ORDER RULING ON PARTIES' PROPOSED ENTRAPMENT JURY INSTRUCTION (DKT. NO. 290-6 AT 35—GOVERNMENT'S VERSION; DKT. NO. 290-7 AT 6—DEFENDANT'S VERSION)
As required by this court's pretrial order, the parties have submitted the jury instructions they ask the court to give at the end of the trial. Dkt. No. 290-6 (the government's proposed instructions); Dkt. No. 290-7 (the defendant's proposed instructions).
At a pre-trial conference on October 16, 2019, the court noted that it would address the parties' disagreements regarding the jury instructions at an instruction conference toward the end of trial, explaining that its decisions about whether to give a particular instruction often were tied to how the evidence had come in at trial. Counsel for the government indicated that, while he understood the court's point, it was particularly important in this case for the parties to know, before trial, which version of the parties' proposed entrapment instruction the court was likely to give. Defense counsel responded that he did not think that the court could make a definitive ruling on that or any other instruction without hearing the evidence. He agreed that the parties might benefit from the court's "preliminary guidance," but asserted that that the court likely could not make a final ruling until the instruction conference.
In a note it submitted along with its proposed entrapment instruction, the government stated, "The United States notes that even if the defendant is allowed to present the entrapment defense, the Court should not rule on whether or not to include an entrapment instruction until all of the evidence at trial has been presented." Dkt. No. 290-6 at 33. Since the parties filed their proposed jury instructions, the court has granted the defendant's motion to present an entrapment defense. Dkt. No. 295. But the fact that the court has allowed the defendant to present an entrapment defense does not entitle the defendant to an entrapment instruction. Hypothetically, the prosecution could present evidence of predisposition and show that there was no inducement, and a defendant could fail to present any evidence to rebut the government's proof; such a defendant would not be entitled to an entrapment instruction. The court assumes that the reason for the government's request that the court rule on the entrapment instruction conflict pre-trial was so that the government would have a sense of what the court will tell the jury if it decides that the defendant is entitled to an entrapment instruction.
Both parties have asked that if the court decides the defendant is entitled to an entrapment instruction, it give Seventh Circuit Pattern Criminal Jury Instruction 6.04, Entrapment—Elements. Dkt. No. 290-6 at 33; Dkt. No. 290-7 at 5. The only difference between the two versions of this proposed instructionis that the government did not tailor the pattern instructions to the facts of this case; it left in all the bracketed options that the Seventh Circuit provides the parties. Here is what the government proposed:
The government has the burden of proving that the defendant was not entrapped by [identify the actor[s]: e.g., government agent, informant, law enforcement officers]. The government must prove beyond a reasonable doubt either:
1. [A] [government agent[s]; informant[s]; [or] law enforcement officer[s]] did not induce the defendant to commit the offense; or
2. The defendant was predisposed to commit the offense before he had contact with [government agent[s]; informant[s]; law enforcement officers[s]].
I will define what I mean by the terms "induce" and "predisposed."
Dkt. No. 290-6 at 33.
The defendant tailored Pattern Instruction 6.04 to fit the facts of this case:
The government has the burden of proving that the defendant was not entrapped by the informants. The government must prove beyond a reasonable doubt either:
1. That the informants did not induce the defendant to commit the offense; or
2. The defendant was predisposed to commit the offense before he had contact with the informants.
I will define what I mean by the terms "induce" and "predisposed."
Dkt. No. 290-7 at 5. Given what the court knows about the facts of the case, the court suspects that if it decides an entrapment instruction is warranted, it will give Pattern Instruction 6.04 in the form the defendant has proposed it.
The versions of Seventh Circuit Pattern Criminal Jury Instruction 6.05, Entrapment—Definitions of Terms that the parties have proposed, however, differ more significantly. The government again reproduced the pattern instruction verbatim, without tailoring it to the facts of the case, but it switched the order in which the Seventh Circuit presents the definitions. Here is the Seventh Circuit pattern instruction:
Definition of "induce":
[A] [government agent[s]; informant[s]; law enforcement officer[s]] "induce[s]" a defendant to commit a crime: (1) if [the] [agent[s]; informant[s]; [and/or] officer[s]] solicit[s] the defendant to commit the crime, and (2) does something in addition that could influence a person to commit a crime that the person would not commit if left to his own devices. This other conduct may consist of [repeated attempts at persuasion;] [fraudulent representations;] [threats;] [coercive tactics;] [harassment;] [promises of reward beyond what is inherent in the usual commission of the crime;] [pleas based on need, sympathy, or friendship;] [insert specific other conduct at issue; or any [other] conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the efforts of the [agent[s]; informant[s]; officer[s]]].
[If the [agent[s]; informant[s]; officer[s] merely initiated contact with the defendant; merely solicited the crime; or merely furnished an opportunity to commit the crime on customary terms, then the [agent[s]; informant[s]; officer[s]] did not induce the defendant to commit the crime.]
Definition of "predisposed":
A defendant is "predisposed" to commit the charged crime if, before he was approached by [a] [government agent[s]; informant[s]; law enforcement officer[s]], he was ready and willing to commit the crime and likely would have committed it without the intervention of the [agent[s]; informant[s]; officer[s]], or he wanted to commit the crime but had not yet found the means.
Predisposition requires more than a mere desire, urge, or inclination to engage in the charged crime. Rather, it concerns thelikelihood that the defendant would have committed the crime if [the] [agent[s]; informant[s]; officer[s]] had not approached him.
In deciding whether the government has met its burden of proving that the defendant was predisposed to commit the crime, you may consider the defendant's character [,or] reputation [;and criminal history]; whether the government initially suggested the criminal activity; whether the defendant engaged in the criminal activity for profit; whether the defendant showed a reluctance to commit the crime that was overcome by persuasion by the [agent[s]; informant[s]; officer[s]]; and the nature of the inducement or persuasion that was used.
Seventh Circuit Pattern Criminal Jury Instruction 6.05, Entrapment—Definitions of Terms (available at www.ca7.uscourts.gov/pattern-jury-instructions/pattern-jury.htm).
Here is the government's proposed version:
Definition of "predisposed":
A defendant is "predisposed" to commit the charged crime if, before he was approached by [a] [government agent[s]; informant[s]; law enforcement officer[s]], he was ready and willing to commit the crime and likely would have committed it without the intervention of the [agent[s]; informant[s]; officer[s]], or he wanted to commit the crime but had not yet found the means.
Predisposition requires more than a mere desire, urge, or inclination to engage in the charged crime. Rather, it concerns the likelihood that the defendant would have committed the crime if [the] [agent[s]; informant[s]; officer[s]] had not approached him.
In deciding whether the government has met its burden of proving that the defendant was predisposed to commit the crime, you may consider the defendant's character [,or] reputation [;and criminal history]; whether the government initially suggested the criminal activity; whether the defendant engaged in the criminal activity for profit; whether the defendant showed a reluctance to commit the crime that was overcome by persuasion by the [agent[s]; informant[s]; officer[s]]; and the nature of the inducement or persuasion that was used.
Definition of "induce":
[A] [government agent[s]; informant[s]; law enforcement officer[s]] "induce[s]" a defendant to commit a crime: (1) if [the] [agent[s]; informant[s]; [and/or] officer[s]] solicit[s] the defendant to commit the crime, and (2) does something in addition that could influence a person to commit a crime that the person would not commit if left to his own devices. This other conduct may consist of [repeated attempts at persuasion;] [fraudulent representations;] [threats;] [coercive tactics;] [harassment;] [promises of reward beyond what is inherent in the usual commission of the crime;] [pleas based on need, sympathy, or friendship;] [insert specific other conduct at issue; or any [other] conduct that creates a risk that a person who would not commit the crime if left to his own devices will do so in response to the efforts of the [agent[s]; informant[s]; officer[s]]].
[If the [agent[s]; informant[s]; officer[s] merely initiated contact with the defendant; merely solicited the crime; or merely furnished an opportunity to commit the crime on customary terms, then the [agent[s]; informant[s]; officer[s]] did not induce the defendant to commit the crime.]
Dkt. No. 290-6 at 35.
The defendant kept the definitions in the order in which the...
