Vail Daily column: Is it entrapment?
Say you’re 21 years old. You are of the male, overflowing with testosterone persuasion. You are a budding future Master of the Universe.
It’s a Friday night and you’re heading out to decompress from: a) your work week, b) your school week or c) in the modern lexicon of 20-somethings, from “whatever.” You decide a ticket to a concert is your ticket to kicking off the weekend. Say Bassnectar is the headliner. It’s not really important to you what “Bassnectar” might mean. You want some music. You want some action! It has been a grim and stultifying week.
You head out with your buddies, your peeps, your posse. It doesn’t really matter what you call them; you just head out!
There are roughly 10,000 people at the concert. Everyone is looking for a good time. You settle in. You’ve got your glow sticks and for some reason, you’ve brought a whistle. As the night goes on, you mean to have a drink or two. Gauntlet Hair comes out to warm up the crowd.
And then it happens.
A vision appears suddenly from the thick of the crowd. She is gorgeous and she has her lights on you. She is an arrow slung at you from Cupid’s bow. She says her name and you share yours. You try to keep your eyes on Gauntlet Hair but you can’t help but sneaking peeks at her.
After a time, she leans in to you and says, “Hey, you got any drugs?”
This catches you off guard. You say, “Like what?”
She’s dancing to the music. Her hands are overhead. “I don’t know,” she says. “Like Ecstasy or something?” She shows you $20.
At first you don’t know what to say. You let the question knock about in the testosterone washed vastness of your cranium. Then you steal a longing look at her and say, “Yeah, sure. I can get some. Gimme just a minute.”
You’re gone and back in just a flash.
She’s still there dancing when you get back. You put one hand on her shoulder to turn her and you open up the other to reveal what in another day and time could be mistaken for a Valentine’s Day candy.
She smiles sweetly at you and then, like quick-set concrete, her blue eyes harden. She says, with no irony at all, “Hands behind your back, pal. You’re under arrest!”
You stammer out something like, “Hey, I wasn’t gonna sell it to you. I was just gonna give it to you!”
She says, “Tell it to the judge.”
You look desperately around but there are no defenders in the crowd. Your voice rises to a shriek.
“Entrapment!” you manage to choke out.
Yeah? But is it?
OK. A little law now and a lot less dime store novel.
A person is “entrapped” when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit. As a matter of well-established policy, the law forbids conviction in such a case.
However … there is no entrapment where a person is ready and willing to break the law and the government agent (here, the comely dancing bait) merely provides a favorable opportunity for the person to commit the crime. Admittedly, parsing out just which is which at times involves splitting some awfully slender legal hairs.
It is not entrapment for a government agent to go undercover, to pretend to be someone else, or to offer, either directly or through someone else, to engage in an unlawful transaction with the person. What is seminal is whether the person was ready, willing and able to commit the crime when the opportunity was afforded. It is not entrapment if the government does no more than afford opportunity.
On the other hand … if the evidence leaves a reasonable doubt whether the person had the intent to commit the crime except for inducement or persuasion on the part of some government officer or agent, then the person may not be found guilty.
Here, our hapless hero will first claim that while he may, in fact, have “possessed,” he had no intent to sell (“Hey, I wasn’t gonna sell it to you. I was just gonna give it to you!”). At the least, possession is the lesser crime.
Second, he will try to prove entrapment by showing that: a) the idea for committing the crime (if one were committed at all) came from the government agent and was not of his creation; b) the government agent then persuaded him to committing the crime; and c) he was not ready and willing to commit the crime before the government agent talked him into it. To his advantage, too, the government must prove beyond a reasonable doubt that the defendant was not entrapped.
So, is it entrapment here?
You be the jury. You decide.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.