Former State Prosecutor
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In criminal cases, the criminal defense attorney can move for a dismissal of the charges on the grounds that the accused was entrapped by the government. An entrapment defense is meant to prevent a government agent from “originat[ing] a criminal design, implant[ing] in an innocent person's mind the disposition to commit a criminal act, and then induc[ing] commission of the crime so that the government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992).
The entrapment defense is particularly useful when the investigating officers use an undercover officer or a confidential informant to create the crime that would not have occurred without their involvement. Florida law provides for two different types of entrapment defenses including due process entrapment as a matter of law and subjective entrapment.
The entrapment defense is common in sting operations for drug crimes, sexually motivated crimes. We represent clients throughout Pinellas County after an arrest in Clearwater or St. Petersburg. We also represent clients throughout the greater Tampa Bay area including Pasco County, Manatee County and Sarasota County, FL.
Whether you were subjected to due process entrapment as a matter of law or subjective entrapment, call us to discuss your case.
Call us at (727) 388-4736 to discuss your case.
Florida law recognizes both a due process entrapment defense and a subjective entrapment defense. Cabrera v. State, 766 So. 2d 1131, 1133 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D2027b]. The due process entrapment theory, which is often referred to as the objective theory of entrapment, “operates as a bar to prosecution in those instances where the government's conduct ‘so offends decency or a sense of justice' that it amounts to a denial of due process.” Davis v. State, 937 So. 2d 300, 302 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2408a] (quoting State v. Blanco, 896 So. 2d 900, 901 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D616a]; see also Munoz v. State, 629 So. 2d 90, 98-99 (Fla. 1993).
In the absence of egregious law enforcement conduct, a subjective entrapment analysis, as codified in Fla. Stat. § 777.201, is to be applied. Munoz, 629 So. 2d at 99. If the court concludes that the government conduct was not so egregious as to constitute a due process violation, then the court will focus on the defense of subjective entrapment.
The subjective entrapment analysis focuses on three issues. First, Defendant must prove by a preponderance of the evidence that a law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer induced Defendant to commit the offense charged. Fla. Stat. § 777.201; and Munoz, 629 So. 2d at 99.
Second, Defendant must prove that he or she was not predisposed to commit the offense. Id. Once Defendant has satisfied this initial burden, the prosecution has the burden to rebut Defendant's evidence and prove predisposition beyond a reasonable doubt. Id. Third, the court must decide “whether the entrapment evaluation should be submitted to a jury” because factual issues are in dispute or because reasonable persons could draw different conclusions from the facts. Id. at 100.
Inducement is “[a]ny government act creating substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent misrepresentations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.” Farley v. State, 848 So. 2d 393, 395 (Fla. 4th DCA 2001) [28 Fla. L. Weekly D1479a] (quoting United States v. Davis, 36 F. 3d 1424, 1430 (9th Cir. 1994).
For this reason, “[a]n ‘inducement' consists of an ‘opportunity' plus something else -- typically excessive pressure by the government upon Defendant or the government's taking advantage of an alternative, non-criminal type of motive.” United States v. Gendron, 18 F. 3d 955 (1st Cir. 1994).
Therefore, "the government may not play on the weaknesses of an innocent party and beguile him into committing crimes which he otherwise would not have attempted." Jacobson v. United States, 503 U.S. 540, 553 (1992).
Contact an experienced criminal defense attorney for the entrapment defense in Florida. If a confidential informant or an undercover officer set you up for a criminal charge, then call us to discuss defenses that can be used to fight the charges. Officers sometimes use improper tactics, especially in a sting operation by having a CI used drugs or commit other crimes.
Our attorneys are experienced with the objective and subjective forms of entrapment in Florida.
Call us to discuss the case at (727) 388-4736.
This article was last updated on Thursday, January 25, 2018.
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