The first is that decisions rendered before Russell and Hampton have continuing validity only insofar as they are consistent with those decisions.
The second, and perhaps less obvious, point is that the term "inducement" in the entrapment context is often used in a broad sense, to include very different forms of governmental activity; and that the Supreme Court's resolution of the objective-subjective controversy does not mean that the precise nature of the governmental activity alleged to constitute inducement in a particular case is no longer significant.
Most of the cases dealing with entrapment have been narcotic cases. Indeed, virtually all of the Supreme Court decisions on this subject have involved some form of contraband. Because of the special problems of detection and proof involved in narcotics cases, and because of the extreme danger to the public inherent in narcotics trafficking, it is plainly necessary to avoid placing undue restrictions upon the scope of permissible police activities in that area. Moreover, the likelihood that a truly non-predisposed person will be lured into crime of that type is relatively slight.
Entrapment involves both the activities of the government agents and the defendant's response to those activities. Under the general label "inducement" the reported decisions have included such diverse elements as suggesting that the crime be committed, providing some or all of the instrumentalities or facilities needed to complete the crime, actively participating in the commission of the crime, providing varying degrees of incentives, providing varying degrees of persuasion or even coercion, or a combination of these ingredients. The term "predisposition" has sometimes been interpreted to mean that the defendant was ready and willing to commit crimes of that type, and sometimes to mean that the defendant was ready, willing and able to commit crimes of that type.
In the wake of the Russell and Hampton decisions of the Supreme Court, it is probable, although arguably not altogether clear, that a defendant can no longer successfully assert that, although he was ready and willing to commit crimes of that type, he lacked the ability to carry out the crime until the government agents provided essential assistance. In Russell, for example, the chemical ingredient supplied by the Government was not readily obtainable from other sources. On the other hand, the rationale of the majority opinion in that case appears to have been based, at least in part, upon the proposition that the defendants might have been able to obtain the P2P from some other source. And in Hampton, the Court was plainly of the view that the defendants undoubtedly had other sources of supply.
Under both the subjective and the objective approaches to entrapment, the relationship between the conduct of the government agents and the response of the defendant continues to be important. The question still is, did the Government induce the defendant to commit a crime he would not otherwise have been likely to commit? As a practical matter, however, the fact that the actions of the government agents were themselves illegal will often have very little bearing upon their power to persuade. A non-predisposed defendant would ordinarily not be likely to be lured into crime merely by being made aware that others were willing to commit unlawful acts. Moreover, with respect to the kinds of crimes in which governmental participation in illegal conduct is most likely to be a necessary adjunct of law enforcement-narcotics, prostitution, and other "victimless" crimes-a rule precluding successful prosecution whenever the conduct of the government agents is shown to have been illegal would provide the sophisticated criminal with a ready means of determining whether a person he is about to deal with is or is not an undercover agent.
While the focus of the entrapment defense, in view of the Supreme Court's adherence to the subjective analysis of entrapment, is upon whether the defendant was or was not predisposed, it continues to be necessary to evaluate the conduct of the Government to determine whether it amounted to inducement in the first place. Once inducement is shown, the emphasis is upon predisposition, i. e., the character of the accused. But it is not always possible to achieve complete compartmentalization in this context. That is, it is sometimes impossible to achieve a correct resolution of the predisposition question in total disregard of the nature of the governmental inducement.
A further point, implicit in the preceding discussion, must also be addressed, namely, the need to focus upon just what it is that constitutes the state of mind which can properly be characterized as predisposition, and what evidence suffices to establish it. The Supreme Court has thus far not had occasion to explore this subject in depth, and it has received very little attention in the courts of appeals' decisions. In Russell and Hampton, predisposition was conceded. In Sherman, without extended discussion, the Supreme Court unanimously held that the existence of two previous narcotics convictions, several years earlier, did not prove predisposition. In Sorrells, the Court held that evidence that the defendant had a reputation in the community as being a rum-runner did not rule out the possibility that he was not predisposed; the question was for the jury.
It is clear that we are concerned with the defendant's state of mind and inclinations before his initial exposure to the government agents. But the distinction between a predisposed and a non-predisposed state of mind is not necessarily clear-cut. At one extreme is the defendant who customarily engages in this type of criminal activity as a way of life, and who enthusiastically embraces any additional opportunities for such activities. At the other extreme is the resolute individual who would not commit a crime of this type under any circumstances. In between are many gradations: the person who occasionally commits crimes of this type, and would be willing to do so again only if a particularly favorable opportunity should present itself; the person who has previously succumbed to temptation, but is making a sincere and concerted effort to resist such temptations; the previously innocent person who is weak and easily influenced. In his influential and relatively early article on entrapment issues, Professor Donnelly suggests distinguishing between situational offenders and chronic offenders, Donnelly: Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1113 (1951), but that distinction does not appear to have been adopted, in terms, by the courts.
Moreover, the defendant's state of mind before the initial exposure to the government agents must be determined after the fact. Sometimes this poses no great difficulty, as where there is evidence of pre-exposure activities or declarations tending to establish the defendant's pre-existing criminal bent. But often, as in the present case, the sole proof of predisposition consists of evidence as to what the defendant did on the occasion in question, in response to the overtures of the government agents. In such cases, I believe it is particularly important to recognize that the defendant's response to governmental inducement must be viewed in light of the precise nature and extent of the inducement.
The foregoing analysis is entirely consistent with the pertinent Third Circuit decisions which survive Russell and Hampton. In the leading entrapment case in this Circuit, U. S. v. Watson, 489 F.2d 504 (3d Cir. 1973), the court held that "once there is sufficient evidence of Government inducement to commit the crime to entitle the defendant to go to the jury with an entrapment defense," the burden of proof is upon the Government to negate entrapment. There is no separate allocation of the burden of proof as between inducement and predisposition; the defense should be treated as a unit, with the Government having the burden of overcoming it. The court stated:
"This conclusion is consistent with the Supreme Court's reaffirmation that the focus of the entrapment defense is on the predisposition of the defendant rather than on the nature of the police behavior. U. S. v. Russell, 411 U.S. 423, 429, 93 S. Ct. 1637, 1641, 36 L. Ed. 2d 366 (1973). Inducement does not become irrelevant to either party, to be sure, since the stronger the inducement, the more likely that any resulting criminal conduct of the defendant was due to the inducement rather than to the defendant's own predisposition. Under the unitary approach we require, inducement therefore enters as an element of predisposition which the Government must disprove, rather than as an independent element which the defendant must prove." (489 F.2d at p. 511.)
See, also Government of Virgin Islands v. Cruz, 478 F.2d 712 (3d Cir. 1973); See also, U. S. v. Hill, (3d Cir. Nov. 25, 1980).
In U. S. v. Armocida, 515 F.2d 49 (3d Cir. 1975), the court held that there can be no entrapment defense unless there is both (1) evidence that government agents initiated the crime and (2) evidence suggesting that the defendant may not have been predisposed. In that case, a fairly routine purchase of drugs by undercover agents, the defendant did not testify, and neither the direct nor cross-examination testimony of the Government's witnesses revealed any reluctance on the part of the defendant-seller. The court held that, while the record might support a finding that the Government initiated the crime, a charge on entrapment was unnecessary because of the absence of any colorable basis for questioning the defendant's predisposition.
The Third Circuit's formulation of the test for determining the presence of legitimate entrapment issues is generally consistent with the conclusions reached in other circuits. See, e.g., Kadis v. U. S., 373 F.2d 370 (1st Cir. 1967); U. S. v. Riley, 363 F.2d 955 (2nd Cir. 1966).
While cases involving dealing in contraband provide the primary source of the developing law of entrapment, the general principles thus far discussed are not limited to contraband cases. Thus, in Lopez v. U. S., 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1962), where the defendant was charged with bribing an Internal Revenue Service agent, the fact that the initial offer came from the defendant led the Court to hold that entrapment issues need not have been submitted to the jury. See, also Osborn v. U. S., 385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966) (jury-tampering).
It seems clear that it is not automatically entrapment for a government agent to offer a bribe to a public official, Scriber v. U. S., 4 F.2d 97 (6th Cir. 1925). In Scriber, an undercover agent offered, and paid, $ 20 to a customs official to facilitate illegal importation of whiskey. The court stated:
"Nor can we see that the defense of entrapment, more accurately defined, can be applicable to a situation, where the offense charged is the accepting of a bribe by a public officer, and where the supposed instigators do nothing except to give the officer opportunity to accept a bribe, and to expose him to what might be called the ordinary degree of temptation to which such officers are likely to be subjected at any time in the daily discharge of their duties... The prohibition agents did nothing to overcome Scriber's shrinking or reluctance. So far as they observed, he did not shrink. In such a case as that, we think it clear that a crime, otherwise rightly to be inferred, cannot be escaped by the aid of this defense" (at p. 98).