Who Counts as an Entrapper

Who Counts as an Entrapper

Before the Code asks how hard the government pushed, it asks who did the pushing and why. The opening clause of § 2.13(1) answers both questions together: the actor must be a public law enforcement official or a person acting in cooperation with one, and must induce or encourage the offense for the purpose of obtaining evidence of its commission.¹ Those two requirements express one premise, that the pressure has to be an investigative tool of the state. The test therefore turns on the inducer's connection to the government and on the aim of the inducement, so a badge is neither necessary nor sufficient. A person with no badge can qualify, and a sworn officer whose urging is aimed at something other than obtaining evidence does not fit the definition as written.

The phrase "a person acting in cooperation with such an official" matters because of how stings are actually staffed. Secret agents are sometimes undercover officers, but very often they are private citizens working as informants, and the tactic is used chiefly against offenses such as drug and liquor sales, prostitution, and gambling, which are committed privately among willing participants who will not complain.² If the Code reached only badge-carrying officers, the police could keep the defense out of reach simply by sending an informant to do the pressing. The danger the defense answers is the state's power to investigate turning into a power to generate offenses, and that danger is the same whether the pressure comes from a detective or from an informant the detective directs. Extending the definition to cooperating persons closes the gap, and the label derivative entrapment describes the situation in which the government reaches its target through a private person acting as its agent.³

The evidence-gathering purpose ties the defense to investigation. The defense exists to keep the government from manufacturing crime,⁴ so the actor it targets is one who induces an offense in order to build a case around it. An informant who presses a target to arrange a sale so that detectives can record it is doing exactly that. An inducement with no such aim is not an investigative device, and the reason for acquitting the person who yielded, that the state should not gain a conviction from a crime it created, has nothing to attach to.

The flip side is that the defense is aimed strictly at governmental misconduct. When a private person unassociated with the government entraps another, the defense is unavailable, a principle traced to Henderson v. United States, a Fifth Circuit decision.⁵ In United States v. Maddox the defendants were convicted of conspiracy for transporting stolen shirts in interstate commerce, and the alleged entrapment came from a shirt manufacturer that used private investigators to locate the people suspected of taking the shirts. The Fifth Circuit upheld the denial of the defense because “entrapment does not extend to inducement by private citizens.”⁶ The investigators were hunting suspected thieves, yet a private person's evidence-gathering purpose did not help the defendants, because nothing tied the hunt to a public official. The result follows from the rationale: a private tempter, however persistent, is not using enforcement authority to build a prosecution, so no investigative power has been misused, and the defendant who gave in answers for the offense like anyone else who yields to a private temptation.

For private persons, then, the working question is whether the official is cooperating in the effort while the pressure is applied. The Code's phrase "acting in cooperation" makes that timing and direction matter.⁷ A citizen who acts on personal initiative and hands the target to the police only afterward was not cooperating with anyone when the inducement occurred. Once an official directs or encourages the effort as it unfolds, by supplying a recording device or instructions, the citizen is acting in cooperation and the government link exists.

This threshold decides only whether the defendant may claim entrapment at all. A defendant who clears it still has to show that the government actor induced the offense in one of the two ways the next section describes.