This week Mohamed Mohamud goes on trial for the Pioneer Square bombing plot. He doesn’t deny participation in the actual act of terror. His Defense is entrapment.
With more police agencies running sting operations clients often ask about the entrapment defense. The Mohamed Mohamud trial illustrates how difficult it is to use entrapment as a defense.
Entrapment, if successfully used, is a complete defense to a criminal charge. So the defendant may be found not guilty if successful. The legal theory behind entrapment is that government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. So, there are two elements a defendant must raise and prove.
(1) government inducement of the crime, and
(2) the defendant’s lack of predisposition to engage in the criminal conduct.
Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. And a government agent’s use of pretense or deceit does not establish inducement either. Inducement requires a showing of at least persuasion or mild coercion, pleas based on need, sympathy, or friendship, or extraordinary promises of the sort “that would blind the ordinary person to his legal duties”. Some case examples: One court said inducement was shown only if the government’s behavior was such that “a law-abiding citizen’s will to obey the law could have been overborne” Another held that inducement could be shown if the government created “a substantial risk that an offense would be committed by a person other than one ready to commit it”
So, was Mohamed Mohamud induced to commit a crime? His defense lawyer will have to show more than mere contact by the FBI and a request that he participate in the fake terror plot. The defense attorney has to show that the FBI improperly induced Mohamed Mohamud into participating in the plot. If he can’t he doesn’t even get to produce evidence of the second prong and the defense fails.
The second, prong of entrapment, lack of predisposition, is generally even more difficult to prove than inducement. The predisposition prong focuses upon whether the defendant “was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.” Mathews, 485 U.S. at 63. So how do you prove predisposition to commit a crime? In the Mohamed Mohamud case, the Government will undoubtedly present evidence of the defendant’s jihadi writings, and statements he made to others both before and after the FBI originally contacted him. Also, predisposition may exist even in the absence of prior criminal involvement: “the ready commission of the criminal act,” such as where a defendant promptly accepts an undercover agent’s offer of an opportunity to buy or sell drugs, may itself establish predisposition.
The defense attorney will focus on their clients’ lack of specific intent to participate in a terror plot. Having an opinion is protected free speech they will argue. In addition, some evidence, only recently handed over to the defense by the Prosecutor, revealed that the FBI was targeting Mohamed Mohamud as someone who should be approached. This crucial piece of evidence was either not discovered by the prosecutor until the day before the trial started when he then turned it over, or was withheld by the prosecutor until the very last minute because it supported an entrapment defense.
The stakes are very high for the defendant and the government anti–terror teams. It will be an interesting trial.