H. Entrapment. "It is a defense that the criminal design or suggestion to commit the offense
originated in the government and the accused had no predisposition to commit the offense." It is not
entrapment when government agents "merely afford opportunities or facilities for the commission of the
offense." The issue, again is whether the accused was predisposed to commit the crime. U.S. v.
Higerd, 26 MJ 848 (ACMR 1988). Entrapment is where "the criminal conduct is the product of the
creative activity of law enforcement officials." RCM 916(g).
QUESTION: WHY IS THIS A DEFENSE?
ANSWER: THE COURTS FEEL THAT "THE GOVERNMENT SHOULD NOT BE ABLE TO
PUNISH CRIMINALLY A PERSON WHO WAS OF A LAW-ABIDING MIND BEFORE THE
GOVERNMENT WON CONVERSION TO CRIME." IT MAY, HOWEVER, CONVICT ONE "WHO
STANDS READY TO COMMIT AN OFFENSE WHEN PRESENTED WITH AN APPROPRIATE
OPPORTUNITY." U.S. V. BLACK, 8 MJ 843 (ACMR 1980). THE KEY TO ENTRAPMENT IS
THE ACCUSED'S PREDISPOSITION TO COMMIT THE CRIME. U.S. V. GONZALEZ-
DOMINICCI, 14 MJ 4326 (CMA 1983). IN OTHER WORDS, THE KEY IS WHETHER THE
ACCUSED HAS A "LATENT PREDISPOSITION TO COMMIT THE CRIME, WHICH IS
TRIGGERED BY THE GOVERNMENT INDUCEMENT." U.S. V. JOHNSON, 18 MJ 76 (CMA
1984).
QUESTION: WHAT ARE THE RELEVANT FACTORS?
ANSWER: IN U.S. V. DAVIS, 14 MJ 628 (AFCMR 1982), "THE INFORMANT APPROACHED
THE ACCUSED NUMEROUS TIMES OVER A SIX- TO EIGHT-WEEK PERIOD AND ASKED
HIM TO OBTAIN COCAINE. THE ACCUSED STATED HE HAD NEVER SOLD COCAINE
BEFORE AND DID SO THIS TIME ONLY BECAUSE THE INFORMANT KEPT ASKING HIM."
THESE FACTS RAISED THE ENTRAPMENT DEFENSE.
QUESTION: WHAT IF THE ACCUSED ACTS OUT OF A PROFIT MOTIVE?
ANSWER: THE ACCUSED'S NEED FOR MONEY "IS A RELEVANT FACTOR TO BE
CONSIDERED WHEN DETERMINING THE ELEMENT OF PREDISPOSITION." U.S. V.
ECKHOFF, 23 MJ 875 (NMCMR 1987). THE ACCUSED CAN STILL SHOW HE WAS
ENTRAPPED. THE ISSUE WOULD BE WHETHER HIS FINANCIAL VULNERABILITY "HAD
BEEN EXPLOITED BY THE GOVERNMENT AGENT." ALSO, THE PROFIT MOTIVE "MIGHT
HAVE BEEN GOVERNMENT INDUCED." U.S. V. O'DONNEL, 22 MJ 911 (AFCMR 1986).
QUESTION: IF THE ACCUSED HAS PREVIOUSLY POSSESSED DRUGS (NO ENTRAPMENT
ISSUE), CAN HE STILL ARGUE HE WAS ENTRAPPED INTO DISTRIBUTING THEM?
ANSWER: YES. THESE ARE SEPARATE CRIMES. U.S. V. ECKHOFF, 23 MJ 875 (NMCMR
1987). THE FACT THAT THE ACCUSED HAS POSSESSED AND USED AN ILLEGAL DRUG
DOES NOT AUTOMATICALLY MEAN HE CANNOT BE ENTRAPPED INTO SELLING THEM.
THE ISSUE IN SUCH A CASE IS WHETHER "THE IDEA OF SELLING THEM WAS FIRST
PLANTED IN HIS MIND BY GOVERNMENT AGENTS." U.S. V. BAILEY, 21 MJ 244 (CMA
1986).
QUESTION: IF AN ACCUSED HAS BEEN ENTRAPPED IN MAKING A SALE TODAY, WHAT IF
HE MAKES ADDITIONAL SALES TOMORROW OR NEXT WEEK?
MP1019
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