entrapment defense in Massachusetts

2014Once a defendant who is attempting to establish an entrapment defense produces “some evidence” of government inducement, “[t]he burden . . . shifts to the Commonwealth ‘to prove beyond a reasonable doubt that (1) there was no government inducement or (2) the defendant was predisposed to commit the crime.’ ” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992), S.C., 423 Mass. 546 (1996). “[N]o entrapment exists ‘if the accused is ready and willing to commit the crime whenever the opportunity might be afforded.’ ” Commonwealth v. Mil

2012An entrapment defense may be negated by evidence that, notwithstanding any acts of inducement by the government — including such inducement as may occur in an undercover investigation, such as this one — a defendant was “ready and willing to commit the crime.” Commonwealth v. Miller, 361 Mass. 644, 651 (1972) (citation omitted).

2023See Commonwealth v. Encarnacion, 38 Mass. App. Ct. 972, 973 (1995), quoting Commonwealth v. Tracey, 416 Mass. 528, 536 (1993).

2007Because our analysis of the defendant’s right to an entrapment instruction requires us to evaluate whether “there is any evidence” of entrapment, regardless of its credibility (emphasis in original), Commonwealth v. Tracey, 416 Mass. 528, 536 (1993), our narrative is taken from both the uncontradicted facts and the defendant’s evidence.

2000See Commonwealth v. Monteagudo, 427 Mass. at 487 , which in turn cites several cases: Commonwealth v. Shuman, 391 Mass. at 355 (requiring “coercion, violence or brutality” or “persistent exploitation of personal weakness”); United States v. Johnson, 565 F.2d 179, 182 (1st Cir. 1977), cert. denied, 434 U.S. 1075 (1978) (“demands persisting over a period of months” and “pressure that became occasionally angered and even threatening” not outrageous conduct); United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992) (“the challenged conduct must be shocking, outrageous, and clearly intolerable”;

1998See, e.g., Commonwealth v. Shuman, 391 Mass. 345, 355 (1984) (requiring “coercion, violence or brutality” or “persistent exploitation of personal weakness”); United States v. Mosley, supra at 910 (“the challenged conduct must be shocking, outrageous, and clearly intolerable”; egregious government conduct defense is not “intended merely as a device to circumvent the predisposition test in the entrapment defense”); United States v. Johnson, supra at 182 (alleged “demands persisting over a period of months” and “pressure that became occasionally angered and even threatening,” even if true, was no

2014Once a defendant who is attempting to establish an entrapment defense produces “some evidence” of government inducement, “[t]he burden . . . shifts to the Commonwealth ‘to prove beyond a reasonable doubt that (1) there was no government inducement or (2) the defendant was predisposed to commit the crime.’ ” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992), S.C., 423 Mass. 546 (1996). “[N]o entrapment exists ‘if the accused is ready and willing to commit the crime whenever the opportunity might be afforded.’ ” Commonwealth v. Mil

2012“There are two elements of the entrapment defense: (1) that the defendant was induced by a government agent or one acting at his direction and (2) that the defendant lacked predisposition to engage in the criminal conduct of which he is accused.” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting from Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992).

2014Once a defendant who is attempting to establish an entrapment defense produces “some evidence” of government inducement, “[t]he burden . . . shifts to the Commonwealth ‘to prove beyond a reasonable doubt that (1) there was no government inducement or (2) the defendant was predisposed to commit the crime.’ ” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992), S.C., 423 Mass. 546 (1996). “[N]o entrapment exists ‘if the accused is ready and willing to commit the crime whenever the opportunity might be afforded.’ ” Commonwealth v. Mil

2012“There are two elements of the entrapment defense: (1) that the defendant was induced by a government agent or one acting at his direction and (2) that the defendant lacked predisposition to engage in the criminal conduct of which he is accused.” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting from Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992).

2023"An entrapment instruction is required when there is evidence of a government agent's intentional, persistent, and repeated conduct that goes beyond mere solicitation or request that the defendant participate in a criminal act." Commonwealth v. Lawrence, 69 Mass. App. Ct. 596, 601 (2007), citing Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 703 (2001).

2007Commonwealth v. Reme-dor, 52 Mass. App. Ct. 694, 703 (2001).

2017See Harvard , supra .

2007See Commonwealth v. Harvard, supra at 460 (although the defendant was not entrapped as matter of law, an entrapment instruction was given for a defendant who had a good deal of familiarity with narcotics: “[o]n the basis of this evidence it was for the jury, not the court, to say whether [the undercover agent] was leading an innocent person into a career of trafficking in narcotics on which otherwise he would not have embarked”); Commonwealth v. Miller, supra at 648-651 (although the defendant physician was not entrapped as matter of law, “[t]he defense of entrapment [was] appropriately raised

2006See Mathews v. United States, 485 U.S. 58, 62-63 (1988); Commonwealth v. Miller , 361 Mass, at 652; Commonwealth v. Thompson, 382 Mass. 379, 383-386 (1981); Commonwealth v. Shuman, 391 Mass. 345, 351 (1984).

2001See Commonwealth v. Miller, 361 Mass. 644, 651-652 (1972); Commonwealth v. Thompson, 382 Mass. 379, 384-385 (1981).

2001Second, by not pursuing an entrapment defense, trial counsel prevented the Commonwealth from introducing the defendant’s prior record of convictions for drug distribution and related offenses as evidence of his predisposition to commit the crimes charged. 1 See Commonwealth v. Vargas, 417 Mass. 792, 796 (1994).

2001See Commonwealth v. Vargas, 417 Mass. 792, 794-796 (1994); Commonwealth v. Coyne, 44 Mass. App. Ct. 1, 5-6 (1997).

2000See Commonwealth v. Monteagudo, 427 Mass. at 487 , which in turn cites several cases: Commonwealth v. Shuman, 391 Mass. at 355 (requiring “coercion, violence or brutality” or “persistent exploitation of personal weakness”); United States v. Johnson, 565 F.2d 179, 182 (1st Cir. 1977), cert. denied, 434 U.S. 1075 (1978) (“demands persisting over a period of months” and “pressure that became occasionally angered and even threatening” not outrageous conduct); United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992) (“the challenged conduct must be shocking, outrageous, and clearly intolerable”;

1998See, e.g., Commonwealth v. Shuman, 391 Mass. 345, 355 (1984) (requiring “coercion, violence or brutality” or “persistent exploitation of personal weakness”); United States v. Mosley, supra at 910 (“the challenged conduct must be shocking, outrageous, and clearly intolerable”; egregious government conduct defense is not “intended merely as a device to circumvent the predisposition test in the entrapment defense”); United States v. Johnson, supra at 182 (alleged “demands persisting over a period of months” and “pressure that became occasionally angered and even threatening,” even if true, was no

2000See Commonwealth v. Monteagudo, 427 Mass. at 487 , which in turn cites several cases: Commonwealth v. Shuman, 391 Mass. at 355 (requiring “coercion, violence or brutality” or “persistent exploitation of personal weakness”); United States v. Johnson, 565 F.2d 179, 182 (1st Cir. 1977), cert. denied, 434 U.S. 1075 (1978) (“demands persisting over a period of months” and “pressure that became occasionally angered and even threatening” not outrageous conduct); United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992) (“the challenged conduct must be shocking, outrageous, and clearly intolerable”;

1998See, e.g., Commonwealth v. Shuman, 391 Mass. 345, 355 (1984) (requiring “coercion, violence or brutality” or “persistent exploitation of personal weakness”); United States v. Mosley, supra at 910 (“the challenged conduct must be shocking, outrageous, and clearly intolerable”; egregious government conduct defense is not “intended merely as a device to circumvent the predisposition test in the entrapment defense”); United States v. Johnson, supra at 182 (alleged “demands persisting over a period of months” and “pressure that became occasionally angered and even threatening,” even if true, was no

2023By the Court (Wolohojian, Blake & Desmond, JJ.14), Clerk Entered: February 22, 2023. 13Even assuming without deciding that the defendant was entitled to an entrapment defense or instruction with respect to the charge of distribution near a public park, "[t]he dismissal of the charges 'render[s] moot any defects in the underlying proceedings.'" Commonwealth v. Estrada, 69 Mass. App. Ct. 514, 517 (2007), quoting Burns v. Commonwealth, 430 Mass. 444, 447 (1999). 14 The panelists are listed in order of seniority. 16

2023See Commonwealth v. Encarnacion, 38 Mass. App. Ct. 972, 973 (1995), quoting Commonwealth v. Tracey, 416 Mass. 528, 536 (1993).

2023"The threshold for a defendant to raise the entrapment issue is low, but the defendant must show more than mere solicitation." Encarnacion, 38 Mass. App. Ct. at 973 , quoting Tracey, 416 Mass. at 536 .

2023By the Court (Wolohojian, Blake & Desmond, JJ.14), Clerk Entered: February 22, 2023. 13Even assuming without deciding that the defendant was entitled to an entrapment defense or instruction with respect to the charge of distribution near a public park, "[t]he dismissal of the charges 'render[s] moot any defects in the underlying proceedings.'" Commonwealth v. Estrada, 69 Mass. App. Ct. 514, 517 (2007), quoting Burns v. Commonwealth, 430 Mass. 444, 447 (1999). 14 The panelists are listed in order of seniority. 16

2023"An entrapment instruction is required when there is evidence of a government agent's intentional, persistent, and repeated conduct that goes beyond mere solicitation or request that the defendant participate in a criminal act." Commonwealth v. Lawrence, 69 Mass. App. Ct. 596, 601 (2007), citing Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 703 (2001).

2017See Dingle, 73 Mass. App. Ct. at 284 (evidence of bad acts from thirteen or more years earlier was erroneously admitted).

2014Once a defendant who is attempting to establish an entrapment defense produces “some evidence” of government inducement, “[t]he burden . . . shifts to the Commonwealth ‘to prove beyond a reasonable doubt that (1) there was no government inducement or (2) the defendant was predisposed to commit the crime.’ ” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992), S.C., 423 Mass. 546 (1996). “[N]o entrapment exists ‘if the accused is ready and willing to commit the crime whenever the opportunity might be afforded.’ ” Commonwealth v. Mil

2014Once a defendant who is attempting to establish an entrapment defense produces “some evidence” of government inducement, “[t]he burden . . . shifts to the Commonwealth ‘to prove beyond a reasonable doubt that (1) there was no government inducement or (2) the defendant was predisposed to commit the crime.’ ” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting Commonwealth v. Penta, 32 Mass. App. Ct. 36, 47 (1992), S.C., 423 Mass. 546 (1996). “[N]o entrapment exists ‘if the accused is ready and willing to commit the crime whenever the opportunity might be afforded.’ ” Commonwealth v. Mil

2012See generally the dissenting opinion of Justice Gants in Commonwealth v. Bell, 455 Mass. at 423-436 , providing historical analysis of Chief Justice Holmes’s opinions in the Kennedy and Peaslee cases, as well as analysis of the progression in recent cases defining the elements of proof of the crime of attempt.

2012In other words, such evidence is relevant and material to the Commonwealth’s burden to disprove that the defendant was “reluctantly ‘persuade[d] [by the government’s inducement] to turn from a righteous path to an iniquitous one.’ ” Commonwealth v. Doyle, 67 Mass. App. Ct. 846, 852 (2006), quoting from United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994).

2012In other words, such evidence is relevant and material to the Commonwealth’s burden to disprove that the defendant was “reluctantly ‘persuade[d] [by the government’s inducement] to turn from a righteous path to an iniquitous one.’ ” Commonwealth v. Doyle, 67 Mass. App. Ct. 846, 852 (2006), quoting from United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994).

2008“When evidence of inducement has been entered, the burden rests upon the Commonwealth to prove beyond a reasonable doubt the predisposition of the defendant to commit the crime.” Commonwealth v. Miller, 361 Mass. 644, 652 (1972). “[I]n response to an entrapment defense, the Commonwealth may introduce a defendant’s prior criminal acts to show predisposition.” Commonwealth v. DeCastro, 24 Mass. App. Ct. 937, 938 (1987), and cases cited.

2007See, e.g., Albaugh v. State, 721 N.E.2d 1233, 1236 (Ind. 1999) (entrapment defense applicable to strict liability crime of operating a vehicle while intoxicated); Kansas v. Swafford, 20 Kan.

2007See, e.g., Albaugh v. State, 721 N.E.2d 1233, 1236 (Ind. 1999) (entrapment defense applicable to strict liability crime of operating a vehicle while intoxicated); Kansas v. Swafford, 20 Kan.