Entrapment is making a comeback.
As a defense I mean. It started making a comeback as a government tactic shortly after September 11 before it migrated to the non-national security law enforcement world.
And the Seventh Circuit appears to be the new home of the entrapment defense as it rises, phoenix-like, on the shores of Lake Michigan. In United States v. Barta, the Seventh Circuit again affirmed the new strength of an entrapment defense in that part of the country.
If you remember one quote from this opinion, remember this one: “The point is that the government is supposed to catch criminals, not create them.”
Mr. Barta’s Business
James Barta founded a company called Sav-Rx. Sav-Rx was a “prescription benefit management business.” I believe that means that they help businesses that offer a prescription benefit to their employees with that.
Mr. Barta Meets with the FBI (Unwittingly)
In any event, Mr. Barta came to meet with a man named Castro. Or, referred to as Castro, since he was actually an undercover FBI agent. Castro was known as a guy who could deliver contracts with people at Los Angeles County. He delivered those contracts by bribing them.
When Mr. Barta first met with Castro he told him, right off the jump, “I’m not trying to sell you anything.” He said he was merely there to tell Castro what Sav-Rx does.
Castro told Mr. Barta that he could connect Sav-Rx with the Los Angeles County government because he knew a guy and he’d need to be paid. Barta left twelve minutes after the meeting started.
Mr. Barta and the Limits of His Business
Castro met with Mr. Barta again, along with an FBI informant. They told Barta that they could set up a system where Sav-Rx would be able to do work with LA County through the guy they knew on the inside.
Mr. Barta described how he had helped Cook County’s government set up a system, but it was only because there were inefficiencies there that he knew how to correct. He said that if LA County was already efficiently handling things, he couldn’t add much value. But, he said that if LA County was doing things inefficiently then he would be happy to help.
The FBI took this to mean that he would be interested in a bribery scheme. Because, of course, most people who bribe their way into business only do that if there’s a value add for the service they provide.
The FBI Sends A Lot of Unanswered Email
After that meeting, the FBI hounded Barta, and he didn’t get back to them. Castro told Barta that their inside man was eager to close things. That went on for more than a month. Barta just ignored the emails.
Then the FBI started sweetening the deal – increasing the size of the fake contract that Barta would participate in. The FBI also pressured other folks to pressure Barta to get involved.
They had put a lot of work in. The FBI really wanted that stat.
When Barta responded to none of this, Castro started calling him. Barta let the calls go to voicemail.
Finally, Castro sent Barta an email saying if he didn’t hear by the end of the day he was moving on.
Barta didn’t get back to him. Castro didn’t move on.
The Harried Phone Call and Nebraska Meeting
Finally, Castro called Barta and Barta’s assistant put him through. Barta said he was in the middle of something else and wasn’t able to talk. Castro asked if they could move forward. Barta said “I think we’re probably ready to move . . . Yep.”
Castro reached out to Barta over the next few weeks. He enlisted a guy who later became a co-defendant to reach out to Barta. Ultimately, Castro flew to Nebraska where Barta lived. Barta said he wanted to help his friend, but didn’t really care about any deal in LA. He gave Castro a check from Sav-Rx for $6500.
He was arrested six days later and convicted after a jury trial.
The Seventh Circuit
The Seventh Circuit found this was entrapment as a matter of law and vacated his conviction. Here’s the best part of the opinion:
The FBI frequently emailed and called Barta, with no response from Barta. These were “repeated attempts at persuasion.” Id. at 435. The FBI invented false deadlines for Barta to commit to the deal and invented false problems for the Los Angeles County hospital system. These were “fraudulent representations.” Id. The FBI significantly sweetened what would have already been an attractive deal to Barta and his codefendants. Here we have “promises of reward beyond that inherent in the customary execution of the crime.” Id. And the FBI pressed Barta – both directly and through Buenrostro — to make a deal that it had reason to believe Barta would be making mainly to benefit his less fortunate friend, Buenrostro. Here we have “pleas based on need, sympathy, or friendship.” Id. The presence of all these plus factors shows that the government induced Barta to commit a crime, one that the government concedes he had no predisposition to commit. That is enough to establish entrapment as a matter of law.
The moral of the story? If someone is really pushing you to do something illegal, make sure that there’s only venue in Illinois, Indiana, or Wisconsin.