On a recent flight back to Las Vegas returning from my 25th high school reunion, a man sitting next to me and I began talking. He asked me what I do for a living, and I told him that I’m a criminal defense lawyer. He then asked me in a quiet voice the following question, “If I’m at a hotel in Las Vegas and I ask a woman who I think is a prostitute if she’s an undercover cop, isn’t it true that she has to tell me she’s a cop or it’s entrapment?” You’d be amazed how many times I’ve been asked this question. For some unknown reason, the media has floated this idea in movies and television shows that if you ask an undercover police officer if he or she is a member of law enforcement, he or she has to admit that he or she is a police officer. If that were true, then there would never be a single bust made by an undercover cop! Think about it – if the mafia or the drug cartels wanted to make sure that the new member of their crime syndicate isn’t a cop, they would just ask, “Are you a cop?” If that were true, then every undercover cop would have to admit their affiliation with law enforcement and be kicked out of the criminal enterprise! So, to answer the question of the man whom I sat next to on the plane, the answer is “no” — if a police officer fails to admit that he or she is an undercover police officer, that’s not entrapment.
The most common perception of entrapment is that if the undercover police officer approaches you and asks you to do something illegal, then it must be entrapment. Not so. Often, here in Las Vegas, law enforcement will have female undercover officers posing as prostitutes in casinos. These undercover officers often approach the unsuspecting tourist and strike up a conversation which leads to the “Do you want to have a good time up in your room?” question asked by the undercover officer. Just because the undercover police officer was the first to approach the tourist and just because the undercover police officer was the first to suggest committing the crime of solicitation for prostitution, it does not make it entrapment.
So if that’s not entrapment, then what is? Entrapment is a defense that basically means, “Yes I committed the crime, but I would never have done so if the undercover officer (or snitch working for law enforcement) hadn’t convinced me to.” The most significant entrapment case in the past 20 years has been that of will. In that case, Jacobson was a farmer who only had an interest in adult pornography. Over a 26 month span, the Government, posing as various groups interested in pedophilia, sent correspondence to Jacobson asking him to order child pornography through the mail. At the end of the 26-month investigation, Jacobson finally ordered the child pornography and was arrested and accordingly charged. The U.S. Supreme Court found that Jacobson had been entrapped. The Court found that the Government induced Jacobson to order the child pornography and that Jacobson had not been predisposed to order it before the Government investigation began.
As I mentioned, entrapment has nothing to do with innocence. Entrapment means that the Government convinced you to commit the crime and that without their doing so, you would never have committed the crime. If the Government or the State cannot prove beyond a reasonable doubt that you would have committed the crime anyway, you will be found “not guilty” in a successful entrapment defense. If the prosecutor knows you are raising entrapment as a defense, they will look for evidence that you have a prior conviction for doing what you claim they convinced you to do. In other words, if you are being prosecuted for fraud, and the government shows that you have a conviction for tax evasion in your past, the prosecutors will argue to the jury that you would have committed the crime anyway based on the fact that you have been found guilty of a fraudulent act and therefore you were predisposed to commit this fraud crime for which you are now charged. ”Predisposed” means that you would have done a criminal act anyway without the Government inducing you to do it. If in this hypothetical, you don’t have a prior conviction for tax evasion, then it’s much harder for the prosecutor to prove that you were “predisposed” to commit the crime.
Every entrapment defense is different. In Jacobson vs The United States, the Government took 26 months to convince Jacobson to order the illegal materials. That doesn’t mean that you can only raise entrapment if the Government or State police tried to get you to do something illegal that took 26 months. There’s no magic number of how many times or months the Government or State tried to get you to do something illegal.
Going back to the hypothetical example about the undercover female officer posing as a prostitute in a Las Vegas casino, entrapment can be raised as a defense to the charge of solicitation in violation of NRS 201.354. In that case, we have the undercover officer approaching the tourist and suggesting a good time. That’s the easy part. The harder part is figuring out whether or not the tourist was predisposed to commit the crime. If the tourist has no prior convictions for sex crimes, has good character, and whether the tourist was observed earlier in the night propositioning prostitutes, are all factors in determining whether or not he would have been predisposed to commit the crime. If the prosecution can’t prove that the tourist would have committed the crime without their convincing him to agree to pay for sex with the prostitute, then the entrapment defense will succeed and the tourist will be found “not guilty.”
Finally, it’s important to remember the following: The burden of proof is always on the prosecutor even when you raise an entrapment defense. It’s up to the prosecution to prove you were predisposed to commit the crime. It’s not your burden as a defendant to prove that you were entrapped. If you believe you were entrapped in any type of arrest or investigation, call me, and let’s discuss if entrapment is a viable defense for you.