As 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.
The En Banc Seventh Circuit and Fake Stash House Robberies
The Seventh Circuit late last year addressed – en banc – the standard for entrapment. This opinion may be the one good thing coming from fake stash house robbery prosecutions.
The facts of US v. Mayfield are familiar to anyone who knows about fake stash house robbery cases. Here’s how the Seventh Circuit summarizes it (it’s a long summary, but a really good one):
Mayfield was convicted of residential burglary in 1987 at age 18 and served time in jail for this crime. In 1994 he was convicted of several violent crimes stemming from an armed carjacking; he received a lengthy prison sentence. While in prison he earned a GED, an associate degree in general studies, and vocational certificates in commercial custodial services and cosmetology. He was released in 2005 and returned home to Waukegan, Illinois, where he participated in the Second Chance Program . . .
Although jobs for convicted felons were hard to come by, Mayfield managed to find sporadic work. After moving to Naperville, he found a temporary job in nearby Bolingbrook that allowed him to work a 40-hour workweek. He started this new job in late April or early May of 2009 and soon thereafter met Jeffrey Potts, a coworker with whom he had much in common. Potts was also a felon with convictions for drug trafficking, robbery, and gun possession. The two men commiserated about their financial straits, their difficulty finding permanent jobs, and their struggle to support their families. What Mayfield did not know was that his new friend was supplementing his income as a confidential informant for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).
. . .
In his first overture to Mayfield, Potts explained that he had returned to selling cocaine and invited Mayfield to join him in the drug trade. Mayfield rebuffed this offer. A few days later Potts learned that Mayfield had a pending gun-possession charge, so he tried another tack. He told Mayfield of a one-time opportunity “that was worth a lot of money.” His drug supplier was planning to “stickup” his wholesaler, a robbery that would net tens of thousands of dollars in cocaine. Potts invited Mayfield to participate in the robbery in return for a share of the profits. Mayfield rejected the invitation.
Potts persisted. Each day at work he tried to persuade Mayfield to join the conspiracy by appealing to his concerns about money. He urged Mayfield to think about the financial needs of his family, saying “I know you [are] tired of working for this chump change” and “I know you need this money,” among other similar lines of persuasion. Potts also flaunted his expensive Dodge Ram pickup truck, telling Mayfield that he bought it with $40,000 he had “earned” in another drug robbery. Mayfield continued to decline the offers.
On June 25, 2009, Mayfield’s car was damaged in an accident. He borrowed money from a family member to have the car towed but did not have enough to pay for the needed repairs. He missed three days of work before he found another way to get to his job . . . . When Potts asked him why he had missed work, Mayfield told him about the accident and explained his financial predicament. Potts unexpectedly gave him $180 in cash to pay for the car repairs.
Two days later Potts returned to the subject of the stashhouse robbery, again pressuring Mayfield to join the conspiracy. Mayfield equivocated but did not agree to anything. The following week Potts tried again. When Mayfield continued to resist, Potts gestured to a Gangster Disciples tattoo on Mayfield’s arm. The tattoo dated from Mayfield’s membership in the street gang before his carjacking conviction; he knew that failure to repay a debt risked harsh punishment from the gang. When Potts said he was still associated with the Gangster Disciples, Mayfield took it as a warning that he would be in danger if he did not quickly pay up. By the end of the day, Mayfield agreed to participate in the stash-house robbery conspiracy.
He was arrested pretty much as soon as anything got going with the robbery.
Most nonlawyers looking at this would, I think, say it’s entrapment. For that matter, I think most lawyers who don’t practice criminal law would think this is entrapment. One friend of mine, when I told him about these facts, asked why this wasn’t thrown out before trial because of how bad the government’s actions were.
If only more of my friends made the law.
There was a pretrial motion in Mr. Mayfield’s case, but it was not a motion to dismiss. Nor was it a defense motion for an entrapment jury instruction. No, the entrapment motion was filed by the government as a motion in limine to prevent the defense from talking about entrapment.
If you’re going to entrap someone, the last thing you want is them talking to the jury about how you entrapped someone.
The judge granted the government’s motion. Gotta love an independent judiciary.
The Seventh Circuit used this as an opportunity to discuss exactly what entrapment means.
Entrapment has two parts – lack of predisposition and government inducement. If someone can show both, then they get to present an entrapment defense to the jury and have the jury instructed on, basically, these two elements.
The Court held that:
We hold that inducement means more than mere government solicitation of the crime; the fact that government agents initiated contact with the defendant, suggested the crime, or furnished the ordinary opportunity to commit it is insufficient to show inducement.
Instead, inducement means government solicitation of the crime plus some other government conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the government’s efforts. The “other conduct” may be repeated attempts at persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward beyond that inherent in the customary execution of the crime, pleas based on need, sympathy, or friendship, or any other conduct by government agents that creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government’s efforts.
Predisposition has been the hard bit. Some Circuits have held some thing like that if you ever have a prior conviction for anything, you are always predisposed to commit any other crime. That’s right – Mark Wahlberg is predisposed to commit treason. (this is an overstatement, but a slight one)
Here’s what the Seventh Circuit said on predisposition:
a defendant is predisposed to commit the charged crime if he was ready and willing to do so and likely would have committed it without the government’s intervention, or actively wanted to but hadn’t yet found the means. The defendant’s predisposition is measured at the time the government first proposed the crime, but the nature and degree of the government’s inducement and the defendant’s responses to it are relevant to the determination of predisposition. A prior conviction for a similar offense is relevant but not conclusive evidence of predisposition; a defendant with a criminal record can be entrapped.
Concluding Procedural Remarks
One lovely final thing the Mayfield Court held – the government has the burden to defeat an entrapment defense beyond a reasonable doubt. It can do it by defeating either element, but it’s on the government.
But when does the government get this burden? When is an entrapment defense to be submitted to the jury?
We have held that to obtain a jury instruction and shift the burden of disproving entrapment to the government, the defendant must proffer evidence on both elements of the defense. See Plowman, 700 F.3d at 1057; Pillado, 656 F.3d at 763; Santiago-Godinez, 12 F.3d at 728. But this initial burden of production is not great. An entrapment instruction is warranted if the defendant proffers “some evidence” that the government induced him to commit the crime and he was not predisposed to commit it.
Mayfield is a great case. Here’s hoping it catches on in the other circuits.
It’s a far cry from keeping the defense from talking about entrapment at all.