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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.”

the-venus-flytrap-4-1234316-m.jpgMr. 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.

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the-money-trap-621161-m.jpgAs I’ve been writing about a lot over on Above the Law, one thing that is really not good about the federal criminal system is that it is extremely hard to attack government conduct.

This isn’t to say that all prosecutors or cops are bad. But they have massive amounts of unchecked power. And, my view at least, is that human nature is such that any given with power has at least a decent chance of abusing it. Prosecutors and cops aren’t saints – some of them are going to do what they ought not. And, when that happens, absent an egregious Brady violation and a really good judge, nothing much is likely to happen to the prosecutor.

Perhaps the hardest part of this is in entrapment law. The government should be in the business of catching crime, not creating crime to catch.

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October 29, 2007 started bad for Cortez Fisher.

He walked out of his house and the Baltimore police approached him (he lived in Baltimore). They asked to talk to him. He said no. He tried to drive away, but backed into a cop car.

He was arrested and searched – they found empty glass vials in his pants pocket.

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Daniel Castro was a high-ranking person in the Philadelphia Police Department. And the Third Circuit’s opinion in his case – United States v. Castro – may just be the most awesome published opinion I’ve seen in months.

Mr. Castro was charged with three separate extortion conspiracies and also with making a false statement to federal agents – a violation of 18 U.S.C. § 1001.

The jury hung on the extortion charges. They convicted on the false statement charge.

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I’m grateful that the ABA Law Journal has, again, decided this is one of the 100 best law-related blogs in the country.

That’s right, your very own Federal Criminal Appeals Blog is on the 2012 ABA 100 list.

Here’s what the ABA Law Journal said about the blog:

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I like to work with other lawyers when the case warrants it. In fact, it’s rare that I don’t have a few cases in the office where I have co-counsel.

Normally, this is good because I get to see how others are handling the same issues I am. I get to learn what other people are doing and I have an opportunity to improve my game.

There are exceptions, though. Three times this calendar year, I’ve been working with a lawyer at another firm and I’ve stumbled upon an inexcusably lazy way to do legal research. More on that in a second.

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If you’re reading this at work, you may be committing a federal crime (depending on where you are reading it, and you’re employer’s policies about reading the internet). Here’s hoping you don’t get charged!

If you’d willing to brave the threat of Johnny Law, or you’re at home, please read on.

Mr. Nosal Wanted To Start A New Company

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Perhaps January 24, 2009 was a normal day for Joseph Edwards. He woke, tied some crack cocaine around his penis, threatened his ex-girlfriend with a gun, and went out into the Baltimore night.

His ex-girlfriend, however, had complained to the police about his threat. The police began to prepare an arrest warrant and went into the streets to look for Mr. Edwards. Around 11 p.m., the officers found him.

1142077_knife_2.jpgThe police officers asked Mr. Edwards to approach them. He did, calmly. He “looked like he was just walking down the street” according to the officers. He didn’t act like a man with a gun – he wasn’t fussing with his waistline. He also didn’t look like he was involved in drug dealing; the officers didn’t see him doing any hand-to-hand transactions before they called out to him.

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Legislators like to punish repeat offenders. That’s just good politics – “Mike Sloss puts repeat offenders behind bars” sounds better than “Mike Sloss has a balanced policy on recidivism” when put on a bumper sticker.

So it isn’t surprising that the Armed Career Criminal Act, located at 18 U.S.C. S 924(e)(1), jacks up the penalties for a person convicted of being a felon in possession of a firearm if the person who is convicted has at least three prior convictions for drug dealing or a violent crime.

In a nod to fairness, though, Congress does require that those prior convictions be committed “on occasions different from one another.”

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Stacy Hunt – a man with multiple prior convictions, who attempted to pick up a package of drugs at an airport in Alaska, flipped on others involved in the drug deal, then fled to California where he was rearrested – appears to have outsmarted the United States Department of Justice and a federal district court judge.

The case is United States v. Hunt, from the Ninth Circuit.

To see how Mr. Hunt was clever, you need to understand two rules of federal criminal law.