Entrapment
The elements of an entrapment defense are that (1) a government agent induced the defendant to commit a crime, and (2) he was not predisposed to commit. United States v. Thomas, 134 F.3d 975, 978 (9th Cir. 1998). “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.” Id. citing Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 1540 (1992) (reversing the defendant’s conviction because the government failed to establish that defendant was independently predisposed to commit the crime for which he was arrested).
The Ninth Circuit has held that a defendant can argue both that he did not commit the unlawful acts charged against him and that, if he did, he was entrapped. See United States v. Demma, 523 F.2d 981 (1975) (en banc).
Under federal law, the defendant has an initial burden to prove government inducement, but the government has the ultimate burden to prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents. United States v. Charles, 2009 WL 2871606 (C.A. 9th 2009), citing Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535 (1992), and United States v. Ross, 372 F.3d 1097, 1108 (9th Cir. 2004). Defendant must point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent. United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir. 2002).
In Thomas, Defendant was convicted of conspiracy to possess methamphetamine with intent to distribute and aiding and abetting possession of methamphetamine with intent to distribute. United States v. Thomas, 134 F.3d 975 (9th Cir. 1998). On appeal, it was held that the District Court erred when it failed to permit the defendant to testify that he had no prior arrest or conviction record and certainly no record of any past criminal behavior that in any way suggested that he might be predisposed to engage in large-scale drug trafficking. United States v. Thomas, 134 F.3d 975, 979 (9th Cir. 1998).
Five factors are relevant in determining whether a defendant was predisposed to commit a crime: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. United States v. Thomas, 134 F.3d 975, 978 (9th Cir. 1998).
Evidence of prior good acts is admissible under Rule 404(b) to prove the defendant’s intent or state of mind as long as it bears meaningfully on the defendant’s lack of a criminal disposition at the time of the government’s inducement. United States v. Thomas, 134 F.3d 975, 979 (9th Cir. 1998). Further, the Thomas court held, even if the proffered evidence were not admissible under Rule 404(b), it would be admissible under 405(b), because, to meet its burden of proof in the face of an entrapment defense, the government must prove predisposition beyond a reasonable doubt. United States v. Thomas, 134 F.3d 975, 980 (9th Cir. 1998), citing Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 1540-41 (1992). For the jury to find predisposition beyond a reasonable doubt, it must consider the defendant’s character. United States v. Thomas, 134 F.3d 975, 980 (9th Cir. 1998).
