Eleventh Circuit Rejects “Course of Conduct” Theory of Entrapment

In United States v. Isnadin, No. 12-13474 (Feb. 12, 2014), the Eleventh Circuit held that a jury may make separate findings on entrapment for each count charged in an indictment, even where individual charges represent a single “course of conduct.”

The four defendants were arrested after conspiring with an undercover ATF agent to rob a house ostensibly containing a large quantity of cocaine. The agent told the defendants that the house would be guarded by two armed men and asserted: “You got to … rob them, bro.” The defendants were charged with conspiracy to commit a Hobbs Act robbery, conspiracy to possess cocaine, attempting to possess cocaine, conspiracy to carry firearms in connection with a crime of violence, conspiracy to carry firearms in connection with a drug trafficking crime, and being felons in possession of firearms.

In response to a question by the jury, the Court issued a supplemental instruction informing the jury that it should consider entrapment separately for each count charged. The jury found each defendant guilty on some counts but not others. On appeal, the defendants argued that where individual charges all constitute a single “course of conduct,” a finding of entrapment on one count necessarily requires such a finding for all other counts; without the inducement to commit the one crime, they would never have committed any of the others.

The Eleventh Circuit rejected the defendants’ argument, noting that entrapment has two separate elements: (1) inducement on the part of the government, and (2) lack of a predisposition on the part of the defendant to commit the crime. Though establishing a “course of conduct” might allow a defendant to more easily meet his or her burden of production to show inducement on every count, it does not prevent a jury from finding that a defendant was predisposed to commit some of the crimes charged but not others.  The Court noted that while it may sometimes be appropriate to issue a continuing entrapment instruction, such as where a defendant is charged with multiple violations of the same statute and evidence of his predisposition is the same for each count, it is not required every time the counts constitute a single “course of conduct.”

The Court went on to hold that the evidence was sufficient to support the convictions of each defendant. It also rejected an argument by one defendant, who was recruited by other co-defendants, that he was a victim of entrapment through the inducement of his co-defendants (“derivative entrapment”). The court held that its decision in United States v. Mers, 701 F.2d 1321 (11th Cir. 1983) precluded it from recognizing theories of derivative entrapment.

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