'Ready? Induce. Sting!': arguing for the government's burden of proving readiness in entrapment cases.

• Author: Tawil, David D.

TABLE OF CONTENTS

INTRODUCTION 2371 I. JACOBSON'S READINESS: COMPROMISING THE SUBJECTIVE AND OBJECTIVE APPROACHES 2377 II. THE READINESS REQUIREMENT IS NEEDED TO PREVENT THE DANGERS OF STING OPERATIONS 2382 A. The Riskiness of Stings Without the Readiness Requirement 2382 B. Readiness Takes the `Sting' Out of Entrapment 2387 III. THE READINESS REQUIREMENT DOES NOT OVERDETER GOOD LAW ENFORCEMENT 2389 CONCLUSION 2393 INTRODUCTION

It is desirable that criminals should be detected, and to that end that all available evidence should be used. It is also desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained.... [F]or my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.(1)

--Justice Oliver Wendell Holmes

For over 100 years the United States judiciary has struggled with the sting(2) and the entrapment defense,(3) examining whether government agents deviously manufacture crimes or merely afford criminals the opportunity to commit them.(4) The sentiments of Justice Holmes were rare for his time, but today they are reflected in a growing sympathy for sting victims.(5) While courts are now more willing than ever to find entrapment,(6) they still differ over the burden of proof that the government must satisfy to overthrow an entrapment defense.(7) Specifically, courts disagree about whether the burden includes proof that the defendant had the ability and resources to commit the specific crime, so that if the government had not done so, it is likely that someone else would have induced the defendant to commit the crime.(8) This requirement is known as the "positional" factor or "readiness" element.(9)

The prelude to this disagreement was the latest ruling of the United States Supreme Court in the entrapment arena. In Jacobson v. United States,(10) the Supreme Court held that "[w]here the Government has induced an individual to break the law and the defense of entrapment is at issue ... the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."(11)

Since the Court's decision in Jacobson, the federal courts have attempted to define and apply the Supreme Court's standard of "predisposition." The two approaches that have attracted the greatest attention, because of their direct and particular conflict, have distilled the Jacobson inquiry into a multifactored analysis to determine the predisposition of a defendant.(12)

In United States v. Skarie, the Ninth Circuit employed a five-factor test to assess predisposition.(13) The test analyzes: (1) the character of the defendant, (2) whether the government agent or the defendant first suggested the criminal activity, (3) whether the defendant engaged in the activity for profit, (4) whether the defendant demonstrated reluctance, and (5) the nature and timing of the government's inducement.(14) In United States v. Hollingsworth,(15) the Seventh Circuit amended the Skarie five-factor test(16) by adding a readiness element.(17) This element evaluates the readiness and ability of the defendant to commit the crime.

In Hollingsworth the court stated that the proper victim of a sting is a predisposed person, "ready and willing"(18) to commit an offense before the government establishes a criminal scheme.(19) The Hollingsworth court noted that circuit courts had been finding that a defense of entrapment failed in any case when the defendant was "willing," in the sense of being psychologically prepared, to commit the crime for which he was being prosecuted.(20) Thus, these courts declared defendants willing, even when it was plain that they would not have engaged in criminal activity unless inveigled or assisted by the government.(21) Hollingsworth reasoned that through the Jacobson decision, the Supreme Court intended the readiness requirement to curtail circuit courts' limitation of the entrapment defense.(22)

The Hollingsworth court further held that predisposition is not purely a mental state but has a readiness component as well.(23) Under Hollingsworth, the government must prove that "[t]he defendant [is] so situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so."(24) For example, in the case of crimes that demand experience or connections that cannot be presumed, such as money laundering and drug manufacturing, the government must prove that the defendant had the essential tools to commit the crime without its intervention.(25) This burden may include a showing that the defendant had prior knowledge on the art of laundering and connections to indispensable persons,(26) or in the case of drug manufacturing, an independent distribution chain for a drug manufacturing operation.(27)

This readiness element requires a showing by the government that the crime was more than a thought in the defendant's mind.(28) For instance, assume an individual, Joe, desires to make money, even if it means laundering money for a fee. Joe, however, has not laundered money in the past nor does he know where to seek the necessary information or contacts for laundering money. With the readiness requirement, the court would find entrapment where the government incited Joe to launder money, taught him the procedures for laundering, and configured the proper connections. Alternatively, if the government proved that prior to government contact Joe had the knowledge, training and connections to commit the crime, the defense of entrapment would fail.

In contrast, under the Skarie five-factor test, Joe's entrapment defense would fail whether or not the government proved that Joe had the knowledge, training or connections to commit the crime. Since Joe was mentally prepared to launder money all along, his inability to actually launder the money would be inconsequential. Thus, under the five-factor test, the court would convict Joe despite the fact that he would never have laundered money without the government's prodding and assistance.

The Ninth Circuit, in United States v. Thickstun, rejected the Seventh Circuit's "readiness" element, arguing that it added a new element to the predisposition requirement.(29) The Court argued that the Supreme Court in Jacobson applied settled entrapment law and did not add a "positional" requirement to the entrapment inquiry. But, in the en banc re-hearing of the first Hollingsworth decision, the Seventh Circuit responded that they do not add, nor do they "suggest that Jacobson adds a new element to the entrapment defense [independent of] inducement and, most important, predisposition."(30) Rather, the readiness element clarifies the meaning of predisposition and enables courts to distinguish predisposed defendants.(31)

This Note defends the readiness requirement, contending that the Seventh Circuit interpreted Jacobson properly by clarifying the readiness element of the predisposition inquiry. Part I argues that the readiness requirement was formulated in Jacobson and is a compromise between the two enduring Supreme Court approaches to entrapment. Part II argues that although the sting is a powerful weapon of law enforcement, sting operations are inherently dangerous and the readiness requirement is the only approach that comprehensively protects against the sting's dangers. Part III demonstrates the need to consider the readiness requirement separately from the other five factors. Finally, Part III also argues that the readiness requirement does not, in any case, overburden the government in entrapment proceedings.

2. JACOBSON'S READINESS: COMPROMISING THE SUBJECTIVE AND OBJECTIVE APPROACHES

   Despite the Seventh and Ninth Circuits' feud over whether the readiness requirement is a necessary result of the Supreme Court's disposition in Jacobson, a strong argument can be made that the Supreme Court has been developing and attempting to articulate the readiness requirement ever since its first entrapment decision, with Jacobson serving as the culmination of this struggle. In debating their approaches to entrapment, from Sorrells v. United States(32) through Mathews v. United States,(33) the Supreme Court majorities (the "Majority") and dissents (the "Dissent") have adopted opposing views on entrapment, focusing on divergent particulars.(34) A test focusing on the five factors and the readiness requirement presents a compromise upon which both camps can settle.

   Since its first entrapment decision, the Majority's approach has focused on the defendant's character and actions -- the subjective approach. Under this subjective approach, after the defendant sufficiently proves improper inducement, the burden shifts and the government is required to show a defendant's predisposition to commit the crime prior to government contact; if it cannot, the defendant is acquitted and the government's misconduct is penalized.(35) In contrast, the Dissent has advanced an objective approach, focusing on overzealous law enforcement and limiting the entrapment inquiry to the government's actions. Under the objective approach, after proof of inducement, the burden remains with the defendant to further prove improper government conduct. Because the sole focus of the objective approach is on the conduct of the police, if the defendant proves improper conduct, the court will find entrapment.(36)

   The choice of approach affects the likelihood of conviction. Under the Majority's subjective approach, the government may rebut a showing of inducement with proof of predisposition, whereas under the Dissent's objective approach it may not. Therefore, under the objective approach, if the government's inducement is improper, it is impossible for the government to secure a conviction. In contrast, under the...