June 28, 2011
The recent Pensacola Floirda “sting” case dubbed “Operation Blue Shephard” involving primarily young men soliciting through computer communications with undercover law enforcements officers posing as the parents suggesting these young men have sexual relations with their own 12-14 year old children raises significant issues in the way police catch otherwise law-abiding citizens by manufacturing a crime. All of these issues will not be discussed in this forum with cases currently pending. However, some basic issues are discussed below that may apply to some of these cases. There are two types of entrapment; however, again this articles primary purpose is to merely inform the reader of the basics of such a defense.
Entrapment requires that 1) the government induce the individual to commit the crime, and 2) the individual was not predisposed to commit the crime before the government’s involvement. If the individual can prove inducement, burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Demarest , 570 F. 3d. 1232, 1240 (11th Circuit) 2009.
If the government induces someone to respond to their ads followed by very cleverly worded language in emails that induces someone to travel to a location to take part in an illicit transaction the issue of “entrapment” may become a factor. However, regarding predisposition, the Supreme Court of the U.S. has observed that law enforcement may not “implant in the mind of a person the disposition to commit the alleged offense and induce its commission in order that they may prosecute”. Jacobson v. United States 503 U.S. 540, 533 (1992). However, under Jacobson the defense will not succeed when the evidence shows that the government merely provided the individual an opportunity to commit a crime because in such cases the entrapment defense is of little use because the ready commission of the crime amply demonstrates the defendant’s predisposition to commit the crime.
Predisposition is a “fact specific inquiry” and must be decided on a case by case basis. The principles to be considered are:
1. A predisposition finding as supported by the individual’s post-arrest statements and evidence that the individual failed to take opportunities to back out of the transaction;
2. Evidence of prior-related offenses are relevant but not dispositive;
3. Evidence of pertinent legal activity and non-criminal activities will not standing alone support a conviction.
The point of this brief article is that people in Pensacola and throughout Florida in general should remember that an individual is presumed innocent until the prosecution proves, in this type of case, beyond a reasonable doubt that the individual they solicited to commit a manufactured crime was predisposed to commit the crime.
If it were your loved one who had been charged in this case I would hope that you would want the constitutional principles that have protected our citizenry since our nation’s inception: that an individual is presumed to be innocent of a crime, the burden of proof is entirely on the government and that the government must prove an individual’s guilt beyond a reasonable doubt before they are subject to going to the penitentiary or being convicted of a crime.
There is much more to the story in many of these cases than what the print or television meida presents to the general public. It is only after a thorough investigtion is conducted into the facts of any case and those facts are presented to citizens who evaluate that evidence and apply the law to that evidence can it be determined if someone is guilty or not guilty. It is a road much less traveled for most of us to withhold judgment after reading sensationalist media reports that only report what, in most cases, is what information law enforcement has released to the media. In the pending prosecution of the Dominique Strauss-Kahn case alleging the potential French President of sexual assault of a hotel maid, from reading the articles, how many of us presumed to be innocent? With the maid’s revelations over the telephone to her friend in prison on drugs charges, who had deposited over $100,000.00 into her bank accounts, ‘[D]on’t worry, this guy has a lot of money. I know what I’m doing,” is an illustration that initial reports of the media don’t tell all the facts.