninth Circuit. In the subsequent prosecution, the Court held that he had the right to rely on the Ninth Circuit decision and that the Government was barred from prosecuting him for any conduct despite his prior conviction of a felony because the felony conviction was reduced to a misdemeanor. This was incorrect advice. Nevertheless, by the doctrine of entrapment by estoppel, the defendant could not be convicted of possessing a weapon after having been convicted of a felony.

United States v. Kang, 934 F.2d 621 (5th Cir. 1991): It was reversible error to permit a prosecutor to argue to the jury that hearsay evidence admitted for the sole purpose of explaining an agent's conduct (in initiating an investigation) was substantive evidence of the defendant's predisposition to commit the offense. The evidence was admitted for a limited purpose and it could not be used for another purpose in the closing argument.

United States v. Pardue, 765 F.Supp. 513 (W.D.Ark. 1991): Two defendants -- a young man and his grandfather -- were entrapped as a matter of law by an informant and an FBI agent who encouraged them to participate in a murder for hire scheme to avenge a third person (the father of one and the son of the other). The two defendants had no desire to participate in the scheme, but were encouraged to do so by the agent and the informant.

United States v. Skarie, 971 F.2d 317 (9th Cir. 1992): The defendant was entrapped as a matter of law. There was insufficient evidence of predisposition offered by the government -- the fact that the defendant admitted to using drugs in the past was not determinative of predisposition -- and the proof established that the informant threatened the defendant, as well as her son, in an effort to persuade her to engage in a methamphetamine transaction.

United States v. Becerra, 992 F.2d 960 (9th Cir. 1993): The trial court erred in refusing to give an entrapment instruction to the jury. The defendant's testimony -- claiming that the undercover agent contacted him over forty times in a three month period to convince him to find cocaine, and claiming to be from the New York Mafia -- was sufficient to raise the defense.

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United States v. Beal, 961 F.2d 1512 (10th Cir. 1992): Defendant was acquitted on one count of distributing cocaine, but convicted of another. He defended both counts on the basis that he was entrapped. The second sale occurred approximately twenty-four hours after the first sale. The trial court's decision to grant a post- verdict motion for judgement of acquittal was affirmed by the appellate court. The discrete acts of the defendant were part of the same continuum of events motivated by the same governmental influence.

United States v. Kessee, 992 F.2d 1001 (9th Cir. 1993): The defendant testified that he had never previously been involved in the sale of cocaine; that he initially refused to sell drugs for the informant; that he eventually consented after he lost his job and needed food for his family. Though he was impeached during cross-examination and it was evident that he was conversant in the drug trade, it was reversible error to fail to instruct the jury on the law of entrapment. The jury, not the trial judge, must make the credibility decisions whether to accept the defendant's version of the offense.

United States v. Hollingsworth, 9 F.3d 593 (7th Cir. 1993): In a sweeping review of the entrapment defense, the Seventh Circuit holds that the government's burden in defeating an entrapment defense is not satisfied merely by showing that the defendant was willing to commit the crime; rather, the government must prove that the defendant was "ready" to commit the crime -- that he was poised and likely to commit the crime. Here, the defendants were inept, incapable international money launderers. The government provided the means and the wherewithal to commit the offense. The court holds that the government "turned a harmless man with impure thoughts into a felon." Relying on Jacobson, the court observed, "The federal government shall not use its resources to increase the criminal population by inducing people to commit crimes who otherwise would not do so. . . [T]he proper use of the criminal law in a liberal society is to regulate potentially harmful conduct for the protection of society, rather than to purify minds and to perfect character. A person who would not commit a crime unless induced to do so by the government is not a threat to society and the criminal law has no proper concern with him, however evil his thoughts or deficient his character."

United States v. Mkhsian, 5 F.3d 1306 (9th Cir. 1993): The trial court's entrapment instruction did not clearly explain that the defendant must have been predisposed prior to meeting with the government agents in order to find that he was not entrapped. The court's instruction could have been understood by the jury to mean that if the defendant developed the disposition during his dealings with the agents, he was not entrapped. Under Jacobson, a person has been entrapped if he was not predisposed to commit the offense prior to being approached by the government.

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United States v. Lessard, 17 F.3d 303 (9th Cir. 1994): As in the Mkhisian case, the trial court did not make it clear that if the defendant was initially entrapped, then his continued participation in the scheme would be tainted by the same entrapment. That is, "a defendant who is initially entrapped by the government cannot then become unentrapped during the same course of conduct." The government must prove that the predisposition occurred prior to the initial government involvement. The jury must be clearly instructed that if the defendant was not initially disposed to commit the crime, it would still be entrapment if he later developed such a disposition during the later course of interacting with the government informant.

United States v. Sandoval, 20 F.3d 134 (5th Cir. 1994): The government failed to rebut the defense of entrapment and the defendant was entitled to be acquitted as a matter of law. The IRS agent approached the defendant about a tax liability. The defendant suggested a "deal". The agent decided that this meant a "bribe" and pursued the request doggedly. At the next meeting, the defendant offered to provide information about other criminals in hope of receiving a reward, but the agent steered the defendant towards something which could benefit her (the agent), commenting that "information is not enough." The agent then specifically asked that the defendant "scratch her back and I'll scratch yours." They later agreed on a cash payoff. This amounted to entrapment as a matter of law. The government failed to show any evidence of predisposition. Although an eager acceptance of an opportunity to commit some illegal act may prove predisposition, Jacobson clarified the boundaries of such substituted proof, rejecting it where significant and persistent government encouragement was required to induce the crime.

United States v. Hollingsworth, 27 F.3d 1196 (7th Cir. 1994)(en banc): Rehearing this entrapment case en banc, the Seventh Circuit again holds that Jacobson requires the government to prove that the defendant was ready, willing and able to commit the offense in order to rebut the claim of entrapment. Mere willingness, alone, is not sufficient to establish predisposition. The key to Jacobson is the definition of entrapment as being, "the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law." A politician is ready and able to take a bribe; a drug addict is capable of selling drugs. Predisposition in those cases only requires a showing of willingness. But here, the defendants were not ready or capable of being international money launderers without the aid of the government.

United States v. Sterner, 23 F.3d 250 (9th Cir. 1994): The trial court instructed the jury on the law of entrapment as follows: "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, he is a victim of entrapment, and as a matter of policy, the law forbids his 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 ENTRAPMENT Page 6

favorable opportunity is not entrapment." This was reversible error. The use of the term "already" in the second sentence is ambiguous and does not adequately advise the jury that the predisposition must exist prior to the inducement offered by the government. The jury could have erroneously believed that even if the defendant was not initially disposed to commit the crime, he could develop such a disposition during the later course of interacting with the government informant and still be guilty.

United States v. Thompson, 25 F.3d 1558 (11th Cir. 1994): The defendant was a convicted felon. For several years, he acted as an informant for the government, including the FBI and the ATF. In this prosecution for being a felon in possession of a firearm, he sought to rely on an entrapment by estoppel defense. The trial court incorrectly held that this was not a legal defense to a §922 charge. See e.g., Lewis v. United States, 445 U.S. 55 (1980); United States v. Billue, 994 F.2d 1562 (11th Cir. 1993). Entrapment by estoppel focuses on the actions of the government officials, not the state of mind (or predisposition) of the defendant. Entrapment by estoppel applies when an official tells a defendant that certain conduct is legal and the defendant believes that official. Because the defense rests on principles of fairness, it may be raised even in strict liability offense cases. Finally, the defendant's proffer was sufficient to justify submitting the evidence to the jury. If there is any basis to support the defense, the jury should have been permitted to hear the testimony and weigh the evidence itself. Even if the defendant's testimony regarding the alleged conduct of the officials authorizing his possession was not credible, as the government asserts and the district court found, it is the jury's, not the district court's, function to determine questions of credibility and assess the defendant's testimony.

United States v. Abcasis, 45 F.3d 39 (2d Cir. 1995): The defendants claimed that they had been informants for the DEA and engaged in a narcotics smuggling operation, believing that this was authorized by their informant status. The trial court erred in denying their request for an instruction on the law of entrapment by estoppel. In order to be entitled to this instruction, the defendant must show that his reliance on the government agent's statement was reasonable in that "a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries." In essence, the defendant must show that although he was mistaken, in good faith he believed that his conduct was authorized by the law enforcement agent with whom he was working.

United States v. Reece, 60 F.3d 660 (9th Cir. 1995): The trial court failed to instruct the jury properly on the entrapment defense. The instruction failed to explain that the jury could convict the defendant only if the government proved beyond a reasonable doubt "that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."

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United States v. Cannon, 886 F.Supp. 705 (D.N.D. 1995): The government engaged in sentencing entrapment in this case. The defendant, who was a willing participant in a series of drug transactions, asked the undercover agent to sell him some guns, including various revolvers and semi-automatic weapons. The government agent brought the defendant a machine gun. Sentencing entrapment occurs when the government induces the defendant to engage in a crime other than the crime he is predisposed to commit in order to inflate the penalty imposed. Sentencing manipulation occurs when the government "rachets up" the guidelines by changing the nature of the offense. In this case, the court expressed outrage at the tactic of the government. After a lengthy review of the cases in this area, the court concludes that the defendant would not be sentenced for possession of the machine gun.