Criminal law - derivative entrapment defense applies when government agent acts through unsuspecting middleman to induce targeted defendant.

• Author: Leonardo, Thomas J.

Criminal Law--Derivative Entrapment Defense Applies When Government Agent Acts Through Unsuspecting Middleman to Induce Targeted Defendant-United States v. Luisi, 482 F.3d 43 (1st Cir. 2007)

The entrapment defense is a judicially created protection mechanism against police activity that improperly induces a non-predisposed individual to commit a crime. (1) In some jurisdictions, the derivative entrapment defense is available when a government agent directs an unsuspecting third party to pressure a targeted individual into breaking the law. (2) In United States v. Luisi, (3) the Court of Appeals for the First Circuit examined the degree of government inducement required to prove derivative entrapment. (4) The court held that a government agent must have "requested, encouraged, or instructed" the intermediary to improperly induce a specifically targeted individual who is not predisposed to commit the crime in question. (5) In support of its holding, the court cited policy concerns adapted from United States v. Bradley. (6)

The Federal Bureau of Investigation (FBI) initiated an investigation of Robert Luisi, Jr. for his criminal involvement as a supervisor in the "La Cosa Nostra" (LCN) crime family. (7) As part of the investigation, the FBI recruited LCN member Ronald Previte to act as a paid informant. (8) Under FBI direction, Previte introduced Luisi to Michael McGowan, an undercover FBI agent, and the two conducted transactions involving stolen property. (9)

Eventually, Previte urged Luisi to accept diamonds from McGowan in exchange for cocaine that Luisi would provide. (10) LCN boss Joseph Merlino was present at the meeting, but did not order Luisi to carry out the deal. (11) Luisi orally agreed to enter the deal with McGowan but would not deliver the cocaine despite McGowan's repeated requests to complete the transaction. (12) In an attempt to effectuate the transaction, Previte informed Merlino that Merlino would profit from the deal and asked him to tell Luisi to deal cocaine with McGowan. (13) In response, Merlino took part in a conference call with Previte, McGowan, and Luisi, and asked Luisi to enter into the cocaine deal; Luisi agreed. (14) As a result, Luisi made three cocaine transactions with McGowan, which led to his arrest and indictment on one count of conspiracy to possess cocaine with intent to distribute and two counts of possession of cocaine with intent to distribute. (15)

At trial, Luisi raised an entrapment defense, arguing that Previte, as a government agent, induced Merlino to order Luisi to enter into the cocaine transactions. (16) Luisi testified he had no alternative but to comply with an order from a LCN boss, and he otherwise would not have dealt cocaine due to a spiritual awakening that made him realize that dealing drugs was unacceptable. (17) The trial court instructed the jury that, in considering the entrapment defense, they should only recognize the relationship between McGowan, Previte, and Luisi. (18) The trial court reasoned that Luisi was not entitled to an entrapment instruction regarding Merlino because Previte, as a subordinate of Merlino, could not instruct Merlino to order Luisi to do anything. (19) The First Circuit held that the defense of derivative entrapment should be available even if Previte merely urged or suggested that Merlino improperly induce Luisi to sell cocaine. (20)

The entrapment defense originated in early twentieth-century Supreme Court decisions concerned with protecting otherwise innocent individuals from falling prey to government-manufactured schemes of illegal activity. (21) Congress, or the courts, may modify the defense as they see fit, since it is not constitutional in nature. (22) Accordingly, the Supreme Court has outlined a two-part entrapment test, followed by the various federal circuits either completely or in part, that must be satisfied for a defendant to successfully utilize the entrapment defense. (23) The first prong--improper government inducement--is met when the government employs an overreaching method that excessively persuades or exploits an individual's noncriminal motive. (24) Secondly, the defendant must not have been ready and willing to commit the crime independent of the government's inducement. (25)

Derivative entrapment is a defense that is available in some circuits when the government instructs an unsuspecting middleman to improperly induce an individual to commit a crime. (26) Other circuits refuse to acknowledge a derivative entrapment defense, particularly when the middleman is unaware that he is helping the government. (27) Of the circuits that recognize derivative entrapment, all require that the inducement originate with the government and that the government intend to target a pre-selected individual. (28)

In gauging whether law enforcement improperly induced a defendant, federal courts have focused on the extent to which the government persuaded or instructed the middleman. (29) Additionally, courts have closely analyzed whether the middleman acted independently from the government's intended method of inducement. (30) Furthermore, some circuits have used policy grounds to either support or bar claims of derivative entrapment. (31) Moreover, emerging scholarly views indicate that the entrapment defense is on the decline and continued recognition of it is not in the public's best interest. (32)

In United States v. Luisi, the court examined whether a jury should consider the derivative entrapment defense. (33) The court noted that a defendant is entitled to an entrapment instruction when he meets the burden of production on each of the two entrapment elements. (34) The court reasoned that Luisi satisfied the predisposition burden by testifying about a spiritual awakening steering him against drug dealing. (35) The court also noted two reasons why Luisi met his burden of showing that Previte improperly induced him to sell cocaine. (36) First, Previte exercised sufficient control over Merlino by merely asking him to order Luisi. (37) Secondly, Merlino's implied threat, by reason of his hierarchical position over Luisi, constituted an improper threat ultimately attributed to Previte because he expected delivery of the order. (38)

The court also balanced the competing social policies of protecting law enforcement interests in prosecuting "victimless" crimes versus protecting innocent individuals from government-manufactured crime. (39) The court determined that the government is involved when it directs a middleman to deliver an expected improper inducement. (40) The court also expressed concern over government involvement that turns innocent individuals into criminals. (41) Ultimately, the court favored these policy interests over protecting the interest of law enforcement through...