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DEA Defense Attorneys Discuss Using Entrapment Defenses for Drug Crimes
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Being charged with a drug crime can feel overwhelming. The penalties are severe, and the complex web of federal and state laws leaves many defendants unsure where to turn. This is where an experienced criminal defense lawyer can help. For certain types of drug cases, arguing entrapment may be a viable defense strategy.
What Is Entrapment?
Entrapment refers to a legal defense arguing that government agents improperly induced or coerced a defendant into committing a crime they otherwise wouldn’t have. For the defense to work, the defendant basically has to show they were tricked or pressured by overzealous law enforcement tactics.
As former federal prosecutors and long-time criminal defense attorneys, we’ve handled numerous drug cases involving undercover stings and confidential informants. These operations are common practice for the DEA and local drug task forces. But sometimes, in their zeal to make arrests, agents cross legal boundaries.
Elements of an Entrapment Defense
There’s no one-size-fits-all entrapment defense. Every case has unique facts to weigh. But generally, a defendant must prove two things:
- Law enforcement induced them to break the law
- The defendant showed no prior intent or willingness to commit the crime
This burden of proof stems from Supreme Court rulings establishing entrapment tests. The “subjective test” focuses more on the defendant’s state of mind. The “objective test” looks at the government’s conduct. Most states apply the subjective standard, but the analysis involves both elements.
Inducement Prong
To satisfy the inducement prong, the defense must show police did more than simply present an opportunity to break the law. Their tactics have to demonstrate persuasion, coercion, or pleas based on sympathy and friendship.
For example, in U.S. v. Gendron, the 9th Circuit found entrapment where an undercover agent persistently asked an acquaintance to get him drugs, playing on their friendship. Similarly, in People v. Jamieson, an informant’s pestering and appeals to sympathy led the court to reverse a drug sales conviction.
On the other hand, just repeatedly asking someone to sell drugs isn’t always inducement under the subjective test. Particularly if the defendant promptly agrees with no arm-twisting. See U.S. v. Skarie.
Prior Intent Prong
Even improper police conduct won’t support entrapment if the defendant already had an intent or predisposition for the crime. This generally comes down to their character, reputation, and readiness to break the law.
Someone with past drug convictions may struggle to prove they weren’t predisposed. But a lack of criminal history doesn’t automatically mean no predisposition. The analysis considers their readiness to agree to the illegal act as well.
Ultimately, it’s a very fact-intensive inquiry. The defendant’s background, the nature of police conduct, the severity of pleas and persuasion – it all comes into play.
Entrapment in Undercover Drug Stings
A common scenario implicating entrapment involves DEA reverse sting operations. These undercover investigations use confidential informants (CIs) to set up fake deals with targets. The “drugs” sold are just harmless look-alike substances.
Defense lawyers argue these elaborate ruses go too far in creating crime instead of preventing it. They exploit vulnerable people struggling with addiction or financial hardship.
Overcoming Addiction to Establish Entrapment
In U.S. v. McGill, a court found entrapment where a recovering drug addict managed to stay clean for two years. But a DEA informant kept hounding him to broker a deal. Facing eviction and strapped for cash, he finally relented.
These personal vulnerabilities matter in the entrapment analysis. When agents know someone has battled substance abuse yet still pressure them into a staged deal, it helps show improper inducement.
The “Stash House Sting” Tactic
Another controversial DEA tactic is the “stash house sting.” Agents pretend to be disgruntled cartel members, recruiting targets to rob a drug “stash house” that doesn’t exist. Nearly 100 defendants charged in these stings have argued entrapment.
Courts have reached mixed rulings so far. In U.S. v. Lewis, the court denied dismissal despite “aggressive encouragement” from informants. Yet judges have found entrapment in other cases, like U.S. v. Black.
Much depends on the deception tactics used and if defendants had any history connecting them to drug robbery schemes. These operations mainly snare poor minorities with no background in large-scale drug trafficking. Many didn’t even have weapons until informants supplied them. All factors courts weigh closely.
When Entrapment Arguments Fail
Of course, entrapment claims don’t always prevail. In U.S. v. Lakhani, judges rejected a creative “entrapment by estoppel” defense.
Lakhani claimed he was acting on behalf of the U.S. to catch terrorists. He believed he had approval from a government informant to broker a (fake) missile sale.
But Lakhani couldn’t show actual government agents gave him this erroneous green light. Just the word of an informant wasn’t enough. With no evidence law enforcement improperly induced him, his entrapment defense failed.
The Importance of Legal Strategy
As you can see, mounting an entrapment defense involves navigating complex legal standards riddled with gray areas. Having an experienced lawyer in your corner – one intimately familiar with the tactics police use in drug cases – can make all the difference.
While we believe sting operations sometimes go too far, the law still affords agents plenty of leeway. It’s never enough to just claim “it wasn’t my idea.” Without evidence of improper pressure and lack of intent, the entrapment argument falls flat.
As your criminal defense team, we’ll investigate whether you have grounds to pursue this defense. If so, we’ll aggressively challenge the government’s conduct through pretrial motions and at trial. Our goal is putting the state to their proof while suppressing evidence gathered illegally.
Every case has unique facts. But you don’t have to face these challenging legal waters alone. Together, we can carefully navigate a defense strategy attuned to the complexities of entrapment law in drug cases. Reach out for a free case review, and let our insights and experience work for you.