Instruction 9.140, Criminal Model Jury Instructions for Use in the District Court

ENTRAPMENT

Entrapment is a defense to be raised at trial, not by a pretrial motion to dismiss. To raise

an entrapment issue, the defendant must introduce “some evidence of inducement by a

government agent or one acting at his direction.” Commonwealth v. Shuman, 391 Mass.

345, 351 (1984), quoting Kadis v. United States, 373 F.2d 370, 374 (1st Cir. 1967). The

“threshold level for showing inducement in entrapment cases is very low.”

Commonwealth v. Thompson, 382 Mass. 379, 384-385 (1981). In determining whether

the defendant has met his initial burden, the trial judge should not consider the credibility

of the evidence. See Commonwealth v. Tracey, 416 Mass. 528, 536 (1993).

Once the defendant has presented evidence of inducement (even if solely through the

defendant’s own testimony), the Commonwealth must prove beyond a reasonable doubt

that the defendant was predisposed to commit the crime. See Commonwealth v. Miller,

361 Mass. 644, 652 (1972).

The defendant has denied they are guilty of the crime(s) charged

in this complaint. The defendant asserts that if they committed the

offense of ___________, they did so only because they were

entrapped into committing it. A person is entrapped if law

enforcement officials, either directly or through an agent, induced a

person to commit a crime which they would not otherwise have

committed.

If there is some evidence that law enforcement induced the

defendant to commit this crime and that the defendant had no

previous intention of committing it, then the Commonwealth must

prove beyond a reasonable doubt that the defendant was not

entrapped by law enforcement. To prove the defendant was not

entrapped, the Commonwealth must prove beyond a reasonable

doubt one of two things:

1) the defendant was not induced by a law enforcement official

(a person acting at the direction of a law enforcement

official), or

2) the defendant was predisposed to commit the crime.

Inducement by law enforcement officials (or their agents) may

take many forms, including, for example:

• aggressive persuasion;

• coercive encouragement;

• lengthy negotiations;

• pleading or arguing with the defendant;

• repeated or persistent solicitation;

• playing on the defendant’s sympathy or other emotions;

• promises of rewards; or

• and any other evidence of such inducement.

Commonwealth v. Tracey, 416 Mass. 528, 536 (1993).

A request by law enforcement officials for the defendant to

engage in criminal activity, standing alone, is not sufficient

evidence of entrapment. In the course of their duties, law

enforcement officials may use undercover methods to apprehend

persons engaged in criminal activities, as long as they merely

afford opportunities for the commission of the offense by one

ready and willing to commit it.

A predisposition may be established by evidence that the

defendant was ready and willing to commit the crime when the

opportunity arose. Willingness to commit a crime may be shown

by evidence of ready acceptance of the opportunity to engage in

criminal conduct, (the defendant’s prior similar conduct), or by

other direct or circumstantial evidence. It is not entrapment if a

person is already ready and willing to commit a crime if the

opportunity presents itself, and law enforcement merely provides

the opportunity or facilities to do so.

Where there is some evidence of defendant’s substance use disorder:

If there is evidence law enforcement officials (a

person acting at the direction of a government agent) knew

the defendant had a substance use disorder and exploited

that knowledge to induce the defendant to commit a crime,

you may consider that as a factor in deciding whether the

defendant was entrapped.

See Commonwealth v. Coyne, 44 Mass. App. Ct. 1, 4 (1997) (failure to include reference

to defendant’s addiction in instruction on entrapment did not create substantial risk of

miscarriage of justice). See also Commonwealth v. Quirk, 27 Mass. App. Ct. 258, 263

(1989) (declining to consider whether “addiction has any place in instructions on

entrapment”).

If the Commonwealth has proved beyond a reasonable doubt

that the defendant was not entrapped, and all the elements of the

crime have also been proved beyond a reasonable doubt, then you

should return a verdict of guilty. On the other hand, if there is a

reasonable doubt as to whether the defendant was induced to

commit the crime by a government agent or was not predisposed to

commit the crime, or if the Commonwealth has failed to prove any

element beyond a reasonable doubt, then you must find the

defendant not guilty.

SUPPLEMENTAL INSTRUCTION

1. Prior convictions for similar crimes or similar bad acts. In this case,

the Commonwealth has introduced some evidence to show

that the defendant was predisposed to commit the charged

crime because (the defendant was previously convicted of

[e.g. the same offense as is charged here]) (the defendant

had committed similar bad acts in the past). You may

consider that evidence solely on the issue of whether the

defendant was predisposed and ready to commit the

offense with which they are charged. You are not to

consider it for any other purpose.

If relevant, see Instruction 3.800 (Reputation of Defendant).

See Commonwealth v. Dentin, 477 Mass. 248, 251 (2017) (prior convictions may not be

too remote in time from the alleged conduct; the court must “consider whether sufficiently

similar prior bad acts are recent enough that they remain probative of the defendant’s

predisposition to commit the charged crime”; “the bad acts must be sufficiently similar of

the crime charged to ensure that their probative value outweighs the strong likelihood of

prejudice.”); Commonwealth v. Buswell, 468 Mass. 92, 106 (2014). See also

Commonwealth v. Vargas, 417 Mass. 792, 796-797 (1994) (where entrapment defense

offered to drug distribution charge, evidence of prior distribution or possession to distribute,

but not of simple possession, is relevant to predisposition).

2. Where a third party is involved:

To qualify as entrapment, the inducement must have

been committed by a government agent or a person acting

at the direction of a government agent. Entrapment may be

found where there is evidence of either of the following:

1) the government’s inducement of a third party (another

person) was communicated to the defendant, or

2) the government recruited the third party (other

person) to induce the defendant to join in the commission

of the crime.

Entrapment is not shown where a government agent

induces a third party (another person) to commit a crime,

and the third party (other person), responding to

pressure, acts on their own to induce the defendant to

participate in the crime.

Commonwealth v. Coyne, 44 Mass. App. Ct. 1, 5 (1997); Commonwealth v. Silva, 21

Mass. App. Ct. 536, 548 (1986). See n. 3, below.