7th Cir.: Convict Entitled to Use Entrapment Defense on Remand

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By Mark Wilson, Esq. on November 14, 2014 2:45 PM

For some reason, criminals think there is magic in the phrase: "You gotta tell me if you're a cop." Except there isn't and really, police don't. This lead to Leslie Mayfield's predicament. Mayfield was set up by undercover government agents to rob a fake drug "stash" house. Mayfield tried to invoke the "entrapment" defense, but predictably, the court said no. Mayfield was convicted and sentenced to a "whopping" 322 months in prison (that's almost 27 years).

In this opinion from an en banc rehearing, the Seventh Circuit took a long, concerted look at entrapment, concluding that, because it's a fact-based defense, it should have at least been submitted to the jury for consideration. The opinion attempts to settle some confusion within the circuit about the appropriate standard for entrapment.

What Is Entrapment?

Entrapment really only applies if the suspect wasn't predisposed to commit crime and was induced by the government to commit the crime. Mayfield insisted at trial that he "repeatedly rebuffed" a government informant, but the informant persisted, emphasizing Mayfield's gang affiliation and indebtedness.

The definition of "inducement" is one of the conflicts that the majority in this case wanted to resolve; the Seventh Circuit definition was somewhat murky.

For example, how far does inducement have to go? The Second Circuit has "a very light trigger for the defense," allowing entrapment to be shown just on furnishing the suspect with the opportunity to commit the crime. The D.C. Circuit, however, requires more "coercive tactics" like harassment, offering a reward, or playing on the suspect's sympathy. The Seventh concluded that most circuits follow D.C.'s approach and said definitively that would be its approach, as well.

And what about predisposition? That requires the government to prove that "the defendant would have committed the crime without the government's intervention." The court was careful to point out, though, that this doesn't mean the person was hypothetically able and ready to commit the crime at some point in his life; "a predisposed person is one who 'is presently ready and willing to commit the crime.'" There's a play between inducement and predisposition, too: The lighter the inducement necessary to commit the crime, the greater the inference that the suspect was predisposed to commit it.

Yes, Mayfield Can Use Entrapment

Now back to Mayfield. Entrapment is available "whenever there is sufficient evidence from which a reasonable jury could find entrapment." The court found that there was enough evidence to raise entrapment before a jury. And the informant's conduct here was particularly egregious: He loaned Mayfield money, knowing that Mayfield would be unable to repay it, then exchanged repayment of the debt for engaging in the criminal activity. There was also an "implied threat of violence if the debt was not repaid" due to Mayfield's gang affiliation.

Because Mayfield repeatedly rejected the informant's advances, predisposition was also a concern: He repeatedly rejected exhortations over a period of weeks, agreeing only after the implied threat. Such a resistance would tend to show that Mayfield wasn't predisposed to commit the crime.

Dissent: He Would Have Done It, Anyway

Judges Bauer and Easterbrook dissented on the ground that "the defendant was salivating to commit the crime" and waited not because he didn't want to commit the crime but because it wasn't lucrative enough. Mayfield relented only when the informant's offer became too tempting to ignore. "The fact that he was exceptionally greedy should not entitle him to an entrapment defense," Bauer said.

Easterbrook dissented separately to point out that Mayfield's criminal history showed he was no stranger to committing violent crime, which would have been required for the stash-house robbery to succeed.

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