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Entrapment defenses are not easy to win, especially in the federal system. There, the government need only show that the defendant was predisposed to commit the crime and that the government only offered an inducement for him to do so. See generally U.S. v. Russell, 411 U.S. 423 (1973). However, some recent cases demonstrate helpful strategies for defendants who intend to rely on an entrapment defense. Entrapment cases are ordinarily fact-intensive. See U.S. v. Miller, 71 F.3d 813, 816 (11th Cir. 1996) (“fact intensive nature of the entrapment defense often makes jury consideration of demeanor and credibility evidence a pivotal factor”). Jurors must decide: (1) whether the government induced the commission of a crime; and (2) whether the defendant was predisposed to commit it. See U.S. v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002); U.S. v. Skarie, 971 F.2d 317, 320 (9th Cir. 1992). If jurors are not persuaded that the defendant was unwarily trapped by the government’s tactics, the defense will fail. Instances when entrapment defense is a nonstarter Frequently, an entrapment defense will be a nonstarter because of the defendant’s criminal background. For example, in the recent case of U.S. v. Moon, No. 06-11412, 2006 WL 3288628 (11th Cir. Nov. 13, 2006), the defendant claimed that he was entrapped into participating in a drug deal. His defense soon fell apart when the government offered evidence that Moon had prior convictions for drug-related crimes. Similarly, in child pornography cases, the admissibility of other similar act evidence under Federal Rule of Evidence 404(b) may be critical in showing that the defendant intended to collect illegal images on his computer. See, e.g., U.S. v. Brand, 467 F.3d 179 (2d Cir. 2006). If a defendant is repeatedly engaging in illegal behavior, he will not be able to counter the government’s argument that he was predisposed to commit the crime. However, sometimes an entrapment defense may have a fighting chance, especially if the defense is able to get all of its evidence-lay and expert-before the jury. The recent case of U.S. v. Sandoval-Mendoza, No. 04-10118, 2006 WL 3783435 (9th Cir. Dec. 27, 2006), is a good example. Eduardo Sandoval-Mendoza was charged with conspiring with his brother, Ricardo, to sell methamphetamine. A family friend, Marcos, introduced Eduardo to Tony. Both Marcos and Tony were government informants. In a government sting operation, Eduardo sold the government informants 12 pounds of methamphetamine. Given that he was caught red-handed, it was not surprising that Eduardo admitted selling the drugs. However, he claimed that the government informants had entrapped him. To bolster his defense, Eduardo claimed that the government agents knew he had a large brain tumor that rendered him particularly susceptible to suggestion and that they preyed upon his weakness. At trial, Eduardo wanted to call two expert witnesses to testify to his medical condition-a neuropsychologist and a neurologist. The trial judge held a Daubert hearing at which both experts testified that Eduardo suffered from a tumor that could affect his judgment, memory and emotions. According to the defense experts, Eduardo had “the passions of a man but the mind of a child,” making him more susceptible to suggestions and less able to resist them. The prosecution’s experts agreed that Eduardo had an unusually large tumor, but disagreed as to its effect, believing the medical evidence was insufficient to support the defense conclusion that Eduardo was particularly susceptible to influence. The district court decided to exclude the expert testimony because it did not find a sufficient causal link between Eduardo’s tumor and the claim that he was particularly susceptible to inducement. Accordingly, only Eduardo himself, his ex-wife and his sister could testify that his brain tumor had caused him to relent to the informants’ suggestion that he sell them drugs. Although the 9th U.S. Circuit Court of Appeals panel was not convinced that Eduardo had been entrapped (the panel even opined that “[o]n wiretap recordings [Eduardo] sounds suspiciously like an experienced drug dealer, not a neophyte”), the appellate judges did believe that the trial judge had erred in excluding the expert testimony. The 9th Circuit ruled in favor of Eduardo and granted him a new trial at which he could present expert testimony in support of his entrapment defense. In some ways, Sandoval-Mendoza’s case is unique because the defendant had a physical condition that could support his claim that he was particularly susceptible to the government informants’ inducement. Obviously, not every defendant can count on such evidence to support an entrapment defense. However, the case provides a good lesson to others who might raise an entrapment defense. The essence of an entrapment defense is a claim that a defendant was not predisposed. To rebut the government, defendants should consider a wide range of corroborative evidence. Sometimes, it will be good character evidence. However, as Sandoval-Mendoza teaches, psychiatric evidence can also support such a claim. Sometimes, that psychiatric evidence will be supported by an identifiable abnormality in the brain; sometimes, behavioral tests and a defendant’s history will support the expert’s opinion. With an expert, a defendant has a much better chance of convincing a jury that he was entrapped than if he relies solely on his own or his family’s testimony. Recent cases also reveal that courts are open to claims of entrapment by estoppel or the so-called “public authority” defense. In U.S. v. Giffen, No. 05-5782-CR, 2006 WL 3544862 (2d Cir. Dec. 8, 2006), the court held that an entrapment-by-estoppel defense applies in cases where the defendant reasonably relies on the inducements of government agents who have apparent authority to authorize the otherwise criminal acts, even if they do not in fact possess such authority. See U.S. v. Schwartz, 924 F.2d 410, 423 (2d Cir. 1991); U.S. v. Anderson, 872 F.2d 1508, 1516 (11th Cir. 1989); U.S. v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984). For example, assume a defendant is charged with illegally shipping arms to a foreign country. The defendant might claim that he was authorized by officials at the Defense Intelligence Agency to ship such weapons. See Schwartz, 924 F.2d at 422. The focus of an entrapment-by-estoppel defense is on a defendant’s claim that he honestly and reasonably believed that the American government had approved his actions. To support such a claim, a defendant will most likely need to reveal confidential communications with a government representative. In Giffen, the government sought to preclude the defendant’s public-authority defense by claiming it would require revealing classified documents that should not be disclosed. The appellate court rejected the government’s appeal based on an alleged violation of the Classified Information Procedures Act (CIPA), but opined on the nature of the entrapment-by-estoppel defense. In its dicta, the appellate court emphasized that to be successful with an entrapment-by-estoppel defense, a defendant must disclose to the government the exact nature of his conduct so that any authorization provided by the government can be reasonably understood as approval of the defendant’s otherwise illegal conduct. The defendant cannot sugarcoat his actions. Thus, Giffen would likely not have a public-authority defense to charges of defrauding the Republic of Kazakhstan and bribing Kazakh officials if all he did was tell U.S. officials about payments to secret Swiss bank accounts that were being used by the president of Kazakhstan to pay for reform programs. To qualify for the defense, Giffen would have to disclose to the government more specifically the criminal nature of his conduct and get approval for it. Thus, the success of an entrapment-by-estoppel defense depends on a clear record of disclosures by the defendant to the government, as well as evidence that a government official approved the actions. Courts will be receptive to the defense, but only if the defendant has a witness, phone records or a paper trail establishing these disclosures and approvals. Finding entrapment as a matter of law Finally, recent entrapment decisions reveal that there are still judges, state and federal, who will find entrapment as a matter of law. Madera v. Florida, No. 4D05-2800, 2006 WL 3498677 (Fla. Dist. Ct. App. Dec. 6, 2006), is such a case. In Madera, the defendant was charged with drug trafficking. Madera was 37 years old, had absolutely no criminal history, was unknown to law enforcement officers, and was gainfully employed at the time the government’s confidential informant first approached him. Madera was seduced into selling drugs by a female informant with whom he had become romantically involved. She first brought up the topic of illegal drug use, continually asked Madera if he could obtain drugs for her, and wouldn’t take “no” for an answer, even when he said that he didn’t use or sell illegal drugs. Using promises of sex and preying on the defendant’s sympathy for her alleged medical conditions, the informant (a convicted drug trafficker who had recently received a sweet sentencing deal from the government) finally persuaded Madera to engage in illegal acts. The court found that the confidential informant “was used here, not to detect crime, but to manufacture it.” Id. at 2. Thus, the court held that the government’s egregious conduct constituted entrapment and justified dismissal of the case. Ordinarily, courts give broad discretion to law enforcement officers to decide what tactics to use in order to detect and apprehend criminal behavior. However, sometimes law enforcement can cross the line. In exceptional circumstances, the femme fatale entrapment defense can succeed. Laurie L. Levenson is a professor of law, William M. Rains Fellow and director for the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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