Last month, two men were convicted of participating in a conspiracy to kidnap the governor of Michigan.
The facts at trial showed that undercover government agents in that case assisted the defendants in advancing the kidnapping conspiracy. The defendants essentially claimed that the government tricked and led the defendants to commit the crime. The legal term for what the defendants claimed is “entrapment”.
Simply stated, if someone commits a crime, the crime can be essentially forgiven or voided if the defendants were “entrapped” by the government.
There are two requirements that both must be satisfied for entrapment to apply so as to forgive or void a criminal act. First, the government must have induced or persuaded the defendant to commit the crime.
Providing ideas of crimes is not persuading someone to commit the crime. For example, I might tell an undercover government agent that I hate my neighbor Bob. The agent may say, “Lee, you might want to steal Bob’s car or vandalize Bob’s house,” which is not persuasion for purposes of entrapment.
Additionally, the government persuading someone to commit a crime does not include providing support or encouragement after the decision to commit the crime has been made. For instance, I might tell a government agent that I intend to steal my neighbor’s car. The government agent can say, “That’s awesome, you ought to do it at 2:00 a.m. and use my crowbar.” Such statements are not persuasion to commit and would not satisfy the first requirement of entrapment.
Second, the defendant must not have been otherwise willing and ready to commit the crime once a decent opportunity presented itself.
For example, I might complain to an undercover government agent that I dislike my neighbor Bob, but I do not know how to express my dislike. A government agent can suggest to me a criminal act to commit upon Bob. If my response is, “That’s brilliant. That criminal act is exactly what I have been looking for,” then entrapment does not apply, because I was ready to commit the crime once I was given a decent opportunity.
Similarly, a government agent can offer to distract my neighbor Bob while I commit a crime against Bob. In such instance, I was ready, willing and able to commit the crime once the government agent gave me a decent opportunity to do so. Again, defeating the second requirement of entrapment.
The United States Supreme Court has stated that the government’s involvement in plans and schemes that help advance a criminal enterprise or eventual criminal act are appropriate and sometimes necessary to enforce the law.
The Supreme Court’s explanation of entrapment is when the government originates a criminal design (act, plan, etc.), and the government implants into an innocent person a frame of mind to want to commit the crime so that the government can prosecute that person.
Proving entrapment is not impossible. But the proving of entrapment is incredibly difficult so entrapment is very seldom applies, particularly because government agents know what entrapment is and consciously work to avoid committing entrapment.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.
