The Third Circuit Underscores the Dangers of Even Raising an Entrapment Defense
Gage Hodgen, CLS ’22
The opportunity for the criminally accused to contest his or her guilt is fundamental to the criminal justice system. Despite the centrality of the constitutional right to a trial at which the government must prove criminal charges beyond a reasonable doubt, however, the federal Sentencing Guidelines effectively punish defendants who avail themselves of their right to trial and contest the factual elements of their guilt. This incentive to admit guilt in order to obtain a more lenient sentence may be troubling in the typical case for punishing defendants who do not submit meekly to government prosecution. In the context of defendants who contest their guilt by asserting an entrapment defense, however, the concept of acceptance of responsibility itself is particularly elusive, as demonstrated by the Third Circuit’s recent opinion in United States v. Jackson, 2020 WL 5681690 (3rd Cir. Sept. 24, 2020), which raises serious questions about how courts should treat such a defense when determining moral culpability of the sort considered in the Sentencing Guidelines § 3E1.1(A).
The facts of Jackson, like the facts of many cases in which a defendant raises an entrapment defense, do not inspire a great deal of sympathy for the accused. Jackson was arrested for selling several ounces of methamphetamine to a confidential informant for the police in York County, Pennsylvania. The evidence showed that Jackson did not take a great deal of convincing to sell the drugs to the police informant, which led the Third Circuit on review to conclude that Jackson had not satisfied his burden of showing that the government induced him to commit the crime.
The more conceptually troubling aspect of Jackson is the Third Circuit’s conclusion that “[o]rdinarily a claim of entrapment seems to be the antithesis of the acceptance of responsibility” and therefore that a defendant who raises an entrapment defense should be precluded from receiving a reduction of the offense level of his or her crime under § 3E1.1(A) of the Sentencing Guidelines even if he or she professes to accept responsibility for it. The Third Circuit’s parsing of the entrapment defense as the defendant rejecting personal moral responsibility is in some tension with the nature of an entrapment defense and is not the only rational way to frame the defense.
As an affirmative defense, the entrapment defense requires that the defendant admit to committing the crime alleged (i.e., take responsibility for his or her actions) and plead a justification of sorts that the government wholly induced the otherwise law-abiding defendant to commit the crime. A defendant could reasonably argue that the entrapment defense is at its core an admission by the defendant that the crime he or she committed was wrong coupled with a claim that the defendant committed the crime due to extraordinary pressure from the government and against his or her better judgment. The Jackson Court’s conclusory treatment of the entrapment defense as necessarily a rejection of personal responsibility that precludes an offense level reduction under § 3E1.1(A) misses this key point; a court could just as reasonably understand the entrapment defense as the acceptance of responsibility for the crime joined with an appeal to compassion based on the extreme government temptation that induced the defendant to commit the crime.
Defendants already face an uphill battle when arguing entrapment. The vast majority of entrapment defenses fail either because of the high standard for what constitutes government inducement or the low factual burden to justify a jury finding that a defendant was predisposed to commit the crime at issue. By stating that in most cases a defendant who even asserts an entrapment defense should receive a lengthier sentence under the Sentencing Guidelines because of a failure to accept moral responsibility, the Third Circuit in Jackson even further disincentivizes defendants from raising an entrapment defense and undercuts defendants’ ability to fully defend themselves without fear of retribution from the courts.
 U.S. Sent’g Guidelines Manual § 3E1.1(A) (U.S. Sent’g Comm’n 2018) provides that the offense level of a crime will be decreased by two “if the defendant clearly demonstrates acceptance of responsibility for his offense.” The Guidelines explain that this adjustment is “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” Id. at n.2.
 Even when entrapment defenses are successful, the facts of the defendants’ crimes are often off-putting because such defenses arise from police sting operations targeting drug crimes, terrorism, or sex crimes. See, e.g., Jacobson v. United States, 503 U.S. 540 (1992) (finding entrapment of a defendant who ordered child pornography because of a police sting operation).
 United States v. Jackson, 2018 WL 4469694, at *1–3 (M.D. Penn. Sept. 18, 2018), aff’d, 2020 WL 5681690 (3rd Cir. Sept. 24, 2020).
 Jackson, 2020 WL 5681690 at *2. A successful entrapment defense requires that a defendant prove two elements: government inducement of the crime and lack of predisposition on the part of the defendant to engage in the criminal conduct. Id.
 See, e.g., United States v. Dennis, 826 F.3d 683, 690 (3rd Cir. 2016) (“A mere solicitation or request by the government to participate in a criminal activity, without more, is not inducement. Likewise, merely opening an opportunity for a crime is insufficient. Rather, the defendant must show that law enforcement engaged in conduct that takes the form of persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship.”) (internal quotations marks and citations omitted).
 See, e.g., United States v. Bolatete, 2020 WL 5784153, at *10–11 (11th Cir. Sept. 29, 2020) (finding that a jury’s finding of predisposition to buying an unregistered silencer was reasonably supported by the evidence despite the defendant’s expressed disinterest in purchasing such a silencer and the police officer’s conclusion that the defendant had “no desire to own a silencer.”)