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Catherine Zeta-Jones embedded “entrapment” into the American collective consciousness when she wore a cat suit to slither through a laser security system in the 1999 not-so-stellar film of the same name. Since then, entrapment has been relegated to common criminals and cable crime dramas.
The Bureau of Alcohol, Tobacco, and Firearms, (ATF), however, is trying to change that.
In September 2007, ATF agents opened an undercover storefront operation under the guise of a functioning tattoo shop. The purpose of the undercover operation was to identify dangerous individuals with violent proclivities, and offer them opportunities to commit "crimes." The appellant, Justin Spentz, was a friend of an ATF target and collateral damage in the scheme.
At trial, Spentz claimed that he unknowingly agreed to participate in a plot to steal cocaine from a stash house. Spentz testified that his ATF-target friend, Deon'te Reed asked him to show up at the stash house. He denied hearing anything the undercover officers said to Reed about the house, and said that Reed never explained why he wanted Spentz to meet him.
In addition to his claim of innocence, Spentz sought an entrapment jury instruction. The district court refused, saying that the case lacked sufficient evidence to support the instruction, and giving the instruction would be inconsistent with Spentz's repeated denial of knowledge of the robbery. Spentz was convicted. He appealed.
The Ninth Circuit found that there still must be some - even slight - evidence demonstrating the elements of entrapment before an instruction must be given.
The entrapment defense has two elements: the defendant was induced to commit the crime by a government agent, and was not otherwise predisposed to commit the crime. Inducement, more specifically, consists of opportunity plus "something else," usually excessive pressure by the government agent or government exploitation of an alternative, non-criminal type of motive.
Both before the district court and on appeal, Spentz argued that he was induced to commit the crime because the government's plan presented him with the opportunity to make a substantial amount of money by committing an armed robbery. The Ninth Circuit rejected Justin Spentz's argument because the drugs and money he would have recovered from the robbery were not an alternative, non-criminal motivation; they were the prototypical criminal motivation for robbery.
While criminal defense attorneys should note that "I-was-only-going-to-rob-a-stash-house-to-make-money" is the worst inducement argument ever, this case also highlights the questionable trend of bureaucratically-manufactured crime. Should the ATF stick to enforcing the law, or are these made-for-TV-movie schemes an effective tool for catching bad guys?