Was the district court in error in refusing to instruct the jury on the issue of entrapment? Was there enough evidence of inducement to allow the issue to be considered?

Question

Eugene You-Tsai Hsu, acting for a business associate in China, telephoned Mykotronx seeking information on the company's KIV encryption device. He was referred to "Daniel Stevenson," a supposed sales representative who was in fact was in fact Dan Supnick, an undercover agent with the U. S. Customs Office. When Hsu made his initial call he did not know that exporting the encryption device without a license was illegal. In a call recorded by Agent Supnick ("Stevenson"), Hsu explained he was planning to export the KIV unit to a customer in China. Stevenson immediately informed Hsu that an export license was required; that no license would be approved for an end-user in China; and that export without the required license was illegal. Stevenson then suggested "off the record," that he would still be willing to "make the sale" and "work with" Hsu if Hsu had "a way to get the unit out" of the country. Hsu said that he did not want to do anything illegal, but requested a brochure. Hsu telephoned Stevenson two weeks later to discuss the purchase and export of the encryption device. Negotiations continued for three months, during which Stevenson repeatedly told Hsu that shipping the KIV encryption device without a license violated the law even if devices were sent to another country as long as the end-user was in China. Hsu never said that he did not want to go forward with the transaction. Hsu argues that Stevenson offered rewards—that Hsu's associate in China could be an "exclusive representative" and that Hsu would be paid a percentage of "mail services"—and that this was a constant high-pressure effort to push Hsu to conclude the deal. Because entrapment is an affirmative defense, a defendant bears the initial burden of producing more than a scintilla of evidence of entrapment. The district court refused to instruct the jury on entrapment.
What will be an ideal response?

Answer 1

No
To be entitled to an entrapment instruction, a defendant must produce more than a scintilla of evidence of inducement, defined as solicitation plus some overreaching or improper conduct on the part of the government. At no time during the three-month negotiation process did Stevenson threaten Hsu or his family. At no time did the agent play upon Hsu's weaknesses, or attempt to engender improper sympathy for the agent. A fair reading of the record reveals that the passing mention of these "rewards"—that Hsu's friend in China could be an "exclusive representative" and that Hsu would be paid a percentage of "mail services"—were mere banter. At most they were only the most mild form of persuasion; they were certainly not sufficient to implant a criminal design in the mind of an otherwise innocent party and so do not present evidence of inducement. Mild forms of persuasion do not present evidence of inducement. Similarly, although Stevenson could fairly be described as a somewhat persistent (and loquacious) salesperson, he never pressured Hsu to complete the sale; indeed Stevenson's frequent warnings about the illegality of the export would likely have persuaded an otherwise innocent party to back out of the deal. Hsu, unlike most defendants who contend government agents entrapped them, initiated discussion of the scheme; Hsu telephoned Mykotronx to request information on the company's KIV encryption device. At that time, however, Hsu did not know that export of the device would violate the law. Stevenson, the government agent, informed Hsu of the illegality of the transaction in their very first conversation, but also stated that he would be willing to arrange a sale if Hsu had a way to get the devices out of the country. Thus, although Stevenson did not initiate discussions with Hsu, he did solicit Hsu, in that he provided Hsu with an opportunity to commit a crime. But, as even Hsu concedes, solicitation does not constitute inducement, and evidence of solicitation does not entitle a defendant to an instruction on entrapment. Rather, Hsu must offer some evidence of government overreaching; some excessive pressure by the government upon the defendant or the government's taking advantage of an alternative, noncriminal type of motive. Not only did Hsu initially request information on the KIV unit, albeit without knowing that its export was illegal, but even after being informed of the illegality, Hsu telephoned Stevenson again, on his own initiative, to determine how to "proceed" with the illegal sale. In subsequent conversations to finalize the sale, Stevenson informed Hsu more than a dozen times that exportation of the KIV units violated the law; yet Hsu never indicated he did not want to go forward with the illegal sale. After scouring the record, the court said it could not find even a scintilla of such evidence.