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Federal Crimes Court Rules on Entrapment

The Cortes decision from the Ninth Circuit Court of Appeals is an important sentencing entrapment ruling in which the Ninth Circuit held, for the first time, that a Tampa federal crimes attorney and a federal defendant "is entitled to present his sentencing entrapment defense to the jury if the success of that defense would result in a lower statutory sentencing range."

In so ruling, the Ninth Circuit reversed a federal crimes conviction for conspiring to possess with intent to distribute more than five kilograms of cocaine. The Ninth Circuit also found error with the district court judge's instruction to the jury on the defense of entrapment. As a result, it offered a new entrapment and sentencing entrapment instructions that it said would provide "greater clarity on these exceedingly subtle points of law."

The district court declined to give a sentencing entrapment instruction, saying that it would be "subsumed" within any instruction on entrapment. On the entrapment defense, the judge instructed the jury along the lines of the Ninth Circuit's model instruction, but modified that instruction in light of the Ninth Circuit's decision in U.S. v. Spentz, 653 F.3d 81 (9th Cir. 2011). With respect to the predisposition element of the entrapment defense, the court instructed the jury that "the amount of drugs or the profit that would be derived from their sale does not constitute an inducement supporting entrapment." The trial judge believed that Spentz required this modification of the model instruction.

On appeal, Cortes argued, inter alia, that the district court erred in modifying the entrapment defense instruction to reflect the holding in Spentz, and in refusing to instruct the jury separately on sentencing entrapment. The Ninth Circuit agreed on both points and reversed Cortes' drug conviction and remanded for a new trial on that count.

The panel held that the trial judge's modification of the entrapment instruction overstated the holding in Spentz. Cases prior to had held that a pecuniary inducement could support an entrapment defense, so long as there was evidence of other, non-pecuniary inducements as well, such as repeated overtures on the part of Government agents, playing on the defendant's dire financial situation, or being reimbursed for an investment related to the criminal scheme. By instructing the jury that the drugs or profit cannot per se establish inducement, the panel said, the trial judge "slightly overstated" the holding in Spentz. Instead, judges should instruct the jury that a profit motivation "cannot on its own establish" an entrapment defense; and it suggested a supplement to the model entrapment instruction, as follows:

"It is not entrapment if a person is tempted into committing a crime solely on the hope of obtaining ill-gotten gain; that is often the motive to commit a crime. However, in deciding whether a law enforcement officer induced the defendant to commit the crime, the jury may consider all of the factors that shed light on how the officers supposedly persuaded or pressured the defendant to commit the crime."

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