To succeed in an entrapment defense, a Washington criminal defendant must show that the “criminal design” originated with law enforcement or someone acting under law enforcement’s direction and the defendant was induced to commit a crime he otherwise did not intend to commit. It is not sufficient for the defendant to show that law enforcement provided him an opportunity to commit the crime. RCW 9A.16.070. Pursuant to Washington case law, the test focuses on whether the defendant was predisposed to commit the crime. A defendant recently appealed his conviction, arguing entrapment.
A Sergeant with the Whitman County Sheriff’s Office created a Facebook profile under the name of “Pauline Niner” to meet people online who would be willing to sell drugs. At trial, the sergeant said he used a female identity because “[i]t attracts more people.” The sergeant had recently attended a training that addressed drug dealers and users communicating through social media and how officers could create a profile and engage in communication over social media.
According to the appeals court’s opinion, the defendant contacted “Pauline” and they discussed meeting. Pauline wanted methamphetamine and the defendant said he could get some. Various issues prevented him from providing her with the drugs on three occasions, but he stated he had a “little bit” on February 16, 2022. The sergeant arrested him when he got to the address.
The defendant was charged with possession of a controlled substance with intent to deliver. He argued entrapment, with his attorney comparing the sergeant’s actions to a KGB “honey trap.” The defendant also argued he only meant to share a small amount and therefore did not meet the statutory requirements for delivery.
The trial court admitted screenshots of the Facebook Messenger communications between the defendant and “Pauline.” There was also a brief call, but the sergeant did not testify about the contents of the call or whether he personally participated in it. The defendant did not testify.
According to the appeals court’s opinion, when the defendant arrived at the apartment complex address provided by “Pauline,” the sergeant arrested and searched him. The sergeant found methamphetamine and a broken pipe in the defendant’s pockets. The sergeant told the defendant he was “Pauline” and the defendant claimed he brought the meth to share not to sell.
A witness from the crime lab testified that testing showed the substance seized from the defendant was .4 grams of crystalline material containing methamphetamine.
The jury found the defendant guilty. Defense counsel requested a sentence at the bottom of the range, arguing the jurors had taken nearly two and a half hours on a single count. The court, however, imposed a sentence of 90 months total confinement, with 12 months of community custody.
The defendant appealed the conviction, arguing there was insufficient evidence to support the verdict. He argued a rational juror could not find he failed to prove entrapment and that law enforcement’s conduct was outrageous and violated his due process rights.
In State v. Lively, the Washington Supreme Court held that a defendant raising an entrapment defense must prove he tricked him into committing a crime or induced him by “acts of trickery” when he otherwise would not have committed the crime. The defendant has the burden of proving the defense under Washington law, which is different from federal common law and other states’ laws.
A defendant may show inducement based on law enforcement’s actions such as fraudulent representations, coercion, harassment, threats, promises of reward, or friendship. State v. Arbogast II.
The appeals court considered the communications between the defendant and “Pauline.” The defendant informed “Pauline” he could get as much methamphetamine as she wanted. He stated he “[didn’t] know anyone to sell to.” He referenced “work[ing] out an arrangement. . .” and “maybe working together.” The appeals court pointed out that two attempts to get the methamphetamine fell through because of outside issues, not the defendant’s reluctance. The appeals court noted he did not express any reluctance to sell the methamphetamine to “Pauline.” It therefore concluded there was substantial evidence supporting the verdict.
The defendant also argued that the sergeant’s conduct was so outrageous as to violate his due process rights. To rise to this level, law enforcement’s conduct “must shock the universal sense of fairness.” State v. Lively (quoting U.S. v. Russell).
In determining if conduct was outrageous, courts consider the totality of the circumstances. Washington courts consider the following factors: whether the conduct instigated a crime; whether the police overcame the defendant’s reluctance with “pleas of sympathy, promises of excessive profits, or persistent solicitation;” whether the government just allows criminal activity to happen or controls it; whether the motive of law enforcement was crime prevention or public protection; and whether the government conduct constituted criminal activity or was “repugnant to a sense of justice.” State v. Lively.
In this case, law enforcement did not offer help with setting up the criminal activity. The defendant used his own resources and contacts to obtain and supply the drugs. He never expressed any reluctance in his communications. The appeals court noted the only control law enforcement exercised was rejecting the defendant’s suggestion to deliver the methamphetamine in Spokane. The defendant controlled the ultimate amount and time of delivery. The appeals court found no evidence that law enforcement targeted the defendant. The appeals court concluded the sergeant’s actions did not constitute outrageous conduct or a violation of the defendant’s due process rights.
Although the appeals court did not find sufficient evidence of entrapment in this case, an entrapment defense is heavily based on the specific facts of the case. If you have been arrested as a result of a sting operation, a skilled Washington criminal defense attorney can evaluate your case and work with you to develop an appropriate defense based on the facts of your case. Set up a consultation with Blair & Kim, PLLC, at (206) 622-6562.