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.
Looking at the facts developed at trial, there simply does not seem to be sufficient evidence that Friday acted in an outrageous manner. Yes, Friday developed a sexual relationship with Jane that was clearly dishonest, but Billy Bob cannot use Friday's behavior towards Jane in Billy Bob's defense. Furthermore, while somewhat repugnant, the fact that Friday told Jane to lead Billy Bob to believe that she would have with another man. There simply is not enough evidence to suggest that Friday's behavior was shocking the type of outrageous behavior envisioned in United States v. Russell, 411 U.S. 423 (1973). In Hampton v. United States, the court looked at whether police conduct deprived a defendant "of any right secured to him by the United States Constitution." 425 U.S. 484, 490-91. The possibility that a non-governmental agent might have voluntary sex with a defendant does not violate any constitutional rights.
Interestingly enough, most discussions of "entrapment" and "outrageous governmental conduct" defenses have seemed to suggest that more defendants might be considered innocent if one were to go to an objective standard for entrapment. However, this discussion makes it clear that sometimes subjective standards are more beneficial to a defendant. Billy Bob may have been a drug user, but he was not a drug seller. That salient difference means that his conviction should be reversed, despite the fact that the government's behavior in his case, while not admirable, was not outrageous.
References
Hampton v. United States 425 U.S. 484 (1976).
Sherman v. United States, 356 U.S. 369 (1958).
Sorrells v. United States, 287 U.S. 435, 451 (1932).
United States v.…
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