17.5 - C. Entrapment

• Jurisdiction: New York

C. Entrapment

The entrapment defense, like other affirmative defenses, is not an allegation by the defendant that the People have failed to prove a sufficient case against him. It is rather a claim that, although he did participate in illegal activity, he was induced into it by a public servant, usually an undercover police officer or confidential informant. It is, then, a defense in the nature of confession and avoidance²⁵³⁰ and helps implement a public policy restraining improper police conduct.²⁵³¹ The constitutionality of placing the burden of proof of entrapment on the defendant has been upheld, and the statute does not cause undue hardship or violate due process.²⁵³²

Under the statute, several elements must be established by a preponderance of the evidence: (1) the defendant was induced or encouraged to commit the crime (2) by a public servant or the agent of a public servant, (3) which public servant or agent was seeking to obtain evidence against the defendant for the purposes of a criminal prosecution, and (4) the methods used by the public servant or agent created a substantial risk that the offense would be committed.²⁵³³ The defendant must prove that he was not disposed to commit the crime and that the public servant actively induced or encouraged him to do something he would not have done otherwise.²⁵³⁴ The statute also provides that conduct that merely affords the defendant an opportunity to commit an offense rather than actively enticing him to do so does not constitute legal entrapment.²⁵³⁵ “Merely asking a defendant to commit a crime is not such inducement or encouragement as to constitute entrapment.”²⁵³⁶

The defense of entrapment is most likely to arise in cases where the nature of the criminal activity is not readily determinable except by undercover police work.²⁵³⁷ Thus, many of the cases arise in the area of narcotics investigation and prosecution. An undercover agent’s actions in supplying the defendants with an ingredient essential to the manufacture of illegal drugs (which ingredient was not itself illegal to possess) and then purchasing half of the illegally produced drugs did not amount to entrapment, since the agents did not induce the defendants but only aided them in doing something they were already disposed to do.²⁵³⁸ A few years later the Court again upheld government agents’ conduct where they bought and sold narcotics in concert with the defendants.²⁵³⁹

In the official corruption area, defendants have also attempted to use the entrapment defense. In Nigrone v. Murtagh,²⁵⁴⁰ article 78 proceedings and motions to dismiss the indictments were brought on grounds of entrapment and in the interest of justice. Where state and federal officers created a fictitious crime and defendant, and sent the case and defendant through the criminal justice system in New York City, misleading the police, court and grand jury in an attempt to uncover corruption, the motions to dismiss were denied.²⁵⁴¹

It has been held that the defense is available to all defendants, including lawyers. It is not restricted to the “unwary innocent.”²⁵⁴² There must be some active government inducement or encouragement of the defendant rather than the mere affording of an opportunity;²⁵⁴³ however, substantial state involvement in the criminal enterprise for which the defendant is charged is tolerated by the courts without finding entrapment. For example, in United States v. McGrath,²⁵⁴⁴ the Seventh Circuit determined on remand that where federal agents had infiltrated a counterfeiting ring and had not only arranged for and supervised the actual printing of the counterfeit currency but also determined how and when the counterfeit bills would be delivered and aided in the delivery to the defendant, the entrapment defense was not available in light of the Supreme Court’s decision in Russell. In that case, the undercover officer supplied an essential ingredient in the production of methamphetamine, and the Supreme Court held that the activity of the officer was not “shocking to a universal sense of justice” and further, that he did not implant “the criminal design in the mind of the defendant.” The Seventh Circuit in McGrath concluded “that the government agents’ involvement here does not amount to the type of outrageous conduct . . . which Russell suggests might preclude prosecution on due process principle,” the mentioned due-process attack being wholly apart from the traditional defense of entrapment, which is the subject of the present discussion.

In United States v. Register,²⁵⁴⁵ the Fifth Circuit was presented with a case where the government had so thoroughly infiltrated a drug smuggling operation that only one of the four persons on the airplane importing the contraband into the United States was not a government agent. The court nevertheless found that these facts alone did not indicate that the defendants had been importuned by the federal agents.²⁵⁴⁶

In essence, the entrapment defense “focus[es] on the intent or predisposition of the defendant to commit the crime.”²⁵⁴⁷ A plurality of three justices in Hampton found that on the defendant’s bifurcated entrapment and Rochin-type²⁵⁴⁸ due-process claim, the defense of entrapment could “[n]ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established.”²⁵⁴⁹

However, in People v. Isaacson,²⁵⁵⁰ the New York Court of Appeals refused to be as blunt as the Hampton court in a case involving governmental misconduct. In Isaacson, the defendant, a doctoral candidate and teacher at Penn State University, was enticed into New York State to sell cocaine to an acquaintance, one Breniman. During his phone conversations with Breniman (who was acting at the behest of the New York State Police), the defendant indicated that he did not want to leave Pennsylvania and enter New York State to make the sale because he feared the stiff New York drug laws, but Breniman succeeded in changing the location of the meeting several times, each successive location being closer and closer to the border between Pennsylvania and New York. In fact, the last proposed location where the sale actually occurred was just over the border in New York State, though the defendant was unaware of this due to the lack of readable road signs leading to the location. The trial testimony showed that Breniman concocted this scheme in response to the directions of a state police investigator that the sale take place in New York State, since that is where he had authority to make an arrest.

On the defendant’s claim of entrapment, the Court of Appeals upheld the lower courts’ determination that the defense was not proved. Nevertheless, the court reversed the conviction and dismissed the indictment because of misconduct of the state police and their informant, Breniman. The court cited Russell and Justice Powell’s concurring opinion in Hampton, holding that “even where a defense of entrapment is not made out because of the predisposition of the defendant...