Column: ‘Terrorists’ and Entrapment (New York Law Journal)

By Christopher Dunn — Last month’s arrest of four men from Newburgh, New York who allegedly planned to bomb two synagogues in the Bronx and use a missile to shoot down military planes at an Air National Guard base in Newburgh is this country’s most recent claimed incident of domestic terrorism. Published reports indicate, however, that at the center of the plot was a government informant who actively recruited a group of unsophisticated men, secured for them a surface-to-air missile and fake bombs, and even offered cash so that one of the accused plotters could pay for a brother’s kidney transplant. These reports raise immediate questions about possible entrapment and provide an opportunity to review the history and contours of this important defense against government misconduct.

The Origins of Entrapment

The United States Supreme Court did not recognize entrapment as a valid defense until 1932, when it decided Sorrells v. United States. In that decision the Court outlined basic tenets of the defense that remain in effect to this day and also identified the fundamental tensions in the very notion of the defense.

The defendant in Sorrells was a C.V. Sorrells, a World War I veteran who lived in Canton, North Carolina during Prohibition. In July 1930 a government agent visited Sorrells’ home with three other local residents who knew Sorrells. As the Court explained,

[The agent] informed defendant that he was also an ex-service man and a former member of the same Division [in which the defendant had served], which was true. [The agent] asked defendant if he could get the [agent] some liquor and defendant stated that he did not have any. Later, there was a second request without result. One of those present, one Jones, was also an ex-service man and a former member of the Thirtieth Division, and the conversation turned to the war experiences of the three. After this, [the agent] asked defendant for a third time to get him some liquor, whereupon defendant left his home and after a few minutes came back with a half gallon of liquor for which [the agent] paid defendant $5.

In addressing an asserted claim of entrapment, the Court noted at the outset that it was “well settled” that the government can “afford opportunities or facilities for the commission” of crimes and could even employ “[a]rtifice and strategem.” It noted, however, that “[a] different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.”

Turning to that different question, the Court acknowledged the arguments that nothing in federal statutes (in this instance the National Prohibition Act) made an exception for violations prompted by the government and that it would be an improper act of judicial policymaking to read such an exception into statutes. Nonetheless, it forcefully rejected them:

It is manifest that these arguments rest entirely upon the letter of the statute. They take no account of the fact that its application in the circumstances under consideration is foreign to its purpose; that such an application is so shocking to the sense of justice that it has been urged that it is the duty of the court to stop the prosecution in the interest of the government itself, to protect it from the illegal conduct of its officers and to preserve the purity of its courts.

Having staked out this moral high ground, the Court then set about establishing a legal rationale for blocking prosecutions for conduct that appeared to violate the statute. In this regard, it rejected the notion that the courts could excuse conduct that in fact violated the statute, asserting that “[j]udicial nullification of statutes, admittedly valid and applicable, has, happily, no place in our system.”

With that avenue foreclosed, the Court nonetheless achieved the same result by concluding that, as a matter of statutory construction, federal statutes could not be construed to encompass conduct that was the product of improper government action:

We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.

And in light of its statutory-construction rationale, the Court held that it was entirely consistent for a defendant to plead not guilty and to assert entrapment, as the entrapment defense was in substance an assertion that the defendant simply had not engaged in conduct that the statute criminalized.

As for the fate of Mr. Sorrells and his claim to entrapment — in a case in which a government agent asked the defendant three times in one encounter to engage in unlawful conduct — the Court’s analysis consisted of but a single sentence, the heart of which read: “We are of the opinion that upon the evidence produced in the instant case the defense of entrapment was available . . . .”

Entrapment and the Constitution

Since Sorrells, the issue of entrapment has reached the Supreme Court infrequently. One of the subsequent decisions, however, addressed the most significant issue not addressed in Sorrells: whether entrapment is a constitutional defense. The Court confronted that issued in 1973 in United States v. Russell.

The defendant in that case, one Richard Russell, was making and selling methamphetamine on Whidbey Island in the State of Washington. An undercover federal agent visited his home, told him that he represented an organization interested in controlling the local methamphetamine business, and offered to supply him with an essential ingredient for the drug in exchange for Russell giving him half of the drug produced and allowing him to witness the drug’s production. Two days later, the agent returned to the house, provided Russell with the ingredient, and witnessed — and even played a minor role in — the production of the drug. About a month later, Russell was arrested, and he subsequently was convicted by a jury, which rejected his entrapment claim.

In the Supreme Court Russell’s counsel argued for a rule that might have particular relevance to some domestic terrorism entrapment claims. Specifically, he contended that the Court should recognize entrapment as a constitutional defense “when it is shown that the criminal conduct would not have been possible had not an undercover agent supplied an indispensable means to the commission of the crime that could not have been obtained otherwise, through legal or illegal channels.”

While suggesting an aversion to fixed rules of due process, the Court neither rejected nor accepted this position. Rather, it responded to it by noting that Russell himself would not benefit from the rule because the drug supplied by the agent was otherwise available to the defendant and was by itself a harmless and legal substance. And though it refused to hold that the government’s conduct violated due process, it did not close the door to the idea that government entrapment-like action could violate due process: “While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction, the instant case is distinctly not of that breed.”

Finally, with respect to the “nonconstitutional defense of entrapment,” the Court refused to shift the focus of the defense away from the predisposition of the defendant to the involvement of the government. In doing so, it rejected as “unmanageably subjective” the Ninth Circuit’s contention that entrapment exists as a matter of law when there is “an intolerable degree of government participation in the criminal enterprise.” Rather, according to the Court, “[i]t is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.”

The Latest on Entrapment

The Supreme Court’s most recent ruling on entrapment dates back to its 1993 decision in Jacobson v. United States. Proving that veterans like C.V. Sorrells fare better in the Court than drug dealers like Richard Russell, the defendant in this third case was Keith Jacobson, a 56-year old “veteran-turned farmer who supported his elderly father” and had the great misfortune in 1984 of ordering from a California bookstore two magazines containing photographs of nude preteen and teenage boys. When Congress subsequently criminalized receipt of child pornography through the mail, Jacobson’s magazine mail order triggered a 2½-year campaign during which “two Government agencies, through five fictitious organizations and a bogus pen pal [sought] to explore petitioner’s willingness to break the new law by ordering sexually explicit photographs of children through the mail.”

As Justice Stevens explained, the government first sent Jacobson a letter in 1985 from the “American Hedonist Society,” a fictitious group that claimed to be a defender of various rights and that asked Jacobson to complete a “sexual attitude” questionnaire, which Jacobson did. The following year, it wrote to him in the guise of the “Heartland Institute for a New Tomorrow,” which proclaimed itself to be “an organization founded to protect and promote sexual freedom and freedom of choice” and which also asked Jacobson to complete a survey about sexual interests, which he did and mailed back to the group. Next, a government “prohibited mailing specialist” began writing to Mr. Jacobson, using the pseudonym “Carl Long” and seeking to draw him out about his sexual interests. There then followed mailings from two more fake groups – a Canadian company called “Produit Outaouais” and a “Far Eastern Trading Company, Ltd.” -– with the latter purporting to be a rights advocacy organization and soliciting Mr. Jacobson to order materials depicting young boys engaged in sexual activities. After ordering and receiving those materials — more than two years after the government’s first approach to him — Jacobson was arrested and ultimately convicted by a jury, which rejected his entrapment defense.

In analyzing Jacobson’s entrapment claim, the Court held for the first time that where the government induces an individual to break the law and the defendant asserts entrapment, “the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” And as this standard applied to Jacobson, the Court ruled that, “although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at [Jacobson] since January 1985.” In conclusion the Court offered a broad standard: “When the Government’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.”

Entrapped in Newburgh?

Government agents have played a significant role in several alleged plots of domestic terrorism, so it is not surprising that defendants in these cases often have asserted entrapment. The defense has rarely succeeded, however, and in the three significant terrorism appeals the Second Circuit has heard in the last fifteen years — the 1993 World Trade Center bombing, the 2004 plot to bomb the Herald Square subway station, and the Albany 2004 plot to use a missile on a Pakistani diplomat in New York City — it summarily rejected entrapment claims.

Nonetheless, given the public reports about the role of the government informant in the Newburgh plot – who, interestingly, was the same informant involved in the 2004 Albany plot — it seems likely that entrapment will be asserted if the case proceeds to trial. And though it is extremely difficult to vindicate individual liberties in the context of terrorism cases, how an entrapment defense fares in this case will bear close watching.