Entrapment is Alive and Well

russian doll.jpgEvery now and then, people tell me “Florida doesn’t have an entrapment law, does it?”. This is a legitimate question, because practically speaking, not many judges or prosecutors understand this law well enough to make a ruling in a defendant’s favor. So, it may “feel like” we don’t have an entrapment law, but in fact, section 772.201 of the Florida Statutes defines entrapment as follows:

(1) A law enforcement officer [or agent] perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

Yes, I realize that reciting a statute may cause you to stop reading this (and/or fall asleep), but often it is important to actually read what we’re dealing with. Armed with some statutory knowledge, let’s delve into the recent case of Gennette v. State, 124 So. 3d 273 (Fla. 1st DCA 2013). Are you ready for what Gannette was convicted of? Felony unlawful use of a two-way communications device to facilitate a felony (yes, such a charge exists, section 934.215 Florida Statutes, and yes, I’ve ended two sentences in this paragraph with a preposition, my apologies). Anyway, I’ve always felt that Loitering and Prowling was one of the most bogus charges on Earth, but unlawful use of a two-way device has got to be a close second. Really, this thing is too close to call.

Anyway, Gennette filed a Motion to Dismiss, arguing that his crime was “the product of entrapment by the government, as defined by section 777.201, Florida Statutes, and that he [is] thus entitled to dismissal as a matter of law.” Id. at 274. Now, as a preliminary matter, not every defense may be argued via a Motion to Dismiss. A quick reading of section (2) above notes that entrapment issues “shall be tried by the trier of fact”. The “trier of fact” is a jury, by the way, not a judge. So, the legislature didn’t want judges dismissing entrapment cases, they wanted to force citizens to bring up this matter before a jury. However, there’s a simple way around this technicality. If your Motion to Dismiss does not dispute facts–and merely argues how the law applies to undisputed facts–then a judge can make a ruling based upon a Motion to Dismiss.

Here’s two examples. A defendant claims that an undercover officer induced him via sexual favors. predictably, the officer denies such allegations. Under these facts, the issue may not be resolved via a Motion to Dismiss, because the undercover officer would deny the claim, thus putting the facts in dispute. But, let’s say a defendant was induced via the sexual favors of a confidential informant–and the police were not supervising the informant at the time of the inducement–the State would have no way to dispute this fact (absent giving up the identity of the confidential informant and having them swear to contrary facts; the state may not have evidence to contest these facts if they choose to keep their informant “confidential”). If the facts are not in dispute, an entrapment case can be dismissed by the judge. This was only a slight diversion, but one that becomes important later, so bear with me.

Back to the entrapment analysis. Whenever you see a bogus charge like unlawful use of a two-way communications device, please understand that the government failed to make a case for something more serious, so they pulled some nonsense out of their anal cavity. This is just such a case. The undercover agents were doing what they always do, trying to create a crime rather than detecting one.

In this case, the way to detect a crime was to get on Craigslist and post an ad “sisters looking for a hot night – w4m – 19” id. at 275. This ad means “woman looking for man”, not minor child looking for man. This ad also means that the woman looking for a man is 19 years of age. Gennette replied to the ad, but the undercover cop later stated in the email correspondence that “My lil sis is in town visiting me for the summer. She is 14, you ok with that?”

First of all, they’re not talking about sex, yet. They’re just emailing back and forth. They did this over forty times. Gannette replies to the first 14 year old reference by stating: “well I think she is a bit young, lol but depends on what you have in mind before I send my pic, are there any age requirements? Imao well the hell with it, ill send a pic anyway me and my pet possum.” Undercover: “nice pic! Why in the world do you have a pet possum? There are no age requirements here.” Gannette: “well thank you…. I found my lil-bear in my backyard when she was just a baby and ive raised her….she’s so spoiled and thinks shes a people, lol….now its your turn, lol.”

You see any problems with this email exchange? Either do I. Creepy, but not illegal. But, it was a slow month for law enforcement, so they arrested him on a felony claiming that Gannette “accepted the government’s offer for sexual activity with a minor.” The text of the email is right here, did that seem like a crime? The good news is, the appellate court didn’t agree with the prosecutor, or the trial court judge, and gently called BS on them, stating that Gannette’s “e-mail shows only that he understood that a minor sister was visiting 19-year-old “Amber” for the summer. The agen’ts question of ‘you ok with that?’ and Appellant’s response “she is a bit young . . . but depends on what you have in mind . . . are there any age requirements?’ was equivocal. Neither the agent’s nor {Gannette’s] messages at this point contained any reference to sexual activity.” Thank you. Before reading the email exchanges above, did you know how your hard earned taxpayer dollars are being spent? You may have thought that poor children were getting good nutrition in school, or that teacher salaries were increased–but no–thousands of dollars, thousands, were spent to trick people like Gannette into some sort of felony case.

Eventually, getting into the fortieth plus email exchange, the government steps up the suggestiveness, and includes references to her 14 year old sis. But Gannette kept responding to the fake 19 year old as “you”, and left the minor out of the conversation for the most part. In considering whether or not Gannette was entrapped, the court first put the burden on the defendant to establish that he was induced to commit the offense charged. Now, how do you show that “the government agent induced or encouraged . . . to the extent that the defendant’s conduct was caused by the persuasive methods of the agent”? id. at 278. Much like Russian dolls that open, only to find several smaller dolls within the other, we must analyze “inducement” and “encourages”. In the same way that the U.S. Supreme Court once explained that they couldn’t define pornography but they would “know it when they see it”, it seems that the entrapment analysis in this case is along those same lines. The court reasoned that “the government induced or encouraged [Gannette], and due to his lack of predisposition, caused him by methods of persuasion to commit the offenses charged….Throughout the email chain, it was the agent who took the lead. It was the law enforcement agent who initially suggested the presence of a minor….When Appellant’s communications wandered to innocuous matters, it was the agent who repeatedly steered the conversation back to sexual activity with a minor….It was the agent who coaxed and cajoled [Gannette] for more details and challenged [his] reluctance by impugning his nerve and suggesting he was ‘scared’.” Id. When Gannette finally did become more sexually suggestive regarding the minor, it “occurred only after the agent ‘cast her fishing expedition’ to bait, hook, net and land him for’ the offenses charged.” Id.

The appeals court ruled that the motion to dismiss should have been granted. Case dismissed, noting that “the law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime. Amen.

But wait. Much to none of our surprise, a few judges disagreed with dismissal, and made their dissent known. Their tactic is to pull the rug out from underneath the Motion to Dismiss, reasoning that the majority’s opinion on the 40+ emails “is not the only reasonable way of interpreting the evidence”. Id. at 279. In essence, the dissent is disputing the facts. Disputing the email evidence. It’s a cheap shot, really, as you can always do that, depending upon how cynical you want to be. Does China even exist? Maybe not, I’ve never been there. Pictures can be photoshopped. And, while we’re at it, does freewill really exist? If it doesn’t, how can anybody be held responsible for something they were destined to do? So, the dissent claims that the jury should have decided this issue, as this method of resolution best tracks the statute.