The forgotten constitutional right to present a defense and its impact on the acceptance of responsibility-entrapment debate.

• Author: Bridges, Katrice L.

TABLE OF CONTENTS INTRODUCTION I. THE ENTRAPMENT DEFENSE DOES NOT DISPUTE FACTUAL GUILT II. CONGRESSIONAL OBJECTIVES OF THE SENTENCING GUIDELINES A. The Twin Goals of Uniformity and Proportionality B. Entrapment Is Consistent with the Purposes of Section 3E1.1 III. THE IMPACT OF THE CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE CONCLUSION INTRODUCTION

Police arrest Bailey and charge him with possession of cocaine with intent to distribute it, a federal offense. (1) Instead of striking a plea bargain, he pleads not guilty and proceeds to trial. At trial, Bailey admits that he committed the offense but claims that he was entrapped--that is, he would not have committed the crime had an undercover FBI agent not convinced him to do so. The jury rejects the defense and finds Bailey guilty. At sentencing, the probation officer presents the judge with a presentence report (2) stating that Bailey appears to be genuinely remorseful for his actions, that he has acknowledged that the sale of drugs is wrong, and that he has assisted law enforcement officials in their investigation. The judge explains to Bailey that he believes that Bailey is sorry for his actions and that Bailey has owned up to his participation in the crime, but that he is unable to reduce Bailey's sentence because in his circuit a defendant who claims entrapment is not entitled to a lesser sentence on the grounds of acceptance of responsibility. (3) The judge goes on to explain that by claiming that he would not have committed the crime without the FBI agent's inducement, Bailey has disputed his intent to commit the crime. The judge further explains that intent is an essential factual element of guilt and such a dispute as to guilt precludes the acceptance-of-responsibility adjustment because it is an attempt to shift blame for the commission of the crime to law enforcement officials. When Bailey's attorney argues that Bailey has a constitutional right to present a defense that should not prejudice his sentence, the judge responds that Bailey does not have a constitutional right to leniency, and that the entrapment defense precludes acceptance of responsibility.

This fictional account highlights the tension between the entrapment defense and the Federal Sentencing Guidelines' (4) discount for acceptance of responsibility. (5) To successfully argue entrapment, there must be evidence that the defendant was not predisposed to commit the crime. (6) Predisposition is critical because entrapment is a judicially created defense, (7) founded upon the notion that the legislature could not have intended that the government would enforce its statutes by tempting innocent persons to violate them. (8) While government officials may use decoys to lure individuals intending or willing to commit a crime, in order for liability to attach the criminal design must originate with the accused and not with government officials. Courts examine evidence of the defendant's inclination to commit a particular crime in the time period before the defendant's initial exposure to government agents to determine if a defendant is predisposed to commit a particular offense. (9)

The acceptance-of-responsibility adjustment enables a judge to reduce a sentence if he finds that the defendant owned up to his participation in the crime and has shown remorse for his actions. (10) While acceptance of responsibility is not defined, the Sentencing Guidelines' Application Notes, (11) which are binding upon the courts, (12) explain that the acceptance-of-responsibility adjustment is not intended to apply to a defendant who goes to trial to contest his factual guilt and then later expresses remorse after his conviction. (13) Factual guilt has been interpreted by most courts to include both the mens rea and actus reus of an offense. (14) The Application Notes, however, instruct that the acceptance-of-responsibility adjustment is allowed for a defendant who proceeds to trial to contest an issue unrelated to his factual guilt, such as a challenge as to whether a statute applies to the defendant's conduct. (15) The courts that have addressed the issue appear to agree that the challenge-to-the-applicability-of-the-statute exception applies when a defendant goes to trial to contest the legal conclusion drawn from the facts that he admits. (16)

The conflict between the acceptance-of-responsibility adjustment and the entrapment defense occurs because courts view the acceptance-of-responsibility adjustment as a reward for total acknowledgment of fault and entrapment as an attempt to shift fault onto law enforcement officials. (17) The circuit courts disagree on whether a defendant who unsuccessfully argues entrapment at trial is eligible for a reduced sentence based upon acceptance of responsibility. (18) Some circuits have found that the predisposition inquiry in entrapment is tantamount to an inquiry about intent. (19) Thus, according to these circuits, entrapment is a dispute about factual guilt and does not give rise to one of those rare situations where a defendant goes to trial and remains eligible for the acceptance-of-responsibility adjustment. The Tenth Circuit, however, has found that entrapment is not a challenge to factual guilt because the entrapment defense does nothing more than challenge whether the statute applies to the defendant's conduct. (20)

While the debate in the circuit courts has focused on whether the entrapment defense disputes factual guilt, there is a constitutional issue that has remained unexamined. It has long been held that courts may not use the exercise of constitutional rights against a defendant at the sentencing stage. (21) Defendants have a constitutional right to present a defense (22) that stands on equal constitutional footing with other rights protected by the Sixth Amendment. (23) Thus, the question becomes what, if any, impact the constitutional right to present a defense has on the acceptance-of-responsibility/entrapment discussion.

This Note argues that Section 3E1.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3E1.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring sentencing judges to make individualized assessments about the extent to which defendants have accepted responsibility. Part III argues that the use of the entrapment defense as an automatic bar to the receipt of the acceptance-of-responsibility adjustment is a penalty for the exercise of the defendant's constitutional right to present the entrapment defense. This Note concludes that because the assertion of entrapment and acceptance of responsibility are not inherently inconsistent, the use of a per se rule barring the adjustment is a violation of the defendant's constitutional right to present a defense.

1. THE ENTRAPMENT DEFENSE DOES NOT DISPUTE FACTUAL GUILT

   Sentencing courts that prohibit defendants who unsuccessfully claim entrapment at trial from receiving the acceptance-of-responsibility adjustment do so by mischaracterizing the nature of the entrapment defense. In any criminal case, the government must prove that the defendant committed a criminal act, the "actus reus," and that the defendant had a culpable state of mind, or "mens tea," in order to obtain a conviction. (24) Both the actus reus and mens tea are components of factual guilt. Some courts have found the entrapment defense to be a challenge to factual guilt by confusing mens rea with predisposition. (25)

   Entrapment, however, is an affirmative defense that does not negate an element of the crime. (26) The crux of the entrapment defense is causation, or whether the defendant would have committed the crime had the government not induced him. (27) Once the defendant has shown that the government induced the commission of the crime, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime before being approached by law enforcement officials. (28) In practice, the focus is almost exclusively on predisposition. (29) Predisposition to commit a crime concerns the defendant's propensity to perpetrate a crime as separate from the government's inducement. (30) A court considering an entrapment defense asks, "how the defendant likely would have reacted to an ordinary [that is, noninduced] opportunity to commit the crime." (31)

   Predisposition, however, is not the same as intent to commit a crime. A defendant who claims entrapment does not argue that he did not intend to commit the crime for which he is standing trial. (32) Rather, the defendant argues that in spite of his intent to commit the offense and actual commission of the crime, the government should not be entitled to obtain a conviction due to its role in encouraging the crime. Predisposition and intent look at the defendant's state of mind at different points of time. Predisposition looks back in time to the defendant's inclination to commit the offense prior to its commission to determine if the defendant was motivated by his own desires or induced by a government official. (33) Intent, on the other hand, is the defendant's mental resolution or determination to commit the criminal act at the time it takes place. (34) While the government bears the burden of proving an individual's predisposition if he claims entrapment, (35) the fact that the government must prove predisposition does not transform it into an element of the crime. As currently formulated, the...