If The Evidence That A Defendant Was Predisposed To Commit A Crime Is Thin, Even Minor Government Inducements Entitle The Defendant To Present An Entrapment Theory To The Jury

Entrapment involves "the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law." Jacobson v. United States, 503 U.S. 540, 553-54, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992). The defense has two elements: government inducement of the crime and a lack of predisposition on the part of the defendant. See Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988).  In order to obtain an entrapment instruction, a defendant must proffer evidence on both elements. See United States v.Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Once a defendant meets this threshold, the burden shifts to the government to prove that the defendant was not entrapped, meaning "the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." Jacobson, 503 U.S. at 549. 

It is true that a defendant must proffer some evidence on both elements of the entrapment defense to warrant the instruction.  However, a person's lack of predisposition to commit a crime distinctively reveals whether the government has ensnared "an unwary innocent" in a criminal enterprise of its own design. See Mathews, 485 U.S. at 63. As explained in United States v. Evans, "the centrality of predisposition can be seen by considering the purpose of the doctrine of entrapment. It is to prevent the police from turning a law-abiding person into a criminal." See 924 F.2d 714, 717 (7th Cir. 1991). Thus, when the entrapment defense is in play, "predisposition . . . must be the key inquiry." Id.; Mathews, 485 U.S. at 63.

If there is sufficient evidence that a defendant was predisposed to commit the crime, a request for an entrapment instruction may be rejected without considering government inducement. See Santiago-Godinez, 12 F.3d at 728. “But the converse is not true: the court may not begin and end the inquiry with government inducement unless it is confident either that the government did nothing at all or that the record demonstrates that the government's actions simply provided an opportunity for a person who was already ready and willing to commit the offense.”  United States v. Pillado, 2011 U.S. App. LEXIS 18601, 23 (7th Cir. Ill. 9/7/2011, Nos. 10-1081, 10-1083, & 10-1202).  Accordingly, “[w]hether a defendant is predisposed to commit the crime charged informs the nature and level of government inducement that must be identified to warrant an entrapment instruction.”  Ibid.

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