As part of a drug sting, an undercover federal agent drove a truckload of marijuana to an industrial park in McHenry, Illinois, on March 18, 2008. The agent had arranged to deliver the drugs to Irineo Gonzalez, a target of the sting. Although Gonzalez showed up to meet the agents, there were some difficulties with getting him to accept and unload the shipment. After a time, the owner of one of the businesses at the industrial park, Cardenas, decided to check out what was going on. He apparently had no connection to Gonzalez or the government, and simply assumed that the truck was carrying legitimate goods. In order to assist with the unloading, he summoned three of his employees, including Leobardo Lara. After the truck was opened, however, it immediately became apparent to everyone what the contents were. Cardenas ordered the truck off the premises, but the federal agent — seeing the opportunity for a successful sting slipping away — refused to go. Cardenas then left the scene to call the landlord. The agent tried without success for several minutes to convince the three employees to unload the truck. Gonzalez also tried, offering to pay them with marijuana. Still, they refused. Finally, the agent called the landlord, who (unbeknownst to Cardenas or his employees) was being paid by the government for the right to use his industrial park as the site of the sting. The landlord reassured the employees that it was fine for them to unload the drugs and that he would “take responsibility” for whatever happened. Only then did the employees help with the unloading, receiving no payment for their work. Lara, who contributed his forklift to the unloading operation, was then arrested and eventually convicted of possession with intent to distribute — even though the government conceded he had no connection to the drug shipment before his employer summoned him to unload the truck.

I’m hard pressed to see a good justification for this prosecution.

It is just barely possible that Lara may actually be guilty of the crime charged (although, as discussed below, the Seventh Circuit has some pretty serious doubts as to even that), but his culpability is at most quite marginal — especially in relation to the sentencing exposure he faces as a federal drug trafficking defendant. Does this prosecution constitute wise stewardship of limited criminal-justice resources? Does it seem likely to inspire respect for the law and the legal system?

Even apart from the questions it raises about prosecutorial discretion, the Seventh Circuit’s decision overturning Lara’s conviction, United States v. Pillado (No. 10-1081), would make a great teaching case in Criminal Law. The court’s analysis focused on two questions: (1) whether Lara was entitled to a jury instruction on the lesser included offense of simple possession, and (2) whether Lara was entitled to an instruction on entrapment.

On the lesser included offense, the government’s position was that the large quantity of marijuana involved necessarily ruled out the possibility that Lara possessed for personal use. This may be so, but the Seventh Circuit correctly observed that personal use is not the only rational basis for a simple possession charge:

The district court concluded that “given the large quantity of marijuana in the truck, no reasonable jury could infer that the defendants possessed the marijuana for anything other than to distribute.” The court also observed that Lara’s failure to say that he possessed the marijuana for personal use meant that the only plausible alternative was distribution. We cannot agree. This line of reasoning, which the government pursues on appeal, presumes that a person can do only one of two things with marijuana in her possession: consume it or sell it. Of course it is preposterous to think that anyone could personally use a ton of marijuana, and Lara makes no such argument; to the contrary, he says that he is not a drug user. We thus agree with the district court that the personal use option is off the table. But the record in Lara’s case plainly suggests another alternative: abandonment. Lara unloaded the truck following persistent requests from government agents to get the cargo out of the truck, reinforced by a government-induced appeal from his landlord to comply. After unloading the marijuana, Lara walked away empty-handed. A jury could have found that he was indifferent to what happened next: it could have stayed there for days, it could have been rained on, it could have been stolen, or the police could have collected it. (10-11)

The court’s analysis thus does a nice job of reminding us that “possession with intent to distribute” is not just “possession of a large quantity,” but is a specific intent crime as to which the defendant’s purpose is crucial. Given the government’s failure to rule out abandonment as a purpose, Lara was entitled to his lesser included instruction.

As to entrapment, here’s how the court summarized the basic law:

The defense has two elements: government inducement of the crime and a lack of predisposition on the part of the defendant. . . . In order to obtain an entrapment instruction, a defendant must proffer evidence on both elements. See United States v. Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Once a defendant meets this threshold, the burden shifts to the government to prove that the defendant was not entrapped, meaning “the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson, 500 U.S. at 549. (14)

In rejecting Lara’s request for an entrapment instruction, it seems that the district court conflated entrapment with duress:

The court was persuaded by the government’s argument that because the defendants failed to present evidence of “extraordinary inducement” by government agents, they were not entitled to an entrapment instruction. The court reasoned that Lara’s concessions that Agent Warran had not threatened or made promises to him to induce his participation defeated his request for the instruction. . . . As the court saw things, because Lara “was not forced to unload” the marijuana and he “could have walked away,” no reasonable jury could have inferred that Lara was entrapped. (15)

After rejecting the proposition that coercion is necessary for entrapment (16), the Seventh Circuit took up the question of whether Lara was required to present evidence of ”extraordinary inducement,” as the district court had indicated. Here, the Seventh Circuit helpfully clarified the entrapment analysis, putting the emphasis squarely on the predisposition prong:

We recognize that where there is insufficient evidence of inducement—either because there is no such evidence at all, or because the government did nothing more than offer a standard market deal in a sting—there is no need to consider predisposition. But predisposition will often be the more efficient place to start. If the defendant can point to inducement from a sting, rather than become embroiled in the question whether the government offered only a standard deal or something much better, the court would do better to begin by considering predisposition to commit the crime. As we have noted before, if there is sufficient evidence that a defendant was predisposed to commit the crime, a request for an entrapment instruction may be rejected without considering government inducement. See Santiago-Godinez, 12 F.3d at 728. But the converse is not true: the court may not, as it did here, begin and end the inquiry with government inducement unless it is confident either that the government did nothing at all or that the record demonstrates that the government’s actions simply provided an opportunity for a person who was already ready and willing to commit the offense.

There is an additional reason why it is sensible to begin the inquiry with predisposition. Whether a defendant is predisposed to commit the crime charged informs the nature and level of government inducement that must be identified to warrant an entrapment instruction. As we explained in United States v. Hollingsworth, 27 F.3d at 1200, when a defendant is so “situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so,” then he may be required to point to “extraordinary inducements” to raise the entrapment defense. This rule makes sense, because it deters criminal suspects who have been properly targeted in a sting operation, such as a known gun dealer who distributes to the local street gang, from raising an entrapment defense when apprehended. When there is independent evidence that the person was predisposed to commit the crime charged, there is little risk that an innocent person has been transformed into a criminal by the government’s presentation of an ordinary opportunity to engage in a particular criminal activity.

We use the term “ordinary” in this context to mean something close to what unfolds when a sting operation mirrors the customary execution of the crime charged. For example, federal agents offering to sell illegal guns to our hypothetical arms distributor at the going rate on the streets have simply created an “ordinary” inducement to commit the crime. In contrast, it would be “extraordinary” for the agents to approach the same person with an offer to sell as many guns as the buyer wanted for only one penny per piece. In the latter scenario, the defendant would be entitled to present an entrapment defense to the jury even though he was predisposed to buy guns, because the government employed extraordinary inducements to get him to commit the crime. This is because there is a good chance that the government’s out-of-the-ordinary offer induced the buyer to purchase guns when he may have refrained from crime on that occasion. The entrapment defense resolves that concern by having the fact-finder determine whether the defendant was—based on the evidence presented at trial—entrapped. 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 instruction than assert that the government provided an ordinary opportunity to commit the crime; he must show extraordinary inducement.

Significantly, however, what we have set forth above does not exhaust the possible applications of the entrapment defense. The most important function of the doctrine, the one that the Supreme Court has repeatedly affirmed, is to ensure that people who are not predisposed to commit a crime are not transformed into criminals by the government. . . . Suppose the rule was that every defendant, even one not predisposed to committing the crime charged, was required to make a showing of extraordinary inducement before the defense could be presented to the jury. Government agents would be free to target perfectly law-abiding individuals with inducements that are subtle, persistent, or persuasive—yet not extraordinary—and those individuals would never be able to present the entrapment defense to the jury.

. . . [W]hen the record reveals that a defendant was predisposed to commit the crimes charged, she is not entitled to an entrapment instruction unless she can show that the government provided an opportunity to commit the crime that was out of the ordinary. But if the evidence is thin that a defendant was predisposed to commit a crime, even minor government inducements should entitle the defendant to present her defense to the jury. (17-21)

So, the key to Lara’s case was whether he was predisposed to commit the crime of possession with intent to distribute marijuana. The court noted the following factors are used to determine predisposition:

(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. Hall, 608 F.3d at 343. No single factor controls, but most significant is whether the defendant was reluctant to commit the offense. (22)

In light of Lara’s reluctance to help unload the drugs, as well as other circumstances, the court concluded there was “no hint” in the record of predisposition. (22) Nor did the court have any difficulty in finding the inducement element satisfied.

What next in the case? Lara gets a new trial, at which prosecutors will have the burden of proving predisposition beyond a reasonable doubt. Can they actually succeed in doing so? The Seventh Circuit did not predetermine the issue, but seemed pretty skeptical:

We stop short, however, of holding that Lara is entitled to a judgment of acquittal based on a finding that he was entrapped as a matter of law. The district court approached this case with a mistaken understanding of the relevant legal standards. Because of that error, the record was not developed properly, nor did the district court make its ruling with the proper principles in mind. On remand, the district court should consider the question anew based on the record presented to the second jury. After those proceedings are completed, Lara will naturally have all avenues of appeal available to him. (24-25)

Let’s hope prosecutors take the hint and drop the case.

Cross posted at Life Sentences Blog.