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Where Should the Second Circuit Draw the Entrapment Line?

By Robyn Hagan Cain | Last updated on

James Cromitie, David Williams, Onta Williams and Laguerre Payan were convicted in 2010 of planting (what they thought) were bombs outside synagogues in the Bronx and plotting to fire missiles at military planes. They were each sentenced to 25 years in prison.

Prosecutors claim that an FBI informer — posing as a Pakistani terrorist — presented the men with an opportunity to commit violence to which they were predisposed. Defense lawyers claim that the informer used money to lure impoverished defendants with no ties to international terrorism into a plot they wouldn't have devised on their own, The New York Times reports.

Monday, their lawyers argued that the Second Circuit Court of Appeals should overturn the convictions because the men were the victims of government entrapment.

The outcome in the appeal will hinge on whether the three-judge panel finds that the FBI conceived the plan and recruited the defendants, or whether it merely removed the "logistical hurdles" for the men.

Based on Monday's arguments, the case does not look good for the government.

Judge Reena Raggi told prosecutor Adam S. Hickey, "It would be one thing if the defendant had conceived the crime and then, as obstacles arose, the government removed them. But I think you have to deal with the problem of the full circumstances here ... The government comes up with the idea, picks the targets, provides all the means, removes the obstacles," the Times reported.

Second Circuit Chief Judge Dennis G. Jacobs seemed more concerned by the comparative level of FBI involvement in the plot, asking government attorneys, "Is there another case that you can talk about where the government's level of involvement in creating and animating and realizing the offense was so all encompassing?"

The arguments, however, weren't one-sided. The panel also raised the point that the FBI may have had a reason to pursue the men, since Cromitie had indicated that he wanted to "die a martyr" and was interested in doing "something to America," according to the Times.

Post 9/11 terror suspects have failed to successfully argue entrapment as an affirmative defense; do you think that appellate judges will be more open to the defense than juries have been?

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