Winifred HARRISON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
Decided March 18, 1982.
Submitted on Rehearing En Banc Oct. 19, 1981.
441 A.2d 1377
It is evident however, from the instant case and others, that this Court‘s repeated concern in this regard has too often gone unheeded by certain of the Family Court Judges.
We have concluded that mandatory guidelines and standards are essential for decisions in these types of cases. “[T]he impact of [a Family Court] order on the future life of former spouses, as they go their separate ways after days or decades of marriage, can be enormous. It is, therefore, essential in the public interest that the Judges of the [Family] Court who exercise its statutory power (most often without review) apply the same basic approach in the administration of
Accordingly, we take the occasion to direct the prompt adoption of a Family Court Rule prescribing mandatory guidelines and standards which will insure that findings, conclusions, and supporting reasons therefor, in all future property distribution, alimony, and child support cases, will be uniformly, clearly, and fully set forth by the Trial Judges. Specifically, but without limitation, the Rule shall mandate inclusion of the following:
- The facts supporting a determination of dependency;
- The amount of each payment;
- The frequency of each payment;
- The length of time such payments shall continue;
- The relevant factors as outlined in
13 Del.C. § 1512(c) , found to be applicable under identified evidence; - The relevant factors as outlined in
13 Del.C. § 1513 , found to be applicable under identified evidence.
Any future appeal to this Court lacking such information, which is hereby declared essential to a proper appellate review, will be remanded forthwith for completion of the record.
Affirmed.
Brian P. Murphy (Argued), Middletown, for defendant below, appellant.
Alex J. Smalls, Deputy Atty. Gen. (Argued), Wilmington, for plaintiff below, appellee.
Before HERRMANN, C. J., DUFFY, McNEILLY, QUILLEN and HORSEY, JJ., constituting the Court en Banc.
This appeal requires the Court to interpret and apply the Delaware Entrapment Statute,
The defendant, Winifred Harrison, was convicted after trial by jury and sentenced on charges relating to her employment as a prison guard at the Smyrna Correctional Institution. The appeal is based upon the Trial Court‘s refusal to set aside the jury verdict and hold that entrapment had occurred as a matter of law.
I
The defendant was indicted on two counts of each of the following offenses: Receiving a Bribe (
The defendant was a 32 year old woman, married, with one child, who did not drink, smoke, use drugs, or have a criminal record. At the time of the incidents in question, defendant had been employed at the prison for approximately two months.
The State Police were concerned about contraband, particularly drugs, being brought into the Smyrna Institution; a special police task force had been formed. This was a long-standing problem, preexisting the defendant‘s employment by many years.
A prisoner, John Barlow, was concerned about the drug problem because he was a “long-termer“. He wished to make the prison a better place in which to live and to ingratiate himself with the authorities. Shortly after the employment of the defendant, at a meeting with the police lieutenant involved in the task force, Barlow volunteered that, while he had no first-hand knowledge as to the identity of any guard bringing drugs into the prison, he would approach guards he had heard were doing so, and attempt to have them bring in drugs for him. At that time, Barlow named the defendant as one of the guards he would approach. Barlow testified that he singled out the defendant for the reason that the defendant was bringing food into the prison which was technical contraband and, therefore, a violation of prison rules and
The plan of the police was for Barlow to give a guard the telephone number of his outside drug contact named Dennis, who, in fact, was the police lieutenant with the task force. Then, under the plan, when a guard called Dennis at Barlow‘s request, a meeting time and place would be arranged and Dennis would give the guard two ounces of marijuana to deliver to Barlow in the prison together with $100. for the guard‘s services.
Barlow approached the defendant and first suggested the subject of smuggling marijuana into the prison for him. He testified that defendant agreed to bring the drug into the prison for him after deliberating for only an hour or two, and that there was no pressure or threat of physical or emotional harm exerted upon her. According to the defendant‘s version of how she
The police lieutenant (Dennis) testified that, after the defendant telephoned him twice, three meetings were arranged: one at a public rest stop on a main highway near Smyrna; another at a restaurant on the same highway; and the third at the defendant‘s home near Smyrna. The officer stated that the defendant appeared nervous and on each occasion was given the opportunity to withdraw, but that she declined each time, stating that she wished to go through with the delivery. The lieutenant added that on two such occasions (separated by about a month) defendant received two ounces of marijuana and $100., delivered the drug to Barlow in the prison2, and he, in turn, returned the drug to the police. The police officer testified that at no point did he exert force or pressure of any kind upon the defendant.
II
At the trial, the defendant raised the affirmative defense of entrapment. On that issue, the Trial Court stated that it instructed the jury “under the provisions of
The Trial Judge concluded that, under
III
The defendant contests the denial of her motion on three grounds: 1) that she was entrapped as a matter of law; 2) that she was denied due process of law through a conviction based upon overreaching and outrageous police conduct; and 3) that there was no evidence to show that she was predisposed to commit the crimes charged. Before proceeding to a consideration of these arguments, we find it necessary to explore pertinent decisions in this evolving area of the law.
The United States Supreme Court has addressed the issue of entrapment on four major occasions. In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), a majority of the Court held that the issue of entrapment was a question for the jury and adopted a legislative intent analysis on the issue. In Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), the majority promulgated a “subjective test” which focused on the defendant‘s predisposition to commit the offense charged. In a concurring opinion penned by Justice Frankfurter, the majority‘s “subjective test” was rejected in favor of an “objective test” which emphasized the conduct of government agents. Under this test, a case would be dismissed on the basis of a successful entrapment defense where the conduct of government agents was likely to cause a person of reasonably firm moral character to commit the solicited offense.
In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), a majority of the Supreme Court continued to adhere to the subjective test for entrapment and declared that the defense of entrapment does not succeed where a predisposed defendant relies on the creative involvement of government agents. Dissenting opinions, however, embodied the objective test formulated by Justice Frankfurter in Sherman.
The Supreme Court dealt with the issue again in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed. 113 (1976). There, a plurality of the Justices4 opined that a successful entrapment defense is precluded where the defendant is predisposed regardless of the outrageousness of police behavior. Id. at 490, 96 S.Ct. at 1650. The plurality stated that “the entrapment defense focus[es] on the intent or predisposition of the defendant to commit the crime... rather than upon the conduct of the government agent.” Id. at 488, 96 S.Ct. at 1649, quoting United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1974). The plurality left open the possibility that a defendant could succeed where he alleged and proved a violation of his own due process rights. Hampton, supra, 425 U.S. at 490, 96 S.Ct. at 1650. Two Justices concurred in the judgment, asserting that even a predisposed defendant could avoid conviction where the conduct of the government was intolerably outrageous.
From these Supreme Court decisions Judge Fullam, in United States v. Jannotti, E.D.Pa., 501 F.Supp. 1182, 1189 (1980), elucidated four “guiding principles” governing the issues of entrapment and violation of due process in an entrapment context.5
Those principles are the following:
“1. It is perfectly proper for law enforcement officials to engage in undercover activities, including deception and trickery, where both the purpose and effect of their activities is to enforce the law by ferreting out and exposing criminal activities. Entrapment issues arise only where the Government induces or persuades a person to commit a crime, or actually participates in the commission of the crime.
2. Under no circumstances is it permissible to convict of crime a non-predisposed defendant who was induced by government agents to commit the crime charged. No member of the Supreme Court has ever expressed any doubt as to the correctness of this principle, although varying reasons have been put forth from time to time for its justification.
3. A predisposed defendant may properly be convicted notwithstanding he was induced by government agents to commit the particular crime charged, so long as the inducement is not such as would be likely to cause a person of reasonably firm moral convictions to stray into criminality. For some members of the Court, this is true because, in their view, a predisposed defendant cannot successfully assert an entrapment defense under any circumstances. For other members of the Court, this is true because entrapment should be viewed as a matter of the objective reasonableness of the conduct of the government agents. Neither of these approaches is fully accepted by a majority of the Court. There is, however, ma-
jority acceptance of a middle ground, set forth in the following paragraph. 4. A predisposed defendant may properly be convicted notwithstanding governmental inducement or creative involvement, unless the conduct of the government agents was so outrageous as to violate fundamental concepts of fairness; that is, unless the conduct of the government agents was so outrageous as to be deemed a violation of due process.6 The converse of this statement, namely, that even a predisposed defendant cannot be convicted if the Government‘s conduct amounted to a violation of due process, probably also represents the view of a majority of the members of the Court, although some may regard it as still an open question, and it is probable that opinions concerning what is, and what is not, sufficiently outrageous conduct can be expected to vary.” Id.
The Third Circuit Court of Appeals reversed the decision of District Court in United States v. Jannotti, 3d Cir., 673 F.2d 578, at 581 (1982) (en banc). In so doing, however, the Third Circuit implicitly sanctioned the Trial Court‘s analysis of the decisions of the United States Supreme Court in Sorrells, Sherman, Russell and Hampton, supra, by examining each of these cases and culling from them legal principles similar to those enunciated by Judge Fullam on the issues of entrapment and violation of due process in an entrapment context. See United States v. Jannotti, 673 F.2d at 596-598 & 606-608. Speaking to the defense of entrapment, and quoting from Sorrells, supra, at 441, the Court of Appeals stated: “‘It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,‘” id. at 597, and the Court of Appeals further stated that “[e]ntrapment occurs when a defendant who was not predisposed to commit the crime does so as a result of the government‘s inducement. The entrapment defense thus focuses on ‘the intent or predisposition of the defendant to commit the crime.‘” Id. at 597, quoting Russell, supra, 411 U.S. at 429, 93 S.Ct. at 1641. The Court of Appeals in Jannotti also stressed this important point: “[A]lthough there may be instances where the undisputed facts establish the entrapment defense as a matter of law, as in United States v. Sherman, or where the evidence is simply insufficient to submit the issue to the jury... entrapment is generally a jury question,” id. at 597 (citations omitted), and “the government has the burden to disprove the whole [entrapment] defense beyond a reasonable doubt.” Id., quoting United States v. Watson, 3d Cir., 489 F.2d 504, 510 (1973).
In its discussion of the due process defense, which must not be permitted to “overlap with the entrapment defense“, id. at 606, the Third Circuit Court of Appeals stated that the Supreme Court‘s opinion in Russell and the separate opinions in Hampton require “that a successful due process defense must be predicated on intolerable government conduct which goes beyond that necessary to sustain an entrapment defense.” Id. at 607. The Court cautioned against confusing the Supreme Court‘s “consistent rejection of the objective test of entrapment by permitting it to reemerge cloaked as a due process defense,” emphasizing that “the majority [of the United States Supreme Court] has manifestly reserved for the constitutional defense only the most intolerable government conduct,” id. at 608, and that it must be borne in mind that the Supreme Court has made it clear that the statutory defense of entrapment and the constitutional defense of violation of due process are “separate and distinct” defenses. Id. at 606.
There appears to be no reported Delaware case law on the subject of entrapment
The divergence of judicial opinion and the elasticity of the objective and subjective tests absent a statute like
“Ordinarily a defendant‘s predisposition to commit the crime is a relevant factor when the defense of entrapment is raised. ... “[P]redisposition is evidenced by previous conviction of crime, reputation for criminal activities, ready compliance with minimal inducement, or easy yielding to the opportunity to commit the offense.” However, as the part played by the State in the criminal activity increases, the importance of the factor of defendant‘s criminal intent decreases until finally a point may be reached where the methods used by the State to obtain a conviction cannot be countenanced, even though a defendant‘s predisposition is shown. Whether the police activity has overstepped the bounds of permissible conduct is a question to be decided by the trial court rather than the jury.
We hold that where an informer or other agent generally acting in concert with law enforcement authorities, furnishes a defendant with heroin for the purpose of then arranging a sale of the heroin by the defendant to an undercover officer, which sale is then consummated, defendant has been entrapped as a matter of law even though predisposition to commit may appear....”
Id. at 13 (citation omitted).
A stronger “mix” of the two tests appears in United States v. West, 3d Cir., 511 F.2d 1083 (1975). In West the Third Circuit observed that
“[f]requently, it is permissible law enforcement practice for an undercover agent to obtain evidence of unlawful traffic in narcotics by purchasing heroin from a suspected drug peddler. But when the government‘s own agent has set the accused up in illicit activity by supplying him with narcotics and then introducing him to another government agent as a prospective buyer, the role of government has passed the point of toleration. Moreover, such conduct does not facilitate discovery or suppression of ongoing illicit traffic in drugs. It serves no justifying social objective. Rather, it puts the law enforcement authorities in the position of creating new crime for the sake of bringing charges against a person they had persuaded to participate in wrongdoing. It was this evil of law enforcement officers instigating a criminal act by persons “otherwise innocent in order to lure them to its commission and to punish them” that led the Supreme Court to its first reversal of a conviction on the ground of entrapment [in] Sorrells, [supra,]....
....
While we view West‘s case as one of intolerable conduct by government agents, one supplying and the other buying the narcotics, the same result is reached if the entrapment aspect of this case is analyzed as depending solely on the predisposition of West to engage in illicit drug traffic. (subjective test) The government argues that the series of sales made by West during the latter part of January, the first predating the transactions for which he was indicted, shows predisposition. But if, as the evidence indicates, these four transactions among the same three people within a ten day period were all part of a scheme proposed
by a government agent, the relevant predisposition is West‘s attitude on January 19, just before the government agent enlisted his participation in the venture.” Id. at 1086.
IV
In light of these general principles, we now turn to defendant‘s contentions. The defendant bases her position that she was entrapped as a matter of law upon a series of “objective test” cases standing for the proposition that entrapment exists as a matter of law where government agents furnish contraband to a defendant, who, in turn, sells it to another government agent or other third person. See West, supra; United States v. Bueno, 5th Cir., 447 F.2d 903 (1971); Syler v. State, Miss.Supr., 340 So.2d 10 (1976); Talbot, supra; Rogers v. State, Fla.Ct.App., 277 So.2d 838 (1973); State v. McKinney, Ariz.Supr., 108 Ariz. 436, 501 P.2d 378 (1972); People v. Dollen, Ill.Supr., 33 Ill.2d 280, 290 N.E.2d 879 (1972).
We find, however, that especially by virtue of
By the explicit language of
V
There remain defendant‘s second and third arguments to consider. We deal first with the latter.
Defendant maintains that there was no evidence to show that she was predisposed to commit the offenses charged. Defendant relies on West, supra, in support of her claim that “the relevant predisposition” is the attitude of an accused “just before the government agent enlisted [her] participation in the venture.” Id. at 1086. The evidence at trial showed that defendant brought food into the prison and gave it to inmates on numerous occasions. Under
The Third Circuit test for predisposition is a useful tool for determining an accused‘s proclivity toward commission of a criminal act. Certainly a defendant‘s conduct “just before a government agent enlisted his participation in the venture” is relevant to a determination of a defendant‘s predisposition. However, we are disturbed by a test which confines the scope of focus wholly on the issue of predisposition to the time period “just before” the police solicited defendant to participate in the criminal scheme. The application of the rule in West would provide an entrapment defense to every individual who establishes an unblemished personal record prior to being approached to commit a crime. Furthermore, it is often the case that “the sole proof of predisposition consists of evidence as to what the defendant did on the occasion in question, in response to the overtures of the government agents.” United States v. Jannotti, 501 F.Supp. at 1191. Hence, we believe that the interval between the solicitation and the actual commission of the offense is highly significant on the question of predisposition because it is within that time period that an accused may exhibit manifestations of his propensity for a specific crime which might not appear were it not for the State‘s initial enlistment of the defendant‘s participation.
Thus, we hold that the point of reference for ascertaining the predisposition of a defendant to commit a particular crime is the time period extending from just before the State‘s solicitation to just before the defendant‘s commission of the crime.8
Under this test, we find that defendant was predisposed to commit the crimes charged. Defendant was approached by Barlow to secure and deliver drugs to him. By her own admission, without pressure or threat, defendant agreed to participate in the scheme. As planned, defendant called Officer Williams (“Dennis“) and scheduled a meeting. Although nervous, she agreed to smuggle drugs into the prison even though she was twice given the opportunity to withdraw from the arrangement by Officer Williams. At the second and third meetings, defendant was more relaxed about the transactions. No pressure or force was exerted upon her to continue with the plan, yet she smuggled the drugs into the prison and accepted the bribes on two occasions separated by almost a month. Defendant conceded that she knew it was wrong to smuggle the marijuana into the institution yet she persisted in continuing the plan. Such evidence was sufficient to indicate that the defendant was predisposed to violate the law before she actually committed the offenses.
VI
Our inquiry does not end here. Pursuant to
As the District Court in Jannotti noted, the term “inducement” encompasses such diverse governmental conduct as
“suggesting that the crime be committed, providing some or all of the instrumentalities or facilities needed to complete the crime, actively participating in the commission of the crime, providing varying degrees of incentives, providing varying degrees of persuasion or even coercion, or a combination of these ingredients.”
United States v. Jannotti, 501 F.Supp. at 1190.
And in Jannotti, the Court of Appeals made this important analysis:
“It is plain from the Court‘s opinion in Russell and the separate opinions in Hampton, however, that a successful due process defense must be predicated on intolerable government conduct which goes beyond that necessary to sustain an entrapment defense. The genesis of the entrapment defense lay in the Court‘s interpretation of legislative intent; ‘[s]ince the defense is not of a constitutional dimension, Congress may address itself to the question and adopt any substantive definition of the defense that it may find desirable.’ United States v. Russell, 411 U.S. at 433, 93 S.Ct. at 1643 (footnote omitted). We must necessarily exercise scrupulous restraint before we denounce law enforcement conduct as constitutionally unacceptable; the ramifications are wider and more permanent than when only a statutory defense is implicated.
We must be careful not to undermine the Court‘s consistent rejection of the objective test of entrapment by permitting it to reemerge cloaked as a due process defense. While the lines between the objective test of entrapment favored by a minority of the Justices and the due process defense accepted by a majority of the Justices are indeed hazy, the majority of the Court has manifestly reserved for the constitutional defense only the most intolerable government conduct.”
United States v. Jannotti, 673 F.2d at 607-608.
While the exact boundaries for permissible and impermissible government conduct within the bounds of due process in the context of entrapment have not yet been set by the United States Supreme Court, we do not believe that the conduct of the police in the instant case rises to the level of a due process violation. The defendant was given the opportunity to withdraw on several occasions. The record is devoid of evidence of overbearing, pressure, threat or force exerted upon defendant to secure her cooperation. The police merely presented her with an opportunity for crime which she seized.
Courts must look to the nature of the crime and the means available to law enforcement officials to combat it in deciding whether police conduct violates due process. Illicit trafficking in narcotics presents special problems of proof, detection and danger for law enforcement personnel. See Jannotti, 673 F.2d at 604. Many times the only way for police to combat such crime is to set up an operation similar to the one sub judice. This is especially so when the setting for the drug trafficking is a State prison. To hold that the conduct of the State Police in this matter was overreaching and injurious to defendant‘s due process right would be to deprive our law enforcement officers of an effective tool for stamping out crime, and we decline to do so.
Invocation of an “entrapment” defense conjures up notions of tricky policemen trying to prey upon the needs and weaknesses of people and to persuade innocent citizens to commit crimes, when the police ought to
Here, however, contraband, including drugs, was getting into the prison and the job of the police was to stop it. When the police gave defendant an opportunity to smuggle in drugs, she took it, did it twice (for a price) and got caught.
Since it is undisputed that the police originated the idea, inducement was the critical issue at trial. That is a factual question (was defendant persuaded by the police to do what she did?) and the jury, after hearing all of the facts, concluded that defendant was not induced to do what she was not otherwise disposed to do.
Certainly there was plenty of evidence from which the jury could conclude that defendant was not “induced“: She was not under police observation during the times she took the contraband into the prison, she figured out how to do that and, significantly, she also worked out the scheme for delivering the drugs to Barlow within the prison. She (admittedly) had ample opportunity to back out, not only from the beginning but also while she acted alone, taking the drugs into the prison and making delivery. And she did all of that, not once, but twice, some three weeks apart. To the extent that “pre-disposition” is significant, completion of the first delivery at least shows that defendant was disposed to do it again.
The case presents a hard question in the administration of justice. There surely are limits to which the police may go and at which even good faith efforts to enforce the law (and protect society) transmutes into an entrapment which, as a matter of law, violates due process. But here, it should be noted, the offenses which were basic to defendant‘s criminal conduct (“promoting prison contraband... [by]... knowingly and unlawfully... [introducing] contraband into a detention facility,”
Accordingly, the Superior Court‘s denial of the defendant‘s motion to set aside the jury‘s verdict of guilty is hereby
AFFIRMED.
QUILLEN, Justice, dissenting:
I confess shock at the absence of a clear federal constitutional restriction on the material inducement that a law enforcement officer or his agent can offer to another to get the other to commit a crime.1 While some of the same considerations are present, the question of a constitutional restriction is necessarily entirely separate from any legislative or common law intent as to the defense of entrapment.2 The independence arises necessarily from the language of the Fourteenth Amendment, “nor
“... Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.”
Malinski v. New York, 324 U.S. 401, 416-417, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (1945). That is a different question than the question of legislative intent in the defense of entrapment.
I recognize that abuse is rampant in defense claims of entrapment. I also recognize that the recent, well publicized, despicable conduct of certain public officials in the ABSCAM cases has made entrapment related defenses particularly unpopular nationally. Nor can I disagree with the majority here as to our particular statutory defense of entrapment. The history of the statute and the placing of the burden of proof on the defendant in the affirmative defense classification demonstrate the factual nature of the inquiry into the origin, inducement and disposition issues.3
But I would have thought, given the frailty of mankind, that one difference between our society and totalitarian societies would be a constitutional recognition that government should not have the power to extend limitless temptation to make the average citizen a criminal, subject, at the State‘s discretion, to the loss of liberty and property.4 We have enough crime without giving the State unlimited power to buy more. In other societies, particularly the Soviet Union, government sponsored corruption and related selective law enforcement are used as a means to perpetuate State subjugation of the citizenry. Under such a system everyone becomes subject to prosecution at the whim of the State.5 Failure to clearly recognize a similar potential evil in State sponsored crime in the entrapment context, in my opinion, is a glaring void in our constitutional case law. There is something fundamental at stake.
The majority opinion has reviewed the prevailing federal authorities. In my judgment, the United States Supreme Court decisions are inconclusive as to the constitutional limit on government inducement of criminal activity.6 Although perfectly legitimate, I consider it foreign to a sense of order in American law for each State jurisdiction to interpret general constitutional concepts as frolics of its own. Thus, I
In the instant case, I would reserve jurisdiction and remand the case to the Trial
Notes
“(a) In any prosecution for an offense, it is an affirmative defense that the accused engaged in the proscribed conduct because he was induced by a law-enforcement official or his agent who is acting in the knowing cooperation with such an official to engage in the proscribed conduct constituting such conduct which is a crime when such person is not otherwise disposed to do so. The defense of entrapment as defined by this Criminal Code concedes the commission of the act charged but claims that it should not be punished because of the wrongdoing of the officer originates the idea of the crime and then induces the other person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so.
(b) The defense afforded by subsection (a) of this section is unavailable when causing or threatening physical injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.”
I emphasize that my shock is directed to the law and not to this particular police activity. It is the courts that have failed to provide clear constitutional guidelines with regard to due process claims.“I turn, then, to this much-referred-to defense of entrapment. The defendant has asserted as an affirmative defense in this case that the defendant engaged in the conduct charged to constitute the various offenses listed herein because she was induced to do so by the conduct of a law enforcement official or of the agent of a law enforcement official, the prisoner that testified.
This affirmative defense is known as entrapment. In order to establish the affirmative defense of entrapment, it is necessary for the defendant to satisfy you by a preponderance of the evidence of both the following elements: First, the defendant engaged in the conduct constituting the offenses or offense because she was induced to do so by a law enforcement official or by an agent acting under the auspices of the law enforcement official, acting (and that agent acting) in knowing cooperation with the official. And secondly it must be proven that the defendant was not otherwise disposed to engage in the conduct constituting the offenses.
You should be aware that the defense of entrapment concedes the commission of the acts charged, that is, the acts which would constitute crimes were it not for the defense of entrapment. But the claim is asserted that it should not have been punished or that it is unjust to punish any such criminal action because the officer, the law enforcement officer, or his agent, the prisoner, by his or their actions originated the idea of the crime, and induced the defendant to engage in conduct constituting the crime when the defendant was not otherwise disposed to do so.
The defense of entrapment does not apply to situations in which the law enforcement officers or their agents merely afford a defendant the opportunity to engage in conduct constituting a crime.
If you find from a preponderance of the evidence that the agent of the State, the prisoner, John Barlow, lured the defendant, otherwise innocent, into the commission of the crime or crimes, or that he put positive pressure on the defendant to commit the crime or crimes to which she had no prior disposition to commit, then the defendant has proved the defense of entrapment and the defendant is entitled to an acquittal.
*
And, if the defendant is to be acquitted on the affirmative defense of entrapment, however, the defense has the burden of proving that entrapment took place, but the burden is by a preponderance of the evidence rather than beyond a reasonable doubt.”
Compare the Proposed Criminal Code with Commentary (1973)“(1) there was jurisdiction under the Hobbs Act; (2) the evidence of defendants’ predisposition was sufficient to support the jury‘s conclusion of no entrapment; (3) the conduct of the government agents as to Schwartz and Jannotti did not violate their due process rights; and (4) there was no basis on which to direct an acquittal on the ground of manufactured jurisdiction.” Id. at 611.
See Katsenelinboigen, “Coloured Markets in the Soviet Union“, Soviet Studies, vol. XXIX, no. 1, January 1977, 62-85. See also Judge Aldisert‘s dissent in United States v. Jannotti, 673 F.2d 578 (1982) (en banc).