Professional Documents
Culture Documents
1983)
[2] I Facts.
In January or February of 1981 defendant accompanied his girlfriend during a visit to Northwest Parish
Credit Union in an attempt to reclaim her automobile,
which had been repossessed. In the course of this visit
defendant spoke with James Kramer, a/k/a James Seider, an employee of the credit union. Unbeknown to
defendant, Kramer was also employed as an informant
for the Bureau of Alcohol, Tobacco, and Firearms
(ATF). Defendant mentioned that he was looking for
work and was interested in buying and selling cars.
A week later defendant again visited the credit union
and told Kramer that he needed money and would be
willing to repossess cars and was not particular about
the legality of his employment. Defendant returned
a few days later and spoke with Kramer, mentioning that he was experienced at blowing up and burning buildings and would be willing to put his skills
to work for Kramer. Kramer said that he would keep
this in mind. Defendant repeated this offer in March.
Kramer informed Special Agent Hal Walker of ATF's
Arson for Profit Group that defendant purported to
be an arsonist for hire.
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[10] II Entrapment.
Defendant argues that the evidence established entrapment as a matter of fact and law. In making this
argument defendant has confused the defense of entrapment with the separate defense of governmental
misconduct in violation of due process. As a first step
in an examination of the distinction between the two
defenses we turn to the four major entrapment decisions of the United States Supreme Court.
In the first of these cases, Sorrells v. United States, 287
U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), defendant
was persuaded to sell illegal liquor to a government
agent by repeated appeals to defendant's sympathy for
a fellow war veteran. The majority of the Court, reversing the trial court's refusal to submit the defense
of entrapment to the jury, held that as a matter of statutory construction the defense of entrapment was raised
by the introduction of evidence that the crime was
committed at the instigation of the Government and
that the defendant was not predisposed to commit the
offense. Under this analysis entrapment is a question
of fact to be decided by the jury. In a separate opinion
three members of the Court argued that the defense
of entrapment should focus upon the extent of the
Government's misconduct and *1007 was grounded in
the judiciary's power to "protect itself and the government from such prostitution of the criminal law."287
U.S. at 457, 53 S.Ct. at 218. Under this objective test
the defendant's character is irrelevant. The minority
argued that it was the duty of the court, not the jury,
to close its doors to prosecutions founded upon governmental misconduct in inducing or creating crime.
This difference of opinion was repeated in Sherman v.
United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848
(1952), in which the majority held that "[t]o determine whether entrapment has been established, a line
must be drawn between the trap for the unwary innocent and the trap for the unwary criminal."356 U.S.
at 372, 78 S.Ct. at 820. A minority of the Court argued for an objective test of the Government's conduct that would not consider the predisposition of the
defendant. Both groups agreed that entrapment was
established as a matter of law when the uncontroverted evidence disclosed that defendant sold narcotics to
an informer only after numerous pleas to defendant's
empathy for one suffering the ravages of withdrawal overcame defendant's initial reluctance. There was
no persuasive proof of defendant's predisposition and
defendant made no profit from the sales. In effect the
Government had created a criminal out of a person attempting to break his addiction simply for the sake of
arresting him.
Although the members of the Court have changed, the
disagreement over the source and scope of the entrapment defense remains. In United States v. Russell, 411
U.S. 423,93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the majority held that entrapment is limited to those situations in which the "Government's deception actually
implants the criminal design in the mind of the defendant." 411 U.S. at 436, 93 S.Ct. at 1645. The majority conceded that "we may some day be presented with
a situation in which the conduct of the law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction," id. at
431-32, 93 S.Ct. at 1642, but held that supplying one
ingredient, not itself illegal, to defendants engaged in
the manufacture of methamphetamine was not such
conduct. The dissent, once again, argued for an objective test of the Government's conduct.
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States v. Cardi, 478 F.2d 1362, 1367 (7th Cir. 1973), cert.
denied, 414 U.S. 1001, 94 S.Ct. 355, 38 L.Ed.2d 237.
This is not such a case.
Although there is no infallible means of divining a defendant's predisposition to commit a crime after the
fact, there are several factors recognized as relevant in
making this determination. We start with the observation that predisposition is, by definition, "the defendant's state of mind and inclinations before his initial
exposure to government agents." United States v. Jannotti,
501 F. Supp. 1182, 1191 (E.D.Pa. 1980), rev'd on other
grounds, 673 F.2d 578 (3rd Cir.), cert. denied, 457 U.S.
1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982) (emphasis added). This answers defendant's bizarre contention that "the agents literally entrapped him into a
state of predisposition." One is either predisposed to
commit a crime before coming into contact with the
Government or one is not, so the argument that one
could be entrapped into having a state of predisposition is meaningless. We now turn our attention to the
factors relevant in determining predisposition.
Among these are the character or reputation
of the defendant, including any prior criminal
record; whether the suggestion of the criminal
activity was initially made by the Government;
whether the defendant was engaged in the
criminal activity for profit; whether the
defendant evidenced reluctance to commit the
offense, overcome only by repeated
Government inducement or persuasion; and
the nature of the inducement or persuasion
supplied by the Government. While none of
the factors alone indicates either the presence
or absence of predisposition, the most
important factor . . . is whether the defendant
evidenced reluctance to engage in criminal
activity which was overcome by repeated
Government inducement.
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tion in the crime. The jury was also free to believe that
defendant was experienced in burning buildings despite his claim to the contrary, and it is uncontested
that he had extensive knowledge of the various means
of setting fires. Defendant agreed to burn the tavern
before he knew how much he would be paid, and at
any rate the $1,000 offered by Walker was not exorbitant. Most important, defendant never expressed
any reluctance at committing the crime and in fact
expressed considerable enthusiasm about the job. In
short, defendant was not some naive innocent forced
into committing a crime by the Government.
Before turning to defendant's due process claim we
wish to point out that even if defendant had been fabricating his credentials as an arsonist and had never
set a fire in his life this would not negate a finding of
predisposition. Predisposition is a question of intent,
not experience, and to the extent defendant engaged
in puffery to sell his wares this only serves to bolster
a finding that he was predisposed before coming into
contact with Kramer and Walker.
cates that due process grants wide leeway to law enforcement agencies in their investigation of crime. Assuming that no independent constitutional right has
been violated, governmental misconduct must be truly outrageous before due process will prevent conviction of the defendant.
from "pestering" him the jury was not required to believe this explanation. Furthermore, defendant admitted that Walker had not pressured him and offered
him many opportunities to withdraw from participa-
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1234 (9th Cir. 1977). Undercover police work in general, and the use of men such as Kramer in specific, is
an unattractive business, but that is the nature of the
beast and we see nothing improper in the manner in
which this investigation was carried out. Defendant's
judgment of conviction is AFFIRMED.
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