ANSWER: IT'S A QUESTION OF FACT FOR THE COURT TO RESOLVE. THE COURTS FEEL
IT "WOULD SEEM CONTRARY TO PUBLIC POLICY TO PERMIT NARCOTICS AGENTS TO
USE ANY TRICKERY TO INDUCE A SALE, THEN MAKE SUBSEQUENT BUYS, AND, BY NOT
CHARGING THE FIRST SALE, INSULATE SUBSEQUENT TRANSACTIONS FROM THE
EFFECT OF THEIR MISCONDUCT." AT THE SAME TIME, "ONCE ENTRAPPED DOES NOT
NECESSARILY MEAN ALWAYS ENTRAPPED." THE LATER OFFENSES MAY BE
"ATTENUATED FROM THE INITIAL INDUCEMENT." U.S. V. JURSNICK, 24 MJ 504 (AFCMR
1987).
THE INITIAL ENTRAPMENT WILL NOT IMMUNIZE THE ACCUSED "FROM
CRIMINAL LIABILITY FOR SUBSEQUENT TRANSACTIONS THAT HE READILY AND
WILLINGLY UNDERTOOK." U.S. V. MEYERS, 1 MJ 1007 (ACMR 1986).
QUESTION: CAN I RAISE THE ISSUE OF ENTRAPMENT IF THE GOVERNMENT ENGAGES IN
OUTRAGEOUS CONDUCT?
ANSWER: YES, ALTHOUGH THIS IS RARELY EMPLOYED. AN EXAMPLE OF OUTRAGEOUS
CONDUCT BY A GOVERNMENT AGENT IS TARGETING AN EMOTIONALLY UNSTABLE
SERVICEMEMBER, SEXUALLY AND EMOTIONALLY EXPLOITING HER, AND PLANTING
DRUGS ON HER IN A "REVERSE STING" OPERATION.
THIS VIOLATES THE
FUNDAMENTAL NORMS OF MILITARY DUE PROCESS AND IS THE FUNCTIONAL
EQUIVALENT OF ENTRAPMENT. UNITED STATES V. LEMASTER, 40 MJ 178 (CMA 1994).
I. Mistake of fact. It is a defense "that the accused held, as a result of ignorance or mistake, an
incorrect belief of the true circumstances such that, if the circumstances were as the accused believed
them, the accused would not be guilty of the offense." As an example, in a prosecution for larceny and
filing a false claim, the accused could argue that he honestly thought he was married and that his
common law wife had traveled with him. U.S. v. Groves, 19 MJ 8094 (ACMR 1985). The same is
true for a prosecution for making false official statement. U.S. v. Hill-Dunninq, 26 MJ 260 (CMA
1988).
It is a defense to a charge of robbery that the accused thought he was taking property that was
lawfully his. This does not, however, excuse his crime of assault. U.S. v. Mack, 6 MJ 598 (ACMR
1978). One who "steals" under a claim of right, then, has no intent to commit larceny. U.S. v. Smith,
14 MJ 68 (CMA 1982). The same is true for one who thought the property was abandoned. U.S. v.
Turner, 27 MJ 217 (CMA 1988). This defense only applies where the accused is seeking to reclaim a
specific item of property, and not to the taking of money or other valuables in liquidation of a debt. U.S.
v. Cunningham, 14 MJ 539 (ACMR 1982).
The defense of mistake will also apply to a case of larceny (without the robbery element).
U.S. v. Jeft, 14 MJ 941 (ACMR 1982). In one case, for example, the accused had frequently borrowed
a friend's car and believed he had permission to do so again on the day in question. Again, he had no
intent to steal, as a result of his mistaken belief. U.S. v. Harville, 14 MJ 270 (CMA 1982).
In a rape case, the accused may argue that he thought the victim had consented. U.S. v.
Dans, 27 MJ 543 (ACMR 1988). In one case, however, the accused tried to argue that he had made such
an honest mistake even though he
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