Thursday, December 2, 2010

The Portland Bomber and Entrapment

Gary Fouse

Not surprisingly, the liberal left is starting to come out with expressions of sympathy for the accused Portland would-be bomber, Mohamed Mohamud, raising the specter of entrapment. The New York Times has weighed in questioning the FBI's methods. In addition, the head of the Los Angeles hqs of CAIR, Hassam Ayloush, has also criticized the undercover method of the FBI. (Undercover agents provided him with fake explosives ands arrested him as he tried to detonate a car bomb with a cell phone.)

It may be helpful to define what constitutes entrapment. Since I worked undercover from time to time with DEA during my 25-year-career, I think I am qualified to give a non-lawyerly explanation.

A key word here is predisposition. Entrapment exists when a defendant is coerced or persuaded by an undercover operative or police informant to commit a crime the person would not otherwise have been predisposed to do. To make up an extreme example, say a government informant coerced a law-abiding citizen to commit a crime under threat of harm to the person or the person's family. That would be outrageous conduct and would constitute entrapment. It is not entrapment, however, for an undercover officer or informant to negotiate a drug deal with a drug dealer- who is already a drug dealer- (classical DEA case). On the other hand, a defendant has a prior drug trafficking offense or can be shown to have been engaging in drug dealing prior to the case in question, his/her defense of entrapment has little or no chance of succeeding.

Entrapment defenses are also countered by other evidence showing prior history of committing similar acts or by taped conversations showing the frame of mind of the defendant including statements of prior acts and interest in committing future acts. It appears in this case that the authorities went to great lengths to document this mentality on the part of Muhamed.

Another aspect of entrapment law is that the police may "afford the opportunity". For example, if the New York subway is having a rash of defenseless homeless people or drunks being assaulted, the police may use undercovers to pose as passed out drunks and arrest predators who attack them. The argument is that one who is not predisposed to attack a defenseless person would leave them alone. There was a famous case in New York City a few decades ago when an undercover cop actually had his throat slashed before his fellow officers could intervene.

In summary, the issue of entrapment will likely be used as a defense if this case goes to trial. I assume or perhaps I should say hope that the authorities will have ample evidence to show that this defendant was determined to commit a terrorist act before he came into contact with the FBI or an FBI informant.

Pending that, it would be prudent for the liberal media and people like Hassam Ayloush to let the evidence come out before making pronouncements implying that Mr Mohamud is a victim of entrapment.

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