United States v. Leslie Mayfield , 771 F.3d 417 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2439
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LESLIE C. MAYFIELD,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 687-1 — Harry D. Leinenweber, Judge.
ARGUED APRIL 16, 2013 — DECIDED NOVEMBER 13, 2014
BeforeWOOD, Chief Judge, and BAUER, POSNER,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and
HAMILTON, Circuit Judges.*
SYKES, Circuit Judge. Leslie Mayfield was indicted for
conspiring with a coworker and a drug courier to rob a stash
house controlled by the courier’s suppliers. The conspiracy was
a setup; the drug courier was an undercover government agent
*
Circuit Judge Joel M. Flaum took no part in the consideration or decision
of this case.
2 No. 11-2439
and the coworker was an informant. At his trial Mayfield
wanted to present a defense of entrapment, but the govern-
ment opposed it and moved in limine to preclude the defense,
arguing that there wasn’t enough evidence to show that the
government induced the crime or that Mayfield lacked the
predisposition to commit it. Mayfield responded with a
narrative of the informant’s persistent campaign to secure his
participation in the stash-house robbery and his repeated
resistance to the scheme. The district court granted the
government’s motion and barred the defense. The jury,
uninstructed on the entrapment issue, convicted Mayfield of
several federal crimes stemming from the conspiracy.
A divided panel of this court affirmed, see United States v.
Kindle, 698 F.3d 401 (7th Cir. 2012), and a petition for rehearing
en banc followed. Recognizing some confusion in our entrap-
ment jurisprudence, we granted rehearing en banc to clarify
the doctrine both substantively and procedurally.
Entrapment is a defense to criminal liability when the
defendant was not predisposed to commit the charged crime
before the intervention of the government’s agents and the
government’s conduct induced him to commit it. The two
elements of the defense—lack of predisposition and govern-
ment inducement—are conceptually related but formally and
temporally distinct. We define the two elements here and
resolve some conflicting strains in our caselaw about the
relationship between them.
Procedurally, the entrapment defense is an issue of fact for
the jury. The defendant is entitled to an entrapment jury
instruction if he can show that some evidence supports both
No. 11-2439 3
elements of the defense. When the issue is raised before trial on
the government’s motion to preclude the defense, the court
must accept the defendant’s factual proffer as true and not
weigh the evidence against the government’s counterstatement
of the facts.
Here, Mayfield proffered enough evidence to justify giving
the issue to the jury. He provided some facts showing that he
was not predisposed to commit the charged crimes prior to
being approached by the informant, and he narrated a story of
substantial government inducement going beyond the mere
offer of a chance to rob a stash house. His story may be false or
unpersuasive, but that’s for the jury to decide. The district
court erred by crediting the government’s evidence over
Mayfield’s and precluding the entrapment defense before trial.
We vacate the judgment and remand for a new trial.
I. Background
We take the facts from Mayfield’s pretrial proffer (most of
which was excluded pretrial) and the evidence introduced at
trial. Mayfield was convicted of residential burglary in 1987 at
age 18 and served time in jail for this crime. In 1994 he was
convicted of several violent crimes stemming from an armed
carjacking; he received a lengthy prison sentence. While in
prison he earned a GED, an associate degree in general studies,
and vocational certificates in commercial custodial services and
cosmetology. He was released in 2005 and returned home to
Waukegan, Illinois, where he participated in the Second
Chance Program operated by the Urban League of Lake
4 No. 11-2439
County, the Waukegan Township Coalition to Reduce Recidi-
vism, and Cease Fire Waukegan.
But not all was well. At some point after his release from
prison (we don’t know exactly when), Mayfield was charged
with unlawful possession of a firearm. That prosecution was
still pending when the events in this case took place. In 2008 he
moved with his fiancée from Waukegan to Naperville, ostensi-
bly to escape gang violence.
Although jobs for convicted felons were hard to come by,
Mayfield managed to find sporadic work. After moving to
Naperville, he found a temporary job in nearby Bolingbrook
that allowed him to work a 40-hour workweek. He started this
new job in late April or early May of 2009 and soon thereafter
met Jeffrey Potts, a coworker with whom he had much in
common. Potts was also a felon with convictions for drug
trafficking, robbery, and gun possession. The two men com-
miserated about their financial straits, their difficulty finding
permanent jobs, and their struggle to support their families.
What Mayfield did not know was that his new friend was
supplementing his income as a confidential informant for the
Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”).1
As an informant Potts was supposed to identify targets for
sting operations and, as in this case, participate in the stings.
1
This can be surprisingly lucrative. See, e.g., United States v. Estrada, 256 F.3d
466, 469 (7th Cir. 2001) (describing a DEA agreement to pay an informant
25% of the proceeds of sting operations he helped orchestrate, which
totaled more than $400,000).
No. 11-2439 5
He selected Mayfield as a target because he knew that
Mayfield had a criminal record.2 What followed, according to
Mayfield, was a concerted effort to entrap him into committing
a stash-house robbery.
In his first overture to Mayfield, Potts explained that he had
returned to selling cocaine and invited Mayfield to join him in
the drug trade. Mayfield rebuffed this offer. A few days later
Potts learned that Mayfield had a pending gun-possession
charge, so he tried another tack. He told Mayfield of a one-time
opportunity “that was worth a lot of money.” His drug
supplier was planning to “stickup” his wholesaler, a robbery
that would net tens of thousands of dollars in cocaine. Potts
invited Mayfield to participate in the robbery in return for a
share of the profits. Mayfield rejected the invitation.
Potts persisted. Each day at work he tried to persuade
Mayfield to join the conspiracy by appealing to his concerns
about money. He urged Mayfield to think about the financial
needs of his family, saying “I know you [are] tired of working
for this chump change” and “I know you need this money,”
among other similar lines of persuasion. Potts also flaunted his
expensive Dodge Ram pickup truck, telling Mayfield that he
bought it with $40,000 he had “earned” in another drug
robbery. Mayfield continued to decline the offers.
On June 25, 2009, Mayfield’s car was damaged in an
accident. He borrowed money from a family member to have
the car towed but did not have enough to pay for the needed
2
At oral argument the government told us that Mayfield was not on ATF’s
radar prior to Potts’s identification of him as a target.
6 No. 11-2439
repairs. He missed three days of work before he found another
way to get to his job in Bolingbrook. When Potts asked him
why he had missed work, Mayfield told him about the accident
and explained his financial predicament. Potts unexpectedly
gave him $180 in cash to pay for the car repairs.
Two days later Potts returned to the subject of the stash-
house robbery, again pressuring Mayfield to join the conspir-
acy. Mayfield equivocated but did not agree to anything. The
following week Potts tried again. When Mayfield continued to
resist, Potts gestured to a Gangster Disciples tattoo on
Mayfield’s arm. The tattoo dated from Mayfield’s membership
in the street gang before his carjacking conviction; he knew
that failure to repay a debt risked harsh punishment from the
gang. When Potts said he was still associated with the Gangster
Disciples, Mayfield took it as a warning that he would be in
danger if he did not quickly pay up. By the end of the day,
Mayfield agreed to participate in the stash-house robbery
conspiracy.
According to the standard ATF script for the sting, a
fictional drug courier was disgruntled with his organization
and wanted to rob one of its stash houses. Mayfield was to
meet with the courier to discuss logistics, then recruit a crew,
gather weapons, and help the courier carry out the robbery.
Mayfield contends that because he was still reluctant to
participate, Potts went off script and instead urged him to play
along with the plan to rob the stash house but at the last
minute rob the courier instead, which would be a less risky way
to repay the debt—or at least not as dangerous as running into
a guarded stash house.
No. 11-2439 7
Potts and Mayfield met with the “drug courier”—actually
undercover Special Agent Dave Gomez—on July 23, 2009.
Depending on whose version is believed, this meeting involved
not one but two setups: Gomez and Potts were setting up
Mayfield for prosecution; Mayfield and Potts were setting up
Gomez for a robbery. Gomez told the pair that he normally
received instructions to transport cocaine about once a month
and that the shipments typically involved six to eight kilo-
grams. He also said his organization typically kept 20 to
30 kilograms at its guarded stash houses, the locations of which
were kept secret until just before the transport.
Recordings of this meeting indicate that Mayfield helped
plan the robbery. He told Gomez that he had experience in
knocking off stash houses but had not done a robbery quite
like this one before. He said he felt like he was going in blind
and suggested that the “element of surprise” would be
essential. He assured Gomez that the people he was going to
recruit were “for real” and agreed to gather the guns, bullet-
proof vests, and other equipment for the robbery. Mayfield
claims it was all a bluff.
On July 27, 2009, Gomez and Mayfield spoke again by
phone, and Mayfield reported that his recruits were ready to
meet. Gomez and Mayfield kept in touch by phone for about
two weeks, and the next meeting took place on August 9, 2009.
Mayfield brought along Montreece Kindle, who in turn
brought Nathan Ward and a person known only as “New
York.” The group went over the strategy and logistics of the
operation. Mayfield again emphasized the need for surprise.
Kindle, “New York,” and Gomez discussed the possibility that
8 No. 11-2439
the guards at the stash house might have to be killed. “New
York” bragged about his ability to distribute the cocaine
obtained in the robbery. Gomez asked the group if the robbery
was too much for them to handle. “New York” and Kindle said
it was not. Finally, Gomez made clear that if they thought they
couldn’t handle the job, they could call it off.
Mayfield claims that after the meeting with Gomez, he
informed his crew that the actual plan was to rob Gomez, not
the stash house, and that they were to play along to dupe him
into believing that they were serious about the stash-house
robbery. Later that evening Gomez called Mayfield to let him
know the robbery would happen the following night. Mayfield
then called Potts, ostensibly to say he was prepared to rob
Gomez to settle the debt and be done with the whole affair.
Potts did not answer the call.
Mayfield tried again to reach Potts the next day, and again
Potts did not answer the call. Mayfield then called a friend,
Dwayne White, who agreed to come meet him. White had no
transportation, so Mayfield arranged for Kindle and Ward to
pick him up. White, Kindle, and Ward met at Mayfield’s
apartment, and the group drove in Ward’s van to meet Gomez
in a parking lot in Aurora, Illinois, the prearranged meeting
spot.
Gomez was waiting in the parking lot in a Cadillac Esca-
lade. Mayfield got out of the van to speak with Gomez, who
explained that he planned to get out of town right after the
robbery but wanted his share of the cocaine placed in a storage
locker. Gomez told Mayfield to get into the Escalade so he
could show him the location of the storage facility. The two
No. 11-2439 9
men left the parking lot in the Escalade, with White, Kindle,
and Ward following behind in Ward’s van.
When they arrived at the storage facility, all five men got
out of their vehicles. Gomez then noticed White, whom he had
not met before. Mayfield said that White was his little brother
and assured Gomez that he was “100.” Gomez asked White
whether he understood the plan to rob a stash house, and
White said he did. Gomez then asked if everyone was ready.
When he got a positive response, he gave the arrest signal. ATF
agents swarmed the scene and arrested the four men. Inside
Ward’s van agents discovered a sawed-off shotgun, a
.40-caliber Glock semiautomatic pistol, a .44-caliber revolver,
two bulletproof vests, and a duffel bag large enough to hold 25
to 30 kilograms of cocaine. They also recovered a .357 Magnum
revolver from Gomez’s Escalade, apparently tossed there by
Mayfield after he saw Gomez give the arrest signal.
Mayfield and the others were charged with conspiracy and
attempt to distribute cocaine, see 21 U.S.C. § 846, possession of
a firearm in connection with a drug crime, see 18 U.S.C.
§ 924(c)(1)(A), and possession of a firearm by a felon, see id.§ 922(g)(1). The case against Mayfield, White, and Ward
proceeded to trial before the same jury; the charges against
Kindle were tried separately because he had given a postarrest
statement that inculpated the others. The government moved
in limine to prevent Mayfield from presenting an entrapment
defense, arguing that the following evidence established his
predisposition as a matter of law: (1) his criminal record; (2) his
recorded statements to Gomez that he had committed similar
stash-house robberies; (3) his extensive preparation and arsenal
10 No. 11-2439
at the time of arrest; and (4) his failure to abort the plan when
Gomez gave him the opportunity.
Mayfield opposed the government’s motion with a formal
response and a six-page handwritten “statement of fact.”
Together, these two documents amounted to a proffer on
Mayfield’s entrapment defense and narrated the events we
have recounted above. The proffer’s description of the interac-
tions between Potts and Mayfield is reasonably detailed,
emphasizing that Mayfield repeatedly rebuffed Potts’s ad-
vances and that Potts played on Mayfield’s indebtedness and
Potts’s affiliation with the Gangster Disciples. The description
of the planning and execution of the robbery scheme is more
cursory, but the proffer indicates that Potts coached Mayfield
on what to say at the various meetings with Gomez and
provided the weapons for use in the robbery. (The government
denies this, of course.) Mayfield’s initial proffer addressed only
the issue of inducement; he took the position that once a
defendant has presented sufficient evidence of government
inducement, the burden shifts to the government to convince
the jury beyond a reasonable doubt either that its agents did
not induce the crime or that the defendant was predisposed to
commit it.
The district court granted the government’s motion and
precluded the entrapment defense. Mayfield moved for
reconsideration, this time addressing the issue of predisposi-
tion directly. He proffered evidence of his efforts to rehabilitate
himself while in prison, his ongoing participation in antirecidi-
vist programs, and his employment history after his release.
He also provided more detail about Potts’s repeated efforts to
No. 11-2439 11
induce his participation in the crime, explaining that he
resisted his friend’s overtures for weeks and only agreed to get
involved in response to Potts’s persuasion at a moment of
financial need. The government continued to oppose the
defense. The judge reiterated his earlier ruling precluding the
defense.
Mayfield was convicted on all counts, and the judge
sentenced him to a whopping 322 months in prison. A divided
panel of this court affirmed. The panel majority concluded that
the judge properly excluded the entrapment defense because
Mayfield ultimately accepted the government’s offer to
participate in the robbery, which though perhaps routine as
stash-house robberies go was nonetheless highly dangerous.
See Kindle, 698 F.3d at 408–09. The majority reasoned that only
a person already predisposed to such a risky crime would
choose to participate, so Mayfield must have been predisposed.
Id. Judge Posner dissented, concluding that Mayfield offered
enough evidence to get his entrapment defense before the jury.
Id. at 412–16 (Posner, J., dissenting). We granted rehearing en
banc.3
3
Kindle, Ward, and White also appealed, and their appeals were consoli-
dated with Mayfield’s. The panel unanimously rejected the codefendants’
challenges to their convictions. See United States v. Kindle, 698 F.3d 401,
406–08, 412 (7th Cir. 2012). We granted rehearing en banc solely on the issue
of Mayfield’s entrapment defense, so we now reinstate the panel opinion
to the extent that it resolved the appeals of the codefendants.
12 No. 11-2439
II. Discussion
Some of our recent entrapment cases have given conflicting
signals about the substance of the defense, the procedure for
raising and presenting it, and the quantum of evidence
necessary to get the issue before the jury. The government
commonly seeks to block the defense before trial, proffering
evidence that its agents did not induce the crime, the defendant
was predisposed to commit it, or both. These are the two
formal elements of entrapment, but our circuit’s caselaw could
be clearer about the relationship between them and what the
defendant must do to overcome the government’s motion in
limine to preclude the defense at trial. To that end, we begin
with some history.
A. History
Entrapment is a relative newcomer to the catalog of
criminal defenses. It’s not just that the defense is new; it’s that
entrapment-like activity is new, having arisen as law enforce-
ment professionalized and developed techniques of artifice and
deception in the pursuit of criminals. Still, courts were slow to
recognize entrapment as a defense to criminal liability. This
statement from a nineteenth century state appellate decision
colorfully captures the judiciary’s resistance:
Even if inducements to commit crime could be
assumed to exist in this case, the allegation of the
defendant would be but the repetition of the plea
as ancient as the world, and first interposed in
Paradise: “The serpent beguiled me and I did
No. 11-2439 13
eat.” That defence was overruled by the great
Lawgiver, and whatever estimate we may form,
or whatever judgment pass upon the character
or conduct of the tempter, this plea has never
since availed to shield crime or give indemnity to
the culprit, and it is safe to say that under any
code of civilized, not to say christian ethics, it
never will.
Bd. of Comm’rs of Excise of Onondaga Cnty. v. Backus,
29 How. Pr. 33, 42, 1864 WL 3628, at *6 (N.Y. 1864). By the turn
of the twentieth century, however, state courts and lower
federal courts had begun to recognize some form of an
entrapment defense. The Supreme Court eventually followed
suit.
1. Adoption
The Supreme Court’s first significant encounter with the
entrapment defense came in Casey v. United States, 276 U.S. 413(1928). When jail officials suspected a lawyer of smuggling
narcotics into the jail for his clients, they laid a trap. They
recruited a prisoner and instructed him to summon the lawyer
and offer him $20 in exchange for a delivery of morphine. The
lawyer made the deal and smuggled the drug in. A jury
convicted him of drug trafficking, and his case made its way to
the Supreme Court. In the view of a majority of the justices,
entrapment wasn’t properly before the Court. Writing for the
majority, Justice Holmes intimated that a defense of entrap-
ment might be available in an appropriate case, but held that
14 No. 11-2439
the Court should not rule on the issue on its own initiative.
Id. at 418–19.
Justice Brandeis dissented, arguing in favor of recognizing
an entrapment defense. His premise was that courts have both
the authority and responsibility not to partake in the disreputa-
ble conduct of other agents of government and thus should not
preside over the prosecutions of entrapped defendants:
The obstacle to the prosecution lies in the fact
that the alleged crime was instigated by officers
of the government; that the act for which the
government seeks to punish the defendant is the
fruit of their criminal conspiracy to induce its
commission. The government may set decoys to
entrap criminals. But it may not provoke or
create a crime and then punish the criminal, its
creature. If [the defendant] is guilty … , it is
because he yielded to the temptation presented
by the officers. Their conduct is not a defense to him.
For no officer of the government has power to
authorize the violation of an act of Congress, and
no conduct of an officer can excuse the violation.
But it does not follow that the court must suffer a
detective-made criminal to be punished. To permit
that would be tantamount to a ratification by the
government of the officers’ unauthorized and unjusti-
fiable conduct.
Id. at 423–24 (Brandeis, J., dissenting) (emphases added)
(footnote omitted). For Justice Brandeis, then, the rationale for
an entrapment defense was grounded in the court’s duty to
No. 11-2439 15
ensure the integrity of its own proceedings: “This prosecution
should be stopped, not because some right of [the defendant’s]
has been denied, but in order to protect the government. To
protect it from illegal conduct of its officers. To preserve the
purity of its courts.” Id. at 425.
This position attracted ardent supporters, among them
Justice Roberts (the first one), see Sorrells v. United States,
287 U.S. 435, 454–55 (1932) (Roberts, J., concurring in part and
dissenting in part); Justices Frankfurter, Douglas, Harlan, and
Brennan, see Sherman v. United States, 356 U.S. 369, 380 (1958)
(Frankfurter, J., concurring, joined by Douglas, Harlan, and
Brennan, J.J.); and later on Justices Stewart and Marshall, see
United States v. Russell, 411 U.S. 423, 439 (1973) (Stewart, J.,
joined by Brennan and Marshall, JJ., dissenting); Hampton v.
United States, 425 U.S. 484, 496 (1976) (Brennan, J., joined by
Stewart and Marshall, JJ., dissenting); Mathews v. United States,
485 U.S. 58, 67 (1988) (Brennan, J., concurring).
But when the Court eventually adopted the entrapment
defense in Sorrells v. United States, Justice Brandeis’s rationale
did not carry the day. Sorrells involved a Prohibition-era
prosecution for possession and sale of whiskey. An undercover
government agent pressured the defendant into providing him
with liquor. The agent was introduced to the defendant by a
common friend and exploited their shared status as veterans of
World War I in an effort to persuade the defendant to get some
alcohol. The defendant initially resisted the agent’s repeated
appeals to camaraderie. When the defendant finally re-
lented—after the fifth request, by one witness’s account—he
left the scene and returned a few minutes later with a half-
16 No. 11-2439
gallon of whiskey. Testimony of other witnesses suggested that
the defendant had no existing ties to the bootlegging business.
The Supreme Court reversed the trial court’s refusal to
submit the issue of entrapment to the jury, but expressly
rejected the “judicial integrity” justification for the defense:
We are unable to approve the view that the
court, although treating the statute as applicable
despite the entrapment, and the defendant as
guilty, has authority to grant immunity, or to
adopt a procedure to that end. It is the function
of the court to construe the statute, not to defeat
it as construed. Clemency is the function of the
Executive. … Where defendant has been duly
indicted for an offense found to be within the
statute, and the proper authorities seek to pro-
ceed with the prosecution, the court cannot
refuse to try the case in the constitutional meth-
od because it desires to let the defendant go free.
287 U.S. at 449–50. Instead, the Court based its decision on a
loose (some might say implausible) theory of statutory inter-
pretation:
We are unable to conclude that it was the inten-
tion of the Congress in enacting this statute that
its processes of detection and enforcement
should be abused by the instigation by govern-
ment officials of an act on the part of persons
otherwise innocent in order to lure them to its
commission and to punish them. We are not
No. 11-2439 17
forced by the letter to do violence to the spirit
and purpose of the statute.
Id. at 448. This rationale endured despite repeated attacks from
the Brandeis camp. See Hampton, 425 U.S. at 490; Russell,
411 U.S. at 432–33; Sherman, 356 U.S. at 372.
The debate over the justification for the entrapment defense
is not merely academic; it determined the elements of the
doctrine and even now has important practical implications for
how the defense is litigated. Most importantly, the Court’s
choice of rationale eventually determined the content of the
defense and the priority and weight given its constituent parts.
Recall that the ground of principle underlying the Brandeis
view was that courts have the authority and responsibility to
protect the integrity of the judicial process from the corrupting
influence of disreputable police conduct that creates rather than
detects and captures criminals. Disreputable police conduct is
disreputable regardless of the characteristics of the defendant,
and the doctrinal test favored by the Brandeis camp reflected
this conception. As articulated by Justice Frankfurter: “[The]
test [for entrapment] shifts attention from the record and
predisposition of the particular defendant to the conduct of the
police and the likelihood, objectively considered, that it would
entrap only those ready and willing to commit crime.”
Sherman, 356 U.S. at 384. This “objective” test held sway with
almost everyone who agreed with Brandeis that the entrap-
ment defense is rooted in the need for courts to protect their
own integrity.
But because the Court ultimately grounded the defense in
statutory interpretation—the premise that Congress could not
18 No. 11-2439
possibly have intended to criminalize conduct instigated by
government agents—a different test emerged, one that placed
decisive weight on the defendant’s predisposition. Hence the
doctrine that the defense of entrapment consists of two
elements—government inducement and the defendant’s lack
of predisposition—with predisposition standing as the
“principal element.” Russell, 411 U.S. at 433. The relationship
between this “subjective” test and the statutory-interpretation
rationale is not entirely clear, but the basic idea seems to be
that Congress could not have intended to criminalize the
conduct of “otherwise innocent” persons (i.e., those not
“predisposed”) who were ensnared by government ploys.
The adoption of the statutory-interpretation rationale also
dictated whether the entrapment defense is a question for the
judge or the jury. Judge Friendly neatly explained the point:
The Supreme Court has long been divided as
to who should decide [the entrapment] issue, the
majority holding for the jury and a strong minor-
ity for the judge. The view of the Sorrells majority
[that entrapment is a jury question] followed
logically from its concept that a case of entrap-
ment was implicitly excepted from the statutory
definition of the crime; the minority’s view
flowed with equal logic from its concept that the
defense was for the protection of the court’s
“own functions and the preservation of the
purity of its own temple.”
United States v. Riley, 363 F.2d 955, 957 (2d Cir. 1966) (quoting
Sorrells, 287 U.S. at 457 (Roberts, J., concurring) (citations
No. 11-2439 19
omitted)). The majority view won out; it’s now well established
that entrapment is a jury question.
2. Elaboration
Sorrells established that the defendant may raise an entrap-
ment defense and the test for entrapment had something to do
with the defendant’s characteristics and the circumstances
surrounding the government’s undercover operation. But the
doctrine was skeletal and details had to be hammered out.
Much of this was accomplished in a single case, albeit one that
involved two trials and several appeals.
Joseph Sherman was a recovering heroin addict. Sherman,
356 U.S. at 371, 373. His record included a 1942 conviction for
narcotics distribution and a 1946 conviction for possession of
narcotics. Id. at 375. In the summer and fall of 1951, he was
working to kick the habit with the aid of a Dr. Grossman, when
by chance he met another of Grossman’s patients, one
Kalchinian. Id. at 371. Federal agents caught Kalchinian dealing
drugs and recruited him as an informant; his task was “to go
out and try to induce a person to sell narcotics.” United States v.
Sherman, 200 F.2d 880, 881 (2d Cir. 1952). So when Kalchinian
crossed paths with Sherman at a pharmacy where both were
waiting to have prescriptions filled, Kalchinian started a
campaign to persuade Sherman to help him obtain heroin.
356 U.S. at 371. Claiming to be suffering from withdrawal, he
repeatedly asked Sherman for help finding the drug; Sherman
repeatedly refused. Id. After a number of these requests,
Sherman acquiesced and several times obtained quantities of
20 No. 11-2439
the narcotic, which he shared with Kalchinian in exchange for
half the purchase price, plus cab fare and other expenses. Id.;
200 F.2d at 881. Sherman was arrested and charged with selling
narcotics. 356 U.S. at 370.
The first time the case went to trial, the jury rejected
Sherman’s entrapment defense. On appeal he challenged the
entrapment jury instruction and also argued that the district
court should have found entrapment as a matter of law.
Writing for the court, Judge Learned Hand agreed that
instructional error had occurred and warranted a new trial.
What is most significant about the Second Circuit’s opinion is
that Judge Hand gave the entrapment defense its two formal
elements: “[I]n [cases of entrapment,] two questions of fact
arise: (1) did the agent induce the accused to commit the
offence charged in the indictment; [and] (2) if so, was the
accused ready and willing without persuasion and was he
awaiting any propitious opportunity to commit the offence.”
200 F.2d at 882.
A second jury convicted Sherman. He again complained
that the court should have directed a verdict in his favor, and
this time his appeal went all the way to the Supreme Court.
The Court agreed that the evidence established entrapment as
a matter of law. Sherman, 356 U.S. at 373. Three aspects of the
Court’s opinion deserve note.
First, the Court firmly rejected the proposal of the concur-
ring justices to abandon the subjective test of Sorrells and adopt
the objective test under which a defendant’s predisposition is
irrelevant. Id. at 376; see also id. at 378–85 (Frankfurter, J.,
No. 11-2439 21
concurring). Second, the Court implicitly endorsed Judge
Hand’s two-element formula:
To determine whether entrapment has been
established, a line must be drawn between the
trap for the unwary innocent and the trap for the
unwary criminal. The principles by which the
courts are to make this determination were
outlined in Sorrells. On the one hand, at trial the
accused may examine the conduct of the govern-
ment agent; and on the other hand, the accused
will be subjected to an appropriate and searching
inquiry into his own conduct and predisposition
as bearing on his claim of innocence.
Id. at 372–73 (internal quotation marks omitted).
The last point concerns the Court’s treatment of Sherman’s
narcotics convictions. During the second trial, the government
introduced the convictions to show that Sherman was predis-
posed to commit the crime. At the time of the charged conduct,
the convictions were five and nine years old, respectively. Id.
at 375. The Court found the passage of time significant, holding
as a matter of law that the two convictions were insufficient to
prove that Sherman “had a readiness to sell narcotics at the time
Kalchinian approached him, particularly when we must assume
from the record he was trying to overcome the narcotics habit
at the time.” Id. at 375–76 (emphasis added).
This aspect of the case is important in several respects. The
premise is that predisposition is not an immutable characteris-
tic or one-way ratchet. Past convictions for similar conduct
may show predisposition, but only if reasonably close in time
22 No. 11-2439
to the charged conduct, and even then only in combination
with other evidence tending to show predisposition. More
abstractly, the Court’s decision implies that predisposition
requires more than a mere desire, urge, or inclination to engage
in particular conduct, for surely Sherman was “predisposed”
to obtain and share heroin with a fellow addict in that sense.
The Court used the word “readiness” and amplified the point
later on in the opinion; the Court explained that the predisposi-
tion inquiry focuses on whether the defendant “otherwise
would … have attempted” the crime without government
intervention. Id. at 376.
In other words, predisposition is chiefly probabilistic, not
psychological. See United States v. Hollingsworth, 27 F.3d 1196,
1203 (7th Cir. 1994) (en banc) (explaining that a predisposed
person is one who “is likely to commit a particular type of
crime without being induced to do so by government agents”
so that “by arranging for him to commit it now, in circum-
stances that enable the government to apprehend and convict
him, the government punishes or prevents real criminal
activity”).
3. Entrenchment and Refinement
The Supreme Court’s later forays into the entrapment
doctrine represent entrenchment and refinement rather than
innovation. Three cases are important for present purposes. In
United States v. Russell, the Court held that entrapment has no
constitutional dimension; it is a common-law defense, not a
requirement of due process. 411 U.S. at 430. Russell also
confirmed that “the principal element in the defense of entrap-
No. 11-2439 23
ment [i]s the defendant’s predisposition to commit the crime,”
id. at 433 (emphasis added), and that a jury finding of predis-
position is “fatal to [a] claim of entrapment.” Id. at 436.
Mathews v. United States established that a defendant who
denies one or more elements of the crime may raise an entrap-
ment defense. 485 U.S. at 63–66. On the way to this holding, the
Court confirmed that entrapment is a question of fact for the
jury, id. at 63, and explained that the defendant “is entitled to
an entrapment instruction whenever there is sufficient evi-
dence from which a reasonable jury could find entrapment,” id.
at 62.
Jacobson v. United States is the Court’s most recent entrap-
ment case and requires more unpacking. In February 1984,
Keith Jacobson, a Nebraska farmer, ordered several publica-
tions containing child pornography from a California adult
bookstore, although he testified that he didn’t realize they
contained child pornography when he placed the mail order.
503 U.S. 540, 542–44 (1992). This conduct was not a federal
crime at the time, but three months later Congress passed the
Child Protection Act of 1984 criminalizing the receipt through
the mail of visual depictions of children engaged in sexually
explicit conduct. Id. After finding Jacobson’s name on the
bookstore’s mailing list, the government repeatedly sent him
fake leaflets and other solicitations from fictional organizations
promoting the idea that child pornography is acceptable, that
efforts to ban it were illegitimate, and offering various items
for sale. Id. at 543–48. This campaign continued for more than
two years. In March 1987 Jacobson ordered a publication from
24 No. 11-2439
a catalog sent by the government; federal agents made a
controlled delivery and arrested him. Id.Jacobson was indicted and tried for violating the Act, and
the jury rejected his entrapment defense. Id. at 547–48. The
Supreme Court reversed, holding that the government failed
as a matter of law to prove that Jacobson was predisposed to
purchase illegal child pornography. Id. at 553–54. To reach this
conclusion, the Court refined what it means for a person to be
“predisposed” to commit a crime.
A conceptual problem in entrapment doctrine is that the
mere fact that the defendant committed the crime suggests that
he was predisposed to commit it—or so it was commonly
thought. Jacobson modified this understanding. But first, the
Court reinforced the idea that “where the defendant is simply
provided with the opportunity to commit a crime, the entrap-
ment defense is of little use because the ready commission of
the criminal act amply demonstrates the defendant’s predis-
position.” Id. at 550. In Jacobson, however, there was something
more. Although the defendant readily accepted the govern-
ment’s solicitation to purchase child pornography, he did so
only after the government had spent more than two years
bombarding him with material insisting that child pornogra-
phy is perfectly acceptable and encouraging him to purchase
it.
The dissenters thought that was enough to show the
defendant’s predisposition at the time he accepted the govern-
ment’s offer. See id. at 556 (O’Connor, J., dissenting). For the
majority, however, the relevant question was whether the
No. 11-2439 25
defendant was predisposed prior to the government’s initial
contact:
Petitioner’s ready response to these solicita-
tions cannot be enough to establish beyond
reasonable doubt that he was predisposed, prior
to the [g]overnment acts intended to create predispo-
sition, to commit the crime of receiving child
pornography through the mails. The evidence
that petitioner was ready and willing to commit
the offense came only after the [g]overnment had
devoted 2½ years to convincing him that he had
or should have the right to engage in the very
behavior proscribed by law. Rational jurors
could not say beyond a reasonable doubt that
petitioner possessed the requisite predisposition
prior to the [g]overnment’s investigation and that it
existed independent of the [g]overnment’s many
and varied approaches to petitioner.
Id. at 553 (emphases added) (citation omitted).
Jacobson thus establishes that although the ready and
willing acceptance of the government’s offer to commit a crime
on customary terms may indicate predisposition, it only does
so if acceptance occurs when the offer is first made, or soon
thereafter, without the need for other persuasion by the
government’s agents. Jacobson also makes explicit what was
only implicit in Sherman: that a person is not predisposed to
commit a crime simply because he has the urge or inclination
to do so. If the defendant’s interest in child pornography alone
26 No. 11-2439
made him “predisposed,” the outcome in Jacobson cannot be
explained or defended.
Finally, the Court tied the concept of predisposition to the
rationale for the entrapment doctrine: “Law enforcement
officials go too far when 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.’”
Id. at 553 (quoting Sorrells, 287 U.S. at 442). Put more succinctly,
entrapment is “the apprehension of an otherwise law-abiding
citizen who, if left to his own devices, likely would have never
run afoul of the law.” Id. at 553–54.
B. Synthesizing the Doctrine: Inducement, Predisposition,
and the Relationship Between the Two
It should be clear from this trip through the Supreme
Court’s key entrapment cases that although the defense has
two distinct elements—government inducement and lack of
predisposition—the elements are conceptually related. See
Mathews, 485 U.S. at 63 (explaining that the defense has “two
related elements: government inducement of the crime, and a
lack of predisposition on the part of the defendant” (emphasis
added)). We addressed the relationship twenty years ago in
our en banc decision in Hollingsworth. There we noted that the
two elements of the entrapment defense are formally distinct
but related in the sense that inducement is “evidence bearing
on predisposition: the greater the inducement, the weaker the
inference that in yielding to it the defendant demonstrated that
No. 11-2439 27
he was predisposed to commit the crime in question.”
Hollingsworth, 27 F.3d at 1200.
Our cases since then, however, have given conflicting
guidance about the meaning of “inducement” and “predispo-
sition” and the relationship between the two. One specific area
of confusion relates to a fundamental principle in entrapment
law that the government’s offer of a run-of-the-mill opportu-
nity to commit the charged crime isn’t entrapment. Where does
this principle fit in the two-element framework and what role
does it play?
As a doctrinal limitation on the availability of the entrap-
ment defense, this principle has been around from the begin-
ning. See Sorrells, 287 U.S. at 441 (“It is well settled that the fact
that officers or employees of the government merely afford
opportunities or facilities for the commission of the offense
does not defeat the prosecution.”); see also Mathews, 485 U.S.
at 66 (“[E]vidence that [g]overnment agents merely afforded an
opportunity or facilities for the commission of the crime would
be insufficient to warrant … an [entrapment] instruction.”).
Although this proposition enjoys widespread acceptance, the
circuits are divided about where to locate it within the induce-
ment/predisposition structure. The point has practical signifi-
cance for how the defense is litigated.
The Second Circuit folds the principle into the analysis of
predisposition. This choice follows by default from the circuit’s
broad definition of inducement. In United States v. Riley, the
Second Circuit held that the entrapment doctrine’s “first
element [inducement] goes simply to the [g]overnment’s
initiation of the crime and not to the degree of pressure
28 No. 11-2439
exerted.” 363 F.2d at 958. This expansive understanding of
inducement encompasses almost any government solicitation
of the crime, which in turn establishes a very light trigger for
the defense and requires an inquiry into predisposition even in
cases in which the government’s agents simply furnished the
ordinary opportunity to commit the crime without additional
efforts at persuasion. See id. at 958–59; see also United States v.
Brand, 467 F.3d 179, 190 (2d Cir. 2006) (describing the defen-
dant’s burden of showing inducement as “relatively slight,”
requiring only that “the government initiated the crime”
(internal quotation marks omitted)). As the D.C. Circuit
observed in rejecting the Second Circuit’s approach, “[t]he
practical effect of Riley is to require something more than
government solicitation or initiation, but to do so in terms of
predisposition rather than in terms of inducement.” United
States v. Burkley, 591 F.2d 903, 913 (D.C. Cir. 1978).
The D.C. Circuit, in contrast, defines inducement as
requiring more than mere government initiation or solicitation
of the crime: “Inducement … [is] … persuasion, fraudulent
representations, threats, coercive tactics, harassment, promises
of reward, or pleas based on need, sympathy or friend-
ship[,] … [or other] government conduct that would create a
risk of causing an otherwise unpredisposed person to commit
the crime charged.” Id. at 913–14. By defining inducement more
restrictively, the D.C. Circuit situates the “ordinary opportu-
nity” limiting principle on the inducement side of the analysis,
effectively foreclosing the entrapment defense for routine
stings without the need to inquire into evidence of the
defendant’s predisposition. See id. (describing the evidentiary
foundation necessary for an entrapment instruction).
No. 11-2439 29
Most circuits follow this understanding of inducement. See,
e.g., United States v. Stephens, 717 F.3d 440, 444 (5th Cir. 2013)
(explaining that inducement requires governmental involve-
ment “more substantial than simply providing an opportunity
or facilities to commit the offense”); United States v. Vincent,
611 F.3d 1246, 1250 (10th Cir. 2010) (“Evidence that the
government initiated the contact with the defendant, proposed
the crime, or solicited or requested the defendant to engage in
criminal conduct, standing alone, is insufficient to constitute
inducement.”); United States v. Myers, 575 F.3d 801, 806 (8th Cir.
2009) (same); United States v. Hsu, 364 F.3d 192, 200 (4th Cir.
2004) (“[T]o be entitled to an entrapment instruction, a defen-
dant must produce … evidence of ‘inducement,’ defined as
solicitation plus some overreaching or improper conduct on the
part of the government.”).4
This approach makes sense. Where the government’s
agents merely initiate contact with the defendant, solicit the
crime, or furnish an opportunity to commit it on customary
terms, the government has not “induced” the crime within the
meaning of the entrapment doctrine and the defense should be
unavailable without the need for a more complex inquiry into
evidence of predisposition.
4
For a time the First Circuit followed a third approach, collapsing the two
formal elements of entrapment into a single inquiry, albeit one that looked
for evidence of “corrupting” conduct by the government and “unreadiness”
on the part of the defendant (i.e., lack of predisposition). See United States v.
Kadis, 373 F.2d 370, 373 (1st Cir. 1967); see also United States v. Espinal,
757 F.2d 423, 425–26 (1st Cir. 1985). Although Kadis has not been overruled,
more recent cases follow the traditional two-element framework. See, e.g.,
United States v. Tom, 330 F.3d 83, 89 (1st Cir. 2003).
30 No. 11-2439
Our cases have not always been clear about this point.
Some opinions seem to situate the “ordinary opportunity”
limiting principle within the predisposition element, though
without saying so in so many words. See, e.g., United States v.
Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993) (“A predis-
posed person is one ‘who takes advantage of an ordinary
opportunity to commit criminal acts—not an extraordinary
opportunity, the sort of thing that might entice an otherwise
law-abiding person … .’” (quoting United States v. Evans,
924 F.2d 714, 717 (7th Cir. 1991))). Others put the principle on
the inducement side of the analysis. See, e.g., United States v.
Pillado, 656 F.3d 754, 764 (7th Cir. 2011) (“We recognize that
where there is insufficient evidence of inducement—either
because there is no such evidence at all, or because the govern-
ment did nothing more than offer a standard market deal in a sting—
there is no need to consider predisposition.” (emphasis
added)); id. (stating that inducement does not occur where “the
government’s actions simply provided an opportunity for a
person who was already ready and willing to commit the
offense”); United States v. Johnson, 32 F.3d 304, 308 (7th Cir.
1994).
The conflicting strains in our caselaw may be attributable to
our lack of a settled definition of “inducement.” It’s clear that
we do not subscribe to the Second Circuit’s expansive under-
standing of the term; our cases reflect the principle that “the
mere solicitation by the government’s agent by itself is not
sufficient” to show inducement. United States v. Blackman,
950 F.2d 420, 424 (7th Cir. 1991); see also United States v. Gunter,
741 F.2d 151, 154 (7th Cir. 1984). Our decision in Pillado hinted
in a definitional direction by suggesting that inducement is
No. 11-2439 31
something more than “offer[ing] a standard market deal in a
sting.” 656 F.3d at 764.
But the focus in Pillado was on predisposition; the decision
did not give further guidance on the meaning of inducement.
We take the opportunity to do so now. Inducement requires
more than government solicitation of the crime; the fact that
the government’s agents initiated contact with the defendant
and offered an ordinary opportunity to commit the charged
crime is insufficient to raise an entrapment defense. “[T]he
term ‘ordinary’ in this context … mean[s] something close to
what unfolds when a sting operation mirrors the customary
execution of the crime charged.” Id. at 765. Something more is
required, either in terms of the character and degree of the
government’s persistence or persuasion, or the nature of the
enticement or reward.
A second area of confusion is whether a predisposed
defendant may assert an entrapment defense if the government
inducement is strong enough. Pillado suggests as much:
“[W]hen the record reveals that a defendant was predisposed
to commit the crimes charged, she is not entitled to an entrap-
ment instruction unless she can show that the government
provided an opportunity to commit the crime that was out of
the ordinary.” Id. at 766; see also id. at 764 (“Whether a defen-
dant is predisposed to commit the crime charged informs the
nature and level of government inducement that must be
identified to warrant an entrapment instruction.”); see also id.
at 765 (“The upshot is that once a court has concluded that a
person was predisposed to commit a crime, a defendant must
do more to earn the [entrapment] instruction than assert that
32 No. 11-2439
the government provided an ordinary opportunity to commit
the crime; he must show extraordinary inducement.”).
Earlier opinions, however, say otherwise. See, e.g., United
States v. Sanchez, 984 F.2d 769, 773 (7th Cir. 1993) (“The entrap-
ment analysis ends without inquiry into government induce-
ment if the defendant was predisposed to commit the charged
conduct.”); United States v. Kaminski, 703 F.2d 1004, 1007 (7th
Cir. 1983) (“[T]he defense of entrapment is not available to a
predisposed defendant … .”). More importantly, the Supreme
Court has said otherwise: “We [have] ruled out the possibility
that the defense of entrapment could ever be based upon
governmental misconduct in a case, such as this one, where the
predisposition of the defendant to commit the crime was
established.” Hampton, 425 U.S. at 488–89 (Rehnquist, J.,
plurality opinion); see also Russell, 411 U.S. at 436 (explaining
that the defendant’s concession that “the jury finding as to
predisposition was supported by the evidence is … fatal to his
claim of entrapment”).
This principle is a corollary of the Court’s settled doctrine
that entrapment rests on a subjective judgment about the
defendant’s predisposition; if he was predisposed to commit
the crime, he cannot have been entrapped. It follows that the
quantum of inducement necessary to raise the defense does not
vary depending on whether the defendant was predisposed
because no level of inducement can overcome a finding of
predisposition. The nature and degree of the government’s
inducement may, however, affect the jury’s determination of
predisposition; we will return to this point in a moment.
No. 11-2439 33
A related complication involves the role of “extraordinary
inducement.” This phrase appears throughout our entrapment
cases, but we have not used it consistently. Some of our
opinions say that the entrapment defense requires a threshold
showing of “extraordinary” government inducement. See, e.g.,
United States v. Mandel, 647 F.3d 710, 718 (7th Cir. 2011); United
States v. Millet, 510 F.3d 668, 676–77 (7th Cir. 2007); United
States v. Haddad, 462 F.3d 783, 790 (7th Cir. 2006). Others
explain that “[t]he government’s inducement does not always
need to be ‘extraordinary’ to satisfy the inducement element;
even minor government inducements may be sufficient in
some cases.” United States v. Plowman, 700 F.3d 1052, 1057 (7th
Cir. 2012) (second internal quotation marks omitted); see also
Pillado, 656 F.3d at 765–76 (to the same effect).
Perhaps “extraordinary” in this context means only that the
government’s conduct must consist of something more than a
simple offer of an opportunity to commit the crime on custom-
ary terms. If that’s how the qualifier “extraordinary” is
understood and applied, then it works just fine. But as we’ve
noted, the concept of “extraordinary inducement” has acquired
a much stronger meaning in some of our cases, and this sets the
bar for entrapment too high. The touchstone of an illegitimate
inducement is that it creates a risk that a person who otherwise
would not commit the crime if left alone will do so in response
to the government’s persuasion. The conduct of the govern-
ment’s agents need not be “extraordinary” to create this risk.
As we explained in Pillado, “subtle, persistent, or persuasive”
conduct by government agents or informants may qualify as an
illegitimate inducement. 656 F.3d at 765. Pillado also cautioned
34 No. 11-2439
against “taking the adjective ‘extraordinary’ out of context to
divine a new legal standard.” Id. at 765–66.
Retracing the Supreme Court’s key entrapment cases may
help illuminate the problem and point toward a solution. In
Sorrells the Court found that an entrapment instruction was
warranted even though the defendant was promised no
extravagant profit for obtaining alcohol for the undercover
informant; the informant’s persistent appeal to military
camaraderie qualified as a potentially entrapping inducement.
287 U.S. at 441. In Sherman the Court found entrapment as a
matter of law even though the defendant was offered little
more than reimbursement for his costs if he would obtain
heroin; the inducement there consisted of repeated requests
from an informant posing as a fellow recovering addict who
had fallen off the wagon. 356 U.S. at 371. In Jacobson the Court
found entrapment as a matter of law where the defendant took
up a relatively standard offer to purchase child pornography;
the inducement in that case was a two-year campaign of fake
mail-order entreaties conditioning the defendant to believe that
child porn was acceptable and encouraging him to purchase it.
503 U.S. at 546–47.
Nothing about the transactions at issue in Sorrels, Sherman,
and Jacobson can be characterized as “extraordinary” as that
term is colloquially understood. The entrapment defense was
available because the government’s solicitation of the crime
was accompanied by subtle and persistent artifices and devices
that created a risk that an otherwise law-abiding person would
take the bait. The ploys were not “extraordinary” in the strong
sense of that word, but they exceeded the typical sting in which
No. 11-2439 35
the government merely offers an ordinary opportunity to
commit a crime, without more.
* * *
Clarity and consistency would be served if we made a fresh
start with a definition of inducement. We hold that inducement
means more than mere government solicitation of the crime;
the fact that government agents initiated contact with the
defendant, suggested the crime, or furnished the ordinary
opportunity to commit it is insufficient to show inducement.
Instead, inducement means government solicitation of the
crime plus some other government conduct that creates a risk
that a person who would not commit the crime if left to his
own devices will do so in response to the government’s efforts.
The “other conduct” may be repeated attempts at persuasion,
fraudulent representations, threats, coercive tactics, harass-
ment, promises of reward beyond that inherent in the custom-
ary execution of the crime, pleas based on need, sympathy, or
friendship, or any other conduct by government agents that
creates a risk that a person who otherwise would not commit
the crime if left alone will do so in response to the govern-
ment’s efforts.
* * *
Moving on to predisposition, our circuit has long used a
nonexclusive list of five factors to determine whether the
defendant was predisposed to commit the charged crime.
Formally adopted in 1983, see Kaminski, 703 F.2d at 1008, our
test includes the following factors:
36 No. 11-2439
(1) the defendant’s character or reputation;
(2) whether the government initially suggested
the criminal activity; (3) whether the defendant
engaged in the criminal activity for profit;
(4) whether the defendant evidenced a reluctance
to commit the offense that was overcome by
government persuasion; and (5) the nature of the
inducement or persuasion by the government.
Pillado, 656 F.3d at 766; see also United States v. Hall, 608 F.3d
340, 343 (7th Cir. 2010); Santiago-Godinez, 12 F.3d at 728. No one
factor controls, and the “most significant is whether the
defendant was reluctant to commit the offense.” Pillado,
656 F.3d at 766.
Multifactor tests are common in our law but they can be
cryptic when unattached to a substantive legal standard, as this
one is. Knowing what factors to look at is useless unless one
knows what to look for. Without a legal definition of predispo-
sition, jurors are left to weigh the listed factors in the abstract,
or perhaps to weigh them against an intuitive understanding
of the term. Some concepts in our law are appropriately left to
the common sense and collective wisdom of the jury. See
United States v. Hatfield, 591 F.3d 945, 949–50 (7th Cir. 2010)
(explaining that the term “reasonable doubt” is best left
undefined); United States v. Glass, 846 F.2d 386, 387 (7th Cir.
1988) (“Jurors know what is ‘reasonable’ and are quite familiar
with the meaning of ‘doubt.’”). The concept of predisposition
is not so well understood that it belongs in this category. Our
multifactor test for predisposition would be more useful if we
defined the term.
No. 11-2439 37
Again we take our cues from the Supreme Court’s key
entrapment cases. We know from Sherman and Jacobson that
predisposition requires more than a mere desire, urge, or
inclination to engage in the charged criminal misconduct.
Sherman surely had an inclination or urge to obtain narcotics;
he was struggling to overcome an addiction, after all. Sherman,
356 U.S. at 371. If the mere urge was enough to make him
predisposed to sharing drugs, the outcome of the case would
have been different. Similarly, Jacobson may have been
predisposed in the sense of having an inclination to view child
pornography, but the Supreme Court rejected that understand-
ing of predisposition:
Petitioner’s responses to the many communica-
tions prior to the ultimate criminal act were at
most indicative of certain personal inclinations,
including a predisposition to view photographs
of preteen sex and a willingness to promote a
given agenda by supporting lobbying organiza-
tions. Even so, petitioner’s responses hardly
support an inference that he would commit the
crime of receiving child pornography through
the mails. Furthermore, a person’s inclinations and
fantasies … are his own and beyond the reach of
government … .
Jacobson, 503 U.S. at 551–52 (emphases added) (footnote and
internal quotation marks omitted). In short, a person who
resists his baser urges is not “predisposed” simply because he
experiences them.
38 No. 11-2439
This conclusion follows from the animating principles of
the entrapment doctrine. A legitimate sting takes an actual
criminal off the streets and thus reduces the actual crime rate.
See United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir. 1986).
The entrapment defense guards against government overreach
in this context, “reflect[ing] the view that the proper use of the
criminal law in a society such as ours is to prevent harmful
conduct for the protection of the law abiding, rather than to
purify thoughts and perfect character.” Hollingsworth, 27 F.3d
at 1203. When government agents “tempt[] [a] person to
commit a crime that he would not otherwise have committed,
punishing him will not reduce the crime rate; it will merely
deflect law enforcement into the sterile channel of causing
criminal activity and then prosecuting the same activity.”
Manzella, 791 F.2d at 1269.
Predisposition thus refers to the likelihood that the defen-
dant would have committed the crime without the govern-
ment’s intervention, or actively wanted to but hadn’t yet found
the means. In Sherman the Court asked whether the defendant
“otherwise would … have attempted” the crime absent the
government’s effort to beguile him, 356 U.S. at 376, and
concluded that he would not have. The Court used the word
“readiness”: It was the government’s burden “to prove
petitioner had a readiness to sell narcotics at the time [the
informant] approached him.” Id. at 375 (emphasis added). In
Jacobson the Court described entrapment as “the apprehension
of an otherwise law-abiding citizen who, if left to his own
devices, likely would have never run afoul of the law.”
503 U.S. at 553–54.
No. 11-2439 39
Our en banc decision in Hollingsworth helpfully described
the concept of predisposition this way:
The defendant must be so situated by reason of
previous training or experience or occupation or
acquaintances that it is likely that if the govern-
ment had not induced him to commit the crime
some criminal would have done so; only then
does a sting or other arranged crime take a
dangerous person out of circulation.
27 F.3d at 1200 (emphasis added). But we tacked on an impor-
tant caveat: “We do not wish to be understood as holding that
lack of present means to commit a crime is alone enough to
establish entrapment if the government supplies the means.”
Id. at 1202. Instead, a defendant who lacks the means to
commit the crime when first approached by the government is
nonetheless predisposed if he “had the idea for the crime all
worked out and lacked merely the present means to commit it,
and if the government had not supplied [the means,] someone
else very well might have.” Id. at 1203. Put slightly differently,
a predisposed person is not one who “on his own might, under
some conceivable set of circumstances, commit the crime.”
Burkley, 591 F.2d at 916. Rather, a predisposed person is one
who “is presently ready and willing to commit the crime.” Id.
Importantly, predisposition is measured prior to the
government’s attempts to persuade the defendant to commit
the crime. See United States v. Theodosopoulos, 48 F.3d 1438, 1444
(7th Cir. 1995) (explaining that a predisposed defendant is one
who “was disposed to commit the crime prior to being ap-
proached by government agents”); Kaminski, 703 F.2d at 1008
40 No. 11-2439
(“[P]redisposition is, by definition, the defendant’s state of
mind and inclinations before his initial exposure to government
agents.” (internal quotation marks omitted)). Jacobson specifi-
cally confirmed this point. See 503 U.S. at 553 (“Rational jurors
could not say beyond a reasonable doubt that petitioner
possessed the requisite predisposition prior to the [g]overn-
ment’s investigation and that it existed independent of the
[g]overnment’s many and varied approaches to petitioner.”
(emphases added)). In other words, “a criminal predisposition
induced by government action cannot be used to defeat an
entrapment defense.” Hollingsworth, 27 F.3d at 1201.
We are not suggesting that the defendant’s conduct after he
encountered the government’s agents is irrelevant to the
determination of predisposition. To the contrary, the defen-
dant’s response to the government’s offer may be important
evidence of his predisposition. See Kaminski, 703 F.2d at 1008(explaining that because “there is little direct evidence of the
defendant’s state of mind prior to interaction with [g]overn-
ment agents[,] … we must instead rely upon indirect proof
available through examination of the defendant’s conduct after
contact with the agents”). This is where the conceptual overlap
between the two elements becomes important: The character
and degree of the inducement—and the defendant’s reaction
to it—may affect the jury’s assessment of predisposition. That
the defendant eventually agreed to commit the crime in
response to the government’s efforts does not necessarily
prove predisposition, for if the inducement was significant
enough to cause even a nonpredisposed person to commit the
crime, no inference can be drawn about predisposition from
the success of the government’s efforts.
No. 11-2439 41
It’s worth repeating what we said in Hollingsworth: The
nature of the government inducement is “significant chiefly as
evidence bearing on predisposition: the greater the induce-
ment, the weaker the inference that in yielding to it the
defendant demonstrated that he was predisposed to commit
the crime in question.” 27 F.3d at 1200.
Relatedly, we have long emphasized that evidence of the
defendant’s reluctance to commit the crime looms large in the
analysis of predisposition. See, e.g., Pillado, 656 F.3d at 766(explaining that the most significant factor in predisposition
analysis is “whether the defendant was reluctant to commit the
offense”); Hall, 608 F.3d at 343 (same); United States v.
Blassingame, 197 F.3d 271, 281 (7th Cir. 1999) (same);
Theodosopoulos, 48 F.3d at 1444 (“The most important factor is
whether the defendant exhibited a reluctance to commit the
offense that government agents overcame.”); Kaminski,
703 F.2d at 1008 (same). Other evidence of the defendant’s
conduct after the initial contact by the government’s agents—
for example, his actions or statements during the planning
stages of the criminal scheme—also may be relevant to the
determination of predisposition. All this evidence must be
considered with care, of course; by definition, the defendant’s
later actions may have been shaped by the government’s
conduct.
Better evidence of the defendant’s predisposition may come
from his past conduct. Entrapment is one of the few areas in
the criminal law in which past is legitimately considered to be
prologue. But is any history of criminal misconduct sufficient
to make the defendant “predisposed,” or must the defendant’s
42 No. 11-2439
prior crimes be similar to the charged offense? One position is
that only a totally law-abiding person may be entrapped; on
this view, prior criminal misconduct of any kind makes the
defendant “predisposed” to criminality writ large. A contrary
view is that even someone with a history of committing one
kind of crime may be entrapped into a crime of a substantially
different kind or degree.
Although the Supreme Court hasn’t spoken directly to this
question, the answer is implicit in the Court’s entrapment
cases, and Judge Hand specifically addressed it in his influen-
tial opinion for the Second Circuit in Sherman:
The proof of this [predisposition] may be by
evidence of his past offences, of his preparation,
even of his “ready compliance.” Obviously, it is
not necessary that the past offences proved shall
be precisely the same as that charged, provided
they are near enough in kind to support an infer-
ence that his purpose included offences of the sort
charged.
200 F.2d at 882 (emphases added). This point reappears, if only
by implication, in the Supreme Court’s opinion in Sherman. As
the Court framed the issue, the relevant inquiry was whether
Sherman was “ready and willing to sell narcotics”; the Court
concluded that “[t]here is no evidence that petitioner himself
was in the trade.” 356 U.S. at 375 (emphases added). Since then,
the Court has said that “the principal element in the defense of
entrapment [i]s the defendant’s predisposition to commit the
crime”—not just any crime. Russell, 411 U.S. at 433 (emphasis
added).
No. 11-2439 43
Our own precedent confirms this understanding of the role
of the defendant’s criminal history. See United States v. McGill,
754 F.3d 452, 458 (7th Cir. 2014) (“[T]he ranks of the ‘unwary
innocent’ are not limited to those whose lives are crime free.”);
United States v. Sanders, 962 F.2d 660, 677 (7th Cir. 1992)
(explaining that a defendant was predisposed if he was
“willing to commit a crime like the one charged in the indictment”
(emphasis added) (quotation marks omitted)); United States v.
Townsend, 555 F.2d 152, 155 n.3 (7th Cir. 1977) (“[E]ven the
most habitual offender can be entrapped if the officers use
coercive inducement to overbear the defendant’s reluctance.”).
A related question concerns the timing of the defendant’s
prior crimes relative to the charged conduct. We return again
to Sherman, which held that the defendant’s prior drug
crimes—a nine-year-old conviction for selling drugs and a five-
year-old conviction for possession—were insufficient as a
matter of law to establish his predisposition to sell drugs.
356 U.S. at 373–77. The Court’s conclusion was based in part on
the additional fact that Sherman was trying to kick the habit at
the time he was approached by the government’s informant. Id.The upshot is that although the defendant’s criminal history
is relevant to the question of his predisposition, it’s not
dispositive. Notwithstanding a checkered past, a defendant may
lack the predisposition to commit the charged crime.
* * *
To summarize then, a defendant is predisposed to commit
the charged crime if he was ready and willing to do so and
likely would have committed it without the government’s
44 No. 11-2439
intervention, or actively wanted to but hadn’t yet found the
means. The defendant’s predisposition is measured at the time
the government first proposed the crime, but the nature and
degree of the government’s inducement and the defendant’s
responses to it are relevant to the determination of predisposi-
tion. A prior conviction for a similar offense is relevant but not
conclusive evidence of predisposition; a defendant with a
criminal record can be entrapped.
C. Procedure
Generally speaking, entrapment is a question for the jury,
not the court. Jacobson, 503 U.S. at 549; Mathews, 485 U.S. at 63;
McGill, 754 F.3d at 457; Pillado, 656 F.3d at 763. As we’ve
explained, the subjective basis of the defense makes entrap-
ment a fact question for the jury to decide “as part of its
function of determining the guilt or innocence of the accused.”
Sherman, 356 U.S. at 377; see also Mathews, 485 U.S. at 62–63.
Two important procedural questions remain: (1) What is
the burden of proof for entrapment and who bears it?
(2) Under what circumstances may the court preclude a
defendant from asserting the defense at all?
1. Burden of Proof
“Where … the defense of entrapment is at issue, … the
prosecution must prove beyond reasonable doubt that the
defendant was disposed to commit the criminal act prior to
first being approached by [g]overnment agents.” Jacobson,
No. 11-2439 45
503 U.S. at 548–49. This statement admits of no ambiguity: The
government bears the burden, and the level of proof is beyond
reasonable doubt. See also Pillado, 656 F.3d at 763; Santiago-
Godinez, 12 F.3d at 728.
The Supreme Court’s decision in Dixon v. United States did
not disturb this allocation of the proof burden. 548 U.S. 1(2006). Keshia Dixon was charged with receiving a firearm
while under indictment and making false statements in
connection with the acquisition of a firearm; she raised a
defense of duress. Id. at 4. The district court required her to
prove the defense by a preponderance of the evidence; she
urged the Supreme Court to hold that the government must
disprove duress beyond a reasonable doubt. Id. at 6. The Court
declined to do so, holding instead that because the defense of
duress does not negate an element of the offense, neither the
Due Process Clause nor the federal common law requires the
government disprove the defense beyond a reasonable doubt.
Id. at 7–16. In the absence of a statute specifically addressed to
the question, the Court assumed that Congress defined the
charged crimes with the common-law understanding of
affirmative defenses in mind. Id. at 12–17. In the case of duress,
the Court assumed that Congress incorporated the traditional
view that the defendant bears the burden of proving the
defense by a preponderance of the evidence. Id.Congress has never addressed the defense of entrapment.
Unlike other common-law defenses, however, established
entrapment doctrine places the burden squarely on the
46 No. 11-2439
government to disprove the defense beyond a reasonable
doubt. Nothing in Dixon undermines this settled principle.5
One final point on the burden of proof before we move on:
We have consistently held that the government can defeat the
entrapment defense at trial by proving either that the defendant
was predisposed to commit the crime or that there was no
government inducement. See, e.g., Santiago-Godinez, 12 F.3d at
728; Gunter, 741 F.2d at 153 (explaining that the prosecution
must “prove beyond a reasonable doubt that the defendant
was predisposed or that there was no [g]overnment induce-
ment” (emphasis added)); see also Burkley, 591 F.2d at 916
(explaining that the government “need not, though it may,
prove that there was no government inducement of or partici-
pation in the crime”). This is a fair reading of the two-element
structure of the defense; no one here has questioned this
understanding of the government’s burden.
5
We spoke too broadly in United States v. Orr when we said that the burden
of persuasion “is placed squarely on the shoulders of the defendant
claiming entrapment.” 622 F.3d 864, 868 (7th Cir. 2010). The defendant there
insisted that he was entitled to judgment of acquittal based on an entrap-
ment argument that he raised for the first time on appeal. Id. We of course
rejected that argument. Id. (“The district court did not err by denying Orr’s
motion to acquit based on a defense he never asserted … .”). Orr stands for
the proposition that the defendant has the initial burden of raising the
entrapment defense and must do so before or at trial. The question of the
burden of persuasion was not before the court.
No. 11-2439 47
2. Raising the Entrapment Defense
Because entrapment is a fact question on which the govern-
ment bears the burden of proof, the defendant is entitled to a
jury instruction on the defense “whenever there is sufficient
evidence from which a reasonable jury could find entrapment.”
Mathews, 485 U.S. at 62; see also Plowman, 700 F.3d at 1057;
Theodosopoulos, 48 F.3d at 1444; Santiago-Godinez, 12 F.3d at 727.
We have held that to obtain a jury instruction and shift the
burden of disproving entrapment to the government, the
defendant must proffer evidence on both elements of the
defense. See Plowman, 700 F.3d at 1057; Pillado, 656 F.3d at 763;
Santiago-Godinez, 12 F.3d at 728. But this initial burden of
production is not great. An entrapment instruction is war-
ranted if the defendant proffers “some evidence” that the
government induced him to commit the crime and he was not
predisposed to commit it. Pillado, 656 F.3d at 764 (“[A] defen-
dant must proffer some evidence on both elements of the
entrapment defense to warrant the instruction … .”); see also
Theodosopoulos, 48 F.3d at 1445; Gunter, 741 F.2d at 153. Put
another way, “[a]lthough more than a scintilla of evidence of
entrapment is needed before instruction on the defense
becomes necessary, the defendant need only point to evidence
in the record that would allow a rational jury to conclude that
he was entrapped.” McGill, 754 F.3d at 457; see also Santiago-
Godinez, 12 F.3d at 727.
Mathews used the phrase “sufficient evidence” to describe
the defendant’s burden of production, but this should not be
understood as an invitation to the court to weigh the evidence
or assess the credibility of witnesses. As with any other factual
48 No. 11-2439
question, the ultimate merit of the entrapment defense is
entrusted to the jury. Accordingly, assessing “sufficiency” in
this context does not mean that the judge weighs the evidence
or decides whether the defense is believable. “[W]here there is
at least some evidence [of entrapment] in the record, it is for
the jury … to weigh conflicting testimony, to draw reasonable
inferences from the evidence[,] and to make credibility
determinations.” Theodosopoulos, 48 F.3d at 1445.
As a practical matter, entrapment is now regularly litigated
as it was here: before trial, on the government’s motion in
limine to preclude the defense. Though this practice is permis-
sible, see Plowman, 700 F.3d at 1057; Santiago-Godinez, 12 F.3d at727–28, it carries an increased risk that the court will be
tempted to balance the defendant’s evidence against the
government’s, invading the province of the jury. In ruling on
a pretrial motion to preclude the entrapment defense, the court
must accept the defendant’s proffered evidence as true and not
weigh the government’s evidence against it. See Plowman,
700 F.3d at 1057; Blassingame, 197 F.3d at 279. This important
point is sometimes obscured, subtly raising the bar for present-
ing entrapment evidence at trial.
One final observation before we consider Mayfield’s case:
The two elements of the entrapment inquiry are not equally
amenable to resolution before trial. Predisposition rarely will
be susceptible to resolution as a matter of law. Predisposition,
as we’ve defined it, refers to the likelihood that the defendant
would have committed the crime without the government’s
intervention, or actively wanted to but hadn’t yet found the
means. This probabilistic question is quintessentially factual;
No. 11-2439 49
it’s hard to imagine how a particular person could be deemed
“likely” to do something as a matter of law. The inducement
inquiry, on the other hand, may be more appropriate for
pretrial resolution; if the evidence shows that the government
did nothing more than solicit the crime on standard terms, then
the entrapment defense will be unavailable as a matter of law.
D. Application
We now return to Mayfield’s case. Did he proffer enough
evidence to create an entrapment issue for trial? Accepting the
facts in his pretrial proffer as true and drawing reasonable
inferences in his favor, we conclude that he did.
Mayfield’s proffer contains sufficient evidence from which
a reasonable jury could find that the government induced him
to commit the crime. Potts targeted Mayfield at a moment of
acute financial need and against a backdrop of prolonged
difficulty finding permanent, family-supporting work. Potts
also appealed to Mayfield’s friendship and camaraderie and to
their common struggle as convicted felons trying to make a
living. Appeals of this sort are among the oldest tactics
recognized as forms of government inducement. See, e.g.,
Sorrells, 287 U.S. at 441. Moreover, Potts gave Mayfield money
in order to create a debt that he knew Mayfield would be
unable to repay and then exploited that debt by alluding to his
status as a member of the Gangster Disciples. Drawing
inferences in Mayfield’s favor, this action was arguably
calculated to convey an implied threat of violence if the debt
was not repaid. Threats obviously qualify as inducements.
Finally, Potts pestered Mayfield over a substantial period of
50 No. 11-2439
time; a reasonable jury could find that this persistent pressure
amounted to harassment.
We do not need to decide whether any of these tactics
standing alone would suffice to establish inducement; some of
them almost certainly would not. But together, they are
enough to permit a reasonable jury to conclude that the
government induced Mayfield to commit the crime. That is, a
rational jury could find that the government’s actions created
a risk that a person who otherwise would not have committed
the crime would do so in response to the government’s efforts.
It’s true that when push came to shove, Potts offered
Mayfield an opportunity to participate in what was apparently
a typical stash-house robbery, at least as far as the record
shows. If the government had done nothing more than make
this opportunity available, then its actions would not qualify
as an illegitimate inducement. But the government did more;
it paired the reward of a stash-house robbery with an extended
campaign of persuasion that played on Mayfield’s financial
need and culminated in a veiled threat of reprisal from a
vicious street gang. A rational jury could find that the govern-
ment induced him to commit the crime.
Mayfield also proffered enough evidence to permit a
rational jury to find reasonable doubt about his predisposition
to commit the stash-house robbery at the time Potts first
approached him with the offer. Mayfield repeatedly rejected
Potts’s entreaties over the course of several weeks, relenting
only when faced with an implied threat that the Gangster
Disciples street gang might retaliate against him if he did not
repay his debt. Accepted as true, Mayfield’s initial reluctance
No. 11-2439 51
and continued resistance is substantive evidence that he was
not predisposed to commit the crime when Potts first proposed
it.
True, the government offered its own evidence that
Mayfield had a serious criminal record, and that once he
accepted Potts’s overture, he recruited a crew and actively
participated in planning the scheme, and also bragged about
having experience robbing stash houses. However substantial
or substantiated the government’s evidence may seem to the
court, its weight is a question for the jury. If Mayfield had been
allowed to present his entrapment evidence at trial, he might
have persuaded the jury that it was all a bluff.
As a logical and legal matter, Mayfield’s active engagement
in the scheme after the government’s extended efforts to
procure his participation has limited bearing on his predisposi-
tion when the government first proposed it. If a jury were to
conclude that the government’s conduct might have ensnared
a person who otherwise would not have committed the crime,
the fact that Mayfield, once ensnared, actively participated in
it doesn’t tell us much about his predisposition. See Evans,
924 F.2d at 716 (explaining that if the defendant “was indeed
entrapped, it is irrelevant that the entrapment was so effective
as to make him not only a willing but an eager participant”).
Moreover, as we’ve explained, the trial judge cannot weigh the
competing evidentiary proffers and accept the government’s
as more persuasive than the defendant’s. That’s exactly what
the judge did here, and quite expressly.
Of course, Mayfield can’t escape his criminal record, which
contains a conviction for armed carjacking. But he proffered
52 No. 11-2439
evidence that after his release from prison, he joined
antirecidivism programs and found honest work in an effort to
go straight and not return to a life of crime. Even without this
evidence of rehabilitation, the fact that Mayfield committed a
different kind of robbery in the past is not conclusive evidence
that he was predisposed to commit this crime—a stash-house
robbery—when Potts first proposed it. See Sherman, 356 U.S. at375–76.
In the end, the inferences to be drawn from the evidence as
a whole are varied and ultimately for the jury. Mayfield
proffered enough evidence to defeat the government’s motion
in limine. The district court should not have precluded him
from presenting his entrapment evidence at trial.
III. Conclusion
To recap, entrapment is a defense to criminal liability when
the defendant was not predisposed to commit the charged
crime before the intervention of the government’s agents and
the government’s conduct induced him to commit it. The two
elements of the defense—lack of predisposition and govern-
ment inducement—are conceptually related but formally and
temporally distinct.
The predisposition element focuses on the defendant’s
circumstances before and at the time the government first
approached him with a proposal to commit the crime. A
defendant is predisposed to commit the charged crime if he
was ready and willing to do so and likely would have commit-
No. 11-2439 53
ted it without the government’s intervention, or actively
wanted to but hadn’t yet found the means.
As for the inducement element, the fact that the govern-
ment initiated contact with the defendant, suggested the crime,
or created the ordinary opportunity to commit it is not suffi-
cient; something more is required, either in terms of the
character and degree of the government’s persistence or
persuasion, the nature of the enticement or reward, or some
combination of these. Conduct by the government’s agents
amounts to inducement if, considering its character and the
factual context, it creates a risk that a person who otherwise
would not commit the crime if left alone will do so in response
to the government’s persuasion.
Procedurally, entrapment is an issue of fact for the jury. The
defendant is entitled to present the defense at trial if he shows
that some evidence supports it. This initial burden is not great;
the defendant must produce some evidence from which a
reasonable jury could find government inducement and lack of
predisposition. If he can make this showing, the court must
instruct the jury on entrapment and the government must
prove beyond a reasonable doubt that the defendant was
predisposed to commit the charged crime, or alternatively (but
less commonly), that there was no government inducement.
When the issue is raised before trial on the government’s
motion to preclude the defense, the court must accept the
defendant’s factual proffer as true and not weigh it against the
government’s evidence.
Applying these substantive and procedural principles here,
we conclude that Mayfield’s proffer was sufficient to overcome
54 No. 11-2439
the government’s motion in limine. The district court erred by
crediting the government’s evidence over Mayfield’s and
precluding him from presenting his entrapment evidence at
trial. He is entitled to a new trial.
VACATED and REMANDED.
No. 11-2439 55
BAUER, Circuit Judge, with whom EASTERBROOK, Circuit
Judge, joins, dissenting. The gist of my argument against the
majority opinion is contained in a footnote addressing the
dissent in the panel opinion (now dead) when this case was
first before us. I repeat it now:
The dissent believes that Mayfield was entitled to an
entrapment defense. It argues that a jury could have
found the government inducement “extraordinary,”
because stash-house robberies are particularly lucrative
compared to other sorts of robberies. The dissent
reasons that the inducement would only be extraordi-
nary to a non-veteran stash-house robber, and that it
was for the jury to decide if Mayfield had robbed stash
houses before. We cannot endorse this analysis. It
effectively collapses the inducement and predisposition
elements of entrapment and would allow otherwise
predisposed criminals to claim entrapment simply
because they were entering a new, more lucrative field
of crime. Whether a government agent’s offer is extraor-
dinary should be considered in light of the terms on
which crimes of this sort are typically committed. See
United States v. Pillado, 656 F.3d 754, 765 (7th Cir. 2011).
Nothing in the record suggests that this planned stash-
house robbery would be any more lucrative than the
typical stash-house robbery. And as we stressed previ-
ously, the risk-adjusted rewards for this crime were not
so great; Mayfield planned to risk his life and to risk
prosecution for murder if he lived.
56 No. 11-2439
The record shows the defendant was salivating to commit
the crime. The fact that he was exceptionally greedy should not
entitle him to an entrapment defense.
No. 11-2439 57
EASTERBROOK, Circuit Judge, dissenting. I joined Judge
Bauer’s opinion for the panel, United States v. Kindle, 698 F.3d
401 (7th Cir. 2012), and still agree with his views, so I join his
dissent from the en banc decision.
My colleagues continue to employ, and extend, the ap-
proach adopted by United States v. Hollingsworth, 27 F.3d
1196 (7th Cir. 1994) (en banc). I was not persuaded by Hol-
lingsworth at the time (see 27 F.3d at 1211–13; I also joined
most of Judge Ripple’s dissent, 27 F.3d at 1213–19) and am
not persuaded now. Jacobson v. United States, 503 U.S. 540(1992), remains the Supreme Court’s most recent analysis of
entrapment. We should apply the doctrine as the Justices
stated it rather than adopt local elaborations.
Mayfield demonstrated that he was willing to rob stash
houses, even at great risk to himself, if the price was right.
That he waited until the anticipated gains made the venture
attractive does not allow a jury to find entrapment under Ja-
cobson’s approach. No ordinarily law-abiding person would
have agreed to a plan that, as the venture was described, en-
tailed a considerable risk of violence to others, including the
need to deal with the stash house’s three armed guards (po-
tentially by killing them), and a substantial risk of injury or
death to oneself if the guards could not be overcome. May-
field contends that he planned to rob only the courier, but
even that would have encountered armed resistance. By de-
picting the robbery as likely to be forcibly resisted, Potts and
Gomez ensured that only someone predisposed to violent
crime would join the venture. Nothing that Potts or Gomez
said to Mayfield implanted, or could have created, a disposi-
58 No. 11-2439
tion to commit mayhem in order to reap financial rewards.
Mayfield assembled and armed a strike team; the district
judge properly treated him as a leader, not (as Jacobson re-
quires for entrapment) a person whose will was worn down
and finally overborne.