Did Ortega present sufficient evidence to require the trial judge to instruct the jury on entrapment?

Question

Jose Reyes Ortega-Gonzalez (Ortega), a Mexican banker, was videotaped at a meeting set up by undercover agents, agreeing to launder money and helping to perfect a money laundering scheme. This was part of Operations Checkmark and Casablanca, the largest undercover money laundering and drug investigations in United States history, aimed at destroying the Colombian Cali and Juarez cocaine cartels. Ortega claims that prior to his money laundering activities, four armed men entered his father's house and threatened him, Ortega's immediate family, and the family of Ortega's wife, and asked about Ortega's willingness and ability to launder money. Ortega reported this incident to his bank's security head, but not to the Mexican police, believing them to be corrupt. Ortega then began to notice a strange car parking outside his residence. He was then contacted by Navarro, a low-level money launderer for the Cali cartel, who invited him to Los Angeles to meet "potential investors," who turned out to be Mendoza and several other undercover agents who had gained Navarro's confidence. The men at the meeting requested that Ortega facilitate the money laundering, which he did. Ortega claims that Mendoza made a number of veiled threats and repeatedly alluded to the Cali cartel's well-known reputation for violence. Ortega asserts that he feared for the lives and safety of his family, that he had never been involved in money laundering, and that he became involved only out of fear for himself and
his family.
What will be an ideal response?

Answer 1

Yes
Inducement can be any government conduct creating a substantial risk that an otherwise lawabiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. Although Ortega's version of the events is not particularly convincing, a defendant need present only "some evidence," which may be "of doubtful credibility," to create a factual issue that must be resolved by a jury. A jury could believe Ortega's story; if so, it could conclude that Mendoza's coercive threats constituted inducement because they created a substantial risk that an otherwise law-abiding person would commit a crime. Five factors are relevant to examining predisposition: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government's inducement. Although none of these factors alone controls, the most important is the defendant's reluctance to engage in criminal activity. In this case, accepting Ortega's factual assertions as correct, the third factor weighs against Ortega, while the first, second, and fifth factors probably favor him. The fourth factor at first blush appears to weigh against Ortega; however, as Operation Checkmark itself demonstrates, appearances are sometimes deceiving. Like Kissel (who was acquitted by a jury when she asserted the defense of entrapment), Ortega maintains that his apparent lack of reluctance was caused by his fear of Mendoza and the ruthless individuals for whom Ortega believed he worked. Under these circumstances, the fourth factor must be deemed to favor Ortega, or at worst to be neutral. Ortega has offered a plausible explanation as to why he did not manifest the reluctance he claimed he felt. A criminal defendant who acts out of fear does not forfeit his right to present an entrapment defense simply because he agrees, seemingly without reluctance, to commit a crime. The credibility of the defendant's explanations is a matter for the jury to determine.