The Government Made Me Do It – The Changing Landscape on the Law of Entrapment

June 20, 2023 – Thomas G. Briody

The Government Made Me Do It - The Changing Landscape on the Law of Entrapment

This article was originally published on March 1997


Thomas G. Briody, Esq., is a solo practitioner in Providence. He concentrates his practice in criminal and civil litigation.

More than 60 years ago in Sorrells v. United States, the United States Supreme Court held that the conviction of an “otherwise innocent” individual, lured into the commission of a crime by government agents, violates public policy and must not stand. A criminal defendant, induced by government agents to commit a crime when he or she lacked a predisposition to engage in illegal conduct, is entitled to acquittal.

Recent legal developments have changed the landscape of entrapment law. These changes flow from the United States Supreme Court’s holding in Jacobson v. United States that a predisposition to commit a criminal act must be established prior to the approach of government agents This holding and its progeny take on added importance in an era where law enforcement officials, in an effort to combat the sale of illegal narcotics or other contraband, resort increasingly to the use of undercover agents. Frequently these agents are not police officers but confidential informants, motivated by the promise of money or reduced criminal charges Regardless, judges still wrestle with the meaning of “inducement,” and the various federal circuit courts of appeal are split as to the meaning of “predisposition?” This article examines the meaning of inducement, with particular emphasis on recent cases from the First Circuit. It also examines the split between the First Circuit and other federal appellate courts as to the meaning of predisposition in the wake of Jacobson. The article concludes that the approach adopted by the Seventh, Ninth, and Tenth Circuits best defines predisposition.


In United States v. Gendron then Chief Judge Breyer of the First Circuit observed that government inducement goes beyond providing an “opportunity to commit a crime; instead requiring “something else — typically, excessive pressure by the government or the government’s taking advantage of an alternative, noncriminal type of motive. Among the examples of improper inducement listed by the Gendron court were (1) intimidation and threats; (2) daily phone calls coupled with threats; (3) forceful solicitation; (4) playing upon a defendant’s sympathies; (5) relying upon the past relationship of a former “war buddy”; and (6) repeated suggestions which succeed only when a defendant lost his job and needed money for food and rent.

This year in United States v. Young the First Circuit affirmed the District Court’s denial of an entrapment instruction where the defendant alleged that the context of the government’s solicitation constituted inducement. The defendant was a patient in a drug detoxification program when he was approached by a confidential informant. The informant befriended the defendant, continually brought up the subject of drugs, and contacted the defendant after he left the center about the possibility of purchasing drugs. The circuit held that the context in which a criminal solicitation occurs, by itself, is not enough to constitute inducement. The fact that the informant met the defendant in a vulnerable setting (a detoxification center), befriended him, and discussed the use and sale of narcotics, was not enough to show inducement. So-called “hard evidence” must exist before evidence of inducement will be found.

More recently, in United States v. Joost, however, the First Circuit in both state and federal courts. reversed a conviction for failure to instruct on entrapment, Joost involved a lengthy undercover operation by Rhode Island state troopers, who originally approached the admitted counterfeiter and convicted felon. Defendant Joost came to depend on the troopers, who paid him money for counterfeit gaming tokens. Joost mentioned the possibility of committing an armored car robbery but later claimed this was just a “story” designed to enhance his stature with the two troopers, who he believed were criminals. For the next two months the undercover troopers repeatedly asked Joost for a firearm, Joest never said no, but each time the subject came up he would “stall, talk, stall and then get them off onto something else” Ultimately, the troopers coupled their request for a gun with a warning that their secret “connection” in the counterfeiting operation was planning to get out of the business. Based on this warning, the counterfeiter testified that he “panicked” and obtained a firearm for the troopers.

In reversing Joost’s conviction the First Circuit stressed that it was not assessing the sufficiency of the government’s evidence. Nevertheless, it found that the repeated requests for a gun, together with the threat to Joost’s counterfeiting income, could rationally be viewed as improper government inducement and, thus, warranted a jury instruction.


In Gendron, the First Circuit set forth its understanding of “predisposition” in the context of the entrapment doctrine. Defendant Gendron was the target of a lengthy sting operation by government agents that led to a conviction for receipt of child pornography through the mails. Gendron argued that he was entrapped. On appeal, the court found that a defendant’s predisposition could be resolved by asking how he or she would react to an ordinary opportunity to commit a specific crime In this sense, Gendron suggests that the government’s allegedly improper conduct in inducing criminal behavior should be abstracted away, while at the same time asking whether a defendant was inclined to respond to a proper, rather than an improper, lure! Gendron was cited with approval by the Eleventh Circuit in United States v. Brown.

This view of entrapment, however, clashes with that of the Seventh Circuit. In United States v. Hollingsworth, the court observed that:

Predisposition is not a purely mental state, the state of being willing to swallow the government’s bait. It has positional as well as dispositional force…[T]he defendant must be so situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so

Hollingsworth expressly rejected the predisposition reasoning of Gendron. The Hollingsworth panel, while not expressly adopting it, appears to endorse the multi-step analysis set forth by the Ninth Circuit in United States v. Skarie.

In Brown, the Eleventh Circuit held that the predisposition inquiry is “a purely subjective one which asks the jury to consider the defendant’s readiness and willingness to engage in the charged crime absent any contact with the government’s officers or agents Skarie instead sets forth a five-factor test to determine predisposition: (1) the character of the defendant; (2) who first suggested the criminal activity, (3) whether the defendant engaged in the activity for profit; (4) whether the defendant demonstrated reluctance; and (5) the nature of the government’s inducement.

In refusing to apply this test to the facts in Brown, the Eleventh Circuit found predisposition is necessarily a “fact-intensive inquiry into a defendant’s state of mind. Therefore, entrapment as a matter of law cannot be reduced to any enumerated list of factors for a reviewing court to examine

The debate over the meaning of predisposition has led to some unusual results in entrapment cases with strikingly similar fact patterns. In United States v. Beal, a defendant was charged with participating in two discrete sales of methamphetamine to an undercover police officer. The sales were made at the behest of an informant working for the police officer. The informant, who knew Beal from prior contacts in jail, faced a lengthy prison sentence for drug trafficking if he failed to introduce government agents to supposed drug dealers. The informant called Beal’s house repeatedly and left messages on his telephone answering machine in an effort to arrange a purchase. Beal told the informant that he was no longer interested in selling narcotics, but agreed within a day to arrange two sales to get the informant to leave him alone. A jury acquitted Beal as to the first sale based on entrapment but convicted on the second. The District Court then ordered an acquittal of Beal as to the second count, and the Tenth Circuit affirmed, noting that “[b]ecause the two counts were founded upon one continuous course of conduct, it follows that the original inducement which ‘beguiled” Mr. Beal carried over to the second charge.

The First Circuit questioned whether Beal was correctly decided in United States v. Acosta another entrapment case in which an informant arranged the sale of contraband. The informant, in the pay of a Bureau of Alcohol, Tobacco and Firearms agent, badgered Acosta for weeks, leaving telephone messages and offering money for guns, Acosta had no prior gun convictions but was addicted to heroin, and had previously sold drugs. Over a span of two months, he located and sold the informant two firearms. At trial, just as in Beal, a jury acquitted on the first charge and convicted on the second. On appeal, the First Circuit relied on the established rule that a jury “is not obliged to be consistent in its verdicts?’ But the Acosta panel also held that the government was also entitled “to rely as evidence of predisposition on Acosta’s own behavior after he was approached by [the informant) .

Thus, the holding in Acosta conflicts with that in Beal, and arguably with the clear language of Jacobson It also conflicts with the Ninth Circuit hold in Skarie, which found that evidence of predisposition obtained after the approach of a government informant is insufficient to overcome the defense of entrapment beyond a reasonable doubt Further, Beal was cited with approval in Hollingsworth.


The so-called “ordinary opportunity” analysis of predisposition, articulated in Gendron, followed in Acosta and endorsed by Brown is problematic. Because this approach relies almost exclusively on “subjective” factors, there is an increased risk that courts (and juries) will ignore the mandate of Jacobson that predisposition must exist before the government approaches a target. Common sense dictates that once a defendant has come under the influence of law enforcement agents, his independent will to engage in criminal conduct is more difficult to assess. By assessing the totality of a suspect’s conduct, Acosta placed too much emphasis on a defendant’s behavior after the informant approached. This is precisely what Jacobson forbids.

The holdings of Hollingsworth, Skarie, and to some extent Beal more accurately and fairly set forth the meaning of and the framework in which to analyze predisposition. This is because all of these cases recognize that inducement and predisposition can never be completely isolated. A criminal defendant’s state of mind cannot be divorced from the circumstances surrounding a particular offense. Circumstances inevitably affect one’s decisions. The person who illegally ordered child pornography last winter might decide not to do so when spring arrives. The morning’s enthusiastic drug peddler may find legitimate employment in the afternoon. A felon who was reluctant to possess a gun yesterday might agree to buy one tomorrow. Attempts to “abstract” away an improper opportunity from an ordinary one, while intriguing in theory, is a practical impossibility.

Hollingsworth and Skarie recognize this by concentrating on the defendant’s behavior and attitude before he or she becomes a target. Beal, by recognizing that a prior acquittal does much to negate a defendant’s predisposition on a subsequent charge, follows the same sort of approach. By examining the “before” more closely than the “after” period, these courts assure that the requirements of Jacobson will be met.


Jacobson has indeed altered the way the circuit courts examine questions of entrapment. While the courts appear to agree that some form of pressure or misconduct constitutes inducement, there is significant disagreement over the meaning of predisposition. The Eleventh and First Circuits are in conflict with the Seventh, Ninth, and Tenth Circuits over the meaning and analysis of Predisposition. The former suggests that the inquiry should be confined solely to a defendant’s mental state. The latter suggests that external factors, such as a defendant’s ability to commit a crime or the nature of the government’s inducement, must be included in the predisposition analysis. Resolution of this conflict must be left to a future United States Supreme Court decision.

By Thomas G Briody, ESQ

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