Proving Entrapment Under the Predisposition Test*

OFF THE WIRE
Paul Marcus**
I. INTRODUCTION
The United States Supreme Court and a majority of the states'
have chosen to focus attention in the entrapment area on the individual:
his state of mind, his actions, and his relationship with government
officers. This majority view rejects the objective rule sometimes
applied in entrapment cases and favors a subjective test.2 The sense
has been that the entrapment test is not based on a particular constitutional
principle or a particular construction of the substantive criminal
law. Yet, the subjective test was developed in response to a concern
about the legislative intent of Congress in adopting its substantive
criminal code sections: Congress could not have intended an innocent
individual to be found guilty of a crime when a government agent improperly
induced that person into committing the criminal act. The
United States Supreme Court has made this point repeatedly in numerous
decisions. The following excerpts are illustrative:
Literal interpretation of statutes at the expense of the reason
of the law and producing absurd consequences or flagrant
injustice has frequently been condemned.
We think that this established principle of construction
is applicable here. We are unable to conclude that it was the
intention of the Congress in enacting this statute that its
processes of detection and enforcement should be abused by
the instigation by government officials of an act on the part
* Paul Marcus, 1987. During the coming year, Dean Marcus will complete THE
ENTRAPMENT DEFENSE (Kluwer & Co.).
** Dean and Professor of Law, University of Arizona.
1. For a good discussion of the state statutes which follow the subjective principle, see
Park, The Entrapment Controversy, 60 MINN. L. REV. 163 (1976).
2. The objective test, of course, focuses its attention almost exclusively on the conduct of
the Government agents; thus, the individual defendant becomes somewhat irrelevant to the determination
of whether entrapment existed. For thoughtful discussions of the point, see the opinion
of Justice Roberts concurring in the judgment in Sorrells v. United States, 287 U.S. 435, 453
(1932), and the concurring opinion of Justice Frankfurter in Sherman v. United States, 356 U.S.
369, 378 (1958). Both of these cases are discussed at length in Marcus, The Entrapment Defense
and the Procedural Issues, 22 CRIM. L. BULL. 197 (1986).
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AM. J. CRIM. LAW
of persons otherwise innocent in order to lure them to its
commission and to punish them.... [T]he Government in
such a case is estopped to prosecute or the courts should bar
the prosecution.3 ;
The case at bar illustrates an evil which the defense of
entrapment is designed to overcome. The government informer
entices someone attempting to avoid narcotics not
only into carrying out an illegal sale but also into returning
to the habit of use. Selecting the proper time, the informer
then tells the government agent. The set-up is accepted by
the agent without even a question as to the manner in which
the informer encountered the seller. Thus the Government
plays on the weaknesses of an innocent party and beguiles
him into committing crimes which he otherwise would not
have attempted. Law enforcement does not require methods
such as this.'; and
[E]ntrapment is a relatively limited defense. It is rooted, not
in any authority of the Judicial Branch to dismiss prosecutions
for what it feels to have been "overzealous law enforcement,"
but instead in the notion that Congress could not
have intended criminal punishment for a defendant who has
committed all the elements of a proscribed offense, but was
induced to commit them by the government.-
Justice Rehnquist also noted in United States v. Hampton:
"[T]he entrapment defense 'focus[es] on the intent or predisposition of
the defendant to commit the crime,' rather than upon the conduct of
the Government's agents."6
The lower federal courts have also stated that the principal focus
in the entrapment area is on the individual defendant on trial.7 The
Fifth Circuit recently stated the matter quite clearly: "The entrapment
defense focuses on the intent or predisposition of the defendant
to commit the crime rather than on the conduct of the government's
3. Sorrells v. United States, 287 U.S. 435, 446-48 (1932) (Hughes, C.J.).
4. Sherman v. United States, 356 U.S. 369, 376 (1958) (Warren, C.J.) (footnote omitted).
5. United States v. Russell, 411 U.S. 423, 435 (1973) (Rehnquist, J.).
6. 425 U.S. 484, 488 (1976) (quoting Russell, 411 U.S. at 429).
7. To be distinguished from the attention which would be given, under the objective test,
to government conduct. As stated by Justice Frankfurter in the Sherman case,
It is surely sheer fiction to suggest that a conviction cannot be had when a defendant
has been entrapped by government officers or informers because "Congress could
not have intended that its statutes were to be enforced by tempting innocent persons
into violations ......
The courts refuse to convict an entrapped defendant, not because his conduct falls
outside the proscription of the statute, but because, even if his guilt be admitted, the
methods employed on behalf of the Government to bring about conviction cannot be
countenanced.
356 U.S. at 379, 380.
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Proving Entrapment
agents.... The question of entrapment goes to the basic guilt or innocence
of the defendant." s
The Eighth Circuit in United States v. Lard9 relied on an earlier
opinion of Justice Brandeis when it summarized the subjective test:
The entrapment defense is based on the assumption that
Congress did not intend to punish a defendant who has committed
all the elements of a proscribed offense upon the inducement
or instigation of government agents .... "[T]he
Government may set decoys to entrap criminals. But it may
not provoke or create a crime and then punish the criminal,
its creature."'
II. THE ELEMENTS OF THE TEST
Given that the basis for the subjective entrapment defense is the
nature of the relationship that the individual has with the government,
it is not surprising that the actual test used in practice focuses on the
two main elements described below. The Court in Sorrells explained:
"[T]he issues raised and the evidence adduced must be pertinent to the
controlling question whether the defendant is a person otherwise innocent
whom the government is seeking to punish for an alleged offense
which is the product of the creative activity of its own officials."11
A few statutory references also illustrate this two-part analysis.
The Illinois code provides as follows:
A person is not guilty of an offense if his conduct is incited or
induced by a public officer or employee or agent of either, for
the purpose of obtaining evidence for the prosecution of such
person. However, this Section is inapplicable if a public officer
or employee, or agent of either, merely affords to such
person the opportunity or facility for committing an offense
in furtherance of a criminal purpose which such person has
originated. 2
The Missouri law is even more specific:
An "entrapment" is perpetuated [sic] if a law enforcement
officer or a person acting in cooperation with such an officer,
8. United States v. Yater, 756 F.2d 1058, 1062 (5th Cir.) (citations omitted), cert. denied,
106 S. Ct. 225 (1985). The court went on to explain that the defense had to show that the
government agent created "a substantial risk that the offense would be committed by a person
other than one ready to commit it." Id. at 1062 n.6 (quoting Pierce v. United States, 414 F.2d
163, 168 (5th Cir. 1969)).
9. 734 F.2d 1290 (8th Cir. 1984).
10. 734 F.2d at 1292 (quoting Casey v. United States, 276 U.S. 413, 423 (1928) (Brandeis,
J., dissenting)).
11. United States v. Sorrells, 287 U.S. 435, 451 (1932).
12. ILL. ANN. STAT. ch. 38. para. 7-12 (Smith-Hurd 1972).
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AM. J. CRIM. LAW Vol. 14:53 (1987)
for the purpose of obtaining evidence of the commission of
an offense, solicits, encourages or otherwise induces another
person to engage in conduct when he was not ready and willing
to engage in such conduct. 13
It is clear from Supreme Court discussions and various statutory
provisions that under the subjective test for entrapment the two primary
issues to be litigated at trial are:1 4 (1) evidence of inducement by
government agents; and (2) the state of mind of the defendant. While
recognizing that these two questions are usually at issue in entrapment
cases, the Fourth Circuit in United States v. Hunt 15 concluded that
the predisposition element of the two-part analysis is the more important
one. It explained that "the essential element of the entrapment
defense is the defendant's lack of predisposition to commit the crime
charged." 16 The court's conclusion that the predisposition element is
the determinative one may have been correct, but that conclusion
might have been reached somewhat quickly. In many cases a host of
issues involved with inducement must also be considered. These issues
include: (1) the impropriety of inducement as a matter of law; (2) the
mechanics of proving inducement; (3) the nature of the burden of
proof as to inducement; and (4) the distinction between questions of
law and questions of fact with respect to government inducement.
A. Is Inducement Proper?
Courts have recognized consistently that some form of government
inducement or enticement may be appropriate in seeking to engage
the defendant in criminal conduct. Indeed, Chief Justice
Rehnquist has indicated that such government action may be not only
proper but also necessary, particularly in cases where the nature of the
criminal activity is such as to avoid criminal detection. In United
States v. Russell,17 government agents supplied the defendants with an
ingredient that was difficult for the defendants to obtain, but necessary
to enable the defendants to manufacture an illegal drug. The government
officers arrested the defendants as soon as the drug was manufactured.
Justice Rehnquist responded to the defense argument that such
government involvement in crime was inherently improper:
13. Mo. REV. STAT. § 562.066.2 (1978).
14. The matter is normally resolved at trial. Most claims cannot be disposed of pretrial.
See infra text accompanying notes 31-34.
15. 749 F.2d 1078 (4th Cir. 1984), cert. denied, 105 S. Ct. 3479 (1985).
16. Id. at 1085. But see State v. Martin, 77 N.C. App. 61, 334 S.E.2d 459 (1985); People v.
Boalbey, 143 IllA.p p. 3d 362, 493 N.E.2d 369 (1986).
17. 411 U.S. 423 (1973).
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Proving Entrapment
The illicit manufacture of drugs is not a sporadic, isolated
criminal incident, but a continuing, though illegal,
business enterprise. In order to obtain convictions for illegally
manufacturing drugs, the gathering of evidence of past
unlawful conduct frequently proves to be an all but impossible
task. Thus in drug-related offenses law enforcement personnel
have turned to one of the only practicable means of
detection: the infiltration of drug rings and a limited participation
in their unlawful present practices. Such infiltration
is a recognized and permissible means of investigation; if that
be so, then the supply of some item of value that the drug
ring requires must, as a general rule, also be permissible. For
an agent will not be taken into the confidence of the illegal
entrepreneurs unless he has something of value to offer them.
Law enforcement tactics such as this can hardly be said to
violate "fundamental fairness" or [be] "shocking to the universal
sense of justice." 8
Another judge recently pointed out that "the entrapment defense has
no application where the government agents merely use stealth, strategy,
or deception to trap an 'unwary criminal' or merely provide the
defendant with an opportunity or facility to commit the crime."19
It is clear, therefore, that inducement as such is not inherently
improper or unlawful under the subjective entrapment test. Inducement
can, however, exceed permissible bounds and become suject to
sanction. Indeed, the very judge who made the comment quoted
above further remarked that the government cannot be involved in the
"manufacturing of crime." Citing the majority opinion in Sherman
the judge quoted, "The function of law enforcement is the prevention
of crime and the apprehension of criminals. Manifestly, that function
does not include the manufacturing of crime. '20
18. 411 U.S. at 432. Justice Rehnquist, writing for the majority, continued: "Nor does it
seem particularly desirable for the law to grant complete immunity from prosecution to one who
himself planned to commit a crime, and then committed it, simply because government undercover
agents subjected him to inducement, which might have seduced a hypothetical individual
who was not so predisposed." Id. at 434. The dissenters in the case strongly disagreed with the
majority opinion.
In this case, the chemical ingredient was available only to licensed persons, and the
Government itself had requested suppliers not to sell that ingredient even to people
with a license. Yet the Government agent readily offered, and supplied, that ingredient
to an unlicensed person and asked him to make a certain illegal drug with it. The
Government then prosecuted that person for making the drug produced with the very
ingredient which its agent had so helpfully supplied. This strikes me as the very pattern
of conduct that should be held to constitute entrapment as a matter of law.
411 U.S. at 449 (Stewart, J., dissenting) (emphasis in original).
19. United States v. Lard, 734 F.2d 1290, 1293 (8th Cir. 1984).
20. Id. (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)).
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Am. J. CRIM. LAW
The majority in Sherman emphasized that to " 'merely afford opportunities
or facilities for the commission of the offense does not' constitute
entrapment. Entrapment occurs only when the criminal
conduct was 'the product of the creative activity' of law enforcement
officials." 2
In connection with the issue of inducement in entrapment cases,
two central questions arise: (1) procedurally, how does one prove sufficient
inducement to have that issue submitted as a question of fact
for the jury; and (2) when is inducement sufficiently proved as a matter
of law.
B. Proving Inducement The Procedural Issues
In practice, relatively few procedural problems seem to arise with
respect to the inducement prong of the entrapment test.22 The rules
may be stated with succinctness and clarity. It is not enough for the
defendant to show that government agents offered him an opportunity
to engage in criminal activity. Something more overreaching on the
part of the government is necessary. As stated by the court in United
States v. Christopher: "[It is not enough] that the Government furnished
the opportunity for the commission of a crime.... [There must
still be] some evidence of inducement or persuasion by the
Government.
'23
The principal problem in this area arises with defining what is
sufficient government conduct to constitute inducement, and not the
mere offering of an opportunity.24 Nevertheless, the law is now wellsettled
that the burden of offering evidence of inducement rests, at
21. Sherman, 356 U.S. at 372 (quoting United States v. Sorrells, 287 U.S. 435, 241, 251
(1932)) (emphasis in Sherman).
22. For detailed discussion of the procedural issues involved with this question, see Marcus,
supra note 2.
23. 488 F.2d 849, 850-51 (9th Cir. 1973). The court in United States v. Andrews, 765 F.2d
1491, 1499 (11th Cir.) (citations omitted), cert denied, 106 S. Ct. 815 (1985), explained the basic
point:
[E]vidence that the government agent sought out or initiated contact with the defendant,
or was the first to propose the illicit transaction, has been held to be insufficient to
meet the defendant's burden. The defendant must demonstrate not merely inducement
or suggestion on the part of the government but "an element of persuasion or mild
coercion." The defendant may make such a showing by demonstrating that he had not
favorably received the government plan and the government had had to "push it" on
him, or that several attempts at setting up an illicit deal had failed and on at least one
occasion he had directly refused to participate. When the defendant makes such a
showing, the burden shifts to the government to demonstrate beyond a reasonable
doubt that the defendant was predisposed to commit the offense charged.
24. This problem will be explored infra in text accompanying notes 35-88.
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Proving Entrapment
least initially, on the defendant, not on the government.25 If the defendant
offers sufficient evidence of inducement, the burden then shifts
to the government with respect to the question of predisposition.
While the courts are not in agreement as to the evidentiary burden
that the defense must meet, it is fair to say that the burden is a
limited one. Some courts require evidence which amounts to "more
than a scintilla,"26 others discuss "any foundation in the evidence,"'27
and still others mention "some evidence" of government inducement.
2 8 However, the majority of courts rely on the traditional preponderance
of the evidence standard. Thus, if the defendant offers
evidence sufficient to demonstrate that he has more likely than not
been the victim of government inducement, the burden as to predisposition
will then shift to the government.29
The defendant at trial can satisfy the appropriate standard by offering
evidence to demonstrate inducement, or by showing that the
government's evidence reveals its inducement.30 The defendant generally
cannot make this showing prior to the trial. The courts have been
fairly consistent in noting that the issues concerning inducement and
predisposition tend to be evidentiary in nature and are thus ill-suited
for pretrial decisions. In State v. Roberts the court refused to allow the
defendant to raise the entrapment defense during a pretrial hearing on
a motion to suppress.3 Similarly, most courts will hold that when a
defendant seeks to enter a guilty plea, such a plea waives the defendant's
right to claim the defense of entrapment.3 2 An exception to the
25. See, eg., United States v. Sarmiento, 786 F.2d 665, 667 (5th Cir. 1986). Some courts
have adopted a "unitary standard" such that if the defendant demonstrates some act of inducement
by the government the case still cannot go to the jury unless there is evidence showing
"unreadiness" on the defendant's own part. See United States v. Gambino, 788 F.2d 938, 943
(3d Cir. 1986); Kadis v. United States, 373 F.2d 370, 374 (Ist Cir. 1967). In some courts the
procedure becomes more awkward as to this unitary standard. These cases require the defendant
to respond to the government's showing of predisposition with a demonstration of lack of predisposition.
See, eg., the discussion in United States v. Burkley, 591 F.2d 903, 914 (D.C. Cir.), cerL
denied, 440 U.S. 966 (1978).
26. United States v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979).
27. United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977).
28. Burkley, 591 F.2d at 914.
29. The preponderance test has been supported by the drafters of both the Model Penal
Code and the proposed revised Federal Criminal Code. Though each involves the objective test
(not the majority subjective test) the initial inducement burden appears similar in the MODEL
PENAL CODE § 2.13(2) (1985) and the FINAL REPORT OF THE NATIONAL COMMISSION ON
REFORM OF FEDERAL CRIMINAL LAws § 702(1) (1971).'
30. United States v. Gunter, 741 F.2d 151, 153 (7th Cir. 1984).
31. 471 So.2d 900 (La. Ct. App. 1985).
32. United States v. Yater, 756 F.2d 1058, 1063 (5th Cir.), cert. denied, 106 S. Ct. 225
(1985). See also Eaton v. United States, 458 F.2d 704, 707 (7th Cir.), cerL denied, 409 U.S. 880
(1972).
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AM. J. CRIM. LAW
pretrial rule may be found in cases where a motion in limine is
brought. For example, in State v. Burciaga 33 the government announced
at a pretrial hearing its intention to introduce evidence of the
defendant's prior conviction as bearing on the issue of his predisposition.
The defendant's motion in limine on this point was granted and
affirmed on appeal.34
The element of inducement can rarely be shown to be a question
of law that must be decided by the judge. Courts in almost all cases
have determined that both the questions of whether inducement existed
and whether it was sufficient are questions of fact. The evidentiary
burden to be met in order to have the judge decide the issue as a
matter of law is a high one: "[T]he evidence must clearly have indicated
that 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 agent."35
Defendants often lose their claims as a matter of law because all
they can show is that a government agent afforded an opportunity or
facilities for the commission of an offense.36 The defendant will prevail
as a matter of law only "when the criminal intent originates with
the officer and the defendant is lured or induced into the commission
of a crime he was not ready and willing to engage in .... "137
Under unusual circumstances the defendant may win as a matter
of law. The most famous example is the United States Supreme Court
case of Sherman v. United States.38 The defendant in Sherman had a
history of selling drugs and was being treated for narcotics addiction.
When a government agent approached the defendant in an attempt to
buy drugs, the defendant initially was reluctant to make the sale. Ultimately
he acceded to the strong wishes of the informant. The defendant
was convicted of selling drugs to the government agent. The
Court held that these facts showed entrapment as a matter of law39
and voiced strong disapproval of the government's actions:
The government informer entices someone attempting to
avoid narcotics not only into carrying out an illegal sale but
33. 146 Ariz. 333, 705 P.2d 1384 (Ariz. Ct. App. 1985).
34. Id. at 1386-87.
35. United States v. Shaw, 570 F.2d 770, 772 (8th Cir. 1978).
36. United States v. Quinn, 543 F.2d 640, 647 (8th Cir. 1976). See also United States v.
Randolph, 738 F.2d 244 (8th Cir. 1984).
37. State v. Arnold, 676 S.W.2d 61, 62 (Mo. Ct. App. 1984). See generally United States v.
Lard, 734 F.2d 1290 (8th Cir. 1984).
38. 356 U.S. 369 (1958).
39. Id. at 376.
Vol. 14:53 (1987)

HeinOnline
Paul Marcus**
I. INTRODUCTION
The United States Supreme Court and a majority of the states'
have chosen to focus attention in the entrapment area on the individual:
his state of mind, his actions, and his relationship with government
officers. This majority view rejects the objective rule sometimes
applied in entrapment cases and favors a subjective test.2 The sense
has been that the entrapment test is not based on a particular constitutional
principle or a particular construction of the substantive criminal
law. Yet, the subjective test was developed in response to a concern
about the legislative intent of Congress in adopting its substantive
criminal code sections: Congress could not have intended an innocent
individual to be found guilty of a crime when a government agent improperly
induced that person into committing the criminal act. The
United States Supreme Court has made this point repeatedly in numerous
decisions. The following excerpts are illustrative:
Literal interpretation of statutes at the expense of the reason
of the law and producing absurd consequences or flagrant
injustice has frequently been condemned.
We think that this established principle of construction
is applicable here. We are unable to conclude that it was the
intention of the Congress in enacting this statute that its
processes of detection and enforcement should be abused by
the instigation by government officials of an act on the part
* Paul Marcus, 1987. During the coming year, Dean Marcus will complete THE
ENTRAPMENT DEFENSE (Kluwer & Co.).
** Dean and Professor of Law, University of Arizona.
1. For a good discussion of the state statutes which follow the subjective principle, see
Park, The Entrapment Controversy, 60 MINN. L. REV. 163 (1976).
2. The objective test, of course, focuses its attention almost exclusively on the conduct of
the Government agents; thus, the individual defendant becomes somewhat irrelevant to the determination
of whether entrapment existed. For thoughtful discussions of the point, see the opinion
of Justice Roberts concurring in the judgment in Sorrells v. United States, 287 U.S. 435, 453
(1932), and the concurring opinion of Justice Frankfurter in Sherman v. United States, 356 U.S.
369, 378 (1958). Both of these cases are discussed at length in Marcus, The Entrapment Defense
and the Procedural Issues, 22 CRIM. L. BULL. 197 (1986).
HeinOnline -- 14 Am. J. Crim. L. 53 1986-1987
AM. J. CRIM. LAW
of persons otherwise innocent in order to lure them to its
commission and to punish them.... [T]he Government in
such a case is estopped to prosecute or the courts should bar
the prosecution.3 ;
The case at bar illustrates an evil which the defense of
entrapment is designed to overcome. The government informer
entices someone attempting to avoid narcotics not
only into carrying out an illegal sale but also into returning
to the habit of use. Selecting the proper time, the informer
then tells the government agent. The set-up is accepted by
the agent without even a question as to the manner in which
the informer encountered the seller. Thus the Government
plays on the weaknesses of an innocent party and beguiles
him into committing crimes which he otherwise would not
have attempted. Law enforcement does not require methods
such as this.'; and
[E]ntrapment is a relatively limited defense. It is rooted, not
in any authority of the Judicial Branch to dismiss prosecutions
for what it feels to have been "overzealous law enforcement,"
but instead in the notion that Congress could not
have intended criminal punishment for a defendant who has
committed all the elements of a proscribed offense, but was
induced to commit them by the government.-
Justice Rehnquist also noted in United States v. Hampton:
"[T]he entrapment defense 'focus[es] on the intent or predisposition of
the defendant to commit the crime,' rather than upon the conduct of
the Government's agents."6
The lower federal courts have also stated that the principal focus
in the entrapment area is on the individual defendant on trial.7 The
Fifth Circuit recently stated the matter quite clearly: "The entrapment
defense focuses on the intent or predisposition of the defendant
to commit the crime rather than on the conduct of the government's
3. Sorrells v. United States, 287 U.S. 435, 446-48 (1932) (Hughes, C.J.).
4. Sherman v. United States, 356 U.S. 369, 376 (1958) (Warren, C.J.) (footnote omitted).
5. United States v. Russell, 411 U.S. 423, 435 (1973) (Rehnquist, J.).
6. 425 U.S. 484, 488 (1976) (quoting Russell, 411 U.S. at 429).
7. To be distinguished from the attention which would be given, under the objective test,
to government conduct. As stated by Justice Frankfurter in the Sherman case,
It is surely sheer fiction to suggest that a conviction cannot be had when a defendant
has been entrapped by government officers or informers because "Congress could
not have intended that its statutes were to be enforced by tempting innocent persons
into violations ......
The courts refuse to convict an entrapped defendant, not because his conduct falls
outside the proscription of the statute, but because, even if his guilt be admitted, the
methods employed on behalf of the Government to bring about conviction cannot be
countenanced.
356 U.S. at 379, 380.
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Proving Entrapment
agents.... The question of entrapment goes to the basic guilt or innocence
of the defendant." s
The Eighth Circuit in United States v. Lard9 relied on an earlier
opinion of Justice Brandeis when it summarized the subjective test:
The entrapment defense is based on the assumption that
Congress did not intend to punish a defendant who has committed
all the elements of a proscribed offense upon the inducement
or instigation of government agents .... "[T]he
Government may set decoys to entrap criminals. But it may
not provoke or create a crime and then punish the criminal,
its creature."'
II. THE ELEMENTS OF THE TEST
Given that the basis for the subjective entrapment defense is the
nature of the relationship that the individual has with the government,
it is not surprising that the actual test used in practice focuses on the
two main elements described below. The Court in Sorrells explained:
"[T]he issues raised and the evidence adduced must be pertinent to the
controlling question whether the defendant is a person otherwise innocent
whom the government is seeking to punish for an alleged offense
which is the product of the creative activity of its own officials."11
A few statutory references also illustrate this two-part analysis.
The Illinois code provides as follows:
A person is not guilty of an offense if his conduct is incited or
induced by a public officer or employee or agent of either, for
the purpose of obtaining evidence for the prosecution of such
person. However, this Section is inapplicable if a public officer
or employee, or agent of either, merely affords to such
person the opportunity or facility for committing an offense
in furtherance of a criminal purpose which such person has
originated. 2
The Missouri law is even more specific:
An "entrapment" is perpetuated [sic] if a law enforcement
officer or a person acting in cooperation with such an officer,
8. United States v. Yater, 756 F.2d 1058, 1062 (5th Cir.) (citations omitted), cert. denied,
106 S. Ct. 225 (1985). The court went on to explain that the defense had to show that the
government agent created "a substantial risk that the offense would be committed by a person
other than one ready to commit it." Id. at 1062 n.6 (quoting Pierce v. United States, 414 F.2d
163, 168 (5th Cir. 1969)).
9. 734 F.2d 1290 (8th Cir. 1984).
10. 734 F.2d at 1292 (quoting Casey v. United States, 276 U.S. 413, 423 (1928) (Brandeis,
J., dissenting)).
11. United States v. Sorrells, 287 U.S. 435, 451 (1932).
12. ILL. ANN. STAT. ch. 38. para. 7-12 (Smith-Hurd 1972).
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AM. J. CRIM. LAW Vol. 14:53 (1987)
for the purpose of obtaining evidence of the commission of
an offense, solicits, encourages or otherwise induces another
person to engage in conduct when he was not ready and willing
to engage in such conduct. 13
It is clear from Supreme Court discussions and various statutory
provisions that under the subjective test for entrapment the two primary
issues to be litigated at trial are:1 4 (1) evidence of inducement by
government agents; and (2) the state of mind of the defendant. While
recognizing that these two questions are usually at issue in entrapment
cases, the Fourth Circuit in United States v. Hunt 15 concluded that
the predisposition element of the two-part analysis is the more important
one. It explained that "the essential element of the entrapment
defense is the defendant's lack of predisposition to commit the crime
charged." 16 The court's conclusion that the predisposition element is
the determinative one may have been correct, but that conclusion
might have been reached somewhat quickly. In many cases a host of
issues involved with inducement must also be considered. These issues
include: (1) the impropriety of inducement as a matter of law; (2) the
mechanics of proving inducement; (3) the nature of the burden of
proof as to inducement; and (4) the distinction between questions of
law and questions of fact with respect to government inducement.
A. Is Inducement Proper?
Courts have recognized consistently that some form of government
inducement or enticement may be appropriate in seeking to engage
the defendant in criminal conduct. Indeed, Chief Justice
Rehnquist has indicated that such government action may be not only
proper but also necessary, particularly in cases where the nature of the
criminal activity is such as to avoid criminal detection. In United
States v. Russell,17 government agents supplied the defendants with an
ingredient that was difficult for the defendants to obtain, but necessary
to enable the defendants to manufacture an illegal drug. The government
officers arrested the defendants as soon as the drug was manufactured.
Justice Rehnquist responded to the defense argument that such
government involvement in crime was inherently improper:
13. Mo. REV. STAT. § 562.066.2 (1978).
14. The matter is normally resolved at trial. Most claims cannot be disposed of pretrial.
See infra text accompanying notes 31-34.
15. 749 F.2d 1078 (4th Cir. 1984), cert. denied, 105 S. Ct. 3479 (1985).
16. Id. at 1085. But see State v. Martin, 77 N.C. App. 61, 334 S.E.2d 459 (1985); People v.
Boalbey, 143 IllA.p p. 3d 362, 493 N.E.2d 369 (1986).
17. 411 U.S. 423 (1973).
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Proving Entrapment
The illicit manufacture of drugs is not a sporadic, isolated
criminal incident, but a continuing, though illegal,
business enterprise. In order to obtain convictions for illegally
manufacturing drugs, the gathering of evidence of past
unlawful conduct frequently proves to be an all but impossible
task. Thus in drug-related offenses law enforcement personnel
have turned to one of the only practicable means of
detection: the infiltration of drug rings and a limited participation
in their unlawful present practices. Such infiltration
is a recognized and permissible means of investigation; if that
be so, then the supply of some item of value that the drug
ring requires must, as a general rule, also be permissible. For
an agent will not be taken into the confidence of the illegal
entrepreneurs unless he has something of value to offer them.
Law enforcement tactics such as this can hardly be said to
violate "fundamental fairness" or [be] "shocking to the universal
sense of justice." 8
Another judge recently pointed out that "the entrapment defense has
no application where the government agents merely use stealth, strategy,
or deception to trap an 'unwary criminal' or merely provide the
defendant with an opportunity or facility to commit the crime."19
It is clear, therefore, that inducement as such is not inherently
improper or unlawful under the subjective entrapment test. Inducement
can, however, exceed permissible bounds and become suject to
sanction. Indeed, the very judge who made the comment quoted
above further remarked that the government cannot be involved in the
"manufacturing of crime." Citing the majority opinion in Sherman
the judge quoted, "The function of law enforcement is the prevention
of crime and the apprehension of criminals. Manifestly, that function
does not include the manufacturing of crime. '20
18. 411 U.S. at 432. Justice Rehnquist, writing for the majority, continued: "Nor does it
seem particularly desirable for the law to grant complete immunity from prosecution to one who
himself planned to commit a crime, and then committed it, simply because government undercover
agents subjected him to inducement, which might have seduced a hypothetical individual
who was not so predisposed." Id. at 434. The dissenters in the case strongly disagreed with the
majority opinion.
In this case, the chemical ingredient was available only to licensed persons, and the
Government itself had requested suppliers not to sell that ingredient even to people
with a license. Yet the Government agent readily offered, and supplied, that ingredient
to an unlicensed person and asked him to make a certain illegal drug with it. The
Government then prosecuted that person for making the drug produced with the very
ingredient which its agent had so helpfully supplied. This strikes me as the very pattern
of conduct that should be held to constitute entrapment as a matter of law.
411 U.S. at 449 (Stewart, J., dissenting) (emphasis in original).
19. United States v. Lard, 734 F.2d 1290, 1293 (8th Cir. 1984).
20. Id. (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)).
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Am. J. CRIM. LAW
The majority in Sherman emphasized that to " 'merely afford opportunities
or facilities for the commission of the offense does not' constitute
entrapment. Entrapment occurs only when the criminal
conduct was 'the product of the creative activity' of law enforcement
officials." 2
In connection with the issue of inducement in entrapment cases,
two central questions arise: (1) procedurally, how does one prove sufficient
inducement to have that issue submitted as a question of fact
for the jury; and (2) when is inducement sufficiently proved as a matter
of law.
B. Proving Inducement The Procedural Issues
In practice, relatively few procedural problems seem to arise with
respect to the inducement prong of the entrapment test.22 The rules
may be stated with succinctness and clarity. It is not enough for the
defendant to show that government agents offered him an opportunity
to engage in criminal activity. Something more overreaching on the
part of the government is necessary. As stated by the court in United
States v. Christopher: "[It is not enough] that the Government furnished
the opportunity for the commission of a crime.... [There must
still be] some evidence of inducement or persuasion by the
Government.
'23
The principal problem in this area arises with defining what is
sufficient government conduct to constitute inducement, and not the
mere offering of an opportunity.24 Nevertheless, the law is now wellsettled
that the burden of offering evidence of inducement rests, at
21. Sherman, 356 U.S. at 372 (quoting United States v. Sorrells, 287 U.S. 435, 241, 251
(1932)) (emphasis in Sherman).
22. For detailed discussion of the procedural issues involved with this question, see Marcus,
supra note 2.
23. 488 F.2d 849, 850-51 (9th Cir. 1973). The court in United States v. Andrews, 765 F.2d
1491, 1499 (11th Cir.) (citations omitted), cert denied, 106 S. Ct. 815 (1985), explained the basic
point:
[E]vidence that the government agent sought out or initiated contact with the defendant,
or was the first to propose the illicit transaction, has been held to be insufficient to
meet the defendant's burden. The defendant must demonstrate not merely inducement
or suggestion on the part of the government but "an element of persuasion or mild
coercion." The defendant may make such a showing by demonstrating that he had not
favorably received the government plan and the government had had to "push it" on
him, or that several attempts at setting up an illicit deal had failed and on at least one
occasion he had directly refused to participate. When the defendant makes such a
showing, the burden shifts to the government to demonstrate beyond a reasonable
doubt that the defendant was predisposed to commit the offense charged.
24. This problem will be explored infra in text accompanying notes 35-88.
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Proving Entrapment
least initially, on the defendant, not on the government.25 If the defendant
offers sufficient evidence of inducement, the burden then shifts
to the government with respect to the question of predisposition.
While the courts are not in agreement as to the evidentiary burden
that the defense must meet, it is fair to say that the burden is a
limited one. Some courts require evidence which amounts to "more
than a scintilla,"26 others discuss "any foundation in the evidence,"'27
and still others mention "some evidence" of government inducement.
2 8 However, the majority of courts rely on the traditional preponderance
of the evidence standard. Thus, if the defendant offers
evidence sufficient to demonstrate that he has more likely than not
been the victim of government inducement, the burden as to predisposition
will then shift to the government.29
The defendant at trial can satisfy the appropriate standard by offering
evidence to demonstrate inducement, or by showing that the
government's evidence reveals its inducement.30 The defendant generally
cannot make this showing prior to the trial. The courts have been
fairly consistent in noting that the issues concerning inducement and
predisposition tend to be evidentiary in nature and are thus ill-suited
for pretrial decisions. In State v. Roberts the court refused to allow the
defendant to raise the entrapment defense during a pretrial hearing on
a motion to suppress.3 Similarly, most courts will hold that when a
defendant seeks to enter a guilty plea, such a plea waives the defendant's
right to claim the defense of entrapment.3 2 An exception to the
25. See, eg., United States v. Sarmiento, 786 F.2d 665, 667 (5th Cir. 1986). Some courts
have adopted a "unitary standard" such that if the defendant demonstrates some act of inducement
by the government the case still cannot go to the jury unless there is evidence showing
"unreadiness" on the defendant's own part. See United States v. Gambino, 788 F.2d 938, 943
(3d Cir. 1986); Kadis v. United States, 373 F.2d 370, 374 (Ist Cir. 1967). In some courts the
procedure becomes more awkward as to this unitary standard. These cases require the defendant
to respond to the government's showing of predisposition with a demonstration of lack of predisposition.
See, eg., the discussion in United States v. Burkley, 591 F.2d 903, 914 (D.C. Cir.), cerL
denied, 440 U.S. 966 (1978).
26. United States v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979).
27. United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977).
28. Burkley, 591 F.2d at 914.
29. The preponderance test has been supported by the drafters of both the Model Penal
Code and the proposed revised Federal Criminal Code. Though each involves the objective test
(not the majority subjective test) the initial inducement burden appears similar in the MODEL
PENAL CODE § 2.13(2) (1985) and the FINAL REPORT OF THE NATIONAL COMMISSION ON
REFORM OF FEDERAL CRIMINAL LAws § 702(1) (1971).'
30. United States v. Gunter, 741 F.2d 151, 153 (7th Cir. 1984).
31. 471 So.2d 900 (La. Ct. App. 1985).
32. United States v. Yater, 756 F.2d 1058, 1063 (5th Cir.), cert. denied, 106 S. Ct. 225
(1985). See also Eaton v. United States, 458 F.2d 704, 707 (7th Cir.), cerL denied, 409 U.S. 880
(1972).
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AM. J. CRIM. LAW
pretrial rule may be found in cases where a motion in limine is
brought. For example, in State v. Burciaga 33 the government announced
at a pretrial hearing its intention to introduce evidence of the
defendant's prior conviction as bearing on the issue of his predisposition.
The defendant's motion in limine on this point was granted and
affirmed on appeal.34
The element of inducement can rarely be shown to be a question
of law that must be decided by the judge. Courts in almost all cases
have determined that both the questions of whether inducement existed
and whether it was sufficient are questions of fact. The evidentiary
burden to be met in order to have the judge decide the issue as a
matter of law is a high one: "[T]he evidence must clearly have indicated
that 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 agent."35
Defendants often lose their claims as a matter of law because all
they can show is that a government agent afforded an opportunity or
facilities for the commission of an offense.36 The defendant will prevail
as a matter of law only "when the criminal intent originates with
the officer and the defendant is lured or induced into the commission
of a crime he was not ready and willing to engage in .... "137
Under unusual circumstances the defendant may win as a matter
of law. The most famous example is the United States Supreme Court
case of Sherman v. United States.38 The defendant in Sherman had a
history of selling drugs and was being treated for narcotics addiction.
When a government agent approached the defendant in an attempt to
buy drugs, the defendant initially was reluctant to make the sale. Ultimately
he acceded to the strong wishes of the informant. The defendant
was convicted of selling drugs to the government agent. The
Court held that these facts showed entrapment as a matter of law39
and voiced strong disapproval of the government's actions:
The government informer entices someone attempting to
avoid narcotics not only into carrying out an illegal sale but
33. 146 Ariz. 333, 705 P.2d 1384 (Ariz. Ct. App. 1985).
34. Id. at 1386-87.
35. United States v. Shaw, 570 F.2d 770, 772 (8th Cir. 1978).
36. United States v. Quinn, 543 F.2d 640, 647 (8th Cir. 1976). See also United States v.
Randolph, 738 F.2d 244 (8th Cir. 1984).
37. State v. Arnold, 676 S.W.2d 61, 62 (Mo. Ct. App. 1984). See generally United States v.
Lard, 734 F.2d 1290 (8th Cir. 1984).
38. 356 U.S. 369 (1958).
39. Id. at 376.
Vol. 14:53 (1987)

HeinOnlinePaul Marcus**
I. INTRODUCTION
The United States Supreme Court and a majority of the states'
have chosen to focus attention in the entrapment area on the individual:
his state of mind, his actions, and his relationship with government
officers. This majority view rejects the objective rule sometimes
applied in entrapment cases and favors a subjective test.2 The sense
has been that the entrapment test is not based on a particular constitutional
principle or a particular construction of the substantive criminal
law. Yet, the subjective test was developed in response to a concern
about the legislative intent of Congress in adopting its substantive
criminal code sections: Congress could not have intended an innocent
individual to be found guilty of a crime when a government agent improperly
induced that person into committing the criminal act. The
United States Supreme Court has made this point repeatedly in numerous
decisions. The following excerpts are illustrative:
Literal interpretation of statutes at the expense of the reason
of the law and producing absurd consequences or flagrant
injustice has frequently been condemned.
We think that this established principle of construction
is applicable here. We are unable to conclude that it was the
intention of the Congress in enacting this statute that its
processes of detection and enforcement should be abused by
the instigation by government officials of an act on the part
* Paul Marcus, 1987. During the coming year, Dean Marcus will complete THE
ENTRAPMENT DEFENSE (Kluwer & Co.).
** Dean and Professor of Law, University of Arizona.
1. For a good discussion of the state statutes which follow the subjective principle, see
Park, The Entrapment Controversy, 60 MINN. L. REV. 163 (1976).
2. The objective test, of course, focuses its attention almost exclusively on the conduct of
the Government agents; thus, the individual defendant becomes somewhat irrelevant to the determination
of whether entrapment existed. For thoughtful discussions of the point, see the opinion
of Justice Roberts concurring in the judgment in Sorrells v. United States, 287 U.S. 435, 453
(1932), and the concurring opinion of Justice Frankfurter in Sherman v. United States, 356 U.S.
369, 378 (1958). Both of these cases are discussed at length in Marcus, The Entrapment Defense
and the Procedural Issues, 22 CRIM. L. BULL. 197 (1986).
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AM. J. CRIM. LAW
of persons otherwise innocent in order to lure them to its
commission and to punish them.... [T]he Government in
such a case is estopped to prosecute or the courts should bar
the prosecution.3 ;
The case at bar illustrates an evil which the defense of
entrapment is designed to overcome. The government informer
entices someone attempting to avoid narcotics not
only into carrying out an illegal sale but also into returning
to the habit of use. Selecting the proper time, the informer
then tells the government agent. The set-up is accepted by
the agent without even a question as to the manner in which
the informer encountered the seller. Thus the Government
plays on the weaknesses of an innocent party and beguiles
him into committing crimes which he otherwise would not
have attempted. Law enforcement does not require methods
such as this.'; and
[E]ntrapment is a relatively limited defense. It is rooted, not
in any authority of the Judicial Branch to dismiss prosecutions
for what it feels to have been "overzealous law enforcement,"
but instead in the notion that Congress could not
have intended criminal punishment for a defendant who has
committed all the elements of a proscribed offense, but was
induced to commit them by the government.-
Justice Rehnquist also noted in United States v. Hampton:
"[T]he entrapment defense 'focus[es] on the intent or predisposition of
the defendant to commit the crime,' rather than upon the conduct of
the Government's agents."6
The lower federal courts have also stated that the principal focus
in the entrapment area is on the individual defendant on trial.7 The
Fifth Circuit recently stated the matter quite clearly: "The entrapment
defense focuses on the intent or predisposition of the defendant
to commit the crime rather than on the conduct of the government's
3. Sorrells v. United States, 287 U.S. 435, 446-48 (1932) (Hughes, C.J.).
4. Sherman v. United States, 356 U.S. 369, 376 (1958) (Warren, C.J.) (footnote omitted).
5. United States v. Russell, 411 U.S. 423, 435 (1973) (Rehnquist, J.).
6. 425 U.S. 484, 488 (1976) (quoting Russell, 411 U.S. at 429).
7. To be distinguished from the attention which would be given, under the objective test,
to government conduct. As stated by Justice Frankfurter in the Sherman case,
It is surely sheer fiction to suggest that a conviction cannot be had when a defendant
has been entrapped by government officers or informers because "Congress could
not have intended that its statutes were to be enforced by tempting innocent persons
into violations ......
The courts refuse to convict an entrapped defendant, not because his conduct falls
outside the proscription of the statute, but because, even if his guilt be admitted, the
methods employed on behalf of the Government to bring about conviction cannot be
countenanced.
356 U.S. at 379, 380.
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Proving Entrapment
agents.... The question of entrapment goes to the basic guilt or innocence
of the defendant." s
The Eighth Circuit in United States v. Lard9 relied on an earlier
opinion of Justice Brandeis when it summarized the subjective test:
The entrapment defense is based on the assumption that
Congress did not intend to punish a defendant who has committed
all the elements of a proscribed offense upon the inducement
or instigation of government agents .... "[T]he
Government may set decoys to entrap criminals. But it may
not provoke or create a crime and then punish the criminal,
its creature."'
II. THE ELEMENTS OF THE TEST
Given that the basis for the subjective entrapment defense is the
nature of the relationship that the individual has with the government,
it is not surprising that the actual test used in practice focuses on the
two main elements described below. The Court in Sorrells explained:
"[T]he issues raised and the evidence adduced must be pertinent to the
controlling question whether the defendant is a person otherwise innocent
whom the government is seeking to punish for an alleged offense
which is the product of the creative activity of its own officials."11
A few statutory references also illustrate this two-part analysis.
The Illinois code provides as follows:
A person is not guilty of an offense if his conduct is incited or
induced by a public officer or employee or agent of either, for
the purpose of obtaining evidence for the prosecution of such
person. However, this Section is inapplicable if a public officer
or employee, or agent of either, merely affords to such
person the opportunity or facility for committing an offense
in furtherance of a criminal purpose which such person has
originated. 2
The Missouri law is even more specific:
An "entrapment" is perpetuated [sic] if a law enforcement
officer or a person acting in cooperation with such an officer,
8. United States v. Yater, 756 F.2d 1058, 1062 (5th Cir.) (citations omitted), cert. denied,
106 S. Ct. 225 (1985). The court went on to explain that the defense had to show that the
government agent created "a substantial risk that the offense would be committed by a person
other than one ready to commit it." Id. at 1062 n.6 (quoting Pierce v. United States, 414 F.2d
163, 168 (5th Cir. 1969)).
9. 734 F.2d 1290 (8th Cir. 1984).
10. 734 F.2d at 1292 (quoting Casey v. United States, 276 U.S. 413, 423 (1928) (Brandeis,
J., dissenting)).
11. United States v. Sorrells, 287 U.S. 435, 451 (1932).
12. ILL. ANN. STAT. ch. 38. para. 7-12 (Smith-Hurd 1972).
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AM. J. CRIM. LAW Vol. 14:53 (1987)
for the purpose of obtaining evidence of the commission of
an offense, solicits, encourages or otherwise induces another
person to engage in conduct when he was not ready and willing
to engage in such conduct. 13
It is clear from Supreme Court discussions and various statutory
provisions that under the subjective test for entrapment the two primary
issues to be litigated at trial are:1 4 (1) evidence of inducement by
government agents; and (2) the state of mind of the defendant. While
recognizing that these two questions are usually at issue in entrapment
cases, the Fourth Circuit in United States v. Hunt 15 concluded that
the predisposition element of the two-part analysis is the more important
one. It explained that "the essential element of the entrapment
defense is the defendant's lack of predisposition to commit the crime
charged." 16 The court's conclusion that the predisposition element is
the determinative one may have been correct, but that conclusion
might have been reached somewhat quickly. In many cases a host of
issues involved with inducement must also be considered. These issues
include: (1) the impropriety of inducement as a matter of law; (2) the
mechanics of proving inducement; (3) the nature of the burden of
proof as to inducement; and (4) the distinction between questions of
law and questions of fact with respect to government inducement.
A. Is Inducement Proper?
Courts have recognized consistently that some form of government
inducement or enticement may be appropriate in seeking to engage
the defendant in criminal conduct. Indeed, Chief Justice
Rehnquist has indicated that such government action may be not only
proper but also necessary, particularly in cases where the nature of the
criminal activity is such as to avoid criminal detection. In United
States v. Russell,17 government agents supplied the defendants with an
ingredient that was difficult for the defendants to obtain, but necessary
to enable the defendants to manufacture an illegal drug. The government
officers arrested the defendants as soon as the drug was manufactured.
Justice Rehnquist responded to the defense argument that such
government involvement in crime was inherently improper:
13. Mo. REV. STAT. § 562.066.2 (1978).
14. The matter is normally resolved at trial. Most claims cannot be disposed of pretrial.
See infra text accompanying notes 31-34.
15. 749 F.2d 1078 (4th Cir. 1984), cert. denied, 105 S. Ct. 3479 (1985).
16. Id. at 1085. But see State v. Martin, 77 N.C. App. 61, 334 S.E.2d 459 (1985); People v.
Boalbey, 143 IllA.p p. 3d 362, 493 N.E.2d 369 (1986).
17. 411 U.S. 423 (1973).
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Proving Entrapment
The illicit manufacture of drugs is not a sporadic, isolated
criminal incident, but a continuing, though illegal,
business enterprise. In order to obtain convictions for illegally
manufacturing drugs, the gathering of evidence of past
unlawful conduct frequently proves to be an all but impossible
task. Thus in drug-related offenses law enforcement personnel
have turned to one of the only practicable means of
detection: the infiltration of drug rings and a limited participation
in their unlawful present practices. Such infiltration
is a recognized and permissible means of investigation; if that
be so, then the supply of some item of value that the drug
ring requires must, as a general rule, also be permissible. For
an agent will not be taken into the confidence of the illegal
entrepreneurs unless he has something of value to offer them.
Law enforcement tactics such as this can hardly be said to
violate "fundamental fairness" or [be] "shocking to the universal
sense of justice." 8
Another judge recently pointed out that "the entrapment defense has
no application where the government agents merely use stealth, strategy,
or deception to trap an 'unwary criminal' or merely provide the
defendant with an opportunity or facility to commit the crime."19
It is clear, therefore, that inducement as such is not inherently
improper or unlawful under the subjective entrapment test. Inducement
can, however, exceed permissible bounds and become suject to
sanction. Indeed, the very judge who made the comment quoted
above further remarked that the government cannot be involved in the
"manufacturing of crime." Citing the majority opinion in Sherman
the judge quoted, "The function of law enforcement is the prevention
of crime and the apprehension of criminals. Manifestly, that function
does not include the manufacturing of crime. '20
18. 411 U.S. at 432. Justice Rehnquist, writing for the majority, continued: "Nor does it
seem particularly desirable for the law to grant complete immunity from prosecution to one who
himself planned to commit a crime, and then committed it, simply because government undercover
agents subjected him to inducement, which might have seduced a hypothetical individual
who was not so predisposed." Id. at 434. The dissenters in the case strongly disagreed with the
majority opinion.
In this case, the chemical ingredient was available only to licensed persons, and the
Government itself had requested suppliers not to sell that ingredient even to people
with a license. Yet the Government agent readily offered, and supplied, that ingredient
to an unlicensed person and asked him to make a certain illegal drug with it. The
Government then prosecuted that person for making the drug produced with the very
ingredient which its agent had so helpfully supplied. This strikes me as the very pattern
of conduct that should be held to constitute entrapment as a matter of law.
411 U.S. at 449 (Stewart, J., dissenting) (emphasis in original).
19. United States v. Lard, 734 F.2d 1290, 1293 (8th Cir. 1984).
20. Id. (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)).
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Am. J. CRIM. LAW
The majority in Sherman emphasized that to " 'merely afford opportunities
or facilities for the commission of the offense does not' constitute
entrapment. Entrapment occurs only when the criminal
conduct was 'the product of the creative activity' of law enforcement
officials." 2
In connection with the issue of inducement in entrapment cases,
two central questions arise: (1) procedurally, how does one prove sufficient
inducement to have that issue submitted as a question of fact
for the jury; and (2) when is inducement sufficiently proved as a matter
of law.
B. Proving Inducement The Procedural Issues
In practice, relatively few procedural problems seem to arise with
respect to the inducement prong of the entrapment test.22 The rules
may be stated with succinctness and clarity. It is not enough for the
defendant to show that government agents offered him an opportunity
to engage in criminal activity. Something more overreaching on the
part of the government is necessary. As stated by the court in United
States v. Christopher: "[It is not enough] that the Government furnished
the opportunity for the commission of a crime.... [There must
still be] some evidence of inducement or persuasion by the
Government.
'23
The principal problem in this area arises with defining what is
sufficient government conduct to constitute inducement, and not the
mere offering of an opportunity.24 Nevertheless, the law is now wellsettled
that the burden of offering evidence of inducement rests, at
21. Sherman, 356 U.S. at 372 (quoting United States v. Sorrells, 287 U.S. 435, 241, 251
(1932)) (emphasis in Sherman).
22. For detailed discussion of the procedural issues involved with this question, see Marcus,
supra note 2.
23. 488 F.2d 849, 850-51 (9th Cir. 1973). The court in United States v. Andrews, 765 F.2d
1491, 1499 (11th Cir.) (citations omitted), cert denied, 106 S. Ct. 815 (1985), explained the basic
point:
[E]vidence that the government agent sought out or initiated contact with the defendant,
or was the first to propose the illicit transaction, has been held to be insufficient to
meet the defendant's burden. The defendant must demonstrate not merely inducement
or suggestion on the part of the government but "an element of persuasion or mild
coercion." The defendant may make such a showing by demonstrating that he had not
favorably received the government plan and the government had had to "push it" on
him, or that several attempts at setting up an illicit deal had failed and on at least one
occasion he had directly refused to participate. When the defendant makes such a
showing, the burden shifts to the government to demonstrate beyond a reasonable
doubt that the defendant was predisposed to commit the offense charged.
24. This problem will be explored infra in text accompanying notes 35-88.
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Proving Entrapment
least initially, on the defendant, not on the government.25 If the defendant
offers sufficient evidence of inducement, the burden then shifts
to the government with respect to the question of predisposition.
While the courts are not in agreement as to the evidentiary burden
that the defense must meet, it is fair to say that the burden is a
limited one. Some courts require evidence which amounts to "more
than a scintilla,"26 others discuss "any foundation in the evidence,"'27
and still others mention "some evidence" of government inducement.
2 8 However, the majority of courts rely on the traditional preponderance
of the evidence standard. Thus, if the defendant offers
evidence sufficient to demonstrate that he has more likely than not
been the victim of government inducement, the burden as to predisposition
will then shift to the government.29
The defendant at trial can satisfy the appropriate standard by offering
evidence to demonstrate inducement, or by showing that the
government's evidence reveals its inducement.30 The defendant generally
cannot make this showing prior to the trial. The courts have been
fairly consistent in noting that the issues concerning inducement and
predisposition tend to be evidentiary in nature and are thus ill-suited
for pretrial decisions. In State v. Roberts the court refused to allow the
defendant to raise the entrapment defense during a pretrial hearing on
a motion to suppress.3 Similarly, most courts will hold that when a
defendant seeks to enter a guilty plea, such a plea waives the defendant's
right to claim the defense of entrapment.3 2 An exception to the
25. See, eg., United States v. Sarmiento, 786 F.2d 665, 667 (5th Cir. 1986). Some courts
have adopted a "unitary standard" such that if the defendant demonstrates some act of inducement
by the government the case still cannot go to the jury unless there is evidence showing
"unreadiness" on the defendant's own part. See United States v. Gambino, 788 F.2d 938, 943
(3d Cir. 1986); Kadis v. United States, 373 F.2d 370, 374 (Ist Cir. 1967). In some courts the
procedure becomes more awkward as to this unitary standard. These cases require the defendant
to respond to the government's showing of predisposition with a demonstration of lack of predisposition.
See, eg., the discussion in United States v. Burkley, 591 F.2d 903, 914 (D.C. Cir.), cerL
denied, 440 U.S. 966 (1978).
26. United States v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979).
27. United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977).
28. Burkley, 591 F.2d at 914.
29. The preponderance test has been supported by the drafters of both the Model Penal
Code and the proposed revised Federal Criminal Code. Though each involves the objective test
(not the majority subjective test) the initial inducement burden appears similar in the MODEL
PENAL CODE § 2.13(2) (1985) and the FINAL REPORT OF THE NATIONAL COMMISSION ON
REFORM OF FEDERAL CRIMINAL LAws § 702(1) (1971).'
30. United States v. Gunter, 741 F.2d 151, 153 (7th Cir. 1984).
31. 471 So.2d 900 (La. Ct. App. 1985).
32. United States v. Yater, 756 F.2d 1058, 1063 (5th Cir.), cert. denied, 106 S. Ct. 225
(1985). See also Eaton v. United States, 458 F.2d 704, 707 (7th Cir.), cerL denied, 409 U.S. 880
(1972).
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pretrial rule may be found in cases where a motion in limine is
brought. For example, in State v. Burciaga 33 the government announced
at a pretrial hearing its intention to introduce evidence of the
defendant's prior conviction as bearing on the issue of his predisposition.
The defendant's motion in limine on this point was granted and
affirmed on appeal.34
The element of inducement can rarely be shown to be a question
of law that must be decided by the judge. Courts in almost all cases
have determined that both the questions of whether inducement existed
and whether it was sufficient are questions of fact. The evidentiary
burden to be met in order to have the judge decide the issue as a
matter of law is a high one: "[T]he evidence must clearly have indicated
that 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 agent."35
Defendants often lose their claims as a matter of law because all
they can show is that a government agent afforded an opportunity or
facilities for the commission of an offense.36 The defendant will prevail
as a matter of law only "when the criminal intent originates with
the officer and the defendant is lured or induced into the commission
of a crime he was not ready and willing to engage in .... "137
Under unusual circumstances the defendant may win as a matter
of law. The most famous example is the United States Supreme Court
case of Sherman v. United States.38 The defendant in Sherman had a
history of selling drugs and was being treated for narcotics addiction.
When a government agent approached the defendant in an attempt to
buy drugs, the defendant initially was reluctant to make the sale. Ultimately
he acceded to the strong wishes of the informant. The defendant
was convicted of selling drugs to the government agent. The
Court held that these facts showed entrapment as a matter of law39
and voiced strong disapproval of the government's actions:
The government informer entices someone attempting to
avoid narcotics not only into carrying out an illegal sale but
33. 146 Ariz. 333, 705 P.2d 1384 (Ariz. Ct. App. 1985).
34. Id. at 1386-87.
35. United States v. Shaw, 570 F.2d 770, 772 (8th Cir. 1978).
36. United States v. Quinn, 543 F.2d 640, 647 (8th Cir. 1976). See also United States v.
Randolph, 738 F.2d 244 (8th Cir. 1984).
37. State v. Arnold, 676 S.W.2d 61, 62 (Mo. Ct. App. 1984). See generally United States v.
Lard, 734 F.2d 1290 (8th Cir. 1984).
38. 356 U.S. 369 (1958).
39. Id. at 376.
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