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Underco,ver Investigations and the Entrapment Defense Recent Court Cases By THOMAS V. KUKURA, J.D.

aw enforcement officers of­ gality of various undercover inves­ defendant's criminal predisposi­ ten employ trickery and de­ tigative techniques. This article be­ tion.2 This article focuses on recent L ception to catch those in­ gins with a discussion of the en­ cases concerning the subjective en­ volved in criminal activity. The trapment defense in the context of trapment defense, which concen­ U.S. Supreme Court has recognized the Jacobson decision. It then exam­ trates on the predisposition of the that when investigating certain ines selected lower Federal court defendant. However, the general criminal behavior, law enforcement decisions that delineate several im­ principles discussed are relevant may lawfully use an array of under­ portant factors law enforcement of­ for any law enforcement officer cover techniques. However, in ficers should consider when con­ considering the use of undercover 1992, the Supreme Court in ducting undercover operations. techniques. Jacobson v. United States' over­ While Jacobson involves the turned a Federal child pornography so-called subjective view of entrap­ Background of the Jacobson conviction based on an entrapment ment used in the Federal courts, Decision defense. some State jurisdictions permit an In February 1984, a 56-year-old Entrapment and other related objective entrapment defense that Nebraska farmer (hereinafter the defenses are often asserted by crim­ stresses the wrongfulness of Gov­ defendant), with no record or rep­ inal defendants to challenge the le- ernment action without regard to the utation for violating any law,

April 1993 / 27 I I Government's investigative tech­ niques. The lower Federal courts Entrapment and other rejected these defe.1ses, but in a 5-4 "related defenses ... decision, the Supreme Court re­ challenge the legality versed his conviction, based solely of various undercover on the entrapment claim.3 • investigative Entrapment Based on a Lack of techniques. Predisposition In Jacobso/l, the Supreme Court held that law enforcement officers " ... may not originate a criminal de­ " sign, implant in an innocent per­ Special Agent Kukura, Drug Enforcement Administration, is a legal Instructor at the FBI Acaa:emy. son's mind the disposition to com­ mit a criminal act, and then induce commission of the crime so that the Government may prosecute,"4 The lawfully ordered and received from photographs of young boys engag­ Court's rationale followed a tradi­ an adult bookstore two magazines ing in sex. At this time, the de­ tional entrapment defense analysis that contained photographs of nude fendant placed an order that was that focuses on two basic questions, teenage boys. Subsequent to this, never filled. First, did the Government induce Congress passed the Child Protec­ Meanwhile, the investigators the defendant to commit the crime? tion Act of 1984, which made it attempted to further pique the de­ Second, assuming the Government illegal to receive such material fendant's interest through a ficti­ improperly induced the defendant to through the mail. Later that year, the tiolls letter decrying censorship commit the crime, was the defend­ U.S. Postal Service obtained the de­ and suggesting a method of getting ant nevertheless predisposed to fendant's name from a mailing list material to him without the "pry­ commit the criminal act prior to first seized at the adult bookstore, and in ing eyes of U.S. Customs." A cata­ being approached by Government January 1985, began an undercover logue was then sent to him, and he agents? operation targeting him. ordered a magazine containing child Because the Government did Over the next 2 112 years, Gov­ pornography. not dispute that it induced the de­ ernment investigators, through After a controlled delivery of a fendant to order the pornography, five fictitious organizations and a photocopy of the magazine, the de­ the sole issue before the Court in bogus pen pal, repeatedly contacted fendant was arrested. A search of his Jacobson was whether the Govern~ the defendant by mail, exploring home revealed only the material he ment had proved beyond a reason­ hh attitudes toward child pornogra­ received from the Government and able doubt that the defendant was phy. The communications also con­ the two sexually oriented magazines predisposed to order the illegal por­ tained disparaging remarks about he lawfully acquired in 1984. nography before the Government the legitimacy and constitutionality The defendant was charged intervened. Based on the unusual of efforts to restrict the availability with receiving child pornography facts of this case, the Court held that of sexually explicit material, and through the mail in violation of i8 the Government failed to prove finally, offered the defendant the U.S.C. § 2252 (a)(2)(A). He defend­ Jacobson's predisposition to com­ opportunity to order illegal child ed himself by claiming that the Gov­ mit this criminal act, independent pornography. emment's conduct was outrageous, of the attention the Government Twenty-six months after the that the Government needed reason­ directed at him for 2 112 years. mailings to the defendant com­ able suspicion before it could legal­ The Court rejected as insuffi­ menced, Government investigators ly begin an investigation of him , and cient the Government's evidence of sent him a brochure ad',ertising that he had been entrapped by the the defendant's predisposition de-

28/ FBI Law Enforcement Bulletin ------veloped I) prior to the Govern­ Each of these issues will be ad­ cies proactively implement intel'l1al ment's mailings and 2) during the dressed in turn. policy guidelines designed to ensure course of the investigation. The that persons targeted a\'e predis­ preinvestigative evidence of predis­ Does the Government Need posed to engage in the contemplated position consisted solely of the de­ Reasonable Suspicion Before illegal conduct.s fendant's then lawful 1984 purchase Targeting an Individual? of the two magazines. The Court Numerous Federal courts have What Constitutes Inducement? found this lawful purchase insuffi­ held there is no Federal constitu­ The Federal defense of entrap­ cient to show predisposition to do tional requirement for any level of ment requires that a defendant first what is now unlawful because suspicion to initiate undercover op­ eSlablish that he was induced to "there is a common understanding erations.6 The issue of whether the commit the crime. Then, the burden that most people obey the law even Government needed reasonable shifts to the Government to prove when they disapprove of it."5 suspicion to approach the defendant the defendant was nonetheless pre­ The COllrt likewise dismissed in Jacobson was resolved in the disposed to commit that crime. If a the Government's evidence of pre­ Govern111ent's favor by the lower defendant cannot establish Govern­ disposition gathered during the in­ courts, and the Supreme Court re­ ment inducement, the inquiry ends, vestigation, finding that the de­ fused to overturn that holding. and the Federal defense of entrap­ fendant's responses revealed, at ment fails.') most, a predisposition to view pho­ Inducement generally requires tographs of teenage sex and a will­ more than merely establishing that ingness to promote a given agenda ... inducement an officer approached and requested by supporting lobbying organiza­ " focuses on the a defendant to engage in criminal tions. The Court concluded that conduct. While evidence that the this evidence was not sufficient Government's conduct, Government engaged in persuasion, to prove, beyond a reasonable while predisposition threats, coercive tactics, harass­ doubt, that the defendant was focuses on the ment, or pleas based on sympathy or predisposed to commit the crime defendant's actions friendship may amount to induce­ of receiving child pornography and statements. ment, most courts also require the through the mail. defendant to demonstrate that the Since Jacobson, courts have described Govl;!rnment conduct cre­ discllssed the following four ques­ ated a substantial risk that an These decisions rejected the " undisposed p{~rson or otherwise tions relevant to entrapment and re­ claim that the Government needs a lated defenses that law enforcement law-abiding citizen would commit pre-existing basis for suspecting officers should consider prior to ini­ the offense. lo criminal activity before targeting an ,I tiating undercover investigations: For example, in United States individual in an undercover investi­ v. YOling, 11 the Internal Revenue 1) Does the Government need gation. The decisions are based on reasonable suspicion before Service (IRS) placed an undercover the grounds that there is no constitu­ female informant at an IRS site to targeting an individual in an tional right to be free of investiga­ undercover investigation? investigate drug activity. The in­ tion and that the met'e fact an under­ formant became fj'iendly with the 2) What constitutes cover investigation started without male defendant, who hoped the rela­ inducement? reasonable suspicion "does not bar tionship would develop into a ro­ 3) What constitutes evidence the conviction of those who rise to mantic one. of predisposition? and its baiL"7 However, as a practical During the next 4 months, they matter, investigative agencies have 4) What is the viability of the had contact at work and talked fre­ little incentive to expend their limit­ quently over the telephone. The in­ so-called outrageous Govern­ ed resources on frivolous undercov­ ment conduct defense? formant initiated at least five of er investigations, and some agen- these telephone conversations, in

April 1993 / 29 which they discussed their mutual vide the opportunity or facilities to pounds of methamphetamine to the marijuana habit and the availability commit a crime by the use of artifice defendant's house. At this point, of marijuana. Sometime later, the and stratagem. police arrested the source and the defendant agreed to find a buyer for defendant. a quantity of marijuana that the What Constitutes Evidence of The U.S. Court of Appeals for female informant indicated was Predisposition? the Ninth Circuit found in Skarie available. Most courts consider the in­ that the Government induced the The court found this alleged ducement and predisposition ele­ defendant to break the law because evidence of inducement insufficient ments of entrapment to be closely the informant initiated the idea of a because the level of contact was not related, and often, the same evi­ drug sale, pressured the defendant so persistent as to be harassing or dence will establish both elements. repeatedly to agree to the plan, and coercive. Nor was the friendship threatened the defendant to con­ such that the defendant would feel vince her to do SO.16 Because the compelled to respond affirmatively court found Government induce­ to the informant's offer. 12 ".. .inducement is not ment, the burden shifted to the pros­ In United States v. established if law ecution to prove beyond a reason­ LaChapelle,13 the Government ini­ enforcement officers able doubt that the defendant was tiated a child pornography investi­ merely provide the disposed to commit the criminal act gation similar to Jacobson. The prior to first being approached by Government began the operation by opportunity or facilities Government agents. developing a flier advertising a ficti­ to commit a crime.... The court identified the follow­ tious Belgium company that could ing five factors as being relevant in supply "extremely hard to obtain determining predisposition: erotica." I) The character of the Unlike the defendant in The primary distinction between defendant Jacobson, LaChapelle indepen­ these elements is that inducement" 2) Who first suggested the dently and unilaterally inquired focuses on the Government's con­ criminal activity about the availability of child por­ duct, while predisposition focuses nography and proceeded to order on the defendant's actions and 3) Whether the defendant such materials at the first available statements. engaged in the activity for opportunity, without the Govern­ FOI'example, in United States v. profit ment pressing him to do so. The Skarie,15 a Government informant, 4) Whether the defendant court held the defendant failed to who was a distam relative of the demonstrated reluctance, and establish inducement and distin­ defendant's estranged husband, 5) The nature of the Govern­ guished Jacobson, where the Gov­ moved in with her and asked her to ment's inducement. 17 ernment had mentioned child por­ put him in touch with people who nography in at least five mailings could sell him and his friend drugs. Using these factors, the court and aggressively urged Jacobson to She declined at first, but the inform­ found that no reasonable jury could battle censorship in four other mail­ ant continued to pressure and threat­ find beyond a reasonable doubt that ings before Jacobson broke down en her. He impaled one of her chick­ the defendant was predisposed to and ordered a magazine. 14 ens on a stick and left it outside her sell drugs independent of the insist­ In both Young and LaChapelle, back door; he later stated that what ent and threatening actions of the the defendants needed little encour­ happened to the chicken could hap­ informant. agement to take part in criminal ac­ pen to people as well. Proving Predisposition tivity. These cases suggest that in­ The defendant subsequently ducement is not established if law took the informant to meet a source, Several recent cases reveal how enforcement officers merely pro- who later brought approximately 3 Government agents provided a court with articulable factors to traders. In addition, the defendant of Appeals for the Fifth Circuit held prove predisposition, which defeat­ made a quick reply to an undercover that even though the Government ed an entrapment defense, despite agent's invitation to "talk business." may initiate an illegal scheme, such evidence of Government induce­ However, the lack of any evi­ as money laundering. a defendant's ment. For example, in United States dence that a defendant previously "willing and active participation in v. Casanova,18 the defendant, a fed­ engaged in a specific crime does not the scheme" can establish a predis­ erally licensed firearms dealer, sold conclusively preclude any predispo­ position toward the crime. 24 several guns to a Government agent sition to commit the crime. Evi­ and an informant posing as convict­ dence of predisposition may also The Outl'ageous Government ed felons. The court assessed the be established by showing the de­ Conduct Defense five factors applied in Skarie and fendant's desire to make a profit, A defense closely related to the determined that the defendant was an eagerness to participate in the objective view of entrapment is the predisposed based on the following criminal activity, or a quick re­ outrageous Government conduct evidence. sponse to the Government's induce­ defense, which is predicated on the First, the defendant had several ment offer.22 Due Process Clause of the fifth prior misdemeanor convictions dis­ amendment to the U.S. Constitu­ closing a less than law-abiding tion. 25 The Supreme Court, in a background. Second, he readily 1973 decision, foreshadowed the agreed to sell a weapon to the in­ evolution of this defense by sug- formant, even after he had been gesting that even where informed on two occasions of the predisposition is estab­ informant's felon status. Third, he lished, "(W]e may some admitted engaging in the illegal ac­ day be presented with a tivity to make a "quick buck." And, situation in which the finally, the defendant demonstrat­ conduct of law enforce- ed a lack of reluctance to engage in ment agents is so outrageous the criminal conduct. 19 that due process principles would In United States v. absolutely bar the government from Martillez,2o the Government pro­ invoking judicial processes to ob­ vided evidence of predisposition tain a conviction .... "26 by showing that during a surrepti­ Clearly, an undercover investi­ The outrageous Government tiously recorded conversation with gator cannot lawfully create predis­ conduct defense presents a very nar­ an undercover DEA agent, the de­ position. Ho we v!.'! ", the Court in row opportunity to challenge Gov­ fendant proved well versed in drug Jacobsen did not foreclose the pos­ ernment conduct. And while many trafficking terminology. The de­ sibility of developing evidence of courts recognized the viability of fendant also advised the agent about predisposition during the investi­ such a defense, it is clearly consid­ the prices of va rio liS drugs in certain gation. Therefore, officers should ered to be an extraordinary defense geographical areas, an of which in­ carefully document any evidence of reserved for only the most egregious dicated the defendant's "knowledge a defendant's eagerness to engage in circumstances.27 and experience" in the drug trade. illegal conduct. One of the few cases in which a In United States v. OISOIl,21 the For example, the court in Unit­ court actual1y acquitted a defendant 23 court found "copious evidence" of ed States v. Lew found that the based 011 this outrageous Govern­ predisposition where the record re­ defendant was predisposed to bribe ment conduct defense was United nected the defendant had two prior an IRS employee based on his en­ States v. Twigg,28 where a Govern­ felony drug convictions, a drug ar­ thusiastic response to the revenue ment informant suggested the estab­ rest during a probationary period, officers' overtures concerning the lislunent of a speed laboratory and and frequent association with drug bribery. Similarly, the U.S. Court then supplied the chemicals, glass-

------April 1993/31 ware, and the isolated farmhouse a defendant was disposed to commit 10 United States v. Mendoza-Sa/gado, 964 used for manufacturing. The in­ the criminal act prior to Govern­ F.2d 993 (10th Cir. 1992). 11954 r.2d 614 (lOth Cir. 1992). formant also did the bulk of manu­ ment contact. 121d. at 617. However, in United States v. facturing because the defendant did Such factors include a prior ar­ Beal, 961 F.2d 1512 (10th Cir. 1992), the court not have knowledge of the manufac­ rest record, evidence of prior crimi­ found Government inducement on the 'lasis of turing process. nal activity, a defendant's familarity persistent phone calls and contacts by informant. The court invoked the due with the terminology surrounding a 1\ 969 F.2d 632 (8th Cir. 1992). process defense and found that al­ pruticular criminal venture, and a 141d. lit 635. though proof of predisposition to defendant's eagerness to engage in 15 971 F.2d 317 (9th Cir. 1992). commit a crime will bar application the criminal activity. The most con­ 161d. at 320. 17/d. of the entl'apment defense, funda­ vincing evidence of predisposition 18 970 F.2d 371 (7th Cir. 1992). mental fairness will not permit a will typically occur during the ini­ 191d. at 375-76. defendant to be convicted of a crime tial Government contacts, which of­ 2°979 F.2d 1424 (lOth Cir. 1992). 21 in which police conduct was outra­ ficers should carefully document to 978 F.2d 1472 (7th Cir. 1992). 22 Ullited States v. Sallders, 962 F.2d 660 geous. The defense of outrageous successfully defeat the entrapment (7th Cir. i 992), where court found ready Government conduct is theoretical­ defense .• response by defendant to involvement in bribery ly viable where the Government is established predisposition. overly involved in the creation of a 2) _F.2d _, 1992 WL 348515 (2d Cir. 1992). 24 United States v. Arditti, 955 F.2d 331 (5th crime or coerces a defendant to par­ Cir.1992) . ticipate, but the defense has only ... officers should 21See Ullited States v. Mosely, 965 F.2d 906 succeeded in cases like Twigg with a carefully document any (10th Cir. 1992). It has also been suggested that " the outrageous conduct defense might rest upon very high degree of Government in­ evidence of a the equitable supervisory power of the courts. volvement or coercion. defendant's eagerness See Hampton v. Ullited States, 96 s.et. 1646, to engage in illegal 1655, n.4 (1976). Conclusion 26 United States v. RlIssell, 93 S.Ct. 1637, To ensure that undercover in­ conduct. 1642-43 (1973). 27 Ullited States v. 01.1'011, 978 F.2d 1472 (7th vestigations do not give rise to suc­ Cir. 1992). Olsoll rnises doubts as to the validity cessful claims of entrapment or re­ Endnotes of the outrageous Government conduct defense. lated defenses, all law enforcement See also Ullited States v. Hart, 963 F.2d 1278 1112 S.C!. 1535 (1992). (9th Cir. 1992); Ullited States v. PaYlle, 962 officers should consider the follow­ 2For a comprehensive discussion of the" F.2d 1228 (6th Cir. 1992); Ullited States v. various views of entrapment, see State v. ing three points before conducting JOlles, 976 F.2d 176 (4th Cir. 1992). undercover investigations. First, Johnson, 606 A.2d 315 (Sup. Ct. of N.J. 1992). 28 588 F.2d 373 (3d Cir. 1978). See also while reasonable suspicion is not lThe Supreme Court declined to address the Ullited States v. Sontalla, _F.Supp. _ (D. Mass. issues of outrageous Government conduct or the legally necessary to initiate an un­ 12110/92), where a Federal district court found need for reasonable suspicion. Government's conduct outrageous in a reverse 4112 S.Ct. at 1540, citing v. dercover investigation, officers Sorrells United sting when it supplied a would-be heroin should nonetheless be prepared to States, 53 S.C!. 210 (1932). distributor with a sample (13.3 grams) of high 51d. at 1542. ruticulate a legitimate law enforce­ purity heroin, did not recover it, and most 6See United States v. Jacobson, 916 F.2d ment purpose for beginning such an importantly, the heroin apparently made its way 467, 469 (8th Cir. 1990), en banc, reversed on to unknown users. investigation. Second, law enforce­ other grounds by 112 S.Ct. 1535. me'lt officers should, to the extent 71d. at 1545. possible, avoid using persistent or 8The Court in Jacobson cited approvingly Law enforcement officers of other from the Attorney General Guidelines on FBI coercive techniques, and instead, than Federal jurisdiction who are Undercover Operations. 112 S.Ct. at 1541, n.2; interested in this article should consult merely create an opportunity or pro­ See also, United States v. Casano\'a, 970 F.2d their legal advisor. Some police vide the facilities for the target to 371 (7th Cir. 1992), where the court mentioned procedures ruled permissible under commit a crime. Third, officers ATF policy regarding initiation of undercover Federal constitutional law are of investigations. questionable legality under State law should document and be prepared to 9 United States v. Van Slyke, 976 F.2d 1159 or are not permitted at all. articulate the factors demonstrating (8th Cir. 1992).

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