[*] J.D., Cornell Law School, 1996; Ph.D., University of Florida, 1993; M.S., University of Florida, 1987; B.A., University of Miami, 1983. Many thanks to Will Bain, Nikki Rozsman, Lance Salisbury, Scott Seabolt, and Christy Talley for their good-natured inspiration and remarkable insight. The author also wishes to thank Professor Robert Kent and Professor Stephen Garvey for their invaluable suggestions and oft-needed encouragement. Return to text.

[1] See Commonwealth v. Phillips, 654 A.2d 591, 592-94 (Pa. Super. Ct. 1995). Return to text.

[2] See Robichaud v. State, 658 So. 2d 166, 167-69 (Fla. 2d DCA 1995). Return to text.

[3] See State v. Hohensee, 650 S.W.2d 268, 268-69 (Mo. Ct. App. 1982). Return to text.

[4] See generally Fred Warren Bennett, From Sorrells to Jacobson: Reflections of Six Decades of Entrapment Law, and Related Defenses, in Federal Court, 27 WAKE FOREST L. REV. 829, 831-32 (1992) (historically tracing entrapment and related defenses, and suggesting the addition of a notice requirement to the Federal rules). Return to text.

[5] See Sorrells v. United States, 287 U.S. 435, 452 (1932). Return to text.

[6] See Christopher D. Moore, The Elusive Foundation of the Entrapment Defense, 89 NW. U. L. REV. 1151, 1152 (1995). Return to text.

[7] See Sorrells, 287 U.S. at 441-42. Return to text.

[8] See generally Jonathan C. Carlson, The Act Requirement and the Foundations of the Entrapment Defense, 73 VA. L. REV. 1011 (1987) (detailing the legal foundations of entrapment and arguing that the entrapment defense is a reactive situation to government encouragement of crime). Return to text.

[9] See id. at 1014-21. Return to text.

[10] See id. at 1014. Return to text.

[11] See id. at 1014-17. Return to text.

[12] See, e.g., Sorrells, 287 U.S. at 454 (Roberts, J., concurring); MODEL PENAL CODE § 2.13 cmt. 1 (1985). Return to text.

[13] See PAUL MARCUS, THE ENTRAPMENT DEFENSE 81, 105-07 (2d ed. 1995). Under the objective approach, the entrapment defense would be a nonexculpatory defense; that is, a defense that arises only when an important public policy is realized by foregoing the otherwise guilty defendant's punishment. See 2 PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 460 (1984). Return to text.

[14] See Bennett, supra note 4, at 835-36. Return to text.

[15] See Commonwealth v. Phillips, 654 A.2d 591, 593 (Pa. Super. Ct. 1995). Return to text.

[16] See id. at 594-95. Return to text.

[17] See Sorrells, 287 U.S. at 451-52. Return to text.

[18] 287 U.S. 435 (1932). Return to text.

[19] Id. at 444 (quoting Butts v. United States, 273 F. 35 (8th Cir. 1921)). Return to text.

[20] See Moore, supra note 6, at 1160. Under this subjective approach, entrapment, like duress, is an excuse defense because the defendant's actions are not considered to have been fully his own. See ROBINSON, supra note 13, at 513. In addition to the subjective and objective standards, a few states have adopted hybrid approaches to entrapment that are comprised of both objective and subjective elements. See MARCUS, supra note 13, at 44-47. Return to text.

[21] See Robichaud v. State, 658 So. 2d 166, 167 (Fla. 2d DCA 1995). Return to text.

[22] See id. Return to text.

[23] See generally Donald A. Dripps, At the Borders of the Fourth Amendment: Why a Real Due Process Test Should Replace Outrageous Government Conduct Defense, 1993 U. ILL. L. REV. 261, 265 (1993) (criticizing the outrageous government conduct defense as historically unstable and at odds with selective incorporation). Return to text.

[24] See, e.g., United States v. Twigg, 588 F.2d 373, 381 (3d Cir. 1978). Return to text.

[25] Although the outrageous government conduct defense and the entrapment defense both turn on the government's involvement in a crime and its efforts to coerce an unwitting person into participating, they are distinguishable as the former is grounded in the Constitution and the latter is a creation of the judiciary. Because due process jurisprudence demands a much higher degree of governmental coercion or misconduct, the outrageous government conduct defense does not apply in all of the circumstances in which a defendant might successfully invoke the entrapment defense. See Bennett, supra note 4, at 855-59. Return to text.

[26] See State v. Hohensee, 650 S.W.2d 268, 270 n.2 (Mo. Ct. App. 1982). Return to text.

[27] Id. at 274. Although the court reversed the defendant's conviction for burglary, it upheld his conviction for conspiracy since he had taken part in planning the crime. See id. at 275-76. Return to text.

[28] See, e.g., United States v. Miller, 891 F.2d 1265, 1272 (7th Cir. 1989) (Easterbrook, J., concurring). Return to text.

[29] See infra Parts III, IV, V. Return to text.

[30] Board of Comm'rs v. Backus, 29 How. Pr. 33, 42 (1864). Return to text.

[31] People v. Mills, 70 N.E. 786, 791 (N.Y. 1904). Return to text.

[32] See John D. Lombardo, Causation and "Objective" Entrapment: Toward a Culpability-Centered Approach, 43 UCLA L. REV. 209, 219-20 (1995). See, e.g., People v. McCord, 42 N.W. 1106 (Mich. 1889) (setting aside a burglary conviction on the ground that a private detective, who worked for the victim, had induced the defendant into committing the burglary). Return to text.

[33] 223 F. 412 (9th Cir. 1915). Return to text.

[34] See id. at 413. Return to text.

[35] See id. Return to text.

[36] Id. at 415. Return to text.

[37] See id. Return to text.

[38] 287 U.S. 435 (1932). Return to text.

[39] See id. at 438-39. Return to text.

[40] See id. at 439. Return to text.

[41] Id. at 440. Return to text.

[42] See id. Return to text.

[43] See id. Return to text.

[44] See id. at 439. Return to text.

[45] See id. at 438-39. Return to text.

[46] Compare id. at 435-52 (1932) (Hughes, C.J.) with id. at 453-59 (Roberts, J., concurring). Return to text.

[47] See Carlson, supra note 8, at 1014. The issue of inducement focuses on whether the government conduct created a risk that an undisposed person might be persuaded to commit the crime. It also requires some causal connection between the government's conduct and the defendant's commission of the offense. While this is a relatively easy standard for the defendant to meet, she must show that the government offered more than the mere opportunity to commit a crime. See ROBINSON, supra note 13, at 519-20. Return to text.

[48] See Sorrells, 287 U.S. at 435-52. Return to text.

[49] See id. at 453-59 (Roberts, J., concurring). Return to text.

[50] See Moore, supra note 6, at 1160. Return to text.

[51] See Sorrells, 287 U.S. at 451-52. Return to text.

[52] Id. at 451. Return to text.

[53] 356 U.S. 369 (1958). Return to text.

[54] See id. at 371. Return to text.

[55] See id. Return to text.

[56] See id. Return to text.

[57] See id. at 372. Return to text.

[58] See id. at 373. Return to text.

[59] See id. Return to text.

[60] See id. at 374. Return to text.

[61] See id. at 378-85 (Frankfurter, J., concurring). The three justices joining Justice Frankfurter were Justices Douglas, Harlan, and Brennan. Return to text.

[62] See id. at 379-81. Return to text.

[63] 425 U.S. 484 (1976). Return to text.

[64] A second issue raised in Hampton was the applicability under the circumstances of the defendant's constitutional right to due process. See id. at 489; infra notes 386-93 and accompanying text. Return to text.

[65] See Hampton, 425 U.S. at 486. Return to text.

[66] See id. Return to text.

[67] See id. Return to text.

[68] See id. Return to text.

[69] See id. at 487-88. Return to text.

[70] See id. at 488-89. Return to text.

[71] Id. at 492. Return to text.

[72] See id. at 493 (Powell, J., concurring). Return to text.

[73] See id. at 496-97 (Brennan, J., dissenting). In the alternative, Justice Brennan argued that, even under the subjective approach, a defendant should not be considered "predisposed" when the government actually supplied the contraband. See id. at 497-98. Return to text.

[74] 503 U.S. 540 (1992). Return to text.

[75] See id. at 542-43. The defendant was a 56-year-old farmer in Nebraska. His name was on the mailing list because he had previously ordered two "Bare Boys" magazines from the bookstore. Those magazines, which contained photographs of nude preteen and teenage boys, were not illegal at the time that Jacobson placed his order because the young men depicted were not engaged in sexual activity. See id. Return to text.

[76] See id. at 543-46. Return to text.

[77] 18 U.S.C. § 2252(a)(2)(A) (1997); see Jacobson, 503 U.S. at 547. Return to text.

[78] See Jacobson, 503 U.S. at 547. Return to text.

[79] See id. at 547-48. After trial, Jacobson's case was appealed to the Eighth Circuit Court of Appeals twice. On the first appeal, an Eighth Circuit panel overturned the conviction, holding that the government must have reasonable suspicion of illegal activity before targeting an individual, and that Jacobson had been entrapped as a matter of law. See United States v. Jacobson, 893 F.2d 999, vacated, 899 F.2d 1549 (8th Cir. 1990). On appeal by the government, the Eighth Circuit, sitting en banc, reversed the panel's finding that the government's actions constituted entrapment. See United States v. Jacobson, 916 F.2d 467 (8th Cir. 1990) (en banc), rev'd, 503 U.S. 540 (1992). See generally Damon D. Camp, Out of the Quagmire After Jacobson v. United States: Towards a More Balanced Entrapment Standard, 83 J. CRIM. L. & CRIMINOLOGY 1055, 1078-85 (1993) (suggesting that Jacobson only added to the unworkable nature and unjust results engendered in the entrapment defense); Amy Perkins, Jacobson v. United States—Entrapment Redefined?, 28 NEW ENG. L. REV. 847, 863-66 (1994) (examining entrapment generally and focusing on the ambiguous effect of Jacobson on future cases). Return to text.

[80] See Jacobson, 503 U.S. at 547. Return to text.

[81] See id. at 554. Return to text.

[82] Id. Return to text.

[83] See id. at 550-51. Jacobson placed his order in February of 1984, but the Child Protection Act of 1984 (18 U.S.C. §§ 2251-2259 (1994)), which outlawed such mailings, was not enacted until three months later. See id. Return to text.

[84] Id. at 550. Return to text.

[85] See id. at 554. Return to text.

[86] See id. at 554 (O'Connor, J., dissenting). Chief Justice Rehnquist, Justice Kennedy, and Justice Scalia joined Justice O'Connor. Return to text.

[87] See id. at 556-57. Return to text.

[88] See Bennett, supra note 4, at 842. Return to text.

[89] See id. Return to text.

[90] See Scott C. Paton, "The Government Made Me Do It": A Proposed Approach to Entrapment Under Jacobson v. United States, 79 CORNELL L. REV. 995, 1002 n.45 (1994). While those states following the subjective approach have largely adopted it by judicial decision, most states following the objective view have done so by statute. See MARCUS, supra note 13, at 43. Return to text.

[91] See supra note 47 and accompanying text. Return to text.

[92] See Carlson, supra note 8, at 1055-56. This is because a government-encouraged act is not necessarily a convincing or reliable indicator that the defendant poses a threat to society. See id. Return to text.

[93] See MARCUS, supra note 13, at 126. Return to text.

[94] See id. Return to text.

[95] See Carlson, supra note 8, at 1071. The reasoning and presumptions here are arguably weak. Simply because it did not occur to a defendant to commit a crime until a government agent suggested it does not necessarily mean that she will be less dangerous to society than someone who decided to commit the same offense at the suggestion of a person not working for the government. Nevertheless, the former is exculpated while the latter is held responsible for the offense. Thus, "the predisposition test alone cannot make the distinction that subjectivists wish to make between defendants who are ready and willing to commit crimes and those who are not." Id. at 1040. Despite the test's logical weaknesses, its validity stems largely from the fact that it reflects a judicial attempt to heed the notions of fundamental fairness and the presumption of innocence. See Sorrells v. United States, 287 U.S. 435, 451-52 (1932). Return to text.

[96] See Carlson, supra note 8, at 1071. Return to text.

[97] See id. at 1071-73. Return to text.

[98] See id. at 1063-64. However, this justification has its limits. The entrapment defense is not available when the defendant is accused of a violent crime. See MODEL PENAL CODE § 2.13(3) (1985). Return to text.

[99] 356 U.S. 369 (1958). Return to text.

[100] See id. at 375; supra notes 53-62 and accompanying text. Return to text.

[101] See Sherman, 356 U.S. at 375-76. Return to text.

[102] State v. Houpt, 504 P.2d 570, 574 (Kan. 1972) (emphasis added). Return to text.

[103] United States v. Williams, 705 F.2d 603, 618 (2d Cir. 1983). Return to text.

[104] United States v. Leja, 563 F.2d 244, 245 (6th Cir. 1977). Return to text.

[105] United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986). Return to text.

[106] United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir. 1985). Return to text.

[107] Jacobson v. United States, 503 U.S. 540, 549 (1992) (emphasis added); supra notes 74-90 and accompanying text (discussing Jacobson). Return to text.

[108] In Jacobson, the Court found that the defendant was not predisposed to engage in any criminal activity. As a consequence, the Court was not compelled to engage in any further analysis and never addressed the issue of his specific intent. See Jacobson, 503 U.S. at 550. Return to text.

[109] United States v. Jannotti, 501 F. Supp. 1182, 1191 (E.D. Pa. 1980), rev'd on other grounds, 673 F.2d 578 (3d Cir. 1982). Return to text.

[110] See, e.g., United States v. Higham, 98 F.3d 285, 292 (7th Cir. 1996) (stating that prior acts of violence were relevant to the issue of whether the defendant was predisposed to engage in a murder-for-hire scheme); United States v. Davis, 15 F.3d 526, 530-31 (6th Cir. 1994) (holding that evidence of past cocaine sales were sufficiently similar to the charge of possession of cocaine with intent to distribute to show the defendant's predisposition); United States v. Blankenship, 775 F.2d 735, 742-43 (6th Cir. 1985) (holding that the defendant's tape-recorded confession to dealing in stolen lawn equipment was not admissible because that activity was not similar enough to the crime of unlawfully dealing in firearms to show predisposition); United States v. Segovia, 576 F.2d 251, 252-53 (9th Cir. 1978) (concluding that evidence of the defendant's willingness to arrange the sale of marijuana was substantially similar to the charge of possession with intent to distribute cocaine for the purposes of a predisposition inquiry); State v. Burciaga, 705 P.2d 1384, 1387 (Ariz. Ct. App. 1985) (upholding the suppression of evidence showing a past conviction for theft on the ground that it was not sufficiently similar to the crime of trafficking in stolen property to demonstrate the defendant's predisposition); State v. Ross, 540 P.2d 754, 756-57 (Ariz. Ct. App. 1975) (holding that evidence of a past intent to purchase heroin was insufficiently similar to the charge of selling heroin to show predisposition); Dockery v. State, 644 N.E.2d 573, 579-81 (Ind. 1994) (reversing a conviction on the ground that evidence of the defendant's arrest for the possession of marijuana and illegal firearms, which took place two years previously, and for selling cocaine to a confidential informant, which took place one year previously, were insufficiently similar to the crime of dealing in cocaine to demonstrate predisposition); Powers v. State, 380 N.E.2d 598, 600-01 (Ind. Ct. App. 1978) (finding that evidence of a past conviction for possession of a controlled substance was substantially similar to the crime of selling narcotics, and thus admissible as evidence of predisposition); State v. Gibbons, 519 A.2d 350, 357 (N.J. 1987) (holding that prior convictions for burglary and larceny were insufficiently similar to the crime of narcotics distribution to show that the defendant was predisposed); State v. Stanley, 215 S.E.2d 589, 594-98 (N.C. 1975) (holding that evidence of the defendant's past possession of marijuana did not indicate a predisposition to distribute LSD). Return to text.

[111] At best, past act evidence merely demonstrates the defendant's specific intent with respect to that type of crime at some time in the past, but not a specific willingness at the instant that the defendant engaged in the activity for which he is charged. Generally, evidence of specific intent at the instant of the offense is always admissible to show predisposition, while evidence of crime-specific intent must meet the "substantial similarity" standard. Evidence of general intent is inadmissible to show predisposition unless it demonstrates a criminal intent at the precise time of the offense charged. See MARCUS, supra note 13, at 135-37. Return to text.

[112] See Sorrells v. United States, 287 U.S. 435 (1932); supra notes 38-49 and accompanying text (summarizing Sorrells). Return to text.

[113] See United States v. Navarro, 737 F.2d 625, 635 (7th Cir. 1984). Return to text.

[114] See MARCUS, supra note 13, at 135-37. Return to text.

[115] See id. at 136-37. Perhaps the most widely cited list was compiled by the Seventh Circuit in United States v. Kaminski, 703 F.2d 1004 (7th Cir. 1983). The Court listed five factors for determining whether a defendant was predisposed to commit a crime:

[T]he character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government.

Id. at 1008. The Seventh Circuit's inclusion of "the nature of the inducement or persuasion supplied by the government" is intriguing because it suggests that the Court is incorporating an objective entrapment inquiry into its subjective standard. See United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir. 1985). Return to text.

[116] 762 F.2d 674 (8th Cir. 1985), modified, 476 U.S. 734 (1986). Return to text.

[117] Id. at 687-88 (alteration in original) (citations omitted). Return to text.

[118] See generally Bennett, supra note 4, at 850-54. Return to text.

[119] See MARCUS, supra note 13, at 148. Return to text.

[120] Id. Return to text.

[121] See Jacobson v. United States, 503 U.S. 540, 551 (1992); supra notes 74-90 (discussing Jacobson). Return to text.

[122] Jacobson, 503 U.S. at 551. Return to text.

[123] See MARCUS, supra note 13, at 149. Return to text.

[124] See, e.g., FED. R. EVID. 404(b) advisory committee's note. Return to text.

[125] See id. Section 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . . Return to text.

[126] See MARCUS, supra note 13, at 149. Return to text.

[127] United States v. Crump, 934 F.2d 947, 954 (8th Cir. 1991) (concluding that testimony concerning the defendant's past willingness to provide drugs to the witness whenever they engaged in sexual activity was sufficiently similar to the charge of narcotics distribution to show predisposition). See supra note 110 and accompanying text for additional cases and discussion relating to the "substantial similarity" test. The "closeness in time" test is decided on a case-by-case basis in which the court applies a reasonableness standard. In a majority of federal courts, evidence of convictions for similar offenses committed within the previous nine years are considered reasonably close in time. See W.H. Johnson, III, Note, Proving a Criminal Disposition: Separating the Unwary Innocent from the Unwary Criminal, 43 DUKE L.J. 384, 395-96 (1993). Return to text.

[128] United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir. 1984). Return to text.

[129] See FED. R. EVID. 403. Return to text.

[130] 819 F.2d 721 (7th Cir. 1987). Return to text.

[131] See id. at 727. Return to text.

[132] See id. at 724. Return to text.

[133] See id. Return to text.

[134] See id. Return to text.

[135] See id. at 727-29. There was other evidence admitted to which the defendant objected on appeal, including evidence of a felony conviction 17 years previously. See id. at 729. Return to text.

[136] See id. Return to text.

[137] See id. at 727. Return to text.

[138] See id. at 726. Return to text.

[139] See id. at 727. Return to text.

[140] See id. at 727-28. Return to text.

[141] See id. at 729. Interestingly, the court was unconcerned with whether or not the defendant's claims of past crimes were based in fact. The Court noted that the evidentiary value of the claims was in their capacity to demonstrate that he was "eager to impress [the agent] with his knowledge and expertise" and therefore predisposed to commit the crime. Id. Return to text.

[142] See United States v. Crump, 934 F.2d 947, 954 (8th Cir. 1991). Return to text.

[143] See Huddleston v. United States, 485 U.S. 681, 685 (1988). Return to text.

[144] Prior to the Supreme Court's decision in Huddleston, the circuits were split concerning the appropriate level of proof. While the First, Fourth, Fifth, and Eleventh Circuits had all adopted the standard now adopted by the Court, the Second and Sixth Circuits required the prosecution to show by a preponderance of the evidence that the defendant committed the past crime. The Seventh, Eighth, Ninth, and District of Columbia Circuits, on the other hand, required the prosecution to meet the "clear and convincing" standard before evidence of a defendant's past crime would be admissible. See id. at 685 n.2. Return to text.

[145] 485 U.S. 681 (1988). Return to text.

[146] See id. at 689. Return to text.

[147] Id. at 691. Return to text.

[148] 933 F.2d 1343 (7th Cir. 1991). Return to text.

[149] See id. at 1352. Return to text.

[150] See Johnson, supra note 127, at 412. Return to text.

[151] See Huddleston, 485 U.S. at 686. Return to text.

[152] See id.; see also D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the Treatment of Prejudicial Evidence in Federal Criminal Cases, 64 WASH. L. REV. 289, 323 (1989). Return to text.

[153] See Lewis, supra note 152, at 325. Return to text.

[154] See Johnson, supra note 127, at 398-99. Return to text.

[155] See id. at 402-03. Return to text.

[156] See MARCUS, supra note 13, at 141-44. Compare Sherman v. United States, 356 U.S. 369, 373-74 (1958) (finding that the defendant's "refusal, then his evasiveness, and then his hesitancy" to repeated requests for drugs by the government informer were a strong indication that he was not predisposed) with United States v. Kaminski, 703 F.2d 1004, 1008-09 (7th Cir. 1983) (finding predisposition only because the defendant, a professional arsonist, enthusiastically agreed to burn down a building even before learning how much the government informant would pay for his services). Return to text.

[157] 749 F.2d 1078 (4th Cir. 1984). Return to text.

[158] See id. at 1080. Return to text.

[159] Id. at 1080-81. Return to text.

[160] Id. at 1081. Return to text.

[161] See id. Return to text.

[162] See id. Return to text.

[163] See id. at 1079-80. Return to text.

[164] N.C. GEN. STAT. § 75D-4 (1997). Return to text.

[165] See Hunt, 749 F.2d at 1084. Return to text.

[166] Id. at 1086. Return to text.

[167] See id. Return to text.

[168] See Johnson, supra note 127, at 405-06. Return to text.

[169] 604 F. Supp. 984 (S.D. Ohio 1985). Return to text.

[170] 757 F.2d 866 (7th Cir. 1985). Return to text.

[171] See Knight, 604 F. Supp. at 986. Return to text.

[172] See id. Return to text.

[173] See id. at 985. Return to text.

[174] Id. at 987. Return to text.

[175] See Perez-Leon, 757 F.2d at 872. Return to text.

[176] Id. at 869. Return to text.

[177] Id. Return to text.

[178] See id. Return to text.

[179] See Bennett, supra note 4, at 852. Return to text.

[180] There have been numerous cases in which the defendant had days or even months to think about the inducement and ultimately failed to withdraw, yet the court still found that he or she was not predisposed. See, e.g., Jacobson v. United States, 503 U.S. 540, 554 (1992); Sherman v. United States, 356 U.S. 369, 374 (1958); United States v. Dion, 762 F.2d 674, 690 (8th Cir.), modified, 476 U.S. 734 (1985); United States v. Knight, 604 F. Supp. 984, 987 (S.D. Ohio 1985). Return to text.

[181] 442 A.2d 1377 (Del. 1982). Return to text.

[182] See, e.g., id. at 1386; United States v. Miller, 71 F.3d 813, 817 (11th Cir. 1996); United States v. Rodriguez, 799 F.2d 649, 655 (11th Cir. 1986); United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir. 1983); State v. Schillaci, 526 N.E.2d 871, 876 (Ill. App. Ct. 1988). Return to text.

[183] See Harrison, 442 A.2d at 1379. Return to text.

[184] See id. Return to text.

[185] See id. Return to text.

[186] See id. at 1380. There was conflicting testimony concerning the amount of reluctance shown by Harrison at the time of the inducement. While the informant claimed that Harrison merely deliberated for an hour or two, she testified that she rebuffed his repeated requests for a month before finally agreeing to participate. See id. at 1379-80. Return to text.

[187] See id. at 1380. Return to text.

[188] See id. Return to text.

[189] See id. at 1381. Return to text.

[190] See id. at 1386. Return to text.

[191] See id. at 1388. Return to text.

[192] See, e.g., United States v. Posner, 865 F.2d 654, 658 (5th Cir. 1989) ("[E]vidence of the defendant's subsequent, extrinsic offense [is] admissible because it fairly rebut[s] [a] claim of entrapment by proving disposition to commit a criminal act."); United States v. Moschiano, 695 F.2d 236, 243-44 (7th Cir. 1982) (rejecting the defendant's argument that there should be a per se rule against the admission of "subsequent act" evidence); United States v. Mack, 643 F.2d 1119, 1122-25 (5th Cir. 1981) (holding that evidence of subsequent crimes was admissible to establish predisposition); United States v. Burkley, 591 F.2d 903, 921 (D.C. Cir. 1978) (noting that the defendant's ability to access large quantities of heroin in November was probative of his predisposition to sell heroin the previous September); United States v. Brown, 567 F.2d 119, 120 (D.C. Cir. 1977) ("The [issue] is not whether the events sought to be introduced occurred before, during, or after commission of the alleged offense. The question is whether the events are relevant to and probative of defendant's willingness to commit the crime."). Return to text.

[193] See Johnson, supra note 127, at 401. Return to text.

[194] See FED. R. EVID. 403. Return to text.

[195] Johnson, supra note 127, at 401. Return to text.

[196] 591 F.2d 903 (D.C. Cir. 1978). Return to text.

[197] See id. at 921-22. Burkley was tried for both crimes in a consolidated trial. See id. at 907. Return to text.

[198] See id. at 907. Although the prosecution also presented other evidence to demonstrate that the defendant was predisposed, none of it appears to have been dispositive. This included proof of the ease with which Burkley obtained high-quality heroin and reputation testimony by an apparently unreliable witness. See id. at 910. Return to text.

[199] 480 F.2d 1198 (5th Cir. 1973). Return to text.

[200] See id. at 1199. Return to text.

[201] Id. at 1200. Return to text.

[202] See MARCUS, supra note 13, at 158. Return to text.

[203] Jenkins, 480 F.2d at 1200. Return to text.

[204] See id. Return to text.

[205] See, e.g., United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995); United States v. Fedroff, 874 F.2d 178, 183 (3d Cir. 1989); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977). Return to text.

[206] See MARCUS, supra note 13, at 153. Return to text.

[207] See id. at 154. Return to text.

[208] 874 F.2d 178 (3d Cir. 1989). Return to text.

[209] See id. at 183. Return to text.

[210] See id. at 179-80. Return to text.

[211] See id. Return to text.

[212] Id. at 180. Return to text.

[213] See id. Return to text.

[214] Id. at 183. Return to text.

[215] See id. Return to text.

[216] See id. at 182. Return to text.

[217] See id. at 184-85. Following the defendant's conviction, but before his sentencing, the U.S. Supreme Court decided Mathews v. United States, 485 U.S. 58 (1988), holding that a defendant may deny one or more elements of a crime and still be entitled to raise the defense of entrapment. See id. at 61-64. In light of the Mathews decision, the Third Circuit concluded that Fedroff was also entitled to a new trial so that he could present additional reputation evidence that he was previously foreclosed from using. See Fedroff, 874 F.2d at 186. Return to text.

[218] See FED. R. EVID. 803(21). Return to text.

[219] See Johnson, supra note 127, at 407-08. Return to text.

[220] See id. at 403. The Fifth Circuit allowed reputation evidence in predisposition inquiries until 1981, when it explicitly reversed its position in the landmark case of United States v. Webster, 649 F.2d 346 (5th Cir. 1981) (en banc). Return to text.

[221] See FED. R. EVID. 801(d)(2)(A). Return to text.

[222] See id. at 801(d)(2)(E). Return to text.

[223] See, e.g., United States v. Gunter, 741 F.2d 151, 154 (7th Cir. 1984); Gossmeyer v. State, 482 N.E.2d 239, 241 (Ind. 1985); State v. Stahl, 482 N.W.2d 829, 838 (Neb. 1992). Return to text.

[224] See, e.g., United States v. Aikens, 64 F.3d 372, 375 (8th Cir. 1995) (finding that the defendant was predisposed because he demonstrated skill and sophistication when selling crack cocaine to an undercover officer); United States v. Lakich, 23 F.3d 1203, 1209-10 (7th Cir. 1994); United States v. Hernandez, 31 F.3d 354, 360 (6th Cir. 1994) (finding that by giving sophisticated advice to an undercover officer about cocaine trafficking, one defendant demonstrated that he was not an innocent dupe); United States v. Barth, 990 F.2d 422, 424-25 (8th Cir. 1993); Collins v. State, 520 N.E.2d 1258, 1260-61 (Ind. 1988). Return to text.

[225] 27 F.3d 1196 (7th Cir. 1994) (en banc). Return to text.

[226] Id. at 1202. Return to text.

[227] Id. Return to text.

[228] See id. at 1205-11 (Coffey, J., dissenting). Return to text.

[229] See Paton, supra note 90, at 1029. Return to text.

[230] See Sherman v. United States, 356 U.S. 369, 379 (1958) (Frankfurter, J., concurring). Recall that in Sorrells, the Court adopted subjective entrapment based on its conclusion that Congress could not have intended for statutes to be enforced by tempting innocent persons into committing crimes. See Sorrells v. United States, 287 U.S. 435, 448 (1932). Justice Roberts strongly objected to this "strained and unwarranted construction of the statute" that "is not merely broad construction, but [provides the] addition of an element not contained in the legislation." Id. at 456. Return to text.

[231] See Sherman, 356 U.S. at 385. Return to text.

[232] See Carlson, supra note 8, at 1038. Return to text.

[233] See id. Return to text.

[234] See id. at 1038-39. Return to text.

[235] See United States v. Russell, 411 U.S. 423, 443 (1973) (Stewart, J., dissenting). In Sorrells, the majority casually dismissed this concern, stating that: "if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself." Sorrells, 287 U.S. at 451. Return to text.

[236] See Russell, 411 U.S. at 443. Return to text.

[237] 53 F.3d 852 (7th Cir. 1995). Return to text.

[238] See id. at 858. Return to text.

[239] 783 F.2d 1428 (9th Cir. 1986). Return to text.

[240] See id. at 1430-32; infra notes 405-18 and accompanying text (summarizing Bogart). Return to text.

[241] See United States v. Dion, 762 F.2d 674, 685 (1985). Return to text.

[242] See id. at 686. Return to text.

[243] See also United States v. Lard, 734 F.2d 1290, 1298 (8th Cir. 1984) (overturning the defendant's conviction for transporting a pipe bomb because he had repeatedly rejected the government's inducements and had no criminal record for related offenses); United States v. McLernon, 746 F.2d 1098, 1113-14 (6th Cir. 1984) (noting that the defendant, who had no criminal record, repeatedly refused to participate in a drug transaction until the government agent continually increased the pressure over a long period of time). Return to text.

[244] See Sorrells v. United States, 287 U.S. 435, 444 (1932). Return to text.

[245] Sherman v. United States, 356 U.S. 369, 382 (1958) (Frankfurter, J., concurring). Return to text.

[246] ROBINSON, supra note 13, at 520-21. Return to text.

[247] See Sherman, 356 U.S. at 383-84. Return to text.

[248] See Sorrells, 287 U.S. at 457. Return to text.

[249] 276 U.S. 413 (1928). Return to text.

[250] See id. at 416. Return to text.

[251] See id. at 422. Return to text.

[252] See id. at 423. Return to text.

[253] Id. (Brandeis, J., dissenting). Return to text.

[254] See id. at 425. Return to text.

[255] Sorrells v. United States, 287 U.S. 435, 455 (1932) (Roberts, J., concurring); see also supra notes 38-49 and accompanying text (summarizing Sorrells). Return to text.

[256] Sorrells, 287 U.S. at 457. Return to text.

[257] Sherman v. United States, 356 U.S. 369, 384 (1958) (Frankfurter, J., concurring); see also supra notes 53-62 (summarizing Sherman). Return to text.

[258] Id. at 380 (quoting Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting)). Return to text.

[259] 411 U.S. 423 (1973). Return to text.

[260] See id. at 426. Return to text.

[261] See id. at 426-28; infra notes 375-85 and accompanying text (discussing the defendant's due process defense). Return to text.

[262] See Russell, 411 U.S. at 430. Return to text.

[263] Id. at 436. The majority also expressed a strong disapproval of the objective standard, stating that the entrapment defense "was not intended to give the federal judiciary a 'chancellor's foot' veto over law enforcement practices of which it did not approve." Id. at 435. Return to text.

[264] Id. at 445 (Stewart, J., dissenting). Justice Stewart was joined by Justices Brennan and Marshall, the same three justices who argued for the adoption of the objective standard of entrapment three years later. See Hampton v. United States, 425 U.S. 484, 496 (1976) (Brennan, J., dissenting). Return to text.

[265] See Russell, 411 U.S. at 449-50. Justice Douglas, joined by Justice Brennan, also wrote a separate dissenting opinion in Russell. Quoting Justices Brandeis, Roberts, and Frankfurter extensively, he similarly argued for the adoption of the objective approach to entrapment. See id. at 436 (Douglas, J., dissenting). Return to text.

[266] See MARCUS, supra note 13, at 39. Return to text.

[267] Section 2.13 provides that:

(1) A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:

(a) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

(b) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other that those who are ready to commit it.

(2) Except as provided in Subsection (3) of this Section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the Court in the absence of the jury.

(3) The defense afforded by this Section is unavailable when causing or threatening bodily 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.

MODEL PENAL CODE § 2.13 (1985). Return to text.

[268] See id. § 2.13(2). Return to text.

[269] The states that currently follow the objective approach include Alaska, Arkansas, Colorado, Hawaii, Iowa, Kansas, Michigan, New York, Pennsylvania, Texas, Utah, and Vermont. See Paton, supra note 90, at 1002 n.45. The thirteenth state, North Dakota, initially adopted the objective standard. However, in 1993 its legislature added a subjective element to the entrapment statute, thereby creating a hybrid approach. See N.D. CENT. CODE § 12.1-05-11 (1993). For a further discussion of the hybrid approach, see infra Part IV. Return to text.

[270] 457 P.2d 226 (Alaska 1969). In Grossman, a government agent, assigned to report on drug-related activities in the Anchorage area, befriended the defendant. Over the following months, the agent requested and purchased marijuana and amphetamines from the defendant on various occasions. Eventually, the agent asked the defendant to procure some "hard stuff" for a friend of his in Fairbanks who needed a new contact. Five days later, the defendant complied and was later convicted of supplying the agent with 10 "fixes" of morphine. The Alaska Supreme Court, after adopting the objective standard, remanded the case back to the trial level for a judicial determination of whether Grossman had been entrapped as a matter of law. See id. at 230-31. Return to text.

[271] Id. at 227. Return to text.

[272] Id. at 229. Return to text.

[273] Id. The Alaska Supreme Court formulated the objective test as follows:

[U]nlawful entrapment occurs when a public law enforcement official, or a person working in cooperation with him, in order to obtain evidence of the commission of an offense, induces another person to commit such an offense by persuasion or inducement which would be effective to persuade an average person, other than one who is ready and willing, to commit such an offense.

Id. Return to text.

[274] See MARCUS, supra note 13, at 43. Return to text.

[275] See supra note 267. Return to text.

[276] See MARCUS, supra note 13, at 43; supra notes 53-62 and accompanying text (discussing Sherman). Return to text.

[277] See MARCUS, supra note 13, at 43. Return to text.

[278] Id. at 103. Return to text.

[279] See Paton, supra note 90, at 1030. Return to text.

[280] See Sherman v. United States, 356 U.S. 369, 382 (1958) (Frankfurter, J., concurring). Return to text.

[281] Id. at 383. Return to text.

[282] See Paton, supra note 90, at 1031. Return to text.

[283] See Sorrells v. United States, 287 U.S. 435, 453-59 (1932) (Roberts, J., concurring); supra notes 255-56 and accompanying text (summarizing Justice Robert's argument). Return to text.

[284] MARCUS, supra note 13, at 104 (quoting Sherman, 356 U.S. at 379 (Frankfurter, J,. concurring)). Return to text.

[285] See Paton, supra note 90, at 1031. Return to text.

[286] Grossman v. State, 457 P.2d 226, 229 (Alaska 1969). Return to text.

[287] See MARCUS, supra note 13, at 104. Return to text.

[288] Pascu v. State, 577 P.2d 1064, 1066-67 (Alaska 1978). Return to text.

[289] Id. at 1067. Return to text.

[290] See Moore, supra note 6, at 1169. Return to text.

[291] See id. Return to text.

[292] Id. Return to text.

[293] See MARCUS, supra note 13, at 44-47. Return to text.

[294] See Paton, supra note 90, at 1005; Doug Nesheim, Comment, Criminal Law—Entrapment: Illegal Police Conduct Gets Stung by the Entrapment Defense in State v. Kummer, 69 N.D. L. REV. 969, 993-96 (1993). Return to text.

[295] See N.J. STAT. ANN. § 2C:2-12 (West 1998); IND. CODE ANN. § 35-41-3-9 (Michie 1997); N.H. REV. STAT. ANN. § 626:5 (1996). Return to text.

[296] IND. CODE ANN. § 35-41-3-9 (Michie 1997) (emphasis added). Return to text.

[297] State v. Fogarty, 607 A.2d 624, 627 (N.J. Sup. Ct. 1992). Return to text.

[298] In New Jersey, this burden of proof is placed on the defendant, who must prove each prong by a preponderance of the evidence. See, e.g., State v. Florez, 636 A.2d 1040, 1047 (N.J. Sup. Ct. 1994). Return to text.

[299] See supra text accompanying note 229. Return to text.

[300] See supra text accompanying notes 278-84. Return to text.

[301] See, e.g., Smith v. State, 565 N.E.2d 1059, 1063 (Ind. 1991). Return to text.

[302] See Baird v. State, 446 N.E.2d 342, 344 (Ind. 1983). Return to text.

[303] Gossmeyer v. State, 482 N.E.2d 239, 241 (Ind. 1985). Return to text.

[304] See Powers v. State, 380 N.E.2d 598, 600 (Ind. Ct. App. 1978). Return to text.

[305] 644 N.E.2d 573 (Ind. 1994). Return to text.

[306] See id. at 575. Return to text.

[307] See id. at 575-76. Return to text.

[308] See id. Return to text.

[309] See id. at 576. That case was not prosecuted, in part because one of the arresting officers was later killed in an unrelated incident. See id. Return to text.

[310] See id. The officer testified that the case was not prosecuted because the confidential informant was later "kidnapped by some other dopers." Id. Return to text.

[311] See id. at 580. Return to text.

[312] Id. (quoting Mitchell v. State, 287 N.E.2d 860, 863 (Ind. 1972)). Return to text.

[313] See id. Return to text.

[314] Gossmeyer v. State, 482 N.E.2d 239, 241 (Ind. 1985). Return to text.

[315] See Dockery, 644 N.E.2d at 580. Return to text.

[316] See, e.g., Powers v. State, 380 N.E.2d 598, 600 (Ind. Ct. App. 1978). Return to text.

[317] See FLA. STAT. § 777.201 (1997); N.D. CENT. CODE § 12.1-05-11 (1997); Baca v. State, 742 P.2d 1043, 1046 (N.M. 1987). Return to text.

[318] See Paton, supra note 90, at 1005 n.66. Return to text.

[319] Baca, 742 P.2d at 1046 (emphasis added). Return to text.

[320] See FLA. STAT. § 777.201(2) (1997); N.D. CENT. CODE § 12.1-05-11 (1997); see also Herrera v. State, 594 So. 2d 275, 278-79 (Fla. 1992) (Kogan, J., concurring); State v. Murchison, 541 N.W.2d 435, 440 (N.D. 1995). The legal source (whether statutory or constitutional) of Florida's hybrid approach is not entirely clear. In Munoz v. State, 629 So. 2d 90, 98-99 (Fla. 1993), the Florida Supreme Court indicated that while the subjective prong of the entrapment inquiry is required by state statute, the objective prong of the inquiry is founded more in the Due Process Clause of the Florida Constitution.

The North Dakota statute was revised in 1993 and its courts have had little opportunity to interpret or apply it. However, the North Dakota Legislature modeled its entrapment statute after Florida's approach, so it is likely that the courts will apply it similarly. See Nesheim, supra note 294, at 995. Return to text.

[321] 658 So. 2d 166 (Fla. 2d DCA 1995). Return to text.

[322] Id. at 169. Return to text.

[323] See id. The police department had focused its efforts on the defendant after receiving an anonymous tip that someone in the trailer park in which the defendant lived was selling narcotics. Although Robichaud admitted to having used cocaine several years previously, he had no prior felonies, the police had no reason to suspect him of engaging in criminal activity, and there was nothing to indicate that he had ever had any inclination to sell drugs. See id. Return to text.

[324] See supra text accompanying note 229. Return to text.

[325] See supra text accompanying notes 278-84. Return to text.

[326] See supra text accompanying notes 235-36. However, if appropriate under the circumstances, the defendant presumably would have the option under the discrete hybrid approach of limiting his entrapment defense to the objective prong and demanding that any such prejudicial evidence be excluded. Return to text.

[327] See supra text accompanying notes 285-89. Return to text.

[328] See supra text accompanying notes 290-92. Return to text.

[329] See Greene v. United States, 454 F.2d 783, 784 (9th Cir. 1971). Since Earl Greene, the named defendant, was murdered while this case was under appeal, the facts as given by the Ninth Circuit focused exclusively on the activities of Becker and Thomas. Greene's role in the matter was not discussed. See id. Return to text.

[330] See id. Return to text.

[331] See id. Return to text.

[332] See id. at 785. Return to text.

[333] See id. Return to text.

[334] See id. at 785-86. Return to text.

[335] See id. at 786. Return to text.

[336] See id. at 785. Return to text.

[337] See id. at 786. Return to text.

[338] See id. Return to text.

[339] Id. at 787. Return to text.

[340] See, e.g., United States v. Bogart, 783 F.2d 1428, 1436-37 (9th Cir. 1986) (discussing Greene). Return to text.

[341] See id. at 1432 n.2. Return to text.

[342] See Gail Greaney, Note, Crossing the Constitutional Line: Due Process and the Law Enforcement Justification, 76 NOTRE DAME L. REV. 745, 746 (1992). Return to text.

[343] See, e.g., Bogart, 783 F.2d at 1433 (concluding that an objective legal standard, without regard to the defendant's predisposition, is the proper standard for evaluating the government's conduct in outrageous government conduct defense cases). Return to text.

[344] See Greaney, supra note 342, at 749-50. Return to text.

[345] See MARCUS, supra note 13, at 265. Since it is constitutionally based, a significant practical difference between the outrageous government conduct defense and the entrapment defense is that the former is an issue of law for the judge, while the latter is an issue of fact for the jury. See id. at 273-82. Return to text.

[346] See United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992). Return to text.

[347] United States v. Russell, 411 U.S. 423, 431-32 (1973) (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960)). Return to text.

[348] See Sherman v. United States, 356 U.S. 369, 383-84 (1958) (Frankfurter, J., concurring). Return to text.

[349] See Mosley, 965 F.2d at 911. Return to text.

[350] U.S. CONST. amend. XIV, § 1. Return to text.

[351] See Rosalie Berger Levinson, Protection Against Government Abuse of Power: Has the Court Taken the Substance Out of Substantive Due Process?, 16 U. DAYTON L. REV. 313, 313 (1991). Return to text.

[352] Palko v. Connecticut, 302 U.S. 319, 325 (1937). Return to text.

[353] See Levinson, supra note 351, at 360. Return to text.

[354] See Kinsella v. United States ex. rel. Singleton, 361 U.S. 234, 246 (1960). Return to text.

[355] See Molly Kathleen Nichols, Comment, Entrapment and Due Process: How Far is Too Far?, 58 TUL. L. REV. 1207, 1214-15 (1984). Return to text.

[356] See id. Return to text.

[357] 318 U.S. 332 (1943). Return to text.

[358] Id. at 340 (quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926)). Following their arrests for the murder of a federal agent, the three defendants, none of whom had more than a fourth-grade education, were intensively interrogated for several days. During this period, they were locked in a bare room for 14 hours, given little to eat, and continuously interrogated without the benefit of counsel for hours at a time. See id. at 334-39. Return to text.

[359] 342 U.S. 165 (1952). Return to text.

[360] See id. at 166. Return to text.

[361] See id. Return to text.

[362] See id. Return to text.

[363] See id. Return to text.

[364] See id. at 166-67. Return to text.

[365] Id. at 169 (quoting Malinski v. New York, 324 U.S. 401, 416-17 (1945)). Return to text.

[366] See id. at 172. In frequently quoted language, the Court stated that substantive due process in criminal cases is violated by government misconduct that "shocks the conscience" or constitutes a "brutal" use of force that offends "even hardened sensibilities." Id. at 172-73. Return to text.

[367] See id. at 174. The Rochin case does not resolve the issue of the outrageous government conduct defense because the case focused on the post-arrest conduct of the officers and it involved a physically intrusive seizure. In contrast, claims of outrageous government conduct, like claims of entrapment, are usually raised in relation to the pre-arrest behavior of the government actor in inducing the defendant's criminal behavior. Return to text.

[368] See Levinson, supra note 351, at 360. Return to text.

[369] 489 U.S. 189 (1989). Return to text.

[370] See id. at 191-94. After repeatedly abusing the child over a two-year period, the father eventually beat him so severely that the child suffered brain damage. He was expected to spend the rest of his life in an institution. See id. at 193. Return to text.

[371] Id. at 197. Return to text.

[372] 475 U.S. 312 (1986). Return to text.

[373] 490 U.S. 386 (1989). Return to text.

[374] See id. at 397-99; Whitley, 475 U.S. at 327-28; see also Levinson, supra note 351, at 345. Return to text.

[375] See United States v. Russell, 411 U.S. 423, 425 (1973). Return to text.

[376] See id. Return to text.

[377] See id. Return to text.

[378] See id. Return to text.

[379] See id. at 426. Return to text.

[380] See id. at 424. Return to text.

[381] United States v. Russell, 459 F.2d 671, 673 (9th Cir. 1972). Return to text.

[382] See Russell, 411 U.S. at 425. Return to text.

[383] Id. at 435. Return to text.

[384] Id. at 431-32 (citation omitted). Return to text.

[385] See MARCUS, supra note 13, at 415-16. Return to text.

[386] See United States v. Archer, 486 F.2d 670, 685-86 (2d Cir. 1973). Return to text.

[387] 425 U.S. 484 (1976); see also supra notes 63-73 (discussing Hampton). Return to text.

[388] See Hampton, 425 U.S. at 485-87. Return to text.

[389] See id. at 489-90. Return to text.

[390] See id. at 491. Return to text.

[391] Id. at 490 (emphasis added). Return to text.

[392] See id. at 491 (Powell, J., concurring). Justice Powell was joined by Justice Blackmun in arguing that, while the outrageous government conduct defense remains valid, it simply did not apply in Hampton's case. See id. at 491-95. Return to text.

[393] See id. at 495. The three dissenters—Justices Brennan, Stewart, and Marshall—agreed with the concurrence that the outrageous government conduct defense is constitutionally valid, but argued that Hampton's conviction should be reversed. See id. at 496-500. Return to text.

[394] See United States v. Bogart, 783 F.2d 1428, 1440 (9th Cir. 1986); United States v. Twigg, 588 F.2d 373, 382 (3d Cir. 1978); Greene v. United States, 454 F.2d 783, 786-87 (9th Cir. 1971); United States v. Batres-Santolino, 521 F. Supp. 744, 752-53 (N.D. Cal. 1981). Return to text.

[395] See United States v. Santana, 6 F.3d 1, 8 n.11 (1st Cir. 1993). Return to text.

[396] See United States v. Miller, 891 F.2d 1265, 1267-68 (7th Cir. 1989). Return to text.

[397] See United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992). In addition, dicta from the Second, Fifth, Eighth, Eleventh, and D.C. Circuit Courts of Appeals suggests that each has accepted the viability of the defense, although none have ever invoked it. See United States v. Jacobson, 916 F.2d 467, 469 (8th Cir. 1990) (en banc), rev'd on other grounds, 503 U.S. 540 (1992); United States v. Arteaga, 807 F.2d 424, 426 (5th Cir. 1986); United States v. Kelly, 707 F.2d 1460, 1468-69 (D.C. Cir. 1983); United States v. Capo, 693 F.2d 1330, 1336 (11th Cir.), modified on other grounds sub nom. United States v. Lisenby, 716 F.2d 1355 (11th Cir. 1983); United States v. Myers, 692 F.2d 823, 837 (2d Cir. 1982). Return to text.

[398] See Bennett, supra note 4, at 861; Nichols, supra note 355, at 1216-17. Return to text.

[399] 588 F.2d 373 (3d Cir. 1978). Return to text.

[400] 783 F.2d 1428 (9th Cir. 1986). Return to text.

[401] See Twigg, 588 F.2d at 375-76. Return to text.

[402] See id. Return to text.

[403] See id. at 376. The jury found that one of the defendants, Neville, was predisposed to commit the crime, apparently because he had expressed no reluctance or hesitation at the time of the inducement. The Third Circuit found that this was a sufficient basis for a jury finding of predisposition, which prevented Neville from successfully invoking the entrapment defense. Similarly, the entrapment defense was not available to the second defendant, Twigg, because he was induced to enter into the criminal enterprise by Neville, rather than by a government agent. See id. Return to text.

[404] Id. at 381. Return to text.

[405] See Bogart, 783 F.2d at 1429. Return to text.

[406] See id. at 1429-30. Return to text.

[407] See id. at 1430. Return to text.

[408] See id. Bail varied from $50,000 to $400,000 at different times depending on the nature of the charges. See id. Return to text.

[409] See id. Return to text.

[410] See id. Return to text.

[411] See id. Return to text.

[412] See id. Return to text.

[413] See id. Return to text.

[414] See id. at 1431. In fact, the judge even remarked that, if not for Bogart's background, he suspected that "the jury would walk him out in a minute on the entrapment defense." Id. Return to text.

[415] See id. Return to text.

[416] See id. Return to text.

[417] Id. at 1438. Return to text.

[418] See id. Return to text.

[419] See id. It is probable that, by the very nature of the defense, its scope and applicability are destined to remain ill-defined. As Justice Frankfurter noted: "In dealing not with the machinery of government but with human rights, the absence of formal exactitude, or want of fixity of meaning, is not an unusual or even regrettable attribute of constitutional provisions. Words being symbols do not speak without a gloss." Rochin v. California, 342 U.S. 165, 169 (1952). Return to text.

[420] See State v. Williams, 623 So. 2d 462, 463 (Fla. 1993). Return to text.

[421] See id. Return to text.

[422] See id. Return to text.

[423] Id. at 465. Notably, the Florida Supreme Court based its decision in the Due Process Clause of the Florida Constitution, rather than in the U.S. Constitution. See id. Return to text.

[424] See United States v. Mosley, 965 F.2d 906, 911-12 (10th Cir. 1992); United States v. Bogart, 783 F.2d 1425, 1438 (9th Cir. 1986). Return to text.

[425] See Mosley, 965 F.2d at 911. Return to text.

[426] See supra notes 401-404 and accompanying text (summarizing Twigg). Return to text.

[427] See United States v. Ramirez, 710 F.2d 535, 539 (9th Cir. 1983). Return to text.

[428] See, e.g., United States v. Cantwell, 806 F.2d 1463, 1468-69 (10th Cir. 1986). Return to text.

[429] See Mosley, 965 F.2d at 912. Return to text.

[430] See supra notes 405-18 and accompanying text (summarizing Bogart). Return to text.

[431] See United States v. Bogart, 783 F.2d 1425, 1438 (9th Cir. 1986). Return to text.

[432] See id. Return to text.

[433] 521 F. Supp. 744 (N.D. Cal. 1981). Return to text.

[434] See id. at 749. Return to text.

[435] See, e.g., United States v. Tucker, 28 F.3d 1420, 1426 (6th Cir. 1994); United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir. 1989) (Easterbrook, J., concurring). Return to text.

[436] See Miller, 891 F.2d at 1271. Return to text.

[437] See id. Return to text.

[438] 447 U.S. 727 (1980). Return to text.

[439] See id. at 731. In Payner, government investigators hired a woman to befriend a bank's courier. When the courier left his briefcase at the woman's apartment, the investigators searched it. Subsequently, they used incriminating documents found in the briefcase to prosecute some of the bank's customers. The defendants were prevented from challenging the search on Fourth Amendment grounds because they had no privacy interest in the briefcase, but they argued that the use of the evidence should be suppressed nevertheless under the Due Process Clause and the judiciary's supervisory powers. See id. at 730-31. Return to text.

[440] See id. at 737 n.9 (quoting Hampton v. United States, 425 U.S. 484, 490 (1976)). Of course, Chief Justice Rehnquist's position contradicts the Court's earlier decisions in Rochin and McNabb, in which it concluded that the Due Process Clause of the Fourteenth Amendment imposes independent limitations on governmental conduct. See supra notes 357-67 and accompanying text. However, the precedential value of Rochin is debatable, since it is possible that the Court decided it on due process grounds only because the Fourth Amendment exclusionary rule had not yet been incorporated and applied to the states. See Dripps, supra note 23, at 267. Return to text.

[441] 28 F.3d 1420 (6th Cir. 1994). Return to text.

[442] See id. at 1427. Return to text.

[443] Id. Return to text.

[444] See id. at 1428. Return to text.

[445] See United States v. Miller, 891 F.2d 1265, 1271 (Easterbrook, J., concurring). Return to text.

[446] Tucker, 28 F.3d at 1428 (citing Jacobson v. United States, 503 U.S. 540 (1992)). The weakness of this argument, of course, is that legislative intent is not clear. Congress has never spoken on the issues of inducement, entrapment, outrageous conduct, predisposition, or any other aspect of these defenses, which is why Justice Frankfurter referred to this argument as "sheer fiction." Sherman v. United States, 356 U.S. 369, 379-81 (1958) (Frankfurter, J., concurring). Return to text.

[447] See Tucker, 28 F.3d at 1428. Return to text.

[448] See Miller, 891 F.2d at 1272 (Easterbrook, J., concurring). Return to text.

[449] See id. at 1272-73. Return to text.

[450] Id. at 1272. Return to text.

[451] Sorrells v. United States, 287 U.S. 435, 441 (1932). Return to text.

[452] See, e.g., Jacobson v. United States, 503 U.S. 540, 548-49 (1992). Return to text.

[453] See MARCUS, supra note 13, at 12-38. Return to text.

[454] See id. Return to text.

[455] See Sorrells, 287 U.S. at 442. Return to text.

[456] See MARCUS, supra note 13, at 383. Return to text.