8.3: Entrapment

Certain criminal behavior is particularly difficult to investigate. Drug-trafficking, prostitution, and other organized crimes occur privately, between willing participants. To detect, investigate, and disrupt such criminal behavior, police must be proactive. In some circumstances, police use encouragement to ferret out crime. The defense of entrapment addresses situations where the government’s conduct inappropriately induces criminal behavior. At its core, the entrapment defense is based on the government’s use of inappropriately persuasive tactics when investigating and apprehending criminals. Entrapment is a perfect affirmative defense.

Entrapment focuses on the origin of criminal intent. If the criminal intent originates with the government or law enforcement, the defendant can claim they were entrapped and can assert the defense. If the criminal intent originates with the defendant, then the defendant is acting independently and may not assert the defense. Two tests of entrapment have emerged: subjective entrapment and objective entrapment. Alaska has adopted an objective test of entrapment, but to properly understand the scope of the defense, it is important to understand both tests.

Subjective Entrapment

Subjective entrapment occurs when law enforcement pressures the defendant to commit the crime against his or her will. The subjective entrapment test focuses on the defendant’s individual motivations and characteristics, and not necessarily on law enforcement’s behavior. If the facts indicate that the defendant is predisposed to commit the crime without law enforcement pressure, the defendant cannot claim entrapment.

The defendant’s criminal record is admissible if relevant to prove the defendant’s criminal nature and predisposition. Generally, law enforcement can furnish criminal opportunities and use decoys and feigned accomplices without crossing the line into subjective entrapment. However, if it is clear that the requisite intent for the offense originated with law enforcement, not the defendant, the defendant can assert subjective entrapment as a defense.

Example of Subjective Entrapment

Sally regularly attends Narcotics Anonymous (NA) for her heroin addiction. All the NA attendees know that Sally is a dedicated member who has been clean for ten years. Sally regularly leads the meeting if needed.

Marcus, a law enforcement decoy, meets Sally at the end of one meeting and begs her to “hook him up” with some heroin. Sally refuses. Marcus attends the next meeting, and follows Sally out to her car pleading with her to get him some heroin. After listening to Marcus explain his physical symptoms of withdrawal in detail, Sally feels pity and promises to help Marcus out. She agrees to meet Marcus in two hours with a small amount of heroin. When Sally and Marcus meet up, Marcus arrests Sally for drug trafficking. Sally may be able to assert entrapment as a defense under the subjective entrapment test. Sally has not used drugs for ten years, did not initiate contact with law enforcement, and initially refused Marcus’ request. It is unlikely that the intent to sell heroin originated with Sally. She has been a dedicated member of NA, and she actually met Marcus at an NA meeting while trying to maintain her sobriety. It appears that Marcus pressured Sally to sell heroin against her natural predisposition, and the entrapment defense may excuse her conduct.

Objective Entrapment

The subjective entrapment test has faced significant criticism, as it is based on hypotheticals and “theoretical riddles.” Grossman v. State, 457 P.2d 226, 229 (Alaska 1969). Further, the subjective test focuses on a defendant’s criminal history and predisposition to commit crimes, thereby likely prejudicing the jury against the defendant for their past conduct.

Instead of focusing on a defendant’s predisposition, the objective entrapment test focuses on the police conduct used to induce criminal behavior. If law enforcement uses tactics that are unreasonable or unconscionable to induce a law-abiding person to commit the crime, the defendant may be able to rely on the defense of entrapment. The objective entrapment defense focuses on conduct that falls below “fair and honorable” police tactics. The question of whether the government’s conduct was fair and honorable is a question of law for the court to decide, not a question of fact for the jury.

Figure 8.7 – Alaska Statute 11.81.450

Example of Objective Entrapment

Sam has a lengthy criminal record for prostitution. An undercover police officer offers Sam $100,000 to engage in sexual intercourse. Sam promptly accepts. Sam likely has a viable entrapment defense to the criminal charge of prostitution. A reasonable, law-abiding person could be tempted into committing prostitution for $100,000. The objective test focuses on police tactics, rather than the defendant’s criminal predisposition. Sam’s lengthy criminal record is irrelevant in determining whether law enforcement used an excessive inducement.

State v. Yi, 85 P.3d 469 (Alaska App. 2004)

In the following case, pay attention to how the court applies the objective test to the facts of the case. Was Yi a “ready and willing” participant in the criminal transaction?

85 P.3d 469
Court of Appeals of Alaska.
STATE of Alaska, Petitioner,
v.
Jung Ho YI, Respondent.
No. A–8430.
Feb. 20, 2004.

OPINION
COATS, Chief Judge.

It is a misdemeanor offense to purchase, sell, or barter bear parts. Bethel, Alaska, is a “damp” community where it is legal to possess alcohol for one’s personal use, but it is a felony offense to buy, sell, or trade alcohol. The defendant in this case, Jung Ho Yi, traded two bottles of Crown Royal Whiskey for a bear gallbladder which was offered by undercover Alaska State Trooper Gary Pacolt. Approximately three weeks later, Yi engaged in another similar transaction with Trooper Pacolt. When the State charged Yi with these criminal offenses, Yi defended on the ground of entrapment. Yi contended that, although he knew that selling of gallbladders or whiskey was illegal, he reasonably believed, based in part on Trooper Pacolt’s representations, that a trade (or exchange of gifts) was lawful. Superior Court Judge Dale O. Curda found that Yi established the defense of entrapment. The State petitioned for review and we granted the petition. We now reverse Judge Curda’s ruling.

Factual and procedural background
During January of 2002, Trooper Pacolt was assigned to spend three days in Bethel as part of an undercover operation to apprehend persons engaged in illegal buying and selling of bear gallbladders. The operation was set up in response to information, reported by the Alaska Department of Fish and Wildlife, that at least one restaurant in town had bought or bartered bear gallbladders in violation of the law. During this operation Trooper Pacolt attempted to sell or barter a bear gallbladder in at least six different restaurants in Bethel.

On January 18, Trooper Pacolt and Officer Betty Williams, from the Quinhagak Police Department, entered the Front Street Cafe dressed as civilians. This restaurant was the first that they selected. The two officers were the only patrons in the restaurant at the time. The two officers ordered dinner. Trooper Pacolt then noticed a man, later identified as Yi, who sat down to eat at a nearby table. Yi appeared to be an employee of the restaurant as he frequently went back into the kitchen.

Trooper Pacolt then engaged Yi in some small talk for about five or ten minutes. Most of the conversation revolved around the fact that both men were from Anchorage. At this point Trooper Pacolt removed a bear gallbladder from his shirt pocket and asked Yi if he was interested in buying. Yi responded that he did not want to buy it and that it was illegal. Trooper Pacolt said “no problem,” and put the gallbladder back in his pocket. Trooper Pacolt then asked Yi if he knew where he could get some alcohol.

It is only at this point that Trooper Pacolt’s and Yi’s testimonies differ. According to Trooper Pacolt, Yi then asked to see the gallbladder again. And, after Pacolt handed it to him, Yi asked Pacolt if he was interested in trading the gallbladder for some alcohol. Trooper Pacolt replied that a trade would “be fine.” Trooper Pacolt testified that he never indicated to Yi that such a trade was legal. According to Yi, after Pacolt asked where to get alcohol, he only told Pacolt that he had some for his own personal use. Yi testified that Trooper Pacolt first brought up the idea of trading alcohol for the gallbladder. Yi admitted to readily agreeing to this transaction, which he characterized as a gift exchange. Yi also testified that he got the impression from Trooper Pacolt that such an exchange would be legal. Yi does not claim that he knew Trooper Pacolt was a police officer at that time. Officer Williams also testified but her testimony was not helpful in clearing up these conflicting accounts.

From this point on, the facts are uncontested. Yi had an employee of the cafe bring Trooper Pacolt a paper bag containing two bottles of Crown Royal whiskey. Yi then proceeded to staple the bag shut. Yi also said that he would pay for Trooper Pacolt’s dinner as part of the deal.

Before Trooper Pacolt left the cafe, he told Yi that he might have more gallbladders in the future and asked if Yi might be interested. Yi said no, but stated that he might know some people who would be.

On February 12, Trooper Pacolt returned to the Front Street Cafe alone, this time wearing a tape-recording device. […] Trooper Pacolt had another bear gallbladder with him at this time. Pacolt sat down to have dinner. Yi came out, talked with him, and took his order. Trooper Pacolt then told Yi that he had another gallbladder and showed it to him. He then asked Yi if he was interested in trading again “like last time.” Yi indicated that he was interested, this time trading three bottles of vodka for the gallbladder. Yi again paid for Trooper Pacolt’s dinner.

The State indicted Yi on two felony counts of sale of liquor without a license and charged him by information with two misdemeanor counts for purchasing parts of a big game animal.

Yi filed a motion to dismiss the indictment on the ground that he had been entrapped by the police. […] Following the hearing, Judge Curda ruled that Yi had established the defense of entrapment.

[…]

The law of entrapment
Alaska’s entrapment statute is codified at AS 11.81.450:

In any prosecution for an offense, it is an affirmative defense that, in order to obtain evidence of the commission of an offense, a public law enforcement official or a person working in cooperation with the official induced the defendant to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense. Inducement or persuasion which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit does not constitute entrapment.

Entrapment is a defense to criminal charges, and the purpose of the defense is to deter law enforcement activities that go beyond the bounds of sound public policy. Because AS 11.81.450 defines entrapment as an affirmative defense, a defendant bears the burden of establishing it by a preponderance of the evidence. Entrapment is an issue for the court to decide rather than the jury. Alaska employs an objective test for entrapment. This means that “the court considers the nature of the police activity involved, without reference to the predisposition of the defendant.”

We have previously stated:

In order to prevail on [an entrapment] defense, [the defendant is] required to prove that the police employed fundamentally unfair or dishonorable practices calculated to induce someone to commit the crime in question so that he might be arrested and prosecuted for the offense…. And while [the defendant does] not need to negate a predisposition to engage in similar conduct, [the defendant must show] that the dishonorable police practices were a substantial factor in inducing him to commit the charged offenses—that his commission of the offenses was “the direct result of inducement by law enforcement officials.” [internal citations omitted]

We conclude that Judge Curda erred in concluding that Yi established the defense of entrapment. […] Looking objectively at Trooper Pacolt’s conduct, the evidence does not show that the trooper engaged in fundamentally unfair or dishonorable practices which were calculated to induce someone to commit a crime, other than a person who was willing. […] Even if Trooper Pacolt had suggested the exchange and even if he had suggested that it would be lawful to trade the alcohol for the bear gallbladder, it would be unreasonable for Yi to rely on this representation. As Yi admitted, he had no suspicion that Trooper Pacolt was a police officer or was anyone other than an ordinary visitor to Bethel.

[…]

[W]e conclude that Judge Curda’s finding that Yi was entrapped was an abuse of discretion. We accordingly reverse Judge Curda’s ruling that Yi established the defense of entrapment.

REVERSED.