Ethics in decision making

U.S. v. Billy Bob

This essay discusses the issues raised in the case of U.S. v. Billy Bob and a proposed decision in the case. First, the essay discusses the concept of "entrapment." Then the essay examines the factual scenario developed in the case as well as current Supreme Court case law to determine whether Billy Bob can use an entrapment defense. Next, the essay discusses the concept of "outrageous governmental conduct," and differentiates it from the concept of "entrapment." Then, the essay examines the factual scenario developed in the case in concert with current Supreme Court case law to determine whether Billy Bob can use an "outrageous government conduct" defense. After looking at the concepts of "outrageous governmental conduct" and "entrapment," looking at the factual scenario developed at trial, and examining current case law, it is clear that the state's behavior did not rise to the level of "outrageous governmental conduct." However, the appellate court should reverse the lower court's decision convicting Billy Bob because the state's behavior amounted to entrapment.

Entrapment is a legal concept that can confuse even the most earnest members of the law enforcement and legal communities. It is not entrapment for a police officer to encourage someone to engage in illegal behavior. Instead, to determine whether or not an entrapment defense is available, a court engages in a two pronged analysis: (1) was the offense induced by a government agent, and (2) was the defendant predisposed to committing the criminal act prior to first being approached by government agents? If a defendant is predisposed to committing the crime, even a high degree of inducement will not provide an entrapment defense.

In this scenario, it is clear that the government used a high degree of inducement. Undercover officer Friday developed a romantic relationship with Jane, who did not know that he was an undercover officer and had Jane inform people that Friday could provide them with drugs. Billy Bob approached Friday and asked to purchase a relatively small amount of marijuana from him. Friday declined, but offered to sell him a larger amount. The amount in question is significant, because the amount of a drug purchased helps dictate whether or not a defendant has intent to distribute. Billy Bob indicated that he did not want to purchase the larger amount. Friday then approached Billy Bob about selling him a pound of cocaine. Billy Bob declined, though he expressed an interest in buying a smaller amount of cocaine. At no time did Billy Bob indicate any interest in purchasing enough of any type of drug to redistribute it. Furthermore, there was no evidence that Billy Bob had any type of predisposition to sell drugs, simply that he might purchase drugs and be a recreational user. Friday instructed Jane to inform Billy Bob that she would go home with him if he had cocaine. Billy Bob once again tried to purchase a small amount of cocaine, but Friday refused to sell it to him, stating that he would only sell him the smaller amount of cocaine.

At first blush, one might believe that Billy Bob could not avail himself of an entrapment defense, because he was the one who approached officer Friday about purchasing marijuana. However, that belief would be erroneous. Drug crimes are predicated on amount and on the purchaser's intentions with the drugs. At no time did Billy Bob ever express intent to distribute. This is important, because the fact that Billy Bob was predisposed to break crimes prohibiting him from buying and using drugs does not mean that Billy Bob was predisposed to distributing drugs. In fact, he repeatedly told officer Friday that he had no interest in doing so. In Sherman v. United States, the Court held that "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 356 U.S. 369, 375. Furthermore, in Sorrells v. United States, the decision that officially established the entrapment defense, the Court asked "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." 287 U.S. 435, 451. Looking at the facts as developed at trial, it is clear that Billy Bob's agreement to take the drugs on consignment and distribute them was the product of Friday's creative activity, and that Billy Bob was otherwise innocent of possession with intent to distribute.

Interestingly enough, although entrapment would apply in Billy Bob's case, the "outrageous governmental conduct" defense would not apply. The entrapment defense is based on a defendant's state of mind, while the outrageous governmental conduct defense focuses on the government's behavior. Therefore, even if Billy Bob had been predisposed to drug distribution, outrageous governmental conduct might have prohibited his conviction. In order to successfully apply an outrageous governmental conduct defense, the government's conduct has to be extremely egregious. In essence, the court must determine whether the government did something that violated the essence of the justice system.