Entrapment/Outrageous Government Conduct
Category > Entrapment/Outrageous Government Conduct
The trial court properly dismissed the child molest charges for outrageous government conduct after the prosecutor inserted a false confession into the transcript of defendant’s interrogation and gave it to defense counsel.The prosecutor deliberately altered an interrogation transcript to include a confession from the defendant, and sent it to defense counsel at a time when counsel was trying to persuade the defendant to settle the case. This was egregious misconduct that directly interfered with the attorney-client relationship and it prejudiced defendant’s right to counsel. Dismissal of the charges was the appropriate sanction for the prosecutor’s misconduct. id: 24032
The trial court erred in delaying the swearing in of jurors to accommodate the prosecution’s witnesses, but there was no double jeopardy violation in recharging the case after dismissal and the error was harmless.After the jury was selected, the trial court delayed swearing in the jurors, pending resolution of problems with certain prosecution witnesses. When the problems could not be resolved, the trial court granted the prosecution’s motion to dismiss for lack of evidence. The defense objected to the refiled charges. There was no double jeopardy violation because jeopardy does not attach until the jury is actually sworn. For the same reason there was no due process denial of the right to a particular jury. While the prosecutor improperly announced “ready” before starting voir dire, this did not amount to outrageous government conduct. The trial court abused its discretion by delaying the swearing in for reasons unrelated to jury selection, but the error was harmless.id: 23078
No entrapment instruction was required where police placed an ad online for a female looking to have sex, later stating that she was 15 years old. Defendant responded to an online offer from police pretending to be an attractive female looking for a one-time sexual partner. The officer then informed defendant that “she” was 15 years old and defendant pursued the matter by later reinitiating contact so the two could have a sexual rendezvous. The trial court did not err by refusing to instruct on entrapment since the officer’s conduct would not have induced a normally law-abiding man to have sex with a 15 year-old girl.id: 24844
There was no outrageous government conduct where the detective mistakenly told the witness defendant had tried to kill her.Defendant argued the trial court erred by admitting the testimony of a witness who the detective misled into believing defendant had attempted to kill. Contrary to defendant’s claim, the detective did not commit outrageous government conduct by making the statement to the witness where there was no showing that it was made in bad faith. id: 24799
Prosecutor’s false testimony at a peripheral hearing did not constitute outrageous government conduct requiring reversal of the convictions.Defendant’s child molest convictions were reversed in 2008 for Brady error as the prosecution had evidence (in possession of the SART team) showing defendant was innocent. Defendant later moved to dismiss the renewed charges for a variety of reasons. The trial court dismissed the charges for prosecutorial misconduct based on the false testimony the prosecutor gave during the post reversal evidentiary hearings. However, the court erred in dismissing the charges because the false testimony occurred in a peripheral hearing and was not shown to have prejudiced defendant’s right to a fair trial.id: 22406
The trial court did not err by failing to instruct on entrapment because Perverted Justice is not an agent of law enforcement.Perverted Justice is an organization whose volunteers pose on the internet as children and wait for adults who are soliciting sex from children to contact them. The trial court properly denied the defendant’s request for instructions on the defense of entrapment because Perverted Justice was not an agent of law enforcement. Moreover, there was no evidence of entrapment where defendant initiated contact with the PV volunteer who was pretending to be 12 years old.id: 22014
Dismissal of charges was too drastic a remedy following the intentional eavesdropping of attorney-client protected conversations by special agents.Three defendants were reviewing evidence with their attorneys in the Attorney General’s office. Special agents from the Attorney General’s office intentionally eavesdropped on the privileged conversations. Prior to the preliminary hearing, the magistrate dismissed the complaint concluding the interference with the right to counsel was so outrageous that it denied the defendants due process. However, dismissal was too drastic a remedy. Instead, exclusion of the overheard communications and any derivative evidence flowing therefrom is the appropriate remedy.id: 21880
Entrapment by estoppel defense was not available to a public official in a conflict of interest case who claimed reliance on the advice of a public attorney charged with counseling her. Defendant, a member of the city council, obtained an
appointment as city manager. She was later charged with violating Government Code section 1090 by holding a financial interest in a contract made by a public agency of which she was a
member. She asserted the defense of entrapment by estoppel claiming that she acted on the advice of the city attorney. However, that defense which applies to ordinary citizens should not be extended to the defense of public officials who seek to defend conflict of interest accusations by claiming reliance on the advice of public attorneys charged with counseling them and
advocating on their behalf.id: 19436
Entrapment by estoppel defense has not been recognized in California.Defendants were convicted of misappropriating public funds under Penal Code section 1424. The trial court properly refused to instruct on the defense of entrapment by estoppel - i.e.,
reasonable reliance on advice of a government official, as that is not a recognized defense under state law and the evidence did not support the theory.id: 19236
"Sentencing entrapment" does not apply in California and there was no "sentencing manipulation" where the police conduct was unexceptional.The defendants were convicted of attempting to transport cocaine. The jury also found true an allegation that the quantity of the cocaine exceeded 80 kilograms. The defense argued the police deliberately manipulated the punishment by using an amount of cocaine that would add 25 years to each sentence. However, when speaking with the undercover officer, defendants were enthusiastic about the large quantity and did not express any preference for a lesser transaction. The court rejected the doctrine of sentencing entrapment and found that since the police conduct was unexceptional, there was no improper sentence manipulation. For that reason, the court also refused to address the claim of outrageous government conduct.id: 17678
Undercover officer did not entrap an exotic dancer by asking her to show "more skin."An exotic dancer violated a Department of Alcoholic Beverage Control regulation relating to the display of genitals, breasts and buttocks after an undercover officer asked her if the next dance would involve "more skin." The officer's conduct did not amount to entrapment as a matter of law since it was not likely to induce a normally law abiding person to commit the offense.id: 16949
There was no improper "sentence entrapment" where federal agents presented an opportunity to commit credit card fraud between the sentencing in state court after a plea, and the date set for surrender.Defendant argued that he was entrapped by government authorities during the period between his sentencing in state court following a guilty plea and the date set for his surrender. He claimed he was not advised at the time of the plea that the district attorney and federal agents planned to set him up for a probation violation and then ask for more time in prison. However, the record did not support his argument. It was the defendant who requested a delay in his surrender date because he did not want to go to county jail using crutches. The prosecutor did not know of a period after the plea during which defendant could be set up for a probation violation. Moreover, California courts do not recognize the concept of sentencing entrapment, and if they did, it would not apply since the defendant was predisposed to commit the credit card fraud and was not pressured into doing so.id: 16570
The act of enticing a car theft by leaving the keys in a car following a bogus arrest in front of spectators did not constitute entrapment and no instructions on the defense were required.Police staged an arrest of an undercover officer who was driving a 1980 Chevrolet Monte Carlo. The arrest occurred in a parking lot in front of spectators. The police left the keys in the Monte Carlo and drove away. Police later arrested defendant after he drove the car from the parking lot. The sting operation presented no evidence of entrapment, both because the police did not specifically intend it as a communication to defendant personally, and because it did not actually guarantee anything, but merely conveyed the idea detection was unlikely. The trial court did not err in refusing to instruct on entrapment.id: 16072
Facts of reverse sting did not establish outrageous government conduct where defendant approached the undercover officer to buy drugs.Police officers sold drugs to the defendant and then arrested him for possession of the drugs. He argued the police activity amounted to outrageous governmental conduct in violation of his right to due process. However, the evidence established defendant approached the officer and inquired about what was for sale. Such facts would not even establish an entrapment defense, much less the more difficult defense based on due process protection against outrageous police conduct.id: 13148
Having admitted the offense and relying on entrapment defendant's motive was irrelevant.Having admitted selling methamphetamine (the charged offense) to the undercover officer, but defending on the basis of entrapment, defendant's motive was irrelevant. The trial court therefore erred in instructing on motive pursuant to CALJIC 2.51.id: 13149
If the jury does not agree on the entrapment issue the result is a hung jury.Two jurors found that defendant had proved entrapment by a preponderance of the evidence CALJIC 4.60 provides that if entrapment is established, the defendant is entitled to a verdict of acquittal. Once the court was informed of the two jurors finding of entrapment it erred in instructing them to find defendant guilty before considering entrapment and sending them to sign the appropriate forms and come on back. The court should have either reinstructed the jury with CALJIC 4.60 and sent them back for further deliberations or, if further deliberations would have been fruitless, declared a mistrial as to count I due to a hung jury.id: 13150
No entrapment as a matter of law where defendant sold drugs to earn money rather than out of friendship.Appellant argued she established entrapment as a matter of law because the undisputed evidence showed that she sold drugs out of friendship to the undercover officer. However, the record showed that defendant sold drugs to earn money, not out of friendship. Moreover, the friendship was not one that would give rise to a claim of entrapment where the two had known each other for only three weeks, they had never been alone together and there was no hint of a sexual relationship or even flirtation.id: 13151
Officer's post-arrest offer of leniency if defendant would turn in his connection did not establish entrapment.The defense sought to introduce evidence that the officer's intent inducing defendant to sell him heroin was to gather information against defendant's supplier and that the officer engaged in overbearing conduct constituting entrapment. However, the officer's conversation regarding the supplier took place eight hours after the arrest and the focus of inquiry when entrapment is raised as a defense is the conduct of the law enforcement officer preceding the offense.id: 13152
Officers did not entrap defendant into child molest attempt where defendant placed the original ad and the officers responded to the ad offering opportunities.Defendant precipitated contact with officers by placing an ad soliciting sex with a female of any age. An officer wrote back with an opportunity to engage in lewd contact with two young girls. During the correspondence the officer gave defendant numerous opportunities to withdraw from the plan to teach sex to the girls, but he never withdrew. The record did not support defendant's claim of entrapment.id: 13153
Outrageous police conduct defense cannot be asserted vicariously.Defendant was convicted of possessing cocaine. He argued police actions constituted outrageous government conduct for three reasons: 1) officers used rock cocaine manufactured from powder cocaine, 2) officers planned to offer small samples of rock cocaine to potential buyers if necessary to complete sales, and 3) officers failed to recover all cocaine used in the program. The Court determined the outrageous police conduct defense exists independent of the entrapment defense. However, none of the challenged conduct was aimed at the defendant and most did not occur in his case. Moreover, the outrageous government conduct defense cannot be asserted vicariously.id: 13154
Reverse sting operation did not amount to outrageous governmental conduct.Undercover officers performed a reverse sting operation whereby they sold drugs on the street and then arrested the buyers for possession of the same drugs. The police activity did not rise to the level of outrageous governmental conduct which would preclude the prosecution on due process grounds.id: 13155
Court properly refused the requested instruction on derivative entrapment where there was no evidence that a police agent manipulated the confederate in order to procure the commission of a crime by appellant.Appellant contended that the jury could find appellant's confederate (who had originally been contacted by the police informant) as the entrapping agent, rather than being limited to consider whether or not the informant engaged in entrapment. Appellant requested an instruction on derivative entrapment on the ground that the police through the informant knew and took advantage of the confederate's appeals to his friendship with appellant in order to induce appellant to commit the crime. However, the court did not err in refusing the instruction as there was no evidence that the informant or any police agent manipulated the confederate in order to procure the commission of a crime by the confederate or appellant.id: 9852
Entrapment instructions did not emphasize defendant's predisposition to commit crime.The court instructed the jury with CALJIC Nos. 4.60, 4.61 and 4.61.5 regarding entrapment. These instructions define entrapment as conduct that would likely induce a normally law-abiding person to commit a crime. Defendant argued the phrase normally law-abiding person erroneously focused on the defendant's character. However, the challenged phrase does not strongly emphasize the defendant's predisposition to commit crime, and the jury was specifically instructed that factors such as defendant's character and predisposition to commit a crime are not relevant to entrapment.id: 9853
Evidence did not support entrapment instructions where the induced motive disappeared and defendant carried on with the drug transaction.Defendant testified that the police informant initiated the discussions on drugs, persisted with her inquiries over his efforts to deflect her, and called him repeatedly with requests for drugs. He also testified that she offered highly alluring sexual pleasures in return - a motive for the crime other than ordinary criminal intent. However, defendant also testified that once he saw the informant he no longer desired to have sex with her. By his own admission his non-criminal motive had evaporated. Thus defendant had a clear opportunity to abandon his intent to sell cocaine after the induced motive disappeared, and no improper conduct from that point on led him to consummate the deal. Since a normally law abiding person would not have continued with the drug transaction after the induced motive disappeared defendant was not entitled to instructions on entrapment.id: 9854
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245