[Defendant] maintains that he/she was entrapped. A person is entrapped when he/she is induced or persuaded by law enforcement officers or their agents to commit a crime that he/she was not otherwise ready and willing to commit. The law forbids his/her conviction in such a case. However, law enforcement agents are permitted to use a variety of methods to afford an opportunity to a defendant to commit an offense, including the use of undercover agents, furnishing of funds for the purchase of controlled substances, the use of informers and the adoption of false identities.
For you to find [defendant] guilty of the crime with which he/she is charged, you must be convinced that the government has proven beyond a reasonable doubt that [defendant] was not entrapped. To show that [defendant] was not entrapped, the government must establish beyond a reasonable doubt one of the following two things:
One, that [the officer] did not persuade or talk [defendant] into committing the crime. Simply giving someone an opportunity to commit a crime is not the same as persuading him/her, but excessive pressure by [the officer] or an undue appeal to sympathy can be improper; OR
Two, that [defendant] was ready and willing to commit the crime without any persuasion from [the officer] or any other government agent. In that connection, you have heard testimony about actions by [defendant] for which he is not on trial. You are the sole judges of whether to believe such testimony. If you decide to believe such evidence, I caution you that you may consider it only for the limited purpose of determining whether it tends to show [defendant]’s willingness to commit the charged crime or crimes without the persuasion of a government agent. You must not consider it for any other purpose. You must not, for instance, convict a defendant because you believe that he/she is guilty of other improper conduct for which he/she has not been charged in this case.
(1) To require an entrapment instruction, [t]he record must show ‘hard evidence,’ which if believed by a rational juror, ‘would suffice to create a reasonable doubt as to whether government actors induced the defendant to perform a criminal act that he was not predisposed to commit.’ United States v. Young, 78 F.3d 758, 760 (1st Cir. 1996) (quoting United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir. 1988)).
(2) The instruction is consistent with recent First Circuit caselaw. See, e.g., United States v. Montañez, 105 F.3d 36, 38 (1st Cir. 1997); United States v. Acosta, 67 F.3d 334, 337-340 (1st Cir. 1995), cert. denied, 116 S. Ct. 965 (1996); United States v. Gendron, 18 F.3d 955, 960-64 (1st Cir.), cert. denied, 513 U.S. 1051 (1994); United States v. Gifford, 17 F.3d 462, 467-70 (1st Cir. 1994); United States v. Hernandez, 995 F.2d 307, 313 (1st Cir.), cert. denied, 510 U.S. 954 (1993); United States v. Reed, 977 F.2d 14, 18 (1st Cir. 1992). See also United States v. Pion, 25 F.3d 18, 20 (1st Cir.), cert. denied, 513 U.S. 932 (1994). We have intentionally avoided using the word predisposition, a term that has proven troublesome to some jurors. See, e.g., United States v. Rogers, Nos. 95-1889, 96-2032, 1997 WL 476363 (1st Cir. Aug. 26, 1997).
(3) It may be necessary to conform the charge to the defendant’s theory of defense:
Of course, the district court has a great deal of latitude in formulating a charge. But taken as a whole, the examples given were all either coercion examples or involved abstractions ( dogged insistence ) rather far from the examples of inducement by an undue appeal to sympathy, which the defendant expressly requested and which were more pertinent to his defense. By omitting any sympathy examples, the trial court may well have left the jury with the mistaken impression that coercion is a necessary element of entrapment and, in this case, such a misunderstanding could well have affected the outcome.
Montañez, 105 F.2d at 39.
(4) [T]he government cannot prove predisposition if the defendant’s willingness to commit the crime was itself manufactured by the government in the course of dealing with the defendant before he committed the crime charged. United States v. Alzate, 70 F.3d 199, 201 (1st Cir. 1995) (citing Jacobson v. United States, 503 U.S. 540, 549 & n.2 (1992)). If that is the issue, a more precise instruction is advisable. See id. But although the predisposition must exist before the contact with government agents, behavior after the contact can be used as evidence of the pre-existing predisposition. Rogers, 1997 WL 476363, at *11.